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COMMON
POSITION (EC) No 13/2008
adopted by the
Council on 18 April 2008
with a view to adopting
Directive 2008/.../EC of the European Parliament and of the Council of ...
amending Directive 2003/87/EC
so as to include aviation activities in the scheme for greenhouse gas
emmission allowance trading within the Community
(2008/C 122 E/03)
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE reported by the
Intergovernmental Panel on Climate
EUROPEAN
UNION,
Change (IPCC) in its Fourth Assessment Report demon-
strate even more clearly that the negative impacts of
climate change
are increasingly posing a serious risk to
Having
regard to the Treaty establishing the European Com- ecosystems, food production and
the attainment of
munity,
and in particular Article 175(1) thereof, sustainable development
and of the Millennium Develop-
ment Goals, as well as to human health and security.
Keeping the 2 °C objective within reach requires stabilisa-
Having
regard to the proposal from the Commission, tion of the concentration of greenhouse gases in the
atmosphere in line with about 450 ppmv CO2 equivalent,
which requires global
greenhouse gas emissions to peak
Having
regard to the opinion of the European Economic and within the next 10 to 15 years
and substantial global
Social
Committee (1),
emission reductions to at least 50 % below 1990 levels
by 2050.
Having
regard to the opinion of the Committee of the
Regions
(2),
Acting
in accordance with the procedure laid down in
Article
251 of the Treaty (3), (4) The European Council emphasised that the
European
Union
is committed to transforming Europe into a highly
energy-efficient and low
greenhouse-gas-emitting
Whereas:
economy and, until a global and comprehensive
post-2012
agreement is concluded, made a firm indepen-
dent commitment for the EU to reduce its greenhouse
gas emissions
to at least 20 % below 1990 levels by
(1) Directive 2003/87/EC of the European
Parliament and of
the Council of 13 October 2003
establishing a scheme
2020. The limitation of
greenhouse gas emissions from
for greenhouse gas emission
allowance trading within the aviation is an essential contribution in
line with this
Community ( commitment.
4) established a
scheme for greenhouse gas
emission allowance trading within
the Community in
order to promote reductions of
greenhouse gas emissions
in a cost-effective and
economically efficient manner.
(2) The ultimate objective of the United
Nations Framework
(5) The European Council
emphasised that the EU is
Convention on Climate Change
(UNFCCC), which was committed to a global and
comprehensive agreement for
approved on behalf of the European
Community by
reductions in greenhouse gas emissions beyond 2012,
Council Decision 94/69/EC (5), is to stabilise
greenhouse
providing an effective, efficient and equitable response on
gas concentrations in the
atmosphere at a level that the scale required to face climate
change challenges. It
would prevent dangerous
anthropogenic interference endorsed a 30 % reduction in the
EU's greenhouse gas
with the climate system. emissions below 1990
levels by 2020 as its contribution
to a global and comprehensive agreement for the period
beyond
2012, provided that other developed countries
(3) The European Council meeting in
Brussels on 8 and commit themselves to comparable
emission reductions
9 March 2007 underlined the vital
importance of
and economically more advanced developing countries to
achieving the strategic objective
of limiting the global
contributing adequately according to their responsibilities
average temperature increase to not
more than 2 °C
and respective capabilities. The EU is continuing to take
above pre-industrial levels. The
latest scientific findings
the lead in the negotiation of an ambitious international
agreement that will achieve the objective of limiting the
global
temperature increase to 2 °C and is encouraged by
(1)
OJ C 175, 27.7.2007, p. 47. the
progress made towards this objective at the
(2)
OJ C 305, 15.12.2007, p. 15.
(3)
Opinion of the European Parliament of 13 November 2007 (not yet 13th Conference of
the Parties to the UNFCCC in Bali in
published in the Official Journal),
Council Common Position of December 2007. The EU will seek to ensure
that such a
18 April 2008 and Position of the
European Parliament of ... (not yet global agreement includes measures to reduce
greenhouse
published in the Official Journal). Council Decision of
... gas
emissions from aviation and, in this event, the
(4)
OJ L 275, 25.10.2003, p. 32. Directive as amended by Directive
2004/101/EC (OJ L 338, 13.11.2004, p. 18).
Commission should consider which amendments to this
(5)
OJ L 33, 7.2.1994, p. 11.
Directive as it applies to aircraft operators are necessary.
C
122E/20 EN Official Journal of
the European Union 20.5.2008
(6) The UNFCCC requires all parties to
formulate and imple-
conclusions of October 2002, December 2003 and
ment national and, where appropriate,
regional
October 2004, the Council has repeatedly called on the
programmes containing measures to
mitigate climate
Commission to propose action to reduce the climate
change.
change impact of international air transport.
(10) Policies and measures
should be implemented at Member
(7) The Kyoto Protocol to the UNFCCC, which
was approved State
and Community level across all sectors of the Com-
on behalf of the European Community by
Council Deci- munity economy in order to
generate the substantial
sion 2002/358/EC (1), requires
developed countries to
reductions needed. If the climate change impact of the
pursue the limitation or reduction of
emissions of green-
aviation sector continues to grow at the current rate, it
house gases not controlled by the
Montreal Protocol
would significantly undermine reductions made by other
from aviation, working through the
International Civil
sectors to combat climate change.
Aviation Organization (ICAO).
(11) In its Communication of
27 September 2005 to the
(8) While the Community is not a Contracting
Party to the
Council, the European Parliament, the European
1944 Chicago Convention on
International Civil Aviation
Economic and Social Committee and the Committee of
(`the Chicago Convention'), all Member
States are the
Regions entitled `Reducing the Climate Change
Contracting Parties to that Convention
and members of
Impact of Aviation', the Commission outlined a strategy
the ICAO. Member States continue to
support work with
for reducing the climate impact of aviation. As part of a
other States in the ICAO on the
development of
comprehensive package of measures, the strategy
measures, including market-based
instruments, to address
proposed the inclusion of aviation in the Community
the climate change impacts of aviation.
At the sixth scheme
for greenhouse gas emission allowance trading
meeting of the ICAO Committee on
Aviation
and provided for the creation of a multi-stakeholder
Environmental Protection in 2004, it
was agreed that an working group on aviation as part of
the second phase
aviation-specific emissions trading
system based on a of
the European Climate Change Programme to consider
new legal instrument under ICAO
auspices seemed suffi-
ways of including aviation in the Community scheme. In
ciently unattractive that it should not
then be pursued its
Conclusions of 2 December 2005, the Council recog-
further. Consequently, Resolution A35-5
of the nised
that, from an economic and environmental point
ICAO's 35th Assembly held in September
2004 did not of
view, the inclusion of the aviation sector in the Com-
propose a new legal instrument but
instead endorsed
munity scheme seemed to be the best way forward and
open emissions trading and the
possibility for States to
called on the Commission to bring forward a legislative
incorporate emissions from international aviation into proposal by the end of
2006. In its resolution of 4 July
their emissions trading schemes.
