Proposal for a COUNCIL DECISION on the position to be taken by the European Union in the EEA Joint Committee concerning an amendment to Annex XX (Environment) and Protocol 37 to the EEA Agreement
Date: 2011-01-10
Institutions: European Commission
Subjects: EFTA countries, European Economic Area, air transport, civil aviation, climate change, environmental impact, greenhouse gas, reduction of gas emissions, tradeable emission permit

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EUROPEAN COMMISSION 

Brussels, 10.1.2011 
SEC(2010) 1632 final  

Proposal for a 

COUNCIL DECISION 

of 10.1.2011 

on the position to be taken by the European Union in the EEA Joint Committee 
concerning an amendment to Annex XX (Environment) and Protocol 37 to the EEA 
Agreement 

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EXPLANATORY MEMORANDUM 

Incorporation of Directive 2008/101/EC amending Directive 2003/87/EC so as to include 
aviation activities in the scheme for greenhouse gas emission allowance trading into the 
EEA Agreement 

Relevant act: 

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 Community1. 

Relevant provisions: 

Articles 3c(4), 3d(4), 3e(2), 3f(4), 3e(3), 3f(5), 16, 18a(1) and (3)(b) and 18b. 

General remarks: 

The draft JCD proposes the incorporation of Directive 2008/101/EC into the EEA Agreement 
with  a  view  to  extending  the  aviation  emission  trading  scheme  to  the  whole  EEA  while 
respecting as far as possible the principles of the two-pillar structure of the Agreement. For 
the  setting  of  the  EEA-wide  historical  aviation  emissions,  of  the  EEA  total  quantity  of 
allowances as well as of the EEA-wide allowances to be auctioned, to be put into a special 
reserve and to be allocated for free, the normal procedures under the EEA Agreement should 
be followed. 

With  regard  to  the  benchmarks,  the  Commission  decisions  should  include  the  EEA-wide 
benchmarks,  which  should  be  established  in  close  cooperation  with  the  EFTA  Surveillance 
Authority.  The  calculation  and  publication  of  allocation  of  allowances  to  aircraft  operators 
administered by the EFTA States based on those benchmarks will take place subsequent to the 
incorporation of the Commission decisions into the EEA Agreement. 

This  solution  implies  that  the  following  decision  process  will  have  to  take  place  in  close 
cooperation between the Commission, the EFTA Surveillance Authority and the EEA EFTA 
States. This cooperation includes that the Contracting Parties foresee special clauses in their 
respective  decisions  in  the  application  of  Directive  2008/101/EC,  making  reference  to  the 
corresponding decisions of the other Contracting Parties, in order to provide for a transparent 
ETS system in the EEA for all aviation operators concerned. 

i) Article 3c(4) 

The Commission decides on the historical aviation emissions for the EU-27 (A) as foreseen in 
the  Directive,  thus  covering  flights  within  the  EU,  between  EU  Member  States  and  third 
countries and between EU Member States and EEA EFTA States.  

The  EFTA  Surveillance  Authority  provides,  according  to  the  input  from  Eurocontrol,  the 
number of historical aviation emissions based on flights within the EEA EFTA territory and 
flights between the EEA EFTA States and third countries (B). 

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OJ L 8, 13.1.2009, p. 3. 

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The  EEA  Joint  Committee  sets  the  EEA-wide  historical  aviation  emissions  by  adopting  a 
decision which foresees the incorporation of the Commission decision with the addition of the 
historical  aviation  emissions  provided  for  the  EEA  EFTA  States,  thus  adding  numbers  (A) 
and (B) together. 

