CELEX: 52010SC1632
Language: en
Date: 2011-01-10
Title: 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

EN
EN    EN
 ---pagebreak---                    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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 ---pagebreak---                                      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).
   1
            OJ L 8, 13.1.2009, p. 3.
EN                                                   2                                             EN
 ---pagebreak---    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
EN                                                  3                                               EN
 ---pagebreak---    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.
EN                                                   4                                              EN
 ---pagebreak---    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.
EN                                                 5                                               EN
 ---pagebreak---                                              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
           OJ L 305, 30.11.1994, p. 6.
   3
           OJ L 8, 13.1.2009, p. 3.
EN                                                  6                                             EN
 ---pagebreak---                                                     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)      Annex XX to the Agreement was amended by Decision of the EEA Joint Committee No …/…
            of …4.
   (2)      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.
   (3)      The decision making process will take place in close cooperation between the European
            Commission, the EFTA Surveillance Authority and the EFTA States.
   (4)      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):
   4
           OJ L …
   5
           OJ L 8, 13.1.2009, p. 3.
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 ---pagebreak---            ‘(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):
EN                                           8                                              EN
 ---pagebreak---                   ‘(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.]
EN                                                       9                                             EN
 ---pagebreak---      The Secretaries
     to the EEA Joint Committee
EN 10                           EN
 ---pagebreak---                                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.’
EN                                               11                                              EN