Appendix L to Resolu-
2006 on reducing the climate change impact of avia-
tion A36-22 of the ICAO's 36th Assembly
held in tion
(3), the European Parliament recognised that emis-
September 2007 urges Contracting States
not to imple- sions
trading has the potential to play a role as part of a
ment an emissions trading system on
other Contracting
comprehensive package of measures to address the
States' aircraft operators except on
the basis of mutual
climate impact of aviation, provided that it is appropri-
agreement between those States.
Recalling that the
ately designed.
Chicago Convention recognises expressly
the right of
each Contracting Party to apply on a non-discriminatory
basis its own air laws and regulations
to the aircraft of all
States, the Member States of the
European Community
and fifteen other European States
placed a reservation on
(12) The objective of the amendments
made to Directive
this resolution and reserved the right
under the Chicago
2003/87/EC by this Directive is to reduce the climate
Convention to enact and apply
market-based measures
change impact attributable to aviation by including emis-
on a non-discriminatory basis to all
aircraft operators of
sions from aviation activities in the Community scheme.
all States providing services to, from
or within their terri-
tory.
(13) Aircraft operators have
the most direct control over the
type of aircraft in operation and the way in which they
are flown and should therefore be responsible for
(9) The Sixth Community Environment Action
Programme
complying with the obligations imposed by this Directive,
established by Decision No 1600/2002/EC
of the
including the obligation to prepare a monitoring plan
European Parliament and of the Council
(2) provided for and to monitor and report
emissions in accordance with
the Community to identify and undertake
specific actions that
plan. An aircraft operator may be identified by the
to reduce greenhouse gas emissions from
aviation if no use of
an ICAO designator or any other recognised desig-
such action were agreed within the ICAO
by 2002. In its nator
used in the identification of the flight. If the iden-
tity of
the aircraft operator is not known, the owner of
(1)
OJ L 130, 15.5.2002, p. 1.
(2)
OJ L 242, 10.9.2002, p. 1. (3) OJ C 303 E,
13.12.2006, p. 119.
20.5.2008 EN Official Journal of the European
Union
C 122E/21
the aircraft should be regarded as the
aircraft operator (18) Full harmonisation of the proportion of
allowances
unless it proves which other person
was the aircraft
issued free of charge to all aircraft operators participating
operator. in
the scheme is appropriate in order to ensure a level
playing field for aircraft operators, given that each aircraft
operator will be regulated
by a single Member State in
respect of all their operations to, from and within the EU
and by
the non-discrimination provisions of bilateral air
(14) From 2012, emissions from all flights
arriving at and
service agreements with third countries.
departing from Community aerodromes
should be
included. The Community scheme may
thus serve as a
model for the use of emissions trading
worldwide. If a
third country adopts measures for
reducing the climate
impact of flights to the Community the
Commission
should consider the options available
in order to provide
for optimal interaction between the
Community scheme (19) Aviation contributes to the overall
climate change impact
and that country's measures, after
consulting with that of
human activities and the environmental impact of
country.
greenhouse gas emissions from aircraft can be mitigated
through
measures to tackle climate change in the EU and
third countries, and to fund research and development
for
mitigation and adaptation. Decisions on national
public expenditure are a matter for Member States, in
line with the principle of subsidiarity. Without prejudice
(15) In line with the principle of better
regulation, certain
flights should be exempt from the scheme.
To further to that
position, revenues generated from the auctioning
avoid disproportionate administrative
burdens, commer- of
allowances, or an equivalent amount where required
cial air transport operators
operating, for three consecu-
by overriding budgetary principles of the Member States,
tive four-month periods, fewer than
243 flights per such
as unity and universality, should be used to reduce
period should be exempt from the
scheme. This would
greenhouse gas emissions, to adapt to the impacts of
benefit airlines operating limited
services within the
climate change in the EU and third countries, to fund
scope of the Community scheme,
including airlines from
research and development for mitigation and adaptation
developing countries.
and to cover the cost of administering the scheme. This
could include measures to encourage environmentally-
friendly transport. The proceeds of auctioning should in
particular be used to fund contributions to the Global
Energy Efficiency and Renewable Energy Fund, and
measures to avoid deforestation and facilitate adaptation
(16) Aviation has an impact on the global
climate through in developing countries. The
provisions of this Directive
releases of carbon dioxide, nitrogen
oxides, water vapour
relating to the use of revenues should not prejudge any
and sulphate and soot particles. The
IPCC has estimated
decision on the use to be made of revenues generated
that the total impact of aviation is
currently two to four from
the auctioning of allowances in the broader context
times higher than the effect of its
past carbon dioxide of
the general review of Directive 2003/87/EC.
emissions alone. Recent Community
research indicates
that the total impact of aviation
could be around two
times higher than the impact of carbon
dioxide alone.
However, none of these estimates takes
into account the
highly uncertain cirrus cloud effects.
In accordance with
Article 174(2) of the Treaty,
Community environment
policy is to be based on the precautionary
principle. (20) Provisions for the use of funds from the
auctioning
Pending scientific progress, all
impacts of aviation should
should be notified to the Commission. Such notification
be addressed to the extent possible.
Emissions of nitrogen does
not release Member States from the obligation laid
oxides will be addressed in other
legislation to be
down in Article 88(3) of the Treaty to notify certain
proposed by the Commission in 2008. national measures. This
Directive should be without
prejudice to the outcome of any future State aid proce-
dures that may be undertaken in accordance with Arti-
cles 87 and 88 of the Treaty.
(17) In order to avoid distortions of
competition, a harmo-
nised allocation methodology should be
specified for
determining the total quantity of
allowances to be issued
and for distributing allowances to
aircraft operators. A
proportion of allowances will be
allocated by auction in
accordance with rules to be developed
by the Commis- (21) To increase the cost-effectiveness of the
scheme, aircraft
sion. A special reserve of allowances
should be set aside
operators should be able to use certified emission reduc-
to ensure access to the market for new
aircraft operators tions
(`CERs') and emission reduction units (`ERUs') from
and to assist aircraft operators which
increase sharply the project
activities to meet obligations to surrender allow-
number of tonne-kilometres that they
perform. Aircraft ances
up to a harmonised limit. The use of CERs and
operators that cease operations should
continue to be ERUs
should be consistent with the criteria for accep-
issued with allowances until the end
of the period for tance
for use in the trading scheme set out in this Direc-
which free allowances have already
been allocated.
tive.
