REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Directive 2016/802/EU of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels (codification)
Date: 2022-06-22
Institutions: Directorate-General for Environment, European Commission
Subjects: air quality, delegated legislation, fuel, maritime shipping, pollution control measures, pollution from ships, powers of the institutions (EU), sulphur, technological change, transfer of competence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 22.6.2022  COM(2022) 294 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Directive 2016/802/EU of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels (codification)  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND  
THE COUNCIL 

 on the exercise of the power to adopt delegated acts conferred on the Commission pursuant 
to Directive 2016/802/EU of the European Parliament and of the Council of 11 May 2016 
relating to a reduction in the sulphur content of certain liquid fuels (codification) 

1. INTRODUCTION  

Directive 1999/32/EC of the European Parliament and of the Council relating to a reduction in the 
sulphur  content  of  certain  liquid  fuels1  has  been  substantially  amended  several  times,  lastly  by 
Directive  2012/33/EU  of  21  November  2012  on  the  sulphur  content  of  marine  fuels2,  which 
entered into force on 17 December 2012 and had to be transposed by 18 June 2014.  

To  preserve  the  clarity  and  rationale  of  Council  Directive  1999/32/EC  following  the  different 
substantial amendments, it was codified as Directive (EU) 2016/802 of 11 May 2016 relating to a 
reduction in the sulphur content of certain liquid fuels3 (hereinafter “the Sulphur Directive”).  

The  Sulphur  Directive’s  principal  aim  is  to  reduce  harmful  health  effects  and  environmental 
damage caused by sulphur dioxide (SO2) emissions resulting from the combustion of certain types 
of  liquid  fuels.  This  is  a  key  aim  to  ensure  the  EU  delivers  on  the  Green  Deal4  and  on  its  zero 
pollution  from  all  sources5  and  sustainable  mobility6  ambitions,  including  efforts  from  the 
maritime sector. 

Irrespective  of  Articles  3  and  4  of  the  Sulphur  Directive  which  regulate  the  sulphur  content  of 
heavy  fuel  oil  (HFO)  and  gas  oils  used  in  certain  combustion  plants  on  land,  the  Directive 
currently mostly regulates the sulphur content of liquid fuels used by ships ('marine fuels'). 

Where  justified,  in  the  light  of  scientific  and  technical  progress  regarding  alternative  emission 
abatement methods and in such a way as to ensure strict consistency with the relevant instruments 
and  standards  adopted  by  the  International  Martime  Organisation  (herafter  ‘IMO’),  the  Sulphur 
Directive empowers the Commission to adopt delegated acts to adapt as appropriate: 

  ANNEX I: Equivalent emission values for emission abatement methods  as referred to in 

Article 8(2) and Article 8(5)(a); 

  ANNEX  II: Criteria for the use of emission abatement methods  as referred to in Article 

8(4) and Article 8(5)(a); 
  Article 2 (Definitions): 

o 
o 

o 

(a) definition of ‘heavy fuel oil’ for land applications; 
(e)  definition  of  ‘marine  gas  oil’  grades  in  accordance  with  ISO  8217  with  the 
exception of the reference to the sulphur content; 
(p)  definition  of  ‘ASTM  method’  as  the  methods  laid  down  by  the  1976  edition 
the  American  Society  for  Testing  and  Materials  concerning  the  standard 
definitions and specifications for petroleum and lubricating products 

1 OJ L 121 of 11.5.1999, p. 13  
2 OJ L 327 of 27.11.2012, p. 1 
3 OJ L132 of 21.5.2016, p. 58 
4 COM(2019)640  
5 COM/2021/400 final 
6 COM(2020) 789 final, SWD(2020) 331 final 

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  Article 13(2) (b)(i) on sampling of the marine fuel for on-board combustion while being 
delivered to ships for determination of complinace, in accordance with the Guidelines for 
the  sampling  of  fuel  oil  for  determination  of  compliance  with  the  revised  Annex  VI  to 
MARPOL of the IMO7, and analysis of its sulphur content; 

  Article  13(3)  on  the  following  mandatory  reference  method adopted  for  determining  the 

sulphur content:  

ISO method 8754 (2003) or EN ISO 14596:2007 for all fuels, and  

o 
o  Appendix VI to Annex VI to MARPOL for marine fuel delivered to5, and used on 

board ships8. 

2. LEGAL BASIS 

This report is required under Article 16(2) of the Sulphur Directive. Pursuant to this provision, the 
power to adopt delegated acts was conferred on the Commission for a period of 5 years beginning 
on 17 December 2012 (i.e. until 17 December 2017) and then extended for a 5-year period.  

The  Commission  is  required  to  prepare  a  report,  on  such  delegation  of  power,  not  later  than  9 
months before the end of this second 5-year period, i.e. 17 December 2022.  

In  accordance  with  Article  16(2)  of  the  Directive,  the  delegation  of  power  shall  be  tacitly 
extended for another 5-years period as from 17 December 2022, unless the European Parliament 
or the Council opposes such extension no later than 3 months before this date.  

