Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (Text with EEA relevance)
Date: 2008-11-19
Institutions: Council of the European Union, European Parliament
Subjects: EU environmental policy, civil aviation, climate change, environmental impact, greenhouse gas, reduction of gas emissions, tradeable emission permit

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Official Journal of the European Union

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DIRECTIVES

DIRECTIVE 2008/101/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 19 November 2008

amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas
emission allowance trading within the Community

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(2)

Having regard to the Treaty
Community, and in particular Article 175(1) thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

(3)

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

The ultimate objective of the United Nations Framework
Convention on Climate Change (UNFCCC), which was
approved on behalf of
the European Community by
Council Decision 94/69/EC (5), is to stabilise greenhouse
gas concentrations in the atmosphere at a level
that
would prevent dangerous anthropogenic interference
with the climate system.

The European Council meeting in Brussels on 8 and
9 March 2007 underlined the vital
importance of
achieving the strategic objective of limiting the global
average temperature increase to not more than 2 °C
levels. The latest scientific findings
above pre-industrial
reported by the Intergovernmental Panel on Climate
Change (IPCC) in its Fourth Assessment Report demon­
strate even more clearly that the negative impacts of
climate change are increasingly posing a serious risk to
food production and the attainment of
ecosystems,
sustainable development and of the Millennium Develop­
ment Goals, as well as to human health and security.
Keeping the 2 °C objective within reach requires stabili­
sation of the concentration of greenhouse gases in the
in line with about 450 ppmv CO2
atmosphere
equivalent, which
gas
global
emissions to peak within the next 10 to 15 years and
substantial global emission reductions to at least 50 %
below 1990 levels by 2050.

greenhouse

requires

(1)

Directive 2003/87/EC of the European Parliament and of
the Council of 13 October 2003 establishing a scheme
for greenhouse gas emission allowance trading within the
Community (4) established a scheme for greenhouse gas
emission allowance trading within the Community in
order
gas
emissions in a cost-effective and economically efficient
manner.

reductions of

to promote

greenhouse

(1) OJ C 175, 27.7.2007, p. 47.
(2) OJ C 305, 15.12.2007, p. 15.
(3) Opinion of the European Parliament of 13 November 2007 (not yet
published in the Official
Journal), Council Common Position of
18 April 2008 (OJ C 122 E, 20.5.2008, p. 19) and Position of
the European Parliament of 8 July 2008 (not yet published in the
Official Journal). Council Decision of 24 October 2008.

(4) OJ L 275, 25.10.2003, p. 32.

(4)

The European Council emphasised that
the European
Union is committed to transforming Europe into a
highly energy-efficient and low greenhouse gas-emitting
economy and, until a global and comprehensive post-
2012 agreement is concluded, made a firm independent
commitment for the EU to reduce its greenhouse gas
emissions to at least 20 % below 1990 levels by 2020.
The limitation of greenhouse gas emissions from aviation
is an essential contribution in line with this commitment.

(5) OJ L 33, 7.2.1994, p. 11.

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(5)

(6)

(7)

(8)

commit

countries

developed

reductions

themselves

the EU is
The European Council emphasised that
committed to a global and comprehensive agreement
for
in greenhouse gas emissions beyond
2012, providing an effective, efficient and equitable
response on the scale required to face climate change
It endorsed a 30 % reduction in the EU’s
challenges.
greenhouse gas emissions below 1990 levels by 2020
as
its contribution to a global and comprehensive
agreement for the period beyond 2012, provided that
to
other
comparable emission reductions and economically more
advanced developing countries to contributing adequately
according
respective
capabilities. The EU is continuing to take the lead in
the negotiation of an ambitious international agreement
that will achieve the objective of
limiting the global
temperature increase to 2 °C and is encouraged by the
the 13th
progress made towards
in
Conference of
December 2007. The EU will seek to ensure that such
to reduce
a
greenhouse gas emissions from aviation and,
in this
event,
consider which
amendments to this Directive as it applies to aircraft
operators are necessary.

the Parties to the UNFCCC in Bali

includes measures

this objective at

responsibilities

Commission

agreement

should

global

their

and

the

to

the average global

On 14 February 2007 the European Parliament adopted
a resolution on climate change (1) in which it referred to
the objective to limit
temperature
increase to 2 °C above pre-industrialisation levels, and
in which it urged the EU to maintain its leading role
in the negotiations with a view to establishing a post-
2012 international framework on climate change and to
maintain a high level of ambition in future discussions
with its international partners, and it emphasised the
need to undertake overall emission reductions for all
industrialised countries of 30 % compared to 1990
emission levels by 2020 with a view to achieving a
reduction in the order of 60 to 80 % by 2050.

to formulate and
The UNFCCC requires all parties
implement national and, where appropriate,
regional
programmes containing measures to mitigate climate
change.

that

Parties

emissions

of measures,

(9) While the Community is not a Contracting Party to the
1944 Chicago Convention on International Civil
Aviation (the Chicago Convention), all Member States
are Contracting
that Convention and
to
the ICAO. Member States continue to
members of
support work with other States in the ICAO on the
development
including market-based
instruments, to address the climate change impacts of
aviation. At the sixth meeting of the ICAO Committee
it was
on Aviation Environmental Protection in 2004,
agreed
trading
an aviation-specific
system based on a new legal
instrument under ICAO
auspices seemed sufficiently unattractive that it should
not then be pursued further. Consequently, Resolution
A35-5 of the ICAO’s 35th Assembly held in September
2004 did not propose a new legal instrument but instead
endorsed open emissions trading and the possibility for
States
from international
aviation into their emissions trading schemes. Appendix
L to Resolution A36-22 of the ICAO’s 36th Assembly
held in September 2007 urges Contracting States not to
implement
trading system on other
Contracting States’ aircraft operators except on the
agreement between those States.
basis of mutual
Recalling
the Chicago Convention recognises
expressly the right of each Contracting Party to apply
on a non-discriminatory basis its own air laws and regu­
lations to the aircraft of all States, the Member States of
the European Community and fifteen other European
States placed a reservation on this
resolution and
reserved the right under the Chicago Convention to
enact and apply market-based measures on a non-discri­
minatory basis to all aircraft operators of all States
providing services to, from or within their territory.

to incorporate

an emissions

emissions

that

(10)

The Sixth Community Environment Action Programme
the
established by Decision No 1600/2002/EC of
the Council (3) provided
European Parliament and of
for the Community to identify and undertake specific
actions
from
aviation if no such action were agreed within the ICAO
by 2002. In its conclusions of October 2002, December
2003 and October 2004,
the Council has repeatedly
called on the Commission to propose action to reduce
the climate change impact of international air transport.

to reduce greenhouse gas

emissions

The Kyoto Protocol to the UNFCCC, which was approved
on behalf of
the European Community by Council
Decision 2002/358/EC (2), requires developed countries
to pursue the limitation or reduction of emissions of
controlled by the Montreal
greenhouse gases not
Protocol
from aviation, working through the Inter­
national Civil Aviation Organisation (ICAO).