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122E/22 EN Official Journal of
the European Union 20.5.2008
(22) In
order to reduce the administrative burden on aircraft arising for outermost regions, as specified in
operators, one Member State should be
responsible for
Article 299(2) of the Treaty, and problems for public
each aircraft operator. Member States
should be required
service obligations in connection with the implementa-
to ensure that aircraft operators
which were issued with
tion of this Directive.
an operating licence in that State, or aircraft operators
without an operating licence or from
third countries
whose emissions in a base year are
mostly attributable to
that Member State, comply with the
requirements of this (29)
The Ministerial Statement on Gibraltar Airport, agreed in
Directive. In the event that an
aircraft operator fails to
Cordoba on 18 September 2006, during the first Minis-
comply with the requirements of this Directive
and other terial
meeting of the Forum of Dialogue on Gibraltar, will
enforcement measures by the
administering Member
replace the Joint Declaration on the Airport made in
State have failed to ensure
compliance, Member States
London on 2 December 1987, and full compliance with
should act in solidarity. The
administering Member State
it will be deemed to constitute compliance with the
should therefore be able to request
the Commission to
1987 Declaration.
decide on the imposition of an
operating ban at Com-
munity level on the aircraft operator
concerned, as a last
resort. (30) The measures necessary for the
implementation of this
Directive should be adopted in accordance with Council
Decision
1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers
(23) To maintain the integrity of the
accounting system for
conferred on the Commission (1).
the Community scheme in view of the
fact that emissions
from international aviation are not
integrated into
Member States' commitments under the
Kyoto Protocol,
allowances allocated to the aviation
sector should only be (31) In particular, the Commission should be
empowered to
used to meet the obligations placed on
aircraft operators adopt measures for the auctioning of
allowances not
to surrender allowances under this
Directive.
required to be issued for free; to adopt detailed rules on
the
operation of the special reserve for certain aircraft
operators and on the procedures in relation to requests
for the
Commission to decide on the imposition of an
(24) To safeguard the environmental integrity
of the scheme,
operating ban on an aircraft operator; and to amend the
units surrendered by aircraft
operators should only count
aviation activities listed in Annex I where a third country
towards greenhouse gas reduction
targets that take these
introduces measures to reduce the climate change impact
emissions into account.
of aviation. Since those measures are of general scope
and are designed to amend non-essential elements of this
Directive, inter alia by supplementing this Directive with
new non-essential
elements, they must be adopted in
(25) The European Organisation for the Safety
of Air Naviga-
accordance with the regulatory procedure with scrutiny
tion (Eurocontrol) may possess
information which could
provided for in Article 5a of Decision 1999/468/EC.
assist Member States or the Commission
in discharging
their obligations imposed by this
Directive.
(32) Since the objective of this Directive cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale and
effects of the proposed action, be
(26) The provisions of the Community scheme
relating to
better achieved at Community level, the Community may
monitoring, reporting and verifying
emissions and to
adopt measures, in accordance with the principle of
penalties applicable to operators
should also apply to
subsidiarity as set out in Article 5 of the Treaty. In
aircraft operators. accordance
with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary in order to achieve that objective.
(27) The Commission should review the
functioning of Direc-
tive 2003/87/EC in relation to
aviation activities in the
light of experience of its application
and should then (33) In accordance with point 34 of the
Interinstitutional
report to the European Parliament and
the Council. Agreement
on better law-making (2), Member States are
encouraged to draw up, for themselves and in the interest
of the Community, their
own tables illustrating, as far as
possible, the correlation between the Directive and the
transposition
measures, and to make them public.
(28) The review of the functioning of Directive
2003/87/EC
in relation to aviation activities
should consider the struc-
tural dependence on aviation of
countries which do not
have adequate and comparable
alternative modes of
(34) Directive 2003/87/EC
should therefore be amended
transport and which are therefore
highly dependent on
accordingly,
air transport and in which the tourism
sector provides a
high contribution to those countries'
GDP. Special (1) OJ L
184, 17.7.1999, p. 23. Decision as amended by Decision
consideration should be given to
mitigating or even elim-
2006/512/EC (OJ L 200, 22.7.2006, p. 11).
inating any accessibility and
competitiveness problems (2)
OJ C 321, 31.12.2003, p. 1.
20.5.2008 EN Official Journal of the European
Union C 122E/23
HAVE
ADOPTED THIS DIRECTIVE:
years 2004, 2005 and 2006 from aircraft
performing
an aviation activity listed in Annex I.';
4. the following Chapter shall be inserted after Article 3:
Article
1
`CHAPTER II
Amendments to Directive
2003/87/EC
Aviation
Directive
2003/87/EC is hereby amended as follows: Article 3a
1.
the following title shall be inserted before Article 1: Scope
`CHAPTER I
The provisions of this Chapter shall apply to the allocation
and issue of allowances in respect of aviation activities
General provisions'; listed in
Annex I.
2.
the following paragraph shall be added to Article 2:
Article 3b
`3.
The application of this Directive to the airport of
Gibraltar is understood to be without
prejudice to the
respective legal positions of the Kingdom
of Spain and the
Aviation activities
United Kingdom with regard to the dispute
over sovereignty
over the territory in which the airport is
situated.'; By ... (*), the Commission
shall, in accordance with the
regulatory procedure referred to in Article 23(2), develop
guidelines on the detailed
interpretation of the aviation
3.
Article 3 shall be amended as follows: activities in Annex I, in
particular flights related to search
and
rescue, fire-fighting flights, humanitarian flights, emer-
(a) point (b) shall be replaced by the
following:
gency medical service flights, and flights performed by
commercial air transport operators operating, for three
`(b) "emissions" means
the release of greenhouse gases
consecutive four-month periods, fewer than 243 flights per
into the atmosphere from
sources in an installation
period.
or the release from an aircraft
performing an avia-
tion activity listed in Annex I
of the gases specified
in respect of that
activity;';
Article 3c
(b) the following points shall be
added:
Total quantity of allowances for aviation
`(o) "aircraft operator"
means the person who operates
1. For the period from 1
January 2012 to 31 December
an aircraft at the time it
performs an aviation
2012, the total quantity of allowances to be allocated to
activity listed in Annex I or,
where that person is
aircraft operators shall be equivalent to 100 % of the histor-
not known or is not identified
by the owner of the ical
aviation emissions.
aircraft, the owner of the
aircraft;
(p) "commercial air transport
operator" means an
2. For the period referred to
in Article 11(2) beginning
operator that, for
remuneration, provides scheduled
on 1 January 2013, and, in the absence of any amendments
or non-scheduled air transport
services to the
following the review referred to in Article 30(4), for each
public for the carriage of
passengers, freight or
subsequent period, the total quantity of allowances to be
mail;
allocated to aircraft operators shall be equivalent to 100 %
of the historical aviation emissions multiplied by the
(q) "administering Member
State" means the Member number of years in the period.