Although the Commission could not meet the 9 months deadline, the report was communicated to 
the European Parliament and the Council as soon as possible in order to ensure the respect of their 
prerogatives and of the 3-month period indicated in Article 16(2) of the Directive. 

3. EXERCISE OF THE DELEGATION 

The exercise  of  the empowerment  was and is  deemed  necessary  for  adapting  several  provisions 
foreseen by the Sulphur Directive to scientific and technical progress.  

The Commission already reported on such exercise in 20179.  

Furthermore,  the  Commission  adopted  on  16  April  2018  a  report10  to  the  European  Parliament 
and the Council on implementation and compliance with the sulphur standards for marine fuels 
set out in Directive (EU) 2016/802, also referring to its exercise of implementing powers which 
have links with the scope of the delegated powers even if the latter has not been exercised so far.  

7 Guidelines for the sampling of fuel oil for determination of compliance with the Annex VI to MARPOL, set 
out in Resolution 182(59) of the Marine Environment Protection Committee adopted on 17 July 2009. 
8 Directive 2012/33/EU mistakenly refers to the fuel verification procedure set out in Appendix VI to Annex VI 
to MARPOL for  fuel  used on board ships. In fact the scope  of IMO procedure covered  only  fuel delivered to 
ships.  On  the  basis  of  Implementing  Decision  (EU)  2015/253,  the  EU  pushed  at  the  IMO  the  development  of 
guidance  which  led  to  the  extension  of  the  verification  procedure  (sampling  and  analysis)  to  include  also 
verification  of  fuel  in  use.  Consequently,  the  IMO  issued  document  MEPC.1/Circ.864  of  9  December  2016 
‘Appendix  VI on  the Fuel  verification  procedure  for  MARPOL  Annex  VI  fuel  oil  samples consequential 
amendments  to  verification  procedures,  to  cover  verification  of  the  representative  samples  of  in-use  fuel  oil 
and on board fuel oil.’ 
9 COM(2017) 342 final 
10 COM(2018) 188 final 

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In  fact,  due  to  the  urgency  to  ensure  a  uniform  and  cost-effective  enforcement  of  the  Sulphur 
Directive’s obligations, the Commission proritised on its implementing power and developed: the 
technical basis for implementing acts on ‘sampling methods’ for marine fuels, the definition of a 
‘representative  sample’  and  the  ‘frequency  of  sampling’  of  marine  fuels  (under  Article  13(4)  of 
the Sulphur Directive).  

During  the  preparatory  work  of  the  mentioned  acts  the  Commission  carried  out  appropriate 
consultations  with  Member  States11  and  relevant  stakeholders12,  including  at  expert  level,  and 
benefitted from the technical assistance of the European Maritime Safety Agency13.  

Consequently, the Commission adopted, on 16 February 2015, the Implementing Decision (EU) 
2015/25314  which  lays  down  the  rules  concerning  the  on-board  fuel  sampling  procedure,  the 
control of bunker suppliers responsible for fuel delivered to ships, as well as a binding number of 
ship  inspections  and  fuel  samples  that  Member  State  have  to  carry  out  annually  to  verify  the 
sulphur  content  of  marine  fuels  being  used  by  ships  operating  in  the  waters  falling  under  their 
competence. 

Until today, however, there is not enough new scientific information to justify updating, by means 
of  delegated  acts,  the  relevant  annexes  and  articles  to  the  Sulphur  Directive  referred  to  in  the 
previous  section.  Therefore,  it  was  not  considered  appropriate  to  update  the  technical  standards 
for  fossil fuels. This is also in line with the  EU's objective  to decrease dependence from fossils 
fuels in order to achieve strategic autonomy and climate neutrality.  

No specific updates were established, including by the International Maritime Organisation, with 
regard  to  the  scope  of  Annex  I  on  equivalent  emission  values  for  emission  abatement  methods 
used on board15, as the requirements mentioned for sulphur content are the only ones in force. 

Concerning  the  section  in  Annex  II  referring  to  the  Exhaust  Gas  Cleaning  Systems,  no  specific 
updates  on  discharge  waters  criteria  were  established  by  the  IMO  in  the  Exhaust  Gas  Cleaning 
Systems Guidelines referred to in Resolution MEPC.184(59) adopted on 17 July 2009. In view of 
the ongoing developments in IMO on the evaluation and harmonisation of rules and guidance on 
discharged  water  from  exhaust  gas  cleaning  systems  into  the  aquatic  environment,  including 
conditions and areas, the said guidelines may be revised accordingly in the future.  

Concerning the section in Annex II referring to the use of biofuels as an alternative compliance 
method and relevant definitions set out in  Directive 2009/28/EC on the promotion of the use of 

11 In accordance with Article 17 of Directive (EU) 2016/802, the Commission established the Committee on the 
Implementation of the Sulphur Directive  to support its coherent and effective implementation. The Committee 
assists  the  Commission  with  exercising  its  implementing  powers,  with  drafting  submissions  to  the  IMO,  and 
reviewing  outputs  developed  by  expert  groups.  Through  the  active  engagement  of  Member  States,  the 
Committee  had  a  key  role  in  ensuring  a  consistent  and  cost-effective  implementation  and  enforcement  of  the 
Directive across the EU. 
12  The  Commission  set  up  in  2013  the  European  Sustainable  Shipping  Forum  (ESSF)  facilitating  a  structured 
dialogue  and  cooperation  among  different  Commission  services,  Member  States  and  maritime  stakeholders  to 
better address environmental sustainability challenges confronting the EU maritime transport sector. 
13 EMSA Sulphur Inspection Guidance under Council Directive 1999/32/EC, revised version december 2019 
14  Commission  Implementing  Decision  (EU)  2015/253  of 16  February  2015  laying  down  the  rules  concerning 
the sampling and reporting under Council Directive 1999/32/EC as regards the sulphur content of marine fuels, 
OJ L 41 of 17.2.2015, p. 55 
15 Articles 6(1)(b), 6(2)(b), 7(1) of Directive (EU) 2016/802. 

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energy  from  renewable  sources,  the  only  update  is  the  adoption  of  Directive  (EU)  2018/2001 
(RED II)16 which is a recast of the Directive 2009/28/EC. RED II updates the biofuels definition 
referred  to  in  Annex  II  of  the  Sulphur  Directive  but  their  use  in  the  maritime  sector is  still at a 
very early stage. However, the proposal for a Fuel EU Maritime Regulation, which is part of the  
Fit for 55 legislative package tabled by the European Commission in July 2021, also refers to new 
biofuels  as  well  as  other  zero  and  low  carbon  fuels.  The  adoption  of  RED  II  and  Fuel  EU 
Maritime may require a revision of  definitions and other relevant aspects  concerning biofuels in 
Annex  II  of  the  Sulphur  Directive.  Furthermore,  as  the  Fuel  EU  Maritime  Regulation  is 
considering onshore power for ships at berth as a zero emission technology in EU ports, the scope 
of Annex II may be broadened in the future.   

Overall, there is at present only limited experience on the provisions contained in Annex II of the 
Directive, in particular concerning the use of LNG boil-off gas or biofuels as emission abatment 
methods. It is therefore appropriate to postpone any related technical update through a delegated 
act. 

Furthermore  no  significant  updates  are  available  concerning  the  definitions  in  Article  2  for  (a) 
‘heavy  fuel  oil’  for  land applications;  (e)  ‘marine gas  oil’  grades  in  accordance  with  ISO  8217, 
and  (p)  the  1976  edition  of  the  American  Society  for  Testing  and  Materials  concerning  the 
standard definitions and specifications for petroleum and lubricating products. To date, only few 
Member  States  have  notified  relevant  updates  in  the  framework  of  the  notification  procedure 
under the Single Market Transparency Directive (Directive (EU) 2015/1535). 

As a general comment, it should be noted that the Directive regulates the sulphur content in oil 
based  products  since  1999  for  land  and  marine  applications  including  heavy  fuel  oils,  marine 
fuels,  gas  and  diesel  oils.  These  are  conventional  fuel  products  which  did  not  see  significant 
development in terms of quality standards or concerning the methods to determine the sulphur in 
fuel content.   

New  marine  fuel  blends  were  produced  and  introduced  on  the  market  in  view  of  the  entry  into 
force  of  the  0.50%  sulphur  requirement  in  marine  fuels  for  ships  sailing  in  EU  waters17.  The 
characteristics  of  such  fuels  do  not  need  updates  through  the  adoption  of  delegated  acts  under 
Article 16 of the Directive. These marine fuel blends are covered by the ISO 8217 standard, which 
has  not  been  updated  yet  as  there  is  not  enough  experience  with  its  use.  Even  when  the  ISO 
standard will be updated, it is unlikely that the use of the delegated powers will become necessary 
as the Sulphur Directive provides for a dynamic reference to the said standard  without specifying 
the year of its revised version.   

4. CONCLUSION  

The  European  Commission  has,  over  the  past  10  years,  not  exercised  the  delegated  powers 
conferred  to  it  under  the  Sulphur  Directive  2016/802/EU.  However,  the  Commission  keeps 
monitoring developments in the IMO framework and carries out appropriate consultations to this 

16  Directive  (EU)  2018/2001  of  the  European  Parliament  and  of  the  Council  of  11  December  2018  on  the 
promotion  of  the  use  of  energy  from  renewable  sources  OJ  L  328,  21.12.2018,  p.  82–209  also  amending  and 
subsequently repealing Directives 2001/77/EC and 2003/30/EC (RED I) sets EU target for the overall share of 
energy from renewable sources in its gross final consumption of energy in 2030. It also sets sustainability and 
greenhouse gas emissions saving criteria for biofuels. 
17 Article 6(1)(b) of Directive (EU) 2016/802. 

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end, including at expert level, in view of future needs for action through either delegated acts or 
even a full revision of the Directive, should the ongoing transformation of the sector so require.  

It invites the European Parliament and the Council to take note of this report. 

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