(11)

Policies and measures should be implemented at Member
State and Community level across all sectors of
the
Community economy in order to generate the substantial
reductions needed. If the climate change impact of the
aviation sector continues to grow at the current rate, it
would significantly undermine reductions made by other
sectors to combat climate change.

(1) OJ C 287 E, 29.11.2007, p. 344.
(2) OJ L 130, 15.5.2002, p. 1.

(3) OJ L 242, 10.9.2002, p. 1.

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(16)

In order to avoid distortions of competition and improve
environmental effectiveness, emissions from all
flights
arriving at and departing from Community aerodromes
should be included from 2012.

(12)

for

the

the

gas

scheme

European

Parliament,

greenhouse

In its Communication of 27 September 2005 to the
Council,
European
Economic and Social Committee and the Committee of
the Regions entitled ‘Reducing the Climate Change
Impact of Aviation’,
the Commission outlined a
strategy for reducing the climate impact of aviation. As
part of a comprehensive package of measures,
the
strategy proposed the inclusion of aviation in the
Community
emission
allowance trading and provided for the creation of a
multi-stakeholder working group on aviation as part of
the second phase of
the European Climate Change
Programme to consider ways of including aviation in
the Community
of
2 December 2005, the Council recognised that, from
an economic and environmental point of view,
the
inclusion of
in the Community
scheme seemed to be the best way forward and called
on the Commission to bring forward a legislative
proposal by the end of 2006.
In its resolution of
4 July 2006 on reducing the climate change impact of
aviation (1),
recognised that
emissions trading has the potential to play a role as
to
part of
address the climate impact of aviation, provided that it
is appropriately designed.

a comprehensive package of measures

the European Parliament

the aviation sector

its Conclusions

scheme.

In

(17)

(13) A comprehensive package of measures

operational
in air

and
traffic management under

should also
technological measures.
include
the
Improvements
Single European Sky and SESAR programmes could
help increase overall
fuel efficiency by up to 12 %.
Research into new technologies, including into methods
for improving the fuel efficiency of aircraft, can further
cut emissions from aviation.

(14)

the amendments made to Directive
The objective of
2003/87/EC by this Directive is to reduce the climate
change impact attributable to aviation by including
emissions from aviation activities in the Community
scheme.

(18)

imposed by

(15) Aircraft operators have the most direct control over the
type of aircraft in operation and the way in which they
are flown and should therefore be responsible for
complying with the obligations
this
Directive,
including the obligation to prepare a moni­
toring plan and to monitor and report emissions in
accordance with that plan. An aircraft operator may be
identified by the use of an ICAO designator or any other
recognised designator used in the identification of the
the aircraft operator is not
flight.
known, the owner of the aircraft should be regarded as
the aircraft operator unless it proves which other person
was the aircraft operator.

the identity of

If

(1) OJ C 303 E, 13.12.2006, p. 119.

If

the

gas

third

flights

during

parties

emissions

impact of

to that of

this Directive,

from aviation.

implementation of

to the Community,

The Community and its Member States should continue
to seek an agreement on global measures to reduce
greenhouse
The
Community scheme may serve as a model for the use
of emissions trading worldwide. The Community and its
Member States should continue to be in contact with
this
third
to take
Directive and to encourage third countries
adopts
country
a
equivalent measures.
measures, which have an environmental effect at least
to reduce the
equivalent
climate
the
Commission should consider the options available in
interaction between the
order to provide for optimal
Community scheme and that country’s measures, after
trading
consulting with
countries
schemes
are
interaction with the
beginning to provide for optimal
Community scheme in relation to their coverage of
the
aviation.
arrangements
Community scheme with other
to
form a common scheme or taking account of equivalent
measures to avoid double regulation could constitute a
step towards global agreement. Where such bilateral
the Commission may amend
arrangements are made,
the
in the
included
Community scheme, including consequential adjustments
to the total quantity of allowances to be issued to aircraft
operators.

aviation activities

trading schemes

developed

Emissions

types of

in third

country.

Bilateral

linking

being

that

on

In line with the principle of better regulation, certain
flights should be exempt from the Community scheme.
To further avoid disproportionate administrative burdens,
commercial air transport operators operating, for three
consecutive four-month periods, fewer than 243 flights
from the Community
per period should be exempt
scheme. This would benefit airlines operating limited
services within the scope of the Community scheme,
including airlines from developing countries.

(19) Aviation has an impact on the global climate through
releases of carbon dioxide, nitrogen oxides, water vapour
and sulphate and soot particles. The IPCC has estimated
that the total climate impact of aviation is currently two
to four times higher than the effect of its past carbon

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dioxide emissions alone. Recent Community research
indicates that the total climate impact of aviation could
be around two times higher than the impact of carbon
dioxide alone. However, none of these estimates takes
into account the highly uncertain cirrus cloud effects.
In accordance with Article 174(2) of
the Treaty,
Community environment policy is to be based on the
precautionary principle. Pending scientific progress, all
impacts of aviation should be addressed to the extent
possible. Emissions of nitrogen oxides will be addressed
in other legislation to be proposed by the Commission in
2008. Research on the formation of contrails and cirrus
clouds and effective mitigation measures, including oper­
ational and technical measures, should be promoted.

(20)

allowances

competition,

to avoid distortions of

In order
a
harmonised allocation methodology should be specified
for determining the total quantity of allowances to be
to aircraft
issued and for distributing
operators. A proportion of allowances will be allocated
by auction in accordance with rules to be developed by
the Commission. A special reserve of allowances should
be set aside to ensure access to the market for new
aircraft operators and to assist aircraft operators which
increase sharply the number of
tonne-kilometres that
they perform. Aircraft operators that cease operations
should continue to be issued with allowances until the
end of the period for which free allowances have already
been allocated.

(21)

Full harmonisation of
the proportion of allowances
issued free of charge to all aircraft operators participating
in the Community scheme is appropriate in order to
ensure a level playing field for aircraft operators, given
that each aircraft operator will be regulated by a single
Member State in respect of all their operations to, from
and within the EU and by the non-discrimination
provisions of bilateral air service agreements with third
countries.

gas

emissions

(22) Aviation contributes to the overall climate change impact
impact of
of human activities and the environmental
greenhouse
be
from aircraft
mitigated through measures to tackle climate change in
the EU and third countries, especially in developing
countries, and to fund research and development
for
mitigation and adaptation including in particular in the
fields of aeronautics and air transport. Decisions on
national public expenditure are a matter for Member
subsidiarity.
States,

in line with the principle of

can

the Member States,

Without prejudice to that position, revenues generated
from the auctioning of allowances, or an equivalent
amount where required by overriding budgetary prin­
ciples of
such as unity and
universality, should be used to reduce greenhouse gas
emissions, to adapt to the impacts of climate change in
the EU and third countries, to fund research and devel­
opment for mitigation and adaptation and to cover the
cost of administering the Community scheme. Revenues
generated from auctioning should also be used on low-
emission transport. The proceeds of auctioning should in
particular be used to fund contributions to the Global
Energy Efficiency and Renewable Energy Fund, and
measures to avoid deforestation and facilitate adaptation
in developing countries. The provisions of this Directive
relating to the use of revenues should not prejudge any
decision on the use to be made of revenues generated
from the auctioning of allowances in the broader context
of the general review of Directive 2003/87/EC.