State responsible for
administering the Community
scheme in respect of an
aircraft operator in accord-
ance with Article 18a;
3. The Commission shall
review the total quantity of
allowances to be allocated to aircraft operators in accord-
ance with Article 30(4).
(r) "attributed aviation
emissions" means emissions
from all flights falling within
the aviation activities
listed in Annex I which depart
from an aerodrome
4. By ... (*), the Commission
shall decide on the
situated in the territory of a
Member State and
historical aviation emissions, based on best available data,
those which arrive in such an
aerodrome from a including estimates
based on actual traffic
third country;
information. That decision shall be considered within the
Committee referred to
in Article 23(1).
(s) "historical aviation
emissions" means the mean
average of the annual emissions
in the calendar (*) Six
months from the date of entry into force of this Directive.
C
122E/24 EN Official Journal
of the European Union 20.5.2008
Article 3d the start of the period to which
it relates or, in relation to
the period referred to in Article 3c(1), by 31 March 2011.
Method of allocation of allowances for
aviation
through auctioning 2. At least eighteen months before the
start of the
1.
In the period referred to in Article 3c(1), 10 % of period to which the application
relates or, in relation to the
allowances shall be auctioned.
period referred to in Article 3c(1), by 30 June 2011,
Member States shall submit applications received under
paragraph 1 to the Commission.
2.
For subsequent periods, the percentage to be
auctioned referred to in paragraph 1 may be
increased as
part of the general review of this
Directive.
3. At least fifteen months
before the start of each period
referred to in Article 3c(2) or, in relation to the period
referred to in Article 3c(1), by 30 September 2011, the
Commission shall calculate and
adopt a decision setting
3.
A Regulation shall be adopted containing detailed out:
provisions for the auctioning by Member
States of allow-
ances not required to be issued free of
charge in accordance
with paragraphs 1 and 2 of this Article or
Article 3f(8). (a) the
total quantity of allowances to be allocated for that
The number of allowances to be auctioned in
each period
period in accordance with Article 3c;
by each Member State shall be proportionate
to its share of
the total attributed aviation emissions for
all Member States
for the reference year reported pursuant to
Article 14(3) (b) the
number of allowances to be auctioned in that
and verified pursuant to Article 15. For
the period referred
period in accordance with Article 3d;
to in Article 3c(1), the reference year
shall be 2010 and for
each subsequent period referred to in
Article 3c the refer- (c)
the number of allowances in the special reserve for
ence year shall be the calendar year ending
24 months
aircraft operators in that period in accordance with
before the start of the period to which the
auction relates.
Article 3f(1);
That Regulation, designed to amend
non-essential elements
(d) the number of allowances to be allocated free of charge
of this Directive by supplementing it,
shall be adopted in
in that period by subtracting the number of allowances
accordance with the regulatory procedure
with scrutiny
referred to in points (b) and (c) from the total quantity
referred to in Article 23(3).
of allowances decided upon under point (a); and
(e) the benchmark to be used to allocate allowances free of
4.
It shall be for Member States to determine the use to charge to aircraft
operators whose applications were
be made of revenues generated from the
auctioning of
submitted to the Commission in accordance with para-
allowances. Those revenues should be used
to tackle climate
graph 2.
change in the EU and third countries and to
cover the costs
of the administering Member State in
relation to this Direc-
tive.
The benchmark referred to in point (e), expressed as allow-
ances per tonne-kilometre, shall be calculated by dividing
the number of allowances referred to in point (d) by the
sum of the tonne-kilometre data included in applications
5.
Information provided to the Commission pursuant to submitted to the Commission in
accordance with para-
this Directive does not free Member States
from the notifi- graph 2.
cation obligation laid down in Article
88(3) of the Treaty.
4. Within three months from
the date on which the
Article 3e Commission adopts a decision
under paragraph 3, each
administering Member State shall calculate and publish:
Allocation and issue of allowances to
aircraft operators (a)
the total allocation of allowances for the period to each
aircraft operator whose application it submitted to the
1.
For each period referred to in Article 3c, each aircraft Commission in accordance
with paragraph 2, calculated
operator may apply for an allocation of
allowances that are
by multiplying the tonne-kilometre data included in the
to be allocated free of charge. An
application may be made
application by the benchmark referred to in
by submitting to the competent authority in
the adminis-
paragraph 3(e); and
tering Member State verified
tonne-kilometre data for the
aviation activities listed in Annex I
performed by that
aircraft operator for the monitoring year.
For the purposes (b) the
allocation of allowances to each aircraft operator
of this Article, the monitoring year shall
be the calendar
for each year, which shall be determined by dividing its
year ending 24 months before the start of
the period to
total allocation of allowances for the period calculated
which it relates in accordance with Annexes
IV and V or, in
under point (a) by the number of years in the period
relation to the period referred to in
Article 3c(1), 2010. for which that aircraft
operator is performing an avia-
Any application shall be made at least 21
months before
tion activity listed in Annex I.
20.5.2008 EN Official Journal of the European
Union
C 122E/25
5.
By 28 February 2012 and by 28 February of each year for which tonne-kilometre data
was submitted
subsequent year, the competent authority of
the adminis-
under Article 3e(1) in respect of a period referred
tering Member State shall issue to each
aircraft operator the
to in Article 3c(2) and the second calendar year of
number of allowances allocated to that
aircraft operator for
that period; and
that year under this Article or Article 3f.
(iii) the absolute growth in tonne-kilometres performed
by that aircraft operator between the monitoring
Article 3f
year for which tonne-kilometre data was submitted
under Article 3e(1) in respect of a period referred
Special reserve for certain aircraft
operators to in Article 3c(2) and the
second calendar year of
that period which exceeds the percentage specified
in
paragraph 1(b).
1.
In each period referred to in Article 3c(2), 3 % of the
total quantity of allowances to be
allocated shall be set
aside in a special reserve for aircraft
operators: 4. No later than six months from the deadline for
making an application under paragraph 2, Member States
shall submit applications
received under that paragraph to
(a) who start performing an aviation
activity falling within the
Commission.
