Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL derogating temporarily from Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community
Date: 2012-11-20
Institutions: European Commission
Subjects: International Civil Aviation Organisation, air traffic, derogation from EU law, greenhouse gas, reduction of gas emissions, third country, tradeable emission permit

EUROPEAN 
COMMISSION 

Strasbourg, 20.11.2012  
COM(2012) 697 final 

2012/0328 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

derogating temporarily from Directive 2003/87/EC of the European Parliament and of 
the Council establishing a scheme for greenhouse gas emission allowance trading within 
the Community 

(Text with EEA relevance) 

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EXPLANATORY MEMORANDUM 

At  the  International  Civil  Aviation  Organisation  (ICAO)  Council's  meeting  of  9  November 
2012,  significant  progress  was  made  towards  the  goal  of  the  global  regulation  of  aviation 
emissions.  

This proposal for a Decision is intended to reinforce this positive momentum, and to enhance 
the  chances  of  a  successful  outcome  of  the  2013  ICAO  Assembly  in  terms  of  developing  a 
global  market-based  measure  (MBM)  and  adopting  a  framework  facilitating  States' 
application of market-based measures to international aviation.  

The Decision would "stop the clock," by temporarily deferring enforcement of the obligations 
of aircraft operators in respect of incoming and outgoing flights under the European Union's 
Emission  Trading  System  (ETS).  This  proposal  thus  demonstrates  the  EU's  strong  political 
commitment  to  facilitate  and  drive  forward  the  successful  conclusion  of  these  ICAO 
processes.  

The Decision derogating temporarily from the ETS Directive is designed to ensure that action 
is  not  taken  against  aircraft  operators  which  do  not  meet  the  Directive's  reporting  and 
compliance  obligations  arising  before  1  January  2014  in  respect  of  incoming  and  outgoing 
flights. The condition for this is that they have either not received, or have returned, 2012 free 
allocations  granted  for  such  activities  to  or  from  aerodromes  outside  the  EU  and  closely 
connected  areas  with  a  shared  commitment  to  tackle  climate  change.  Proper  monitoring, 
reporting  and  verification  of  emissions  from  such  flights  is  welcomed,  but  no  compliance 
sanctions will be applied in respect of the non-reporting of such emissions.  

The Directive continues to apply in full in respect of flights between aerodromes in the EU 
and  closely  connected  areas  with  a  shared  commitment  to  tackle  climate  change. 
Consequently,  all  aircraft  operators  which  have  performed  aviation  activities  falling  within 
the  Directive  between  such  aerodromes  in  2011  and  in  2012  are  required  to  comply  with 
monitoring, reporting and verification requirements. By 30 April 2013, all aircraft operators 
which  operated  such  flights  in  2012  are  required  to  surrender  allowances  or  international 
credits in respect of emissions from those flights.  

This Decision gives space for progress to be made at the ICAO Assembly that takes place in 
September  2013.  If  clear  and  sufficient  progress  is  made  at  the  ICAO  Assembly,  the 
Commission  will  propose  appropriate  further  legislative  action.  Article  25a  of  the  Directive 
would  enable  amendments  to  be  made  to  the  aviation  activities  covered  for  requirements 
arising  after  1  January  2014.  Aircraft  operators  which  intend  to  operate  flights  to  and  from 
aerodromes  in  the  EU  should  be  aware  that,  in  the  absence  of  such  modifications,  they  are 
responsible for emissions from flights to and from those aerodromes from 2013 onwards. The 
free  allocations  made  by  February  2013  in  respect  of  2013  emissions  are  also  subject  to 
potential modification in the event that measures are adopted pursuant to Article 25a. 

Other  obligations  in  respect  of  such  flights  remain  unaffected,  and  the  percentage  of 
auctioning remains at 15% as laid down in the Directive. Consequently, a lower quantity of 
aviation allowances will be auctioned for 2012, reflecting the proportionately lower number 
of total allowances in circulation. 

To provide further momentum to the international discussions and continue EU leadership in 
this process, it is important that this proposal is agreed between the European Parliament and 

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Council  swiftly  and  ideally  by  March  2013.  The  Commission  confirms  that  pending 
completion  of  the  legislative  process,  aircraft  operators  which  have  either  not  received  free 
allocations for 2012, or have returned, such free allocations to the appropriate account, should 
not  expect  the  Commission  to  require  enforcement  activities  to  be  taken  against  them  by 
Member States in respect of emissions from flights to or from aerodromes outside the EU and 
closely connected areas. 

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2012/0328 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

derogating temporarily from Directive 2003/87/EC of the European Parliament and of 
the Council establishing a scheme for greenhouse gas emission allowance trading within 
the Community 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

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

Having regard to the opinion of the Committee of the Regions,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

Significant  progress  has  been  made  in  the  International  Civil  Aviation  Organisation 
towards the adoption at the 2013 ICAO Assembly of a framework facilitating States' 
application of market-based measures to emissions from international aviation, and on 
developing a global market-based measure. 

In  order  to  facilitate  this  progress  and  provide  momentum,  it  is  desirable  to  defer 
enforcement of requirements relating to flights to and from aerodromes outside of the 
Union  and  areas  with  close  economic  connections  to  the  Union  and  a  shared 
commitment  to  tackle  climate  change1  arising  prior  to  the  2013  ICAO  Assembly. 
Action  should  therefore  not  be  taken  against  aircraft  operators  in  respect  of 
requirements resulting from 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 Community2 arising before 1 January 2014 for reporting 
verified emissions and for the corresponding surrender of allowances from incoming 

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Including  EFTA  States,  countries  which  have  signed  a  Treaty  of  Accession  with  the  Union  and  the 
dependencies and territories of EEA Member States 
OJ L 275, 25.10.2003, p.32. 

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and  outgoing  flights  to  and  from  such  aerodromes.  Aircraft  operators  who  wish  to 
continue to comply with those requirements should be able to do so. 

(3) 

In  order  to  avoid  distortions  of  competition,  this  derogation  should  only  apply  in 
respect  of  aircraft  operators  that  have  either  not  received  or  have  returned  all  free 
allocations  which  have  been  allocated  in  respect  of  such  activities  in  2012.  For  the 
same  reason,  these  allowances  should  not  be  taken  into  account  for  the  purposes  of 
calculating entitlements to use international credits within the framework of Directive 
2003/87/EC. 

(4) 

Allowances that are not issued to such operators or are returned should be cancelled. 
The  number  of  aviation  allowances  that  are  auctioned  will  respect  Article  3d(1)  of 
Directive 2003/87/EC,  

HAVE ADOPTED THIS DECISION: 

Article 1 

By way of derogation from Article 16 of Directive 2003/87/EC, Member States shall take no 
action  against  aircraft  operators  in  respect  of  requirements  set  out  in  Article  12(2a)  and 
Article 14(3) of Directive 2003/87/EC arising before 1 January 2014 in respect of activity to 
or from aerodromes in countries outside the European Union that are not members of EFTA, 
dependencies  and  territories  of  EEA  Member  States  or  countries  having  signed  a  Treaty  of 
Accession with the Union, where such aircraft operators have not been issued free allocations 
for  such  activity  in  respect  of  2012  or,  if  they  have  been  issued  such  allowances,  have 
returned a corresponding number of allowances to Member States for cancellation. 

Article 2 

The  Member  States  shall  cancel  all  2012  allowances  in  respect  of  flights  to  or  from 
aerodromes referred to in Article 1 that have either not been  issued or,  if  issued, have been 
returned to them.  

Article 3 

Allowances cancelled pursuant to Article 2 shall not be taken into account for the purposes of 
calculating  entitlements  to  use  international  credits  within  the  framework  of  Directive 
2003/87/EC. 

Article 4 

This Decision is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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