Provisions for the use of
funds from the auctioning
should be notified to the Commission. Such notification
does not release Member States from the obligation laid
down in Article 88(3) of the Treaty to notify certain
national measures. This Directive should be without
prejudice to the outcome of any future State aid
procedures that may be undertaken in accordance with
Articles 87 and 88 of the Treaty.

should be
(CERs)

the Community
To increase the cost-effectiveness of
to use
able
aircraft operators
scheme,
certified emission reductions
and emission
reduction units (ERUs) from project activities to meet
obligations to surrender allowances up to a harmonised
limit. The use of CERs and ERUs should be consistent
with the criteria for acceptance for use in the trading
scheme set out
the
percentages specified by Member States for the use of
CERs and ERUs during the Kyoto Protocol’s
first
commitment period is approximately 15 %.

in this Directive. The average of

(23)

(24)

(25)

In its Conclusions,
the European Council meeting in
Brussels on 13 and 14 March 2008 recognised that in
a global context of competitive markets the risk of
carbon leakage is a concern that needs to be analysed
and addressed urgently in the new Emissions Trading
System Directive, so that
international negotiations
if
fail appropriate measures can be taken. An international
agreement remains the best way of addressing this issue.

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(26)

(27)

(28)

(29)

(30)

(31)

(32)

(33)

In order to reduce the administrative burden on aircraft
operators, one Member State should be responsible for
each aircraft operator. Member States should be required
to ensure that aircraft operators which were issued with
an operating licence in that Member State, or aircraft
operators without an operating licence or from third
countries whose emissions in a base year are mostly
attributable to that Member State, comply with the
requirements of
that an
aircraft operator fails to comply with the requirements
of this Directive and other enforcement measures by the
administering Member State have
failed to ensure
compliance, Member States should act in solidarity. The
administering Member State should therefore be able to
request the Commission to decide on the imposition of
an operating ban at Community level on the aircraft
operator concerned, as a last resort.

this Directive.

In the event

To maintain the integrity of the accounting system for
the Community scheme in view of
that
emissions from international aviation are not integrated
into Member States’ commitments under
the Kyoto
Protocol, allowances allocated to the aviation sector
should only be used to meet the obligations placed on
aircraft operators to surrender allowances under this
Directive.

the fact

In order to ensure equal treatment of aircraft operators,
Member States should follow harmonised rules for the
administration of aircraft operators for which they have
in accordance with specific guidelines to
responsibility,
be developed by the Commission.

(34)

(35)

(36)

the

environmental

the
To safeguard
surrendered by
aircraft
Community
operators should only count
towards greenhouse gas
reduction targets that take these emissions into account.

scheme, units

integrity of

The European Organisation for the Safety of Air Navi­
information which
gation (Eurocontrol) may possess
could assist Member States or
the Commission in
discharging their obligations imposed by this Directive.

(37)

The provisions of the Community scheme relating to
monitoring, reporting and verifying emissions and to
penalties applicable to operators should also apply to
aircraft operators.

The Commission should review the functioning of
Directive 2003/87/EC in relation to aviation activities
in the light of experience of its application and should
then report to the European Parliament and the Council.

The review of the functioning of Directive 2003/87/EC in
relation to aviation activities
the
structural dependence on aviation of countries which
alternative
do not have

and comparable

should consider

adequate

transport and which are therefore highly
modes of
dependent on air transport and in which the tourism
sector provides a high contribution to those countries’
gross domestic product. Special consideration should be
given to mitigating or even eliminating any accessibility
and competitiveness problems arising for the outermost
regions of the Community, as specified in Article 299(2)
of the Treaty, and problems for public service obligations
in connection with the implementation of this Directive.

The Ministerial Statement on Gibraltar Airport, agreed in
Córdoba on 18 September 2006, during the first Minis­
terial meeting of the Forum of Dialogue on Gibraltar, will
replace the Joint Declaration on the Airport made in
London on 2 December 1987, and full compliance
with it will be deemed to constitute compliance with
the 1987 Declaration.

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
implementing powers
the exercise of
procedures for
conferred on the Commission (1).

the special

In particular, the Commission should be empowered to
adopt measures for the auctioning of allowances not
required to be issued for free; to adopt detailed rules
on the operation of
reserve for certain
aircraft operators and on the procedures relating to
requests for the Commission to decide on the imposition
of an operating ban on an aircraft operator; and to
amend the aviation activities listed in Annex I where a
third country introduces measures to reduce the climate
change impact of aviation. Since those measures are of
general scope and are designed to amend non-essential
inter alia, by supplementing
elements of this Directive,
this Directive with new non-essential elements,
they
must be adopted in accordance with the regulatory
procedure with scrutiny provided for in Article 5a of
Decision 1999/468/EC.

Since the objective of this Directive cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale and effects of the proposed action,
be better achieved at Community level, the Community
may adopt measures, in accordance with the principle of
In
subsidiarity as set out
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary in order to achieve that objective.

in Article 5 of

the Treaty.

(38)

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the interest
of the Community, their own tables illustrating, as far as
possible, the correlation between the Directive and the
transposition measures, and to make them public.

(1) OJ L 184, 17.7.1999, p. 23.
(2) OJ C 321, 31.12.2003, p. 1.

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(39) Directive 2003/87/EC should therefore be amended

accordingly,

years 2004, 2005 and 2006 from aircraft
performing an aviation activity listed in Annex I.’;

HAVE ADOPTED THIS DIRECTIVE:

4. the following Chapter shall be inserted after Article 3:

Article 1

Amendments to Directive 2003/87/EC

Directive 2003/87/EC is hereby amended as follows:

1. the following title shall be inserted before Article 1:

‘CHAPTER I

GENERAL PROVISIONS’;

2. the following paragraph shall be added to Article 2:

‘3.
The application of this Directive to the airport of
Gibraltar is understood to be without prejudice to the
respective legal positions of the Kingdom of Spain and
the United Kingdom with regard to the dispute over
is
sovereignty over
situated.’;

the territory in which the airport

‘CHAPTER II

AVIATION

Article 3a

Scope

The provisions of this Chapter shall apply to the allocation
and issue of allowances in respect of aviation activities
listed in Annex I.

Article 3b

Aviation activities

By 2 August 2009, the Commission shall,
in accordance
with the regulatory procedure referred to in Article 23(2),
develop guidelines on the detailed interpretation of
the
aviation activities listed in Annex I.

Article 3c

3. Article 3 shall be amended as follows:

Total quantity of allowances for aviation

(a) point (b) shall be replaced by the following:

‘(b) “emissions” means the release of greenhouse gases
into the atmosphere from sources in an installation
the release from an aircraft performing an
or
aviation activity listed in Annex I of
the gases
specified in respect of that activity;’

(b) the following points shall be added:

‘(o) “aircraft operator” means the person who operates
an aircraft at
the time it performs an aviation
activity listed in Annex I or, where that person is
not known or is not identified by the owner of the
aircraft, the owner of the aircraft;

(p) “commercial air
that,

transport operator” means an
provides
for
operator
scheduled or non-scheduled air transport services
to the public for
the carriage of passengers,
freight or mail;

remuneration,

(q) “administering Member State” means the Member
the
an aircraft

State
responsible
Community scheme
operator in accordance with Article 18a;

for
in respect of

administering

(r)

“attributed aviation emissions” means emissions
from all flights falling within the aviation activities
listed in Annex I which depart from an aerodrome
situated in the territory of a Member State and
those which arrive in such an aerodrome from a
third country;

(s)

“historical aviation emissions” means
the mean
average of the annual emissions in the calendar

For the period from 1 January 2012 to 31 December
1.
2012, the total quantity of allowances to be allocated to
aircraft operators
the
shall be equivalent
historical aviation emissions.

to 97 % of

and,
the

in the
review referred

For the period referred to in Article 11(2) beginning
2.
any
on 1 January 2013,
in
following
amendments
total
Article 30(4),
for
allocated to aircraft
quantity of
operators shall be equivalent
the historical
aviation emissions multiplied by the number of years in
the period.

absence of
to

each subsequent period,

to 95 % of

allowances

to be

the

This percentage may be reviewed as part of the general
review of this Directive.

The Commission shall review the total quantity of
in

allocated to aircraft operators

3.
to be
allowances
accordance with Article 30(4).

4.
By 2 August 2009, the Commission shall decide on
the historical aviation emissions, based on best available
traffic infor­
data,
mation. That decision shall be considered within the
Committee referred to in Article 23(1).

including estimates based on actual

Article 3d

Method of allocation of allowances
through auctioning

for

aviation

In the period referred to in Article 3c(1), 15 % of

1.
allowances shall be auctioned.

2.
From 1 January 2013, 15 % of allowances shall be
auctioned. This percentage may be increased as part of the
general review of this Directive.

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for

the

A Regulation shall be adopted containing detailed
3.
provisions
auctioning by Member States of
allowances not required to be issued free of charge in
accordance with paragraphs 1 and 2 of this Article or
Article 3f(8). The number of allowances to be auctioned
in each period by each Member State shall be proportionate
to its share of the total attributed aviation emissions for all
Member States for the reference year reported pursuant to
Article 14(3) and verified pursuant to Article 15. For the
period referred to in Article 3c(1), the reference year shall
be 2010 and for each subsequent period referred to in
Article 3c the reference year shall be the calendar year
ending 24 months before the start of
the period to
which the auction relates.

That Regulation, designed to amend non-essential elements
of this Directive by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny
referred to in Article 23(3).

to adapt

4.
It shall be for Member States to determine the use to
be made of revenues generated from the auctioning of
should be used to tackle
allowances. Those revenues
inter alia,
climate change in the EU and third countries,
to reduce greenhouse gas emissions,
to the
impacts of climate change in the EU and third countries,
especially developing countries, to fund research and devel­
including in
opment
particular in the fields of aeronautics and air transport, to
reduce emissions through low-emission transport and to
cover the cost of administering the Community scheme.
The proceeds of auctioning should also be used to fund
and
contributions
Renewable Energy Fund, and measures to avoid defores­
tation.

for mitigation and adaptation,

to the Global

Efficiency

Energy

Member States shall
taken pursuant to this paragraph.

inform the Commission of actions

purposes of this Article, the monitoring year shall be the
calendar year ending 24 months before the start of the
period to which it relates in accordance with Annexes IV
and V or,
in relation to the period referred to in
Article 3c(1), 2010. Any application shall be made at
least 21 months before the start of the period to which
it
in relation to the period referred to in
Article 3c(1), by 31 March 2011.

relates or,

2.
At least 18 months before the start of the period to
which the application relates or, in relation to the period
referred to in Article 3c(1), by 30 June 2011, Member
States shall submit applications received under paragraph
1 to the Commission.

At least 15 months before the start of each period
3.
referred to in Article 3c(2) or,
in relation to the period
referred to in Article 3c(1), by 30 September 2011, the
Commission shall calculate and adopt a decision setting
out:

(a)

the total quantity of allowances to be allocated for that
period in accordance with Article 3c;

(b) the number of allowances to be auctioned in that

period in accordance with Article 3d;

(c)

the number of allowances in the special reserve for
aircraft operators in that period in accordance with
Article 3f(1);

(d) the number of allowances to be allocated free of charge
in that period by subtracting the number of allowances
referred to in points (b) and (c) from the total quantity
of allowances decided upon under point (a); and

5.
Information provided to the Commission pursuant to
this Directive does not free Member States from the noti­
fication obligation laid down in Article 88(3) of the Treaty.

(e)

the benchmark to be used to allocate allowances free of
charge to aircraft operators whose applications were
submitted to the Commission in accordance with
paragraph 2.

Article 3e

Allocation and issue of allowances to aircraft operators

1.
For each period referred to in Article 3c, each aircraft
operator may apply for an allocation of allowances that are
to be allocated free of charge. An application may be made
by submitting to the competent authority in the adminis­
tering Member State verified tonne-kilometre data for the
aviation activities listed in Annex I performed by that
the
aircraft operator

the monitoring

year.

For

for

tonne-kilometre,

(e), expressed as
The benchmark referred to in point
shall be calculated by
allowances per
dividing the number of allowances referred to in point
(d) by the sum of the tonne-kilometre data included in
applications submitted to the Commission in accordance
with paragraph 2.

4. Within three months from the date on which the
Commission adopts a decision under paragraph 3, each
administering Member State shall calculate and publish:

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(a)

the total allocation of allowances for the period to each
aircraft operator whose application it submitted to the
Commission in accordance with paragraph 2, calculated
by multiplying the tonne-kilometre data included in the
application by the benchmark referred to in paragraph
3(e); and

An allocation to an aircraft operator under paragraph 1(b)
shall not exceed 1 000 000 allowances.

3.

An application under paragraph 2 shall:

(b) the allocation of allowances to each aircraft operator
for each year, which shall be determined by dividing its
total allocation of allowances for the period calculated
under point (a) by the number of years in the period
for which that aircraft operator
is performing an
aviation activity listed in Annex I.

By 28 February 2012 and by 28 February of each
5.
subsequent year, the competent authority of the adminis­
tering Member State shall issue to each aircraft operator the
number of allowances allocated to that aircraft operator for
that year under this Article or Article 3f.

Article 3f

Special reserve for certain aircraft operators

1.
In each period referred to in Article 3c(2), 3 % of the
total quantity of allowances to be allocated shall be set
aside in a special reserve for aircraft operators:

(a) who start performing an aviation activity falling within
Annex I after the monitoring year for which tonne-
kilometre data was submitted under Article 3e(1)
in
respect of a period referred to in Article 3c(2); or

(a)

include verified tonne-kilometre data in accordance
with Annexes IV and V for
the aviation activities
listed in Annex I performed by the aircraft operator
in the second calendar year of the period referred to
in Article 3c(2) to which the application relates;

(b) provide evidence that the criteria for eligibility under

paragraph 1 are fulfilled; and

(c)

in the case of aircraft operators falling within paragraph
1(b), state:

(i) the

in

increase

percentage

tonne-kilometres
performed by that aircraft operator between the
monitoring year for which tonne-kilometre data
was submitted under Article 3e(1) in respect of a
period referred to in Article 3c(2) and the second
calendar year of that period;

(ii) the absolute growth in tonne-kilometres performed
by that aircraft operator between the monitoring
year for which tonne-kilometre data was submitted
under Article 3e(1) in respect of a period referred
to in Article 3c(2) and the second calendar year of
that period; and

(b) whose tonne-kilometre data increases by an average of
more than 18 % annually between the monitoring year
for which tonne-kilometre data was submitted under
in respect of a period referred to in
Article 3e(1)
Article 3c(2) and the second calendar year of
that
period;

(iii) the absolute growth in tonne-kilometres performed
by that aircraft operator between the monitoring
year for which tonne-kilometre data was submitted
under Article 3e(1) in respect of a period referred
to in Article 3c(2) and the second calendar year of
that period which exceeds the percentage specified
in paragraph 1(b).

and whose activity under point (a), or additional activity
under point (b), is not in whole or in part a continuation of
an aviation activity previously performed by another
aircraft operator.

4.
No later than six months from the deadline for
making an application under paragraph 2, Member States
shall submit applications received under that paragraph to
the Commission.

An aircraft operator who is eligible under paragraph
2.
1 may apply for a free allocation of allowances from the
special reserve by making an application to the competent
authority of its administering Member State. Any appli­
cation shall be made by 30 June in the third year of the
period referred to in Article 3c(2) to which it relates.

No later than 12 months from the deadline for
5.
making an application under paragraph 2, the Commission
shall decide on the benchmark to be used to allocate
allowances free of charge to aircraft operators whose appli­
cations were submitted to the Commission in accordance
with paragraph 4.

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Subject to paragraph 6, the benchmark shall be calculated
by dividing the number of the allowances in the special
reserve by the sum of:

(a)

the tonne-kilometre data for aircraft operators falling
within
applications
submitted to the Commission in accordance with para­
graphs 3(a) and 4; and

paragraph

included

1(a)

in

(b) the absolute growth in tonne-kilometres exceeding the
for aircraft
included in
in

percentage specified in paragraph 1(b)
operators falling within paragraph 1(b)
applications
accordance with paragraphs 3(c)(iii) and 4.

Commission

submitted

the

to

6.
The benchmark referred to in paragraph 5 shall not
result in an annual allocation per tonne-kilometre greater
than the annual allocation per tonne-kilometre to aircraft
operators under Article 3e(4).

the assessment of compliance with eligibility criteria under
paragraph 1. Those measures, designed to amend non-
essential elements of this Directive by supplementing it,
shall be adopted in accordance with the
regulatory
procedure with scrutiny referred to in Article 23(3).

Article 3g

Monitoring and reporting plans

State

The administering Member State shall ensure that each
aircraft operator submits to the competent authority in
a monitoring plan setting out
that Member
measures to monitor and report emissions and tonne-
kilometre data for the purpose of an application under
Article 3e and that such plans are approved by the
competent authority in accordance with the guidelines
adopted pursuant to Article 14.’;

5. the following title and Article shall be inserted:

7. Within three months from the date on which the
Commission adopts a decision under paragraph 5, each
administering Member State shall calculate and publish:

‘CHAPTER III

STATIONARY INSTALLATIONS

(a)

the allocation of allowances from the special reserve to
each aircraft operator whose application it submitted to
the Commission in accordance with paragraph 4. This
allocation shall be
calculated by multiplying the
benchmark referred to in paragraph 5 by:

(i) in the case of an aircraft operator falling within
paragraph 1(a), the tonne-kilometre data included
in the application submitted to the Commission
under paragraphs 3(a) and 4;

(ii) in the case of an aircraft operator falling within
paragraph 1(b), the absolute growth in tonne-kilo­
specified in
metres
paragraph
application
submitted to the Commission under paragraphs
3(c)(iii) and 4; and

exceeding
1(b)

the percentage

included

the

in

(b) the allocation of allowances to each aircraft operator
for each year, which shall be determined by dividing its
allocation of allowances under point (a) by the number
of full calendar years remaining in the period referred
to in Article 3c(2) to which the allocation relates.

Any unallocated allowances in the special reserve

8.
shall be auctioned by Member States.

9.
The Commission may establish detailed rules on the
operation of the special reserve under this Article, including

Article 3h

Scope

The provisions of this Chapter shall apply to greenhouse
gas emissions permits and the allocation and issue of
allowances in respect of activities listed in Annex I other
than aviation activities.’;

6. Article 6(2)(e) shall be replaced by the following:

‘(e) an obligation to surrender allowances, other

than
allowances issued under Chapter II, equal to the total
emissions of the installation in each calendar year, as
verified in accordance with Article 15, within four
months following the end of that year.’;

7. the following title shall be inserted after Article 11:

‘CHAPTER IV

PROVISIONS
STATIONARY INSTALLATIONS’;

APPLYING

TO

AVIATION

AND

8.

in Article 11a the following paragraph shall be inserted:

‘1a.
During the period referred to in Article 3c(1),
aircraft operators may use CERs and ERUs, up to 15 %
of
required to
allowances
surrender pursuant to Article 12(2a).

the number of

they are

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For subsequent periods, the percentage of CERs and ERUs
that may be used in relation to aviation activities shall be
reviewed as part of the general review of this Directive and
taking into consideration the development of the inter­
national climate change regime.

The Commission shall publish this percentage at least six
months before the start of each period referred to in
Article 3c.’;

9.

in Article 11b(2), the word ‘installations’ shall be replaced
by the word ‘activities’;

(ii) the words ‘, by 30 September 2003’ shall be

deleted;

(b) paragraph 3 shall be replaced by the following:

‘3. Member States shall ensure that each operator or
reports the emissions during each
aircraft operator
calendar
from
installation,
from the
1 January 2010, the aircraft, which it operates to the
competent authority after
in
accordance with the guidelines.’;

the end of

that year

year

or,

10. Article 12 shall be amended as follows:

13. Article 15 shall be replaced by the following:

(a)

in paragraph 2, after the word ‘purpose’ the words ‘of
an aircraft operator’s obligations under
meeting
paragraph 2a or’ shall be inserted;

‘Article 15

Verification

(b) the following paragraph shall be inserted:

‘2a.
Administering Member States shall ensure that,
by 30 April each year, each aircraft operator surrenders
a number of allowances equal to the total emissions
during the preceding calendar year
from aviation
activities listed in Annex I for which it is the aircraft
operator, as verified in accordance with Article 15.
Member States shall ensure that allowances surrendered
in accordance with this paragraph are subsequently
cancelled.’;

(c) paragraph 3 shall be replaced by the following:

‘3. Member States shall ensure that, by 30 April each
year,
the operator of each installation surrenders a
number of allowances, other than allowances issued
under Chapter II, equal to the total emissions from
that installation during the preceding calendar year as
verified in accordance with Article 15, and that these
are subsequently cancelled.’;

11.

in Article 13(3), the words ‘Article 12(3)’ shall be replaced
by the words ‘Article 12(2a) or (3)’;

12. Article 14 shall be amended as follows:

(a)

in the first sentence of paragraph 1:

(i) after the words ‘those activities’ the words ‘and of
tonne-kilometre data for the purpose of an appli­
cation under Articles 3e or 3f’ shall be inserted;

Member States shall ensure that the reports submitted by
operators and aircraft operators pursuant to Article 14(3)
are verified in accordance with the criteria set out in Annex
V and any detailed provisions adopted by the Commission
in accordance with this Article, and that the competent
authority is informed thereof.

Member States shall ensure that an operator or aircraft
operator whose report has not been verified as satisfactory
in accordance with the criteria set out in Annex V and any
detailed provisions
the Commission in
adopted by
accordance with this Article by 31 March each year for
emissions during the preceding year cannot make further
transfers of allowances until a report from that operator or
aircraft operator has been verified as satisfactory.

reports

The Commission may adopt detailed provisions for the
verification of
submitted by aircraft operators
pursuant to Article 14(3) and applications under Articles
3e and 3f, including the verification procedures to be used
in accordance with the regulatory procedure
by verifiers,
referred to in Article 23(2).’;

14. Article 16 shall be amended as follows:

(a)

in paragraph 1, the words ‘by 31 December 2003 at
the latest,’ shall be deleted;

(b) paragraphs 2 and 3 shall be replaced by the following:

‘2. Member States shall ensure publication of
the
names of operators and aircraft operators who are in
breach
sufficient
to
allowances under this Directive.

requirements

surrender

of

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3. Member States shall ensure that any operator or
aircraft operator who does not surrender sufficient
allowances by 30 April of each year to cover its
emissions during the preceding year shall be held
liable for the payment of an excess emissions penalty.
The excess emissions penalty shall be EUR 100 for each
tonne of carbon dioxide equivalent emitted for which
the operator or aircraft operator has not surrendered
allowances. Payment of the excess emissions penalty
release the operator or aircraft operator
shall not
from the obligation to surrender an amount of
allowances equal
to those excess emissions when
surrendering allowances in relation to the following
calendar year.’;

(c)

the following paragraphs shall be added:

In the event

‘5.
that an aircraft operator fails to
comply with the requirements of this Directive and
where other enforcement measures have failed to
its administering Member State
ensure compliance,
may request the Commission to decide on the impo­
sition of an operating ban on the aircraft operator
concerned.

Any request by an administering Member State

6.
under paragraph 5 shall include:

(a) evidence that the aircraft operator has not complied

with its obligations under this Directive;

(b) details of the enforcement action which has been

taken by that Member State;

(c) a justification for the imposition of an operating

ban at Community level; and

authorities responsible for regulatory oversight of the
aircraft operator concerned. Whenever possible, consul­
tations shall be held jointly by the Commission and the
Member States.

9. When the Commission is considering whether to
adopt a decision following a request pursuant
to
it shall disclose to the aircraft operator
paragraph 5,
concerned the essential facts and considerations which
form the basis for such decision. The aircraft operator
concerned shall be given an opportunity to submit
written comments
to the Commission within 10
working days from the date of disclosure.

the

request of

the
a Member
At
10.
in accordance with the regulatory
Commission may,
procedure
a
referred to in Article 23(2),
decision to impose an operating ban on the aircraft
operator concerned.

adopt

State,

11.
Each Member State shall enforce, within its
territory, any decisions adopted under paragraph 10.
inform the Commission of any measures
It
taken to implement such decisions.

shall

12. Where appropriate, detailed rules shall be estab­
lished in respect of the procedures referred to in this
Article. Those measures, designed to amend non-
essential elements of this Directive by supplementing
it, shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 23(3).’;

15. the following Articles shall be inserted:

‘Article 18a

Administering Member State

(d) a recommendation for the scope of an operating
ban at Community level and any conditions that
should be applied.

The administering Member State in respect of an

1.
aircraft operator shall be:

such as

7. When requests
paragraph 5 are addressed to the Commission,
Commission shall
through their
referred to in Article 23(1)
Committee’s Rules of Procedure.

those referred to in
the
inform the other Member States
representatives on the Committee
in accordance with the

(a)

in the case of an aircraft operator with a valid operating
licence granted by a Member State in accordance with
the provisions of Council Regulation (EEC) No 2407/92
of 23 July 1992 on licensing of air carriers (*), the
Member State which granted the operating licence in
respect of that aircraft operator; and

The adoption of a decision following a request
8.
pursuant
to paragraph 5 shall be preceded, when
appropriate and practicable, by consultations with the

(b) in all other cases, the Member State with the greatest
estimated attributed aviation emissions from flights
performed by that aircraft operator in the base year.

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2. Where in the first two years of any period referred to
in Article 3c, none of the attributed aviation emissions
from flights performed by an aircraft operator
falling
within paragraph 1(b) of this Article are attributed to its
administering Member State, the aircraft operator shall be
transferred to another administering Member State in
respect of
the next period. The new administering
Member State shall be the Member State with the greatest
estimated
from flights
performed by that aircraft operator during the first two
years of the previous period.

aviation emissions

attributed

Based on the best

3.
Commission shall:

available

information,

the

(a) before 1 February 2009, publish a list of aircraft
operators which performed an aviation activity listed
in Annex I on or after 1 January 2006 specifying the
administering Member State for each aircraft operator
in accordance with paragraph 1; and

(b) before 1 February of each subsequent year, update the
list
to include aircraft operators which have subse­
quently performed an aviation activity listed in Annex I.

4.
The Commission may, in accordance with the regu­
latory procedure referred to in Article 23(2), develop
guidelines
aircraft
operators under this Directive by administering Member
States.

administration of

to the

relating

For the purposes of paragraph 1, “base year” means,
5.
in relation to an aircraft operator which started operating
in the Community after 1 January 2006, the first calendar
year of operation, and in all other cases, the calendar year
starting on 1 January 2006.

Article 18b

Assistance from Eurocontrol

its obligations under
For the purposes of carrying out
Articles 3c(4) and 18a, the Commission may request the
assistance of Eurocontrol or another relevant organisation
and may
appropriate
agreements with those organisations.

conclude

to that

effect

any

___________
(*) OJ L 240, 24.8.1992, p. 1.’;

16.

in Article 19, paragraph 3 shall be amended as follows:

also

shall

include

Regulation

‘That
provisions
concerning the use and identification of CERs and
ERUs in the Community scheme and the monitoring
of the level of such use and provisions to take account
of the inclusion of aviation activities in the Community
scheme.’;

(b) the following subparagraph shall be added:

‘The Regulation on a standardised and secured system
of registries shall ensure that allowances, CERs and
ERUs surrendered by aircraft operators are transferred
to Member States’ retirement accounts for the Kyoto
Protocol’s first commitment period only to the extent
that those allowances, CERs and ERUs correspond to
emissions included in the national totals of Member
States’ national inventories for that period.’;

17.

in Article 23, paragraph 3 shall be replaced by the
following:

‘3. Where
is made
to this paragraph,
and Article 7 of Decision
Article 5a(1)
1999/468/EC shall apply, having regard to the provisions
of Article 8 thereof.’;

reference
(4)

to

18. the following Article shall be inserted:

‘Article 25a

Third country measures to reduce the climate change
impact of aviation

1. Where a third country adopts measures for reducing
the climate change impact of flights departing from that
country which land in the Community, the Commission,
after consulting with that third country, and with Member
States within the Committee referred to in Article 23(1),
shall consider options available in order to provide for
optimal
interaction between the Community scheme and
that country’s measures.

Where necessary, the Commission may adopt amendments
to provide for
flights arriving from the third country
concerned to be excluded from the aviation activities
listed in Annex I or to provide for any other amendments
to the aviation activities listed in Annex I which are
required by an agreement pursuant to the fourth subpara­
graph. Those measures, designed to amend non-essential
elements of this Directive, shall be adopted in accordance
with the regulatory procedure with scrutiny referred to in
Article 23(3).

(a)

the last sentence shall be replaced by the following:

The Commission may propose to the European Parliament
and the Council any other amendments to this Directive.

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The Commission may also, where appropriate, make
recommendations
in accordance with
Article 300(1) of the Treaty to open negotiations with a
view to concluding an agreement with the third country
concerned.

to the Council

(d) the impact of the Community scheme on the aviation
sector, including issues of competitiveness, taking into
account
the effect of climate change
policies implemented for aviation outside the EU;

in particular

The Community and its Member States shall continue
2.
to reduce
to seek an agreement on global measures
In the light of
greenhouse gas emissions from aviation.
any such agreement,
consider
whether amendments to this Directive as it applies to
aircraft operators are necessary.’;

the Commission shall

19. Article 28 shall be amended as follows:

(a) paragraph 3(b) shall be replaced by the following:

‘(b) to be responsible for surrendering allowances, other
than allowances issued under Chapter II, equal to
the total emissions from installations in the pool,
by way of derogation from Articles 6(2)(e) and
12(3); and’;

(b) paragraph 4 shall be replaced by the following:

The trustee shall be subject

‘4.
to the penalties
applicable for breaches of requirements to surrender
sufficient allowances, other
issued
under Chapter II, to cover the total emissions from
installations in the pool, by way of derogation from
Article 16(2), (3) and (4).’;

than allowances

20. the following paragraph shall be added to Article 30:

(e) continuing with the

aircraft
special
operators, taking into account the likely convergence
of growth rates across the industry;

reserve

for

(f)

the impact of the Community scheme on the structural
dependency on aviation transport of islands, landlocked
regions, peripheral regions and the outermost regions
of the Community;

(g) whether a gateway system should be included to
facilitate the trading of allowances between aircraft
operators
installations whilst
ensuring that no transactions would result in a net
to
transfer of
operators of installations;

from aircraft operators

allowances

operators

and

of

(h) the implications of the exclusion thresholds as specified
in Annex I in terms of certified maximum take-off mass
and number of flights per year performed by an aircraft
operator;

(i)

the impact of
the exemption from the Community
scheme of certain flights performed in the framework
of public service obligations imposed in accordance
with Council Regulation (EEC) No 2408/92 of
23 July 1992 on access for Community air carriers to
intra-Community air routes (*);

‘4.
By 1 December 2014 the Commission shall, on the
basis of monitoring and experience of the application of
this Directive, review the functioning of this Directive in
relation to aviation activities in Annex I and may make
proposals to the European Parliament and the Council
pursuant to Article 251 of the Treaty as appropriate. The
Commission shall give consideration in particular to:

(j) developments, including the potential for future deve­
lopments, in the efficiency of aviation and in particular
the progress towards meeting the Advisory Council for
to
Aeronautics Research in Europe (ACARE) goal
develop and demonstrate technologies able to reduce
fuel consumption by 50 % by 2020 and whether
further measures to increase efficiency are necessary;

(a)

the implications and impacts of this Directive as regards
the overall functioning of the Community scheme;

(b) the functioning of

the aviation allowance market,
covering in particular any possible market disturbances;

(c)

the environmental effectiveness of
the Community
scheme and the extent by which the total quantity of
allowances to be allocated to aircraft operators under
Article 3c should be reduced in line with overall EU
emissions reduction targets;

(k) developments in scientific understanding on the climate
change impacts of contrails and cirrus clouds caused by
aviation with a view to proposing effective mitigation
measures.

The Commission shall
Parliament and the Council.

then report

to the European

___________
(*) OJ L 240, 24.8.1992, p. 8.’;

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21. the following title shall be inserted after Article 30:

‘CHAPTER V

FINAL PROVISIONS’;

22. Annexes I, IV and V shall be amended in accordance with

the Annex to this Directive.

Article 2

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 2 February 2010. They shall forthwith inform
the Commission thereof.

When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in

the field covered by this Directive. The Commission shall
inform the Member States thereof.

Article 3

Entry into force

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 4

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 19 November 2008

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J.-P. JOUYET

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ANNEX

Annexes I, IV and V to Directive 2003/87/EC are hereby amended as follows:

1. Annex I shall be amended as follows:

(a)

the title shall be replaced by the following:

‘CATEGORIES OF ACTIVITIES TO WHICH THIS DIRECTIVE APPLIES’;

(b) the following subparagraph shall be inserted in paragraph 2 before the table:

‘From 1 January 2012 all flights which arrive at or depart from an aerodrome situated in the territory of a Member
State to which the Treaty applies shall be included.’;

(c)

the following category of activity shall be added:

‘Aviation

Flights which depart from or arrive in an aerodrome situated in the territory of a
Member State to which the Treaty applies.

Carbon dioxide

This activity shall not include:

(a)

flights performed exclusively for the transport, on official mission, of a reigning
Monarch and his immediate family, Heads of State, Heads of Government and
Government Ministers, of a country other than a Member State, where this is
substantiated by an appropriate status indicator in the flight plan;

(b) military flights performed by military aircraft and customs and police flights;

(c)

flights related to search and rescue, firefighting flights, humanitarian flights and
emergency medical service flights authorised by the appropriate competent
authority;

(d) any flights performed exclusively under visual flight rules as defined in Annex 2

to the Chicago Convention;

(e)

(f)

flights terminating at the aerodrome from which the aircraft has taken off and
during which no intermediate landing has been made;

training flights performed exclusively for the purpose of obtaining a licence, or a
rating in the case of cockpit flight crew where this is substantiated by an
appropriate remark in the flight plan provided that the flight does not serve
for the transport of passengers and/or cargo or for the positioning or ferrying of
the aircraft;

(g) flights performed exclusively for the purpose of scientific research or for the
purpose of checking, testing or certifying aircraft or equipment whether airborne
or ground-based;

(h) flights performed by aircraft with a certified maximum take-off mass of less than

5 700 kg;

(i)

flights performed in the framework of public service obligations imposed in
accordance with Regulation (EEC) No 2408/92 on routes within outermost
regions, as specified in Article 299(2) of the Treaty, or on routes where the
capacity offered does not exceed 30 000 seats per year; and

(j)

flights which, but for this point, would fall within this activity, performed by a
commercial air transport operator operating either:

— fewer than 243 flights per period for three consecutive four-month periods;

or

— flights with total annual emissions lower than 10 000 tonnes per year.

Flights performed exclusively for the transport, on official mission, of a reigning
Monarch and his immediate family, Heads of State, Heads of Government and
Government Ministers, of a Member State may not be excluded under this point.’

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2. Annex IV shall be amended as follows:

(a)

the following title shall be inserted after the title of the Annex:

‘PART A — Monitoring and reporting of emissions from stationary installations’;

(b) the following part shall be added:

‘PART B — Monitoring and reporting of emissions from aviation activities

Monitoring of carbon dioxide emissions

Emissions shall be monitored by calculation. Emissions shall be calculated using the formula:

Fuel consumption × emission factor

Fuel consumption shall include fuel consumed by the auxiliary power unit. Actual fuel consumption for each flight
shall be used wherever possible and shall be calculated using the formula:

Amount of fuel contained in aircraft tanks once fuel uplift for the flight is complete – amount of fuel contained in
aircraft tanks once fuel uplift for subsequent flight is complete + fuel uplift for that subsequent flight.

If actual fuel consumption data are not available, a standardised tiered method shall be used to estimate fuel
consumption data based on best available information.

Default IPCC emission factors, taken from the 2006 IPCC Inventory Guidelines or subsequent updates of these
Guidelines, shall be used unless activity-specific emission factors identified by independent accredited laboratories
using accepted analytical methods are more accurate. The emission factor for biomass shall be zero.

A separate calculation shall be made for each flight and for each fuel.

Reporting of emissions

Each aircraft operator shall include the following information in its report under Article 14(3):

A. Data identifying the aircraft operator, including:

— name of the aircraft operator,

— its administering Member State,

— its address, including postcode and country and, where different, its contact address in the administering

Member State,

— the aircraft registration numbers and types of aircraft used in the period covered by the report to perform

the aviation activities listed in Annex I for which it is the aircraft operator,

— the number and issuing authority of the air operator certificate and operating licence under which the

aviation activities listed in Annex I for which it is the aircraft operator were performed,

— address, telephone, fax and e-mail details for a contact person, and

— name of the aircraft owner.

B. For each type of fuel for which emissions are calculated:

— fuel consumption,

— emission factor,

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— total aggregated emissions from all flights performed during the period covered by the report which fall

within the aviation activities listed in Annex I for which it is the aircraft operator,

— aggregated emissions from:

— all flights performed during the period covered by the report which fall within the aviation activities
listed in Annex I for which it is the aircraft operator and which departed from an aerodrome situated in
the territory of a Member State and arrived at an aerodrome situated in the territory of the same
Member State,

— all other flights performed during the period covered by the report which fall within the aviation

activities listed in Annex I for which it is the aircraft operator,

— aggregated emissions from all flights performed during the period covered by the report which fall within

the aviation activities listed in Annex I for which it is the aircraft operator and which:

— departed from each Member State, and

— arrived in each Member State from a third country,

— uncertainty.

Monitoring of tonne-kilometre data for the purpose of Articles 3e and 3f

For the purpose of applying for an allocation of allowances in accordance with Article 3e(1) or Article 3f(2), the
amount of aviation activity shall be calculated in tonne-kilometres using the following formula:

tonne-kilometres = distance × payload

where:

‘distance’ means the great circle distance between the aerodrome of departure and the aerodrome of arrival plus an
additional fixed factor of 95 km; and

‘payload’ means the total mass of freight, mail and passengers carried.

For the purposes of calculating the payload:

— the number of passengers shall be the number of persons on-board excluding crew members,

— an aircraft operator may choose to apply either the actual or standard mass for passengers and checked baggage
contained in its mass and balance documentation for the relevant flights or a default value of 100 kg for each
passenger and his checked baggage.

Reporting of tonne-kilometre data for the purpose of Articles 3e and 3f

Each aircraft operator shall include the following information in its application under Article 3e(1) or Article 3f(2):

A. Data identifying the aircraft operator, including:

— name of the aircraft operator,

— its administering Member State,

— its address, including postcode and country and, where different, its contact address in the administering

Member State,

— the aircraft registration numbers and types of aircraft used during the year covered by the application to

perform the aviation activities listed in Annex I for which it is the aircraft operator,

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— the number and issuing authority of the air operator certificate and operating licence under which the

aviation activities listed in Annex I for which it is the aircraft operator were performed,

— address, telephone, fax and e-mail details for a contact person, and

— name of the aircraft owner.

B. Tonne-kilometre data:

— number of flights by aerodrome pair,

— number of passenger-kilometres by aerodrome pair,

— number of tonne-kilometres by aerodrome pair,

— chosen method for calculation of mass for passengers and checked baggage,

— total number of tonne-kilometres for all flights performed during the year to which the report relates falling

within the aviation activities listed in Annex I for which it is the aircraft operator.’;

3. Annex V shall be amended as follows:

(a)

the following title shall be inserted after the title of the Annex:

‘PART A — Verification of emissions from stationary installations’;

(b) the following part shall be added:

‘PART B — Verification of emissions from aviation activities

13. The general principles and methodology set out in this Annex shall apply to the verification of reports of

emissions from flights falling within an aviation activity listed in Annex I.

For this purpose:

(a)

in paragraph 3, the reference to operator shall be read as if it were a reference to an aircraft operator, and
in point (c) of that paragraph the reference to installation shall be read as if it were a reference to the
aircraft used to perform the aviation activities covered by the report;

(b) in paragraph 5, the reference to installation shall be read as if it were a reference to the aircraft operator;

(c)

in paragraph 6 the reference to activities carried out in the installation shall be read as a reference to
aviation activities covered by the report carried out by the aircraft operator;

(d) in paragraph 7 the reference to the site of the installation shall be read as if it were a reference to the sites

used by the aircraft operator to perform the aviation activities covered by the report;

(e)

in paragraphs 8 and 9 the references to sources of emissions in the installation shall be read as if they
were a reference to the aircraft for which the aircraft operator is responsible; and

(f)

in paragraphs 10 and 12 the references to operator shall be read as if they were a reference to an aircraft
operator.

Additional provisions for the verification of aviation emission reports

14. The verifier shall in particular ascertain that:

(a) all flights falling within an aviation activity listed in Annex I have been taken into account. In this task the
verifier shall be assisted by timetable data and other data on the aircraft operator’s traffic including data
from Eurocontrol requested by that operator;

(b) there is overall consistency between aggregated fuel consumption data and data on fuel purchased or

otherwise supplied to the aircraft performing the aviation activity.

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Additional provisions for the verification of tonne-kilometre data submitted for the purposes of Articles
3e and 3f

15. The general principles and methodology for verifying emissions reports under Article 14(3) as set out in this
Annex shall, where applicable, also apply correspondingly to the verification of aviation tonne-kilometre data.

16. The verifier shall in particular ascertain that only flights actually performed and falling within an aviation
activity listed in Annex I for which the aircraft operator is responsible have been taken into account in that
operator’s application under Articles 3e(1) and 3f(2). In this task the verifier shall be assisted by data on the
aircraft operator’s traffic including data from Eurocontrol requested by that operator. In addition, the verifier
shall ascertain that the payload reported by the aircraft operator corresponds to records on payloads kept by
that operator for safety purposes.’.