Annex I after the monitoring year for
which tonne-kilo-
metre data was submitted under
Article 3e(1) in respect
of a period referred to in Article
3c(2); or 5. No later than twelve months from the
deadline for
(b) whose tonne-kilometre data increases by
an average of making an application under paragraph 2,
the Commission
more than 18 % annually between the
monitoring year shall
decide on the benchmark to be used to allocate allow-
for which tonne-kilometre data was
submitted under ances
free of charge to aircraft operators whose applications
Article 3e(1) in respect of a period
referred to in were
submitted to the Commission in accordance with
Article 3c(2) and the second calendar
year of that paragraph
4.
period;
and whose activity under point (a), or
additional activity
Subject to paragraph 6, the benchmark shall be calculated
under point (b), is not in whole or in part
a continuation by
dividing the number of the allowances in the special
of an aviation activity previously
performed by another
reserve by the sum of:
aircraft operator.
(a)
the tonne-kilometre data for aircraft operators falling
2.
An aircraft operator who is eligible under paragraph 1 within paragraph 1(a)
included in applications
may apply for a free allocation of
allowances from the
submitted to the Commission in accordance with para-
special reserve by making an application to
the competent
graphs 3(a) and 4; and
authority of its administering Member
State. Any applica-
tion shall be made by 30 June in the third
year of the
period referred to in Article 3c(2) to
which it relates. (b)
the absolute growth in tonne-kilometres exceeding the
percentage specified in
paragraph 1(b) for aircraft
operators falling within paragraph 1(b) included in
3.
An application under paragraph 2 shall: applications submitted to the
Commission in accord-
ance with paragraphs 3(c)(iii) and 4.
(a) include verified tonne-kilometre data
in accordance
with Annexes IV and V for the
aviation activities
6. The benchmark referred to
in paragraph 5 shall not
listed in Annex I performed by the
aircraft operator in result
in an annual allocation per tonne-kilometre greater
the second calendar year of the
period referred to in than
the annual allocation per tonne-kilometre to aircraft
Article 3c(2) to which the
application relates; operators under Article 3e(4).
(b) provide evidence that the criteria for
eligibility under
paragraph 1 are fulfilled; and 7. Within three months from the date on
which the
Commission
adopts a decision under paragraph 5, each
(c) in the case of aircraft operators
falling within
administering Member State shall calculate and publish:
paragraph 1(b), state:
(a) the allocation of allowances from the special reserve to
(i) the percentage increase in
tonne-kilometres
each aircraft operator whose application it submitted to
performed by that aircraft
operator between the
the Commission in accordance with paragraph 4. This
monitoring year for which
tonne-kilometre data allocation shall be calculated by
multiplying the bench-
was submitted under Article 3e(1)
in respect of a mark
referred to in paragraph 5 by:
period referred to in Article
3c(2) and the second
calendar year of that
period;
(i) in the case of an aircraft operator falling within
paragraph 1(a), the tonne-kilometre data included in
(ii) the absolute growth in
tonne-kilometres performed the application submitted to the Commission
under
by that aircraft operator between
the monitoring
paragraphs 3(a) and 4;
C
122E/26 EN Official Journal
of the European Union 20.5.2008
(ii) in the case of an aircraft
operator falling within 7. the
following title shall be inserted after Article 11:
paragraph 1(b), the absolute
growth in tonne-kilo-
metres exceeding the percentage
specified in para-
graph 1(b) included in the
application submitted to `CHAPTER IV
the Commission under paragraphs
3(c)(iii) and 4;
and
Provisions applying to aviation and stationary
installations';
(b) the allocation of allowances to each
aircraft operator
for each year, which shall be
determined by dividing its 8.
in Article 11a the following paragraph shall be inserted:
allocation of allowances under point (a) by the number
of full calendar years remaining in
the period referred
to in Article 3c(2) to which the
allocation relates.
`1a. Subject to
paragraph 3, during each period referred
to in Article 3c, Member States shall allow each aircraft
8.
Any unallocated allowances in the special reserve operator to use CERs and
ERUs from project activities.
shall be auctioned by Member States. During
the period referred to in Article 3c(1), aircraft
operators may use CERs and
ERUs, up to 15 % of the
number of allowances they are required to surrender
pursuant to Article
12(2a).
9.
The Commission may establish detailed rules on the
operation of the special reserve under
this Article, including
the assessment of compliance with
eligibility criteria under
paragraph 1. Those measures, designed to
amend For
subsequent periods, the percentage shall be decided in
non-essential elements of this Directive
by supplementing line
with the procedure for determining the use of CERs
it, shall be adopted in accordance with
the regulatory proce- and
ERUs from project activities, as part of the review of
dure with scrutiny referred to in Article
23(3). this
Directive and taking into consideration the develop-
ment of the international climate change regime.
Article 3g
The Commission shall publish this percentage at least six
months before the start of each period referred to in
Monitoring and reporting plans Article 3c.';
The administering Member State shall
ensure that each
aircraft operator submits to the competent
authority in that 9. in
Article 11b(2), the word `installations' shall be replaced
State a monitoring plan setting out
measures to monitor
by the word `activities';
and report emissions and tonne-kilometre
data for the
purpose of an application under Article 3e
and that such
plans are approved by the competent
authority in accord- 10. Article 12 shall be amended as
follows:
ance with the guidelines adopted pursuant
to Article 14.';
(a) in paragraph 2, after the word `purpose' the words `of
meeting an aircraft operator's obligations under para-
5.
the following title and Article shall be inserted: graph 2a or' shall be inserted;
`CHAPTER III (b)
the following paragraph shall be inserted:
Stationary installations
`2a. Administering Member
States shall ensure that,
by 30 April each year, each aircraft operator surrenders
a number of
allowances equal to the total emissions
Article 3h
during the preceding calendar year from aviation activ-
ities listed in Annex I
for which it is the aircraft
Scope
operator, as verified in accordance with Article 15.
Member
States shall ensure that allowances surrendered
The provisions of this Chapter shall apply
to greenhouse
in accordance with this paragraph are subsequently
gas emissions permits and the allocation
and issue of allow-
cancelled.';
ances in respect of activities listed in
Annex I other than
aviation activities.';
(c) paragraph 3 shall be replaced by
the following:
6.
point (e) of Article 6(2) shall be replaced by the following: `3. Member States shall ensure that, by 30
April each
year,
the operator of each installation surrenders a
`(e) an obligation to surrender
allowances, other than number of allowances, other than
allowances issued
allowances issued under Chapter II,
equal to the total
under Chapter II, equal to the total emissions from that
emissions of the installation in
each calendar year, as
installation during the preceding calendar year as veri-
verified in accordance with Article
15, within four
fied in accordance with Article 15, and that these are
months following the end of that
year.'; subsequently cancelled.';
20.5.2008 EN Official Journal of the European Union C
122E/27
11.
in Article 13(3), the words `Article 12(3)' shall be replaced breach of requirements to
surrender sufficient allow-
by the words `Article 12(2a) or (3)';
ances under this Directive.