An adaptation text clarifies that the normal procedures under the EEA Agreement apply and 
that the additional numbers from the EEA EFTA States will be added by decision of the EEA 
Joint Committee, based on figures provided by the EFTA Surveillance Authority, which will 
do so in close cooperation with Eurocontrol. 

ii) Article 3e(3) 

Based  on  (A),  the  Commission  decides  on  the  number  of  allowances  to  be  allocated  to 
operators for flights performed within the original EU scope of the scheme: 

–  the total number of allowances, 

–  number of allowances to be auctioned, 

–  number  of  allowances  in  the  special  reserve  (this  applies  for  the  period  beginning  on  1 

January 2013 and subsequent periods), 

–  number of free allowances. 

Based on (B), the EFTA Surveillance Authority will, in close cooperation with Eurocontrol, 
establish the increase in allowances related to the flights which are added to the scheme due to 
the  extension  of  the  scheme  to  the  EEA  EFTA  States  in  each  of  the  following  sets  of 
allowances: 

–  the total number of allowances, 

–  number of allowances to be auctioned, 

–  number  of  allowances  in  the  special  reserve  (this  applies  for  the  period  beginning  on  1 

January 2013 and subsequent periods), 

–  number of free allowances. 

The EEA Joint Committee decides on the number of allowances to be allocated to operators 
administered  by  the  EEA-30  by  adding  the  EEA  EFTA  figures  to  the  EU  figures  when 
incorporating the respective Commission decision into the EEA Agreement: 

–  EEA-wide total number of allowances, 

–  EEA-wide number of allowances to be auctioned, 

–  EEA-wide  number  of  allowances  in  the  special  reserve  (this  applies  for  the  period 

beginning on 1 January 2013 and subsequent periods), 

–  EEA-wide number of free allowances (C). 

The Commission decides on the benchmarks for EEA-30 (also in the case of Article 3f(5)), 
thereby cooperating closely with the EFTA Surveillance Authority during the process leading 

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up  to  the  decision.  The  calculation  and  publication  of  allocation  of  allowances  to  aircraft 
operators  administered  by  the  EFTA  States  based  on  those  benchmarks  will  take  place 
subsequent to the incorporation of the Commission decisions into the EEA Agreement. 

A joint declaration reiterating the Contracting Parties’ commitment to ensure speedy adoption 
and entry into force of the EEA Joint Committee decision incorporating benchmark decisions 
of the Commission is foreseen in the draft JCD. 

iii) Article 3d(3) 

The number of allowances to be auctioned by each of the EEA-30 is proportionate to its share 
of the total attributed aviation emissions for all EEA-30 in 2010. 

Justification and proposed solution for adaptations: 

No relevant aviation activities in Liechtenstein 

There  are  currently  no  aviation  activities  in  Liechtenstein  as  defined  in  the  Directive.  An 
adaptation  text  clarifying  this  as  well  as  stating  that  Liechtenstein  will  comply  with  the 
Directive  when  relevant  aviation  activities  will  take  place  on  its  territory  is  therefore 
suggested. 

Article 3d(4) – Earmarking of revenues: 

Budget  issues  fall  outside  the  scope  of  the  EEA  Agreement.  Earmarking  of  revenues  is 
therefore outside the scope of the Agreement. The EEA EFTA States are however, limited to 
the  application  of  Directive  2008/101/EC,  ready  to  submit  to  Article  3d(4),  in  order  to 
guarantee  a  homogeneous  application  of  the  ETS  scheme  in  the  field  of  aviation,  which 
concerns operators from third countries as well. In accordance with the Article it shall be for 
States  to  determine  the  use  of  revenues  generated  from  auctioning  of  allowances.  Revenues 
should  be  used  to  tackle  climate  change  as  specified  in  the  Article,  and  are  deemed  to  be 
fulfilled  if  budget  allocation  to  these  purposes  exceeds  the  relevant  revenues  generated.  An 
adaptation  text  clarifying  that  this  will  not  include  any  reporting  obligations  and  a  joint 
declaration reiterating that the incorporation of this provision into the EEA Agreement shall 
be without prejudice to the scope of the Agreement are foreseen in the draft JCD. 

Articles 3e(2) and 3f(4) 

In order to comply with the two-pillar structure as far as possible, the EEA EFTA States will 
submit the applications received to the Commission via the EFTA Surveillance Authority. An 
adaptation text to this end is foreseen. 

Article 16 – Operating ban: 

The  EEA  EFTA  States  suggest  using  the  same  approach  as  is  foreseen  with  regard  to  the 
“Black list” in the field of civil aviation safety. In that case the Commission adopts a ban for 
the  territory  of  EU-27,  which  is  extended  to  the  EEA  EFTA  States  by  decision  of  the  EEA 
Joint Committee incorporating the Commission act into the EEA Agreement. This being said, 
pending such incorporation, and in view of the urgency of bans in the field of civil aviation 
safety, the EEA EFTA States have committed to apply the ban simultaneously with the EU 
Member States.  

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In the case of Article 16, on the other hand, the same urgency is not present, and provisional 
application is not necessary. Therefore, the normal procedures for incorporation should apply. 
This implies that the Commission will adopt a ban for the territory of EU-27, which will only 
become applicable to EEA-30 through decision of the EEA Joint Committee incorporating the 
Commission decision into the EEA Agreement. There is no need to foresee an adaptation text 
stating that the Commission decision will not apply to the EEA EFTA States before, as this is 
a general principle and follows from the 2-pillar structure.  

With regard to requests by the EEA EFTA States in accordance with Article 16(5) and (10), 
an adaptation text is suggested foreseeing that such requests would be sent to the Commission 
via the EFTA Surveillance Authority. 

Article 18a(1): 

The  adaptation  was  proposed  by  the  Commission  and  sets  out  some  rules  regarding  the 
reallocation of aircraft operators to the EFTA States. 

Article 18a(3)(b): 

An adaptation text is foreseen to ensure that the Commission will publish a list concerning all 
operators falling under the scope of the scheme, thus an EEA-wide list. 

Article 18b – Assistance from Eurocontrol or another relevant organisation: 

The  EEA  EFTA  States  and  the  EFTA  Surveillance  Authority  should  for  the  purposes  of 
applying  Directive  2008/101/EC  be  able  to  rely  on  expertise  of  an  organisation,  like  the 
Commission.  An  adaptation  text  is  therefore  foreseen,  stating  that  the  EFTA  Surveillance 
Authority may request the assistance of Eurocontrol or another relevant organisation. 

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Proposal for a 

COUNCIL DECISION 

of 10.1.2011 

on the position to be taken by the European Union in the EEA Joint Committee 
concerning an amendment to Annex XX (Environment) to the EEA Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 192 (1) and 218 (9) thereof, 

Having  regard  to  Council  Regulation  (EC)  No  2894/94  of  28  November  1994  concerning 
arrangements  for  implementing  the  Agreement  on  the  European  Economic  Area2,  and  in 
particular Article 1(3) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

Annex XX to the Agreement on the European Economic Area, (hereinafter referred to as "the 
EEA Agreement") contains specific provisions and arrangements concerning environment. 

(1) 

It is appropriate to include 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 Community3, in the Agreement. 

(2) 

Annex XX to the EEA Agreement should therefore be amended accordingly. 

HAS ADOPTED THIS DECISION:  

Sole Article 

The  position  to  be  taken  by  the  Union  in  the  EEA  Joint  Committee  on  an  envisaged 
amendment to Annex XX to the EEA Agreement is laid down in the Annex to this Decision. 

Done at Brussels, 10.1.2011 

For the Council 
The President 

2 
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OJ L 305, 30.11.1994, p. 6. 
OJ L 8, 13.1.2009, p. 3. 

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ANNEX 

Draft 

DECISION OF THE EEA JOINT COMMITTEE  
No 

of 

amending Annex XX (Environment) to the EEA Agreement 

THE EEA JOINT COMMITTEE, 

Having  regard  to  the  Agreement  on  the  European  Economic  Area,  as  amended  by  the  Protocol 
adjusting the Agreement on the European Economic Area, hereinafter referred to as ‘the Agreement’, 
and in particular Article 98 thereof, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Annex XX to the Agreement was amended by Decision of the EEA Joint Committee No …/… 
of …4. 

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 Community5 is to be incorporated into 
the Agreement. 

The  decision  making  process  will  take  place  in  close  cooperation  between  the  European 
Commission, the EFTA Surveillance Authority and the EFTA States. 

The Contracting Parties have issued a Joint Declaration, emphasizing inter alia that they will 
make  every  effort  in  order  to  ensure  swift  adoption  and  entry  into  force  of  an  EEA  Joint 
Committee decision incorporating each decision of the European Commission, 

HAS DECIDED AS FOLLOWS: 

Article 1 

Point 21al (Directive 2003/87/EC of the European Parliament and of the Council) of Annex XX to the 
Agreement shall be amended as follows: 

1. 

The following indent shall be added: 

‘- 

32008 L 0101: Directive 2008/101/EC of the European Parliament and of the Council of 
19 November 2008 (OJ L 8, 13.1.2009, p. 3).’ 

2. 

The following shall be inserted after adaptation (b): 

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OJ L … 
OJ L 8, 13.1.2009, p. 3. 

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‘(ba)  At  the  time  of  incorporation  of  the  Directive,  Liechtenstein  does  not  have  any 
aviation  activities  as  defined  in  the  Directive  operated  on  its  territory. 
Liechtenstein will comply with the Directive when relevant aviation activities take 
place on its territory. 

(bb)  The following subparagraph shall be added in Article 3c(4):  

“The EEA Joint Committee shall, in accordance with the procedures laid down in 
the Agreement and based on figures provided by the EFTA Surveillance Authority 
in  cooperation  with  Eurocontrol,  decide  on  the  EEA-wide  historical  aviation 
emissions by adding the relevant numbers concerning flights within and between 
the territories of the EFTA States and flights between the EFTA States and third 
countries to the Commission decision when incorporating the latter into the EEA 
Agreement.” 

(bc)  In Article 3d(4), the second subparagraph shall be deleted. 

(bd)  The following subparagraph shall be added in Articles 3e(2) and 3f(4): 

“By  the  same  date,  the  EFTA  States  shall  submit  applications  received  to  the 
EFTA  Surveillance  Authority,  which  shall  promptly  pass  them  on  to  the 
Commission.” 

(be)  The following subparagraphs shall be added in Article 3e(3): 

“The EEA Joint Committee shall, in accordance with the procedures laid down in 
the Agreement and based on figures provided by the EFTA Surveillance Authority 
in  cooperation  with  Eurocontrol,  decide  on  the  EEA-wide  number  for  the  total 
number of allowances, the number of  allowances to be auctioned, the number of 
allowances in the special reserve and the number of free allowances, by adding the 
relevant  numbers  concerning  flights  within  and  between  the  territories  of  the 
EFTA  States  and  flights  between  the  EFTA  States  and  third  countries  to  the 
Commission decision when incorporating the latter into the EEA Agreement. 

The Commission shall decide on the EEA-wide benchmark. During the decision-
making  process  the  Commission  shall  cooperate  closely  with  the  EFTA 
Surveillance Authority. The calculation and publication by the EFTA States under 
Article  3e(4)  shall  take  place  subsequent  to  the  decision  of  the  EEA  Joint 
Committee  incorporating  the  decision  adopted  by  the  Commission  into  the  EEA 
Agreement.” 

(bf)  The following subparagraph shall be added in Article 3f(5):  

“The Commission shall decide on the EEA-wide benchmark. During the decision-
making  process  the  Commission  shall  cooperate  closely  with  the  EFTA 
Surveillance Authority. The calculation and publication by the EFTA States under 
Article  3f(7)  shall  take  place  subsequent  to  the  decision  of  the  EEA  Joint 
Committee  incorporating  the  decision  adopted  by  the  Commission  into  the  EEA 
Agreement.”’ 

3. 

The following shall be inserted after adaptation (i): 

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‘(ia)  The following paragraph shall be inserted after Article 16(12): 

“(13) The  EFTA  States  shall  submit  any  requests  pursuant  to  Article  16(5)  and 
(10) to the EFTA Surveillance Authority, which shall promptly pass them on 
to the Commission.” 

(ib)  The following subparagraph shall be added in Article 18a(1): 

“Reallocation  of  aircraft  operators  to  the  EFTA  States,  should  take  place  during 
year  2011,  after  fulfilment  by  the  operator  of  its  2010  obligations.  A  different 
timeline for reallocation of aircraft operators initially assigned to a Member State 
on  the  basis  of  the  criteria  mentioned  under  (b),  can  be  agreed  by  the  initial 
administering  Member  State,  further  to  an  explicit  request  introduced  by  the 
operator within 6 months from the adoption by the Commission of the EEA-wide 
list  of  operators  foreseen  under  Article  18a(3)(b).  In  this  case,  reallocation  shall 
take place no later than year 2020 with regard to the trading period beginning in 
2021.” 

(ic) 

In  Article  18a(3)(b),  the  words  “for  the  whole  EEA”  shall  be  inserted  after  the 
words “aircraft operators”. 

(id)  The following subparagraph shall be added in Article 18b: 

“For the purposes of carrying out their tasks under the Directive, the EFTA States and 
the  EFTA  Surveillance  Authority  may  request  the  assistance  of  Eurocontrol  or 
another  relevant  organisation  and  may  conclude  to  that  effect  any  appropriate 
agreements with those organisations.”’ 

Article 2 

The texts of Directive 2008/101/EC in the Icelandic and Norwegian languages, to be published in the 
EEA Supplement to the Official Journal of the European Union, shall be authentic. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  following  the  last  notification  to  the  EEA  Joint 
Committee under Article 103(1) of the Agreement ∗. 

Article 4 

This  Decision  shall  be  published  in  the  EEA  Section  of,  and  in  the  EEA  Supplement  to,  the  Official 
Journal of the European Union. 

Done at Brussels, . 

For the EEA Joint Committee 
The President 

∗ 

[No constitutional requirements indicated.] [Constitutional requirements indicated.] 

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The Secretaries 
to the EEA Joint Committee 

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Joint Declaration by the Contracting Parties 

to Decision No […] incorporating Directive 2008/101/EC into the Agreement 

[for adoption with the Decision and for publication in the OJ] 

‘Directive  2008/101/EC  introduces  the  earmarking  of  revenues  generated  from  the  auctioning  of 
allowances for aviation. The application of this provision by the EFTA States is without prejudice to 
the scope of the EEA Agreement. 

As regards the decisions on benchmarks pursuant to Articles 3e(3) and 3f(5) of Directive 2003/87/EC 
as  amended  by  Directive  2008/101/EC,  the  Contracting  Parties  will  make  every  effort  in  order  to 
ensure  swift  adoption  and  entry  into  force  of  an  EEA  Joint  Committee  decision  incorporating  each 
decision  of  the  European  Commission.  In  order  to  guarantee  the  homogeneity  of  the  EEA  and  of  its 
common ETS, a joint and parallel process of the Contracting Parties shall lead up to the decisions of 
the European Commission, which shall be incorporated into the EEA Agreement, if necessary by use of 
written procedure. 

With  the  aim  to  provide  for  a  transparent  ETS  in  the  EEA  for  all  aviation  operators  concerned,  the 
Commission will foresee special clauses in its decisions implementing Directive 2008/101/EC, which 
will make reference to the extension of the decisions to the EEA EFTA States by decisions of the EEA 
Joint Committee.’ 

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