CELEX: 
Language: en
Date: 2018-11-27
Title: COMMISSION DELEGATED REGULATION (EU) …/... supplementing Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 as regards measures adopted by the International Civil Aviation Organisation for monitoring, reporting and verification of aviation emissions for the purpose of implementing a global market-based measure

EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE DELEGATED ACT
            
            
               The Union and its Member States are a strong supporter of ICAO’s intention to put a global market-based measure for international aviation globally into effect to contribute to tackling climate change. This is underlined by the fact that the European Parliament and Council have amended the EU Emissions Trading System (EU ETS) three times in order to facilitate progress in ICAO on its global market-based measure, as well as by the substantial financial and expert contributions which the Union and its Member States
                  1
                have made to the ICAO Secretariat over the past 6 years to help ICAO succeed. The Union is amongst the first jurisdictions to adopt legislative provisions for the purposes of implementing ICAO's scheme called 'CORSIA', including through this delegated act, while other States are also expected to undertake such domestic implementation.
            
            
               All sectors of the economy need to contribute to tackling climate change. Putting a price on greenhouse gas emissions is important to harness market forces and achieve cost-effective emission reductions. The EU ETS has been the cornerstone of the European Union's climate policy since 2005, and it is a key tool for substantially reducing greenhouse gas (GHG) emissions in line with the Union’s commitment under the Paris Agreement that aim to limit temperature increases to well below 2°C, and to 1.5°C if possible. The inclusion of intra-European flights in the EU ETS has delivered around 100 million tonnes of CO2 reductions/offsets between 2012 and 2018
                  2
               . In the past year, the EU ETS Directive has been revised to duly contribute to the 2030 climate and energy targets
                  3
                and to prepare for the implementation of the ICAO scheme
                  4
               .
            
            
               Union legislation is being prepared to implement the ICAO scheme in two steps. Firstly, appropriate provisions are being included in three pieces of implementing and delegated legislation: this delegated act, the Commission implementing Regulation on the monitoring and reporting of greenhouse gas emissions
                  5
               , and the Commission implementing Regulation on the verification of greenhouse gas emission reports and tonne-kilometre reports and the accreditation of verifiers
                  6
               . The second step is laid down in Article 28b of the Directive, and it concerns amendments to the EU ETS by the European Parliament and the Council through the ordinary legislative procedure.
            
            
               Alongside this delegated act (DA), revisions are being made to both the Commission implementing Regulation on the monitoring and reporting (MRR) and the Commission implementing Regulation on the verification of greenhouse gas emission reports and tonne-kilometre reports and the accreditation of verifiers (AVR), to take account of the MRV provisions of the SARP. The EU has experience of monitoring, reporting and verifying aviation emissions under the EU ETS Directive since 2010, and there is a good deal of similarity between the provisions of the ICAO scheme and these two Regulations. In respect of the few remaining differences that can be removed through implementing powers under the Directive, this is taking place alongside the adoption of this delegated act. 
            
            
               Article 28c of Directive 2003/87/EC requires the Commission to adopt provisions for the appropriate monitoring, reporting and verification of emissions for implementing ICAO's global market-based measure on all routes covered by it. These are to be based on the relevant instruments adopted in the ICAO, and must avoid any distortion of competition and be consistent with the EU ETS’s monitoring and reporting principles. Emissions reports must be verified in accordance with the verification principles and criteria in the EU ETS Directive. The delegated act complements the reporting under the above Regulations in respect of flights and operations that are not currently covered by the EU ETS Directive (e.g. flights between the EEA and third countries, flights between the EEA and various other regions, and flights solely between third countries or between third countries and overseas dependencies or territories). As a number of aircraft operators reported verified emissions from flights to, from and between aerodromes located in the European Economic Area (EEA), including its outermost regions, dependencies and territories, in the past, templates already exist for reporting these emissions, and these templates will be updated for use as regards the broader emissions information that is relevant for ICAO’s scheme. Unlike the Regulations for monitoring, reporting, verification and accreditation, this delegated act is solely for the purpose of providing information to the ICAO Secretariat. It draws on existing rules and frameworks so far as possible in order to minimise administrative burden for airlines, verifiers and other stakeholders, and specifies how information reported in accordance with the Regulations for monitoring, reporting, verification and accreditation will be transmitted to the ICAO Secretariat.
            
            
               The second step is laid down in Article 28b(1), (2) and (3) of the Directive, and it concerns amendments to the EU ETS that can only be made by the European Parliament and the Council acting through the ordinary legislative procedure. The Commission is obliged to report to the European Parliament and the Council on progress in the ICAO negotiations. In particular, this relates to the relevant international instruments
                  7
               , Council-approved recommendations, the establishment of a global registry, domestic measures taken by third countries to implement the global market-based measure, the implications of reservations by third countries and other relevant international developments and applicable instruments. In line with the UNFCCC's global stocktake, the Commission will also report on efforts to meet the aviation sector's aspirational long-term emissions reduction goal of halving aviation CO2 emissions relative to 2005 levels
                  8
               . The Commission will present a report to the European Parliament and to the Council in which it will consider ways for those instruments to be implemented through a revision of the EU ETS Directive, considering the rules applicable in respect of flights within the EEA as appropriate.
            
            
               The report will also examine the ambition and overall environmental integrity of the global market-based measure, its general ambition in relation to targets under the Paris Agreement, the level of participation, enforceability, transparency, penalties for non-compliance, processes for public input, quality of offset credits, monitoring, reporting and verification of emissions, registries, accountability as well as rules on the use of biofuels. The Commission may accompany the report referred to in paragraph 2 of this Article with a legislative proposal to the European Parliament and the Council to amend, delete, extend or replace the derogations provided for in Article 28a of the EU ETS Directive, that is consistent with the Union economy-wide greenhouse gas emission reduction commitment for 2030 with the aim of preserving the environmental integrity and effectiveness of Union climate action. The Directive also makes clear that the report will consider whether the legal basis for this delegated act
                  9
                needs to be revised.
            
            
               Directive 2003/87/EC applies irrespective of the nationality of the airline operator and in principle covers flights which depart from or arrive in an aerodrome situated in the territory of a Member State. Article 28a exempts emissions from flights to and from aerodromes located in countries outside the EEA in each calendar year until 2023. The equal treatment of aircraft operators on routes is vital to avoid distortions of competition, and is also identified as an important issue in the 2016 ICAO resolution. Intra-EEA flights are operated by over 500 airlines including more than 100 commercial airlines based outside the EEA, in respect of which there is an extremely high level of compliance. The scope of Directive 2003/87/EC could only be changed by the European Parliament and the Council
                  10
               .
            
            
               This delegated act applies equal treatment in line with Article 28c of the EU ETS Directive. The Commission will only submit to the ICAO Secretariat the information regarding flights which is expected under the ICAO scheme, and airlines with significant emissions in all other countries should have their emissions reported to the ICAO Secretariat by other countries. It is in the self-interest of airlines to report their emissions data for international flights
                  11
                in 2019 and 2020 as it will reduce the emissions they will have to offset later. In the event of non-reporting, the SARP foresees using other information sources to fill gaps.
            
            
               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
            
            
               A stakeholder meeting took place on 13 July 2018 in the context of the Climate Change Expert Group, involving representatives of industry, civil society and Member States. A second meeting will take place in the fall before the adoption of the delegated act, and will look at the text of the delegated act and the broader context of EU ETS implementing rules for monitoring, reporting, verification and accreditation. The delegated act will be posted for 4-weeks public information before its adoption, and it will be subject to scrutiny from the European Parliament and the Council for a period of two months.
            
            
               3.LEGAL ELEMENTS OF THE DELEGATED ACT
            
            
               The scope of the delegated act is determined by the revised EU ETS Directive. A Regulation is considered to be the appropriate instrument. As explained above, it is in the interests of airlines to follow this Regulation for the purposes of establishing initial rights under the ICAO scheme. 
            
            
               Article 1
            
            
               This Article sets out the additional verified emissions information that airlines should report, in order to supplement the already verified emissions reported pursuant to the MRR. Emissions reporting under the MRR is mandatory and subject to enforcement proceedings under Article 16 of the EU ETS Directive if it does not take place.
            
            
               The first category of additional emissions information is in paragraph 1, for flights between aerodromes situated in the EEA and aerodromes in third countries (e.g. Paris-Marrakesh). 
            
            
               The second category of additional emissions information, in paragraph 2, relates to flights between aerodromes located in the EEA and aerodromes located in outermost regions of other Member States of the EEA (e.g. Dublin-Lanzarote), and in dependencies or territories of those Member States (e.g. Ireland-Greenland
                  12
               ). It is to be noted that domestic flights such as Madrid-Lanzarote are not covered by the ICAO scheme and therefore not part of this delegated act.
            
         
         
            
               The third category, in paragraph 3, relates to flight between aerodromes in countries located outside the EEA and aerodromes located in other countries outside the EEA (e.g. Mexico D.F.-Rio de Janeiro).
            
            
               In respect of the third category, it is recommended to report emissions. The issue of whether greater powers would be appropriate should be examined in the report to the European Parliament and the Council.
            
            
               Electronic templates exist for flights referred to in paragraphs 1 and 2, and over 900 aircraft operators have used them to report verified emissions as well as to apply for free allocations under the EU emissions trading system. The templates will be updated for the purpose of the ICAO scheme, and an electronic template will be prepared for flights referred to in paragraph 3.
            
            
               Article 2
            
            
               This Article imposes an obligation on the Commission to transmit relevant verified emissions data to the ICAO Secretariat. This will only concern data of aircraft operators in whose respect the ICAO Secretariat expects to receive emissions data from the Union (e.g. European airlines), and therefore data will not be transmitted that concerns airlines not attributed to the Union by the ICAO scheme. The role of the European Parliament and the Council in deciding on changes to Union law is fully respected, and therefore this Article is expressly without prejudice to the consideration by the European Parliament and the Council of ways for the ICAO scheme to be implemented in Union law through a future revision of the EU ETS Directive.
            
            
               There are three emissions factors for aviation fuel in the EU ETS:
            
            
                     
                        Fuel
                     
                  
                  
                     
                        Emission factor (t CO2/t fuel)
                     
                  
               
                     
                        Aviation gasoline (AvGas)
                     
                  
                  
                     
                        3,10
                     
                  
               
                     
                        Jet gasoline (Jet B)
                     
                  
                  
                     
                        3,10
                     
                  
               
                     
                        Jet kerosene (Jet A1 or Jet A)
                     
                  
                  
                     
                        3,15
                     
                  
               
               In the ICAO scheme, the emissions factor for the fuel Jet Kerosene (Jet A1 or Jet A) is 3,16. In its transmission to the ICAO Secretariat, the Commission shall use this emissions factor. The report pursuant to Article 29b of the Directive will consider whether this should be revised, and the European Parliament and Council could take action as appropriate, including changing the EU ETS Jet kerosene emissions factor.
            
            
               COMMISSION DELEGATED REGULATION (EU) …/...
            
            
               of XXX
            
            
               supplementing Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 as regards measures adopted by the International Civil Aviation Organisation for monitoring, reporting and verification of aviation emissions for the purpose of implementing a global market-based measure
            
            
               (Text with EEA relevance)
            
            
               THE EUROPEAN COMMISSION,
            
            
               Having regard to the Treaty on the Functioning of the European Union,
            
            
               Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC as amended, and in particular Article 28c thereof,
            
            
               Whereas:
            
            
               (1)The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change was successfully concluded in December 2015 by the adoption of the Paris Agreement whose objective is to limit global temperature increase well below 2°C compared to pre-industrial levels, and to pursue efforts to limit temperature increase to 1.5°. In pursuit of the temperature goals in the Paris Agreement, the Union should aim to achieve a balance between anthropogenic greenhouse gas emissions by sources and removals by sinks as early as possible. All sectors of the economy should contribute to achieving these emission reductions, including international aviation.
            
            
               (2)The Chicago Convention on International Civil Aviation signed on 7 December 1944 (‘the Convention’) aiming to regulate international air transport, entered into force on 4 April 1947 and established the International Civil Aviation Organization (ICAO). The Member States of the Union are contracting parties to the Convention and members of the ICAO, while the Union has observer status in certain ICAO bodies. Pursuant to Article 54 of the Convention, the ICAO Council may adopt International Standards and Recommended Practices.
            
            
               (3)Commission Decision 2009/339/EC
                  13
                established monitoring and reporting guidelines for emissions and tonne-kilometre data from aviation activities. These guidelines established formats for aircraft operators to report their annual emissions, including through standardised electronic template and file format specification. Over 900 aircraft operators have used these electronic templates and file format specifications, including to apply for free allocations under the EU emissions trading system.
            
            
               (4)Commission Regulation (EU) No 601/2012
                  14
                prescribes the use of electronic templates and specific file formats for the purposes of reporting emissions from aviation activities under Directive 2003/87/EC. Until the end of 2023, the obligation to use those templates and formats applies only with respect to emissions from intra-EEA flights and flights between aerodromes situated in the EEA and those in third countries.
            
         
         
            
               (5)The International Civil Aviation Organisation (ICAO) 39th Assembly in October 2016 adopted a resolution for the implementation of a global market-based measure from 2021 to offset international aviation emissions above 2020 levels.
            
            
               (6)The ICAO Council, at the tenth meeting of its 214th session on 27 June 2018, adopted the First Edition of the International Standards and Recommended Practices on Environmental Protection - Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) (Annex 16, Volume IV to the Agreement), in respect of which States are able to register approval by 22 October 2018 and are able to file differences until 1 December 2018. These are intended to apply from 2019 but their operationalisation requires action by all ICAO Parties at domestic level. Council Decision (EU) 2018/xxx
                  15
                establishes the position to be taken on behalf of the European Union in the ICAO in respect of these Standards and Recommended Practices and differences with Union law. The Parties to the ICAO intend thereafter to adopt additional instruments necessary to supplement these Standards and Recommended Practices in order to complete a global market-based measure, including regarding fuels that may be used to reduce offsetting requirements.
            
            
               (7)Article 28c of Directive 2003/87/EC mandates the Commission to adopt provisions for the appropriate monitoring, reporting and verification of emissions for the purpose of implementing ICAO's global market-based measure on all routes covered by it. Those provisions shall be based on the relevant instruments adopted in the ICAO, shall avoid any distortion of competition, be consistent with the principles contained in the Regulation referred to in Article 14(1), and shall ensure that the emissions reports submitted are verified in accordance with the verification principles and criteria referred to in Article 15.
            
            
               (8)The Union, since 2010, has implemented monitoring, reporting and verification of aviation emissions under Directive 2003/87/EC. In respect of 2012, a number of aircraft operators reported verified emissions from flights to, from and between aerodromes located in the European Economic Area (EEA), including outermost regions, dependencies and territories. Aircraft operators are currently subject to the obligation to monitor and report from flights between aerodromes located in countries in the EEA. For reasons of administrative simplicity, given the existing monitoring and reporting of aviation emissions for the purposes of the EU Emissions Trading System, these rules are the starting point for implementation of a global market-based measure.
            
            
               (9)This Regulation is being complemented by improvements to the Regulation on Monitoring and Reporting and to the Regulation on Accreditation and Verification
                  16
                that take account of the First Edition of the International Standards and Recommended Practices. For reasons of administrative simplicity, given the existing verification of aviation emissions for the purposes of the EU Emissions Trading System, these rules are the starting point for implementation of verification for the purposes of a global market-based measure.
            
            
               (10)The application of monitoring, reporting and verification requirements for certain flights only in respect of aircraft operators based in the European Economic Area is not considered to cause any distortion of competition.
            
            
               (11)Where appropriate, Eurocontrol should supplement emissions data. The Commission should transmit relevant verified emissions data to the ICAO Secretariat. 
            
            
               (12)The Union and its Member States are amongst the first jurisdictions to adopt provisions for the purposes of implementing ICAO's global market-based measure, while other States should also be undertaking such domestic implementation. These provisions may be revised pursuant to Article 28b(2) of Directive 2003/87/EC, having regard to actions by other States and including to take into account other instruments adopted by ICAO, such as on fuels that may be used to reduce offsetting requirements.
            
            
               HAS ADOPTED THIS RECOMMENDATION:
            
            
               Article 1
            
            
               1.This Regulation shall only apply to aircraft operators with an Air operator certificate issued by a Member State or its place of judicial registration in a Member State, that produce annual CO2 emissions greater than 10 000 tonnes from the use of an aeroplane(s) with a maximum certificated take-off mass greater than 5 700 kg conducting flights between the routes identified hereafter, on or after 1 January 2019, with the exception of humanitarian, medical and firefighting flights.
            
            
               2.Aircraft operators shall report their verified emissions from flight activity between aerodromes located in Member States and aerodromes located in other countries  in accordance with Articles 14 and 15 of Directive 2003/87/EC and using the electronic template published pursuant to Article 74 of Commission Regulation 601/2012.
            
            
               3.Aircraft operators shall report their verified emissions from flight activities between aerodromes located in Member States and aerodromes located in outermost regions of other Member States, and in dependencies or territories of those Member States, using the electronic template. They shall also report their verified emissions from flight activities between aerodromes located in outermost regions of Member States and aerodromes located in third countries.
            
            
               4.Aircraft operators may also report their verified emissions from flight activities between aerodromes located outside the Member States (including in dependencies or territories of Member States) and aerodromes located in different countries other than the Member States(including in dependencies or territories of other Member States), in accordance with Article 14 and 15 of Directive 2003/87/EC and using the electronic template referred to in paragraph 1 of this Article.
            
            
               5.Where appropriate, Eurocontrol shall supplement emissions data referred to in paragraphs 1 to 5. 
            
            
               6.The Commission shall publish an electronic data exchange format for reporting emissions from flight activities between aerodromes located in countries other than Member States and aerodromes located in different countries other than Member States, in accordance with Article 14 and 15 of Directive 2003/87/EC and based on the templates published pursuant to Article 74 of Commission Regulation 601/2012.
            
            
               Article 2
            
            
               Without prejudice to the consideration by the European Parliament and the Council of ways for those instruments to be implemented in Union law through a revision of Directive 2003/87/EC pursuant to Article 28b of the Directive, the Commission shall transmit to the ICAO Secretariat relevant verified emissions data that have been reported by aircraft operators pursuant to Articles 14 and 15 of Directive 2003/87/EC, and paragraphs (1) to (3) of Article 1. Before transmission, an order of magnitude check shall be conducted on these data by the corresponding Competent Authority.
            
            
               In its transmission, the Commission shall use the emissions factor specified in Annex 16, Volume IV to the Chicago Convention for the fuel Jet Kerosene (Jet A1 or Jet A).
            
            
               This regulation enters into force on 1 January 2019 or the date of publication in the Official Journal, whichever is the later.
            
         
         
            
               This Regulation shall be binding in its entirety and directly applicable in all Member States.
            
            
               Done at Brussels,
            
            
               
                     For the Commission
               
               
                     The President
                     […]