12.
Article 14 shall be amended as follows:
3. Member States shall ensure that any
operator or
(a) in the first sentence of paragraph
1:
aircraft operator who does not surrender sufficient
allowances by 30 April of each year to cover its emis-
(i) after the words `those activities'
the words `and of
sions during the preceding year shall be held liable for
tonne-kilometre data for the
purpose of an applica-
the payment of an excess emissions penalty. The excess
tion under Articles 3e or 3f'
shall be inserted;
emissions penalty shall be EUR 100 for each tonne of
carbon dioxide equivalent emitted for which the
(ii) the words `, by 30 September
2003' shall be operator or aircraft operator has not
surrendered allow-
deleted; ances.
Payment of the excess emissions penalty shall
not
release the operator or aircraft operator from the
obligation to surrender an amount of allowances equal
(b) paragraph 3 shall be replaced by the
following: to
those excess emissions when surrendering allowances
in relation to the following calendar year.';
`3. Member States shall ensure that each operator or
aircraft operator reports the
emissions during each
calendar year from the installation,
or, from
1 January 2010, the aircraft, which it
operates to the (c) the
following paragraphs shall be added:
competent authority after the end of
that year in
accordance with the guidelines.';
`5. In the event that an
aircraft operator fails to
comply
with the requirements of this Directive and
13.
Article 15 shall be replaced by the following: where other enforcement measures
have failed to
ensure
compliance, its administering Member State may
request the Commission to decide on the imposition of
`Article 15
an operating ban on the aircraft operator concerned.
Verification
6. Any request by an administering Member State
Member States shall ensure that the
reports submitted by
under paragraph 5 shall include:
operators and aircraft operators pursuant
to Article 14(3)
are verified in accordance with the
criteria set out in
Annex V and any detailed provisions
adopted by the
(a) evidence that the aircraft operator has not complied
Commission in accordance with this
Article, and that the
with its obligations
under this Directive;
competent authority is informed thereof.
(b) details of the enforcement action which has been
Member States shall ensure that an
operator or aircraft taken by that Member State;
operator whose report has not been
verified as satisfactory
in accordance with the criteria set out in
Annex V and any (c)
a justification for the imposition of an operating
detailed provisions adopted by the
Commission in accord- ban at Community level; and
ance with this Article by 31 March each
year for emissions
during the preceding year cannot make
further transfers of
allowances until a report from that
operator or aircraft
(d) a recommendation for the scope of an operating
operator has been verified as
satisfactory. ban at Community level and any conditions that
should be applied.
The Commission may adopt detailed
provisions for the
verification of reports submitted by
aircraft operators
7. When requests such as
those referred to in para-
pursuant to Article 14(3) and applications
under Articles 3e
graph 5 are addressed to the Commission, the Commis-
and 3f, in accordance with the regulatory
procedure
sion shall inform the other Member States (through
referred to in Article 23(2).';
their representatives on the Committee referred to in
Article 23(1) in accordance with the Committee's Rules
of Procedure).
14.
Article 16 shall be amended as follows:
(a) in paragraph 1, the words `by 31
December 2003 at
the latest,' shall be deleted;
8. The adoption of a
decision following a request
pursuant
to paragraph 5 shall be preceded, when appro-
priate and practicable, by consultations with the autho-
(b) paragraphs 2 and 3 shall be replaced
by the following:
rities responsible for regulatory oversight of the aircraft
operator concerned. Whenever possible, consultations
`2. Member States shall ensure publication of the shall be held jointly by
the Commission and the
names of operators and aircraft
operators who are in
Member States.
C
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the European Union 20.5.2008
9. When the Commission is considering whether to 3. Based on the best available information, the Commis-
adopt a decision following a request
pursuant to para- sion
shall:
graph 5, it shall disclose to the
aircraft operator
concerned the essential facts and
considerations which
form the basis for such decision.
The aircraft operator (a)
before 1 February 2009, publish a list of aircraft opera-
concerned shall be given an
opportunity to submit
tors which performed an aviation activity listed in
written comments to the Commission
within
Annex I on or after 1 January 2006 specifying the
10 working days from the date of
disclosure.
administering Member State for each aircraft operator
in accordance with paragraph 1; and
10. At the request of a Member State, the Commis- (b) before 1 February of each subsequent year, update the
sion, in accordance with the
regulatory procedure
list to include aircraft operators which have subse-
referred to in Article 23(2), may
adopt a decision to
quently performed an aviation activity listed in Annex I.
impose an operating ban on the
aircraft operator
concerned. 4. For the purposes of paragraph 1,
"base year" means,
in relation to an aircraft operator which started operating
in the Community after 1 January 2006, the first calendar
11. Each Member State shall enforce, within its terri- year of operation, and in all other
cases, the calendar year
tory, any decisions adopted under
paragraph 10. It shall
starting on 1 January 2006.
inform the Commission of any
measures taken to
implement such decisions.
Article 18b
12. Where appropriate,
detailed rules shall be estab-
lished in respect of the procedures
referred to in this
Assistance from Eurocontrol
Article. Those measures, designed to
amend non-essen-
tial elements of this Directive by
supplementing it, shall
be adopted in accordance with the
regulatory procedure For
the purposes of carrying out its obligations under Arti-
with scrutiny referred to in Article
23(3).'; cles 3c(4) and 18a, the Commission may
request the assis-
tance of Eurocontrol and may conclude to that effect any
appropriate agreements
with that organisation.
15.
the following Articles shall be inserted: (*) OJ L 240, 24.8.1992, p. 1.';
`Article 18a 16. in Article 19, paragraph 3 shall
be amended as follows:
Administering Member State
(a) the last sentence shall be replaced by the following:
1.
The administering Member State in respect of an `That Regulation
shall also include provisions
aircraft operator shall be: concerning
the use and identification of CERs and ERUs
in
the Community scheme and the monitoring of the
level of such use and provisions to take account of the
(a) in the case of an aircraft operator
with a valid operating
inclusion of aviation activities in the Community
licence granted by a Member State in
accordance with
scheme.';
the provisions of Council Regulation
(EEC) No 2407/92
of 23 July 1992 on licensing of air
carriers (*), the
Member State which granted the
operating licence in
(b) the following subparagraph shall be added:
respect of that aircraft operator;
and
`The Regulation on a standardised and secured system
(b) in all other cases, the Member State
with the greatest
of registries shall ensure that allowances, CERs and
estimated attributed aviation
emissions from flights
ERUs surrendered by aircraft operators are transferred
performed by that aircraft operator
in the base year.
to Member States' retirement accounts for the Kyoto
Protocol's first commitment period only to the extent
that those
allowances, CERs and ERUs correspond to
2.
Where in the first two years of any period referred to emissions included in the
national totals of Member
in Article 3c, none of the attributed
aviation emissions
States' national inventories for that period.';
from flights performed by an aircraft
operator falling
within paragraph 1(b) of this Article are
attributed to its
administering Member State, the aircraft
operator shall be 17. in
Article 23, paragraph 3 shall be replaced by the
transferred to another administering
Member State in
following:
respect of the next period. The new administering
Member
State shall be the Member State with the
greatest estimated
`3. Where reference is made
to this paragraph,
attributed aviation emissions from flights
performed by Article
5a(1) to (4) and Article 7 of Decision 1999/468/EC
that aircraft operator during the first
two years of the shall
apply, having regard to the provisions of Article 8
previous period. thereof.';
20.5.2008 EN Official Journal of the European
Union
C 122E/29
18.
the following Article shall be inserted: installations in the
pool, by way of derogation from
Article 16(2), (3) and (4).';
`Article 25a
20. the following paragraph
shall be added to Article 30:
Third country measures to reduce the
climate change
impact of aviation `4. By 1 June 2015 the Commission shall, on
the basis
of monitoring and experience of the application of this
1.
Where a third country adopts measures for reducing Directive, review the
functioning of this Directive in rela-
the climate change impact of flights
departing from that
tion to aviation activities in Annex I and may make propo-
country which land in the Community, the
Commission, sals
as appropriate. The Commission shall give considera-
after consulting with that third country,
and with Member tion
in particular to:
States within the Committee referred to in
Article 23(1),
shall consider options available in order
to provide for
optimal interaction between the Community
scheme and (a)
the implications and impacts of this Directive as regards
that country's measures. the overall
functioning of the Community scheme;
Where necessary, the Commission may adopt
amendments (b)
the functioning of the aviation allowance market,
to provide for flights arriving from the
third country covering in particular any
possible market disturbances;
concerned to be excluded from the aviation
activities listed
in Annex I or to provide for any other
amendments to the (c)
the environmental effectiveness of the Community
aviation activities listed in Annex I
which are required by
scheme and the extent by which the total quantity of
an agreement pursuant to the fourth
subparagraph. Those
allowances to be allocated to aircraft operators under
measures, designed to amend non-essential
elements of this
Article 3c should be reduced in line with overall EU
Directive, shall be adopted in accordance
with the regula- emissions reduction targets;
tory procedure with scrutiny referred to
in Article 23(3).
(d) the impact of the Community scheme on the aviation
The Commission may propose to the European
Parliament
sector;
and the Council any other amendments to
this Directive.
(e) continuing with the special reserve for aircraft opera-
The Commission may also, where
appropriate, make tors, taking into account the
likely convergence of
recommendations to the Council in
accordance with
growth rates across the
industry;
Article 300(1) of the Treaty to open
negotiations with a
view to concluding an agreement with the
third country (f)
the impact of the Community scheme on the structural
concerned. dependency
on aviation transport of islands, landlocked
regions and peripheral regions of the Community;
2.
The Community and its Member States shall continue
to seek an agreement on global measures to
reduce green- (g)
whether a gateway system should be included to facili-
house gas emissions from aviation. In the
light of any such
tate the trading of allowances between aircraft operators
agreement, the Commission shall consider
whether amend-
and operators of installations whilst ensuring that no
ments to this Directive as it applies to
aircraft operators are
transactions would result in a net transfer of allowances
necessary.';
from aircraft operators to operators of installations;
19.
Article 28 shall be amended as follows: (h) the implications of the
exclusion thresholds as specified
in Annex I in terms of certified maximum take-off
mass and number of flights per year performed by an
(a) point (b) of paragraph 3 shall be
replaced by the aircraft operator; and
following:
(i) the impact of the exemption from the Community
`(b) to be responsible for
surrendering allowances, scheme of certain flights performed in
the framework
other than allowances issued
under Chapter II,
of public service obligations imposed in accordance
equal to the total emissions
from installations
with Council Regulation (EEC) No 2408/92 of 23 July
in the pool, by way of
derogation from
1992 on access for Community air carriers to intra-
Articles 6(2)(e) and 12(3); and'; Community
air routes (*).
(b) paragraph 4 shall be replaced by the
following: The
Commission shall then report to the European
Parliament
and the Council.
`4. The trustee shall be subject to the penalties
applicable for breaches of
requirements to surrender
(*) OJ L 240, 24.8.1992, p. 8. Regulation as last amended
sufficient allowances, other than
allowances issued
by Regulation (EC) No 1791/2006 (OJ L 363,
under Chapter II, to cover the total
emissions from 20.12.2006, p. 1).';
C
122E/30 EN Official
Journal of the European Union 20.5.2008
21.
the following title shall be inserted after Article 30: Article 3
`CHAPTER V
Entry into force
Final provisions';
22.
Annexes I, IV and V shall be amended in accordance with This Directive shall
enter into force on the twentieth day
the Annex to this Directive.
following its publication in the Official Journal of the European
Union.
Article 2
Transposition
Article 4
1. Member States shall bring into force the
laws, regulations
and
administrative provisions necessary to comply with this
Addressees
Directive
before ... (*). They shall forthwith inform the
Commission
thereof. This Directive is
addressed to the Member States.
When
Member States adopt those measures, they shall contain a
reference
to this Directive or shall be accompanied by such
reference
on the occasion of their official publication. The
methods
of making such reference shall be laid down by Done at ...
Member
States.
2. Member States shall communicate to the
Commission the For
the European Parliament For the Council
text
of the main provisions of national law which they adopt in
the
field covered by this Directive. The Commission shall inform The President The President
the
Member States thereof.
...
...
(*)
18 months after date of entry into force of this Directive.
20.5.2008 EN Official Journal of the
European Union C 122E/31
ANNEX
Annexes I, IV and V to Directive
2003/87/EC are hereby amended as follows:
1. Annex I shall be amended as
follows:
(a) the title shall be
replaced by the following:
`CATEGORIES OF ACTIVITIES
TO WHICH THIS DIRECTIVE APPLIES';
(b) the following subparagraph
shall be inserted in paragraph 2 before the table:
`For the year 2012 all
flights which arrive at or depart from an aerodrome situated in the territory
of a Member
State to which the Treaty
applies shall be included.';
(c) the following category of
activity shall be added:
`Aviation
Flights which depart from
or arrive in an aerodrome situated in the terri- Carbon dioxide'
tory of a Member State to
which the Treaty applies.
This activity shall not
include:
(a) flights performed
exclusively for the transport, on official mission, of a
reigning Monarch
and his immediate family, Heads of State, Heads of
Government and
Government Ministers, of a country other than a
Member State, where
this is substantiated by an appropriate status
indicator in the
flight plan;
(b) military flights
performed by military aircraft and customs and police
flights;
(c) flights related to search and rescue, fire-fighting
flights, humanitarian
flights and
emergency medical service flights authorised by the appro-
priate competent
authority;
(d) any flights performed exclusively under visual flight
rules as defined in
Annex 2 to the
Chicago Convention;
(e) flights terminating at
the aerodrome from which the aircraft has taken
off and during which no intermediate landing
has been made;
(f) training flights
performed exclusively for the purpose of obtaining a
licence, or a
rating in the case of cockpit flight crew where this is
substantiated by an
appropriate remark in the flight plan provided that
the flight does not
serve for the transport of passengers and/or cargo
or for the
positioning or ferrying of the aircraft;
(g) flights performed
exclusively for the purpose of checking, testing or
certifying aircraft
or equipment whether airborne or ground-based;
(h) flights performed by aircraft with a certified maximum
take-off mass
of less than 5 700
kg;
(i) flights performed in
the framework of public service obligations
imposed in
accordance with Regulation (EEC) No 2408/92 on routes
within outermost
regions as specified in Article 299(2) of the Treaty
or on routes where
the capacity offered does not exceed 30 000 seats
per year; and
(j) flights, other than
flights performed exclusively for the transport, on
official mission,
of a reigning Monarch and his immediate family,
Heads of State, Heads of Government and
Government Ministers, of
an EU Member State,
performed by a commercial air transport
operator operating,
for three consecutive four-month periods, fewer
than 243 flights per period, which, but for
this point, would fall
within this
activity.
C
122E/32 EN Official
Journal of the European Union
20.5.2008
2. Annex IV shall be amended as
follows:
(a) the following title shall
be inserted after the title of the Annex:
`PART A - MONITORING AND
REPORTING OF EMISSIONS FROM STATIONARY INSTALLATIONS';
(b) the following part shall
be added:
`PART B - MONITORING AND
REPORTING OF EMISSIONS FROM AVIATION ACTIVITIES
Monitoring of carbon
dioxide emissions
Emissions shall be
monitored by calculation. Emissions shall be calculated using the formula:
Fuel consumption ×
emission factor
Fuel consumption shall
include fuel consumed by the auxiliary power unit. Actual fuel consumption for
each flight
shall be used wherever
possible and shall be calculated using the formula:
Amount of fuel contained
in aircraft tanks once fuel uplift for the flight is complete amount of fuel
contained in
aircraft tanks once fuel
uplift for subsequent flight is complete + fuel uplift for that subsequent
flight.
If actual fuel consumption
data are not available, a standardised tiered method shall be used to estimate
fuel
consumption data based on
best available information.
Default IPCC emission
factors, taken from the 2006 IPCC Inventory Guidelines or subsequent updates of
these
Guidelines, shall be used unless activity-specific
emission factors identified by independent accredited laboratories
using accepted analytical
methods are more accurate. The emission factor for biomass shall be zero.
A separate calculation shall be made for each
flight and for each fuel.
Reporting of emissions
Each aircraft operator
shall include the following information in its report under Article 14(3):
A. Data identifying the
aircraft operator, including:
- name of the aircraft
operator,
- its administering
Member State,
- its address,
including postcode and country and, where different, its contact address in the
administering
Member State,
- the aircraft
registration numbers and types of aircraft used in the period covered by the
report to perform
the aviation
activities listed in Annex I for which it is the aircraft operator,
- the number and
issuing authority of the air operator certificate and operating licence under
which the avia-
tion activities listed in Annex I for which it is
the aircraft operator were performed,
- address, telephone,
fax and email details for a contact person, and
- name of the aircraft
owner.
B. For each type of fuel
for which emissions are calculated:
- fuel consumption,
- emission factor,
- total aggregated
emissions from all flights performed during the period covered by the report
which fall
within the aviation
activities listed in Annex I for which it is the aircraft operator,
- aggregated emissions
from:
- all flights
performed during the period covered by the report which fall within the
aviation activities
listed in Annex
I for which it is the aircraft operator and which departed from an aerodrome
situated in
the territory of a Member State and arrived at an
aerodrome situated in the territory of the same
Member State,
- all other flights
performed during the period covered by the report which fall within the
aviation
activities
listed in Annex I for which it is the aircraft operator,
20.5.2008 EN Official Journal of the European
Union C 122E/33
- aggregated emissions
from all flights performed during the period covered by the report which fall
within
the aviation
activities listed in Annex I for which it is the aircraft operator and which:
- departed from
each Member State, and
- arrived in
each Member State from a third country,
- uncertainty.
Monitoring of tonne-kilometre data for the purpose of
Articles 3e and 3f
For the purpose of
applying for an allocation of allowances in accordance with Article 3e(1) or
Article 3f(2), the
amount of aviation
activity shall be calculated in tonne-kilometres using the following formula:
tonne kilometres =
distance × payload
where:
"distance" means
the great circle distance between the aerodrome of departure and the aerodrome
of arrival plus
an additional fixed factor
of 95 km; and
"payload" means
the total mass of freight, mail and passengers carried.
For the purposes of calculating
the payload:
- the number of passengers
shall be the number of persons on-board excluding crew members,
- an aircraft operator may
choose to apply either the actual or standard mass for passengers and checked
baggage contained in
its mass and balance documentation for the relevant flights or a default value
of 110 kg
for each passenger and
his checked baggage.
Reporting of tonne-kilometre
data for the purpose of Articles 3e and 3f
Each aircraft operator
shall include the following information in its application under Article 3e(1)
or Article 3f(2):
A. Data identifying the
aircraft operator, including:
- name of the aircraft
operator,
- its administering
Member State,
- its address,
including postcode and country and, where different, its contact address in the
administering
Member State,
- the aircraft
registration numbers and types of aircraft used during the year covered by the
application to
perform the
aviation activities listed in Annex I for which it is the aircraft operator,
- the number and
issuing authority of the air operator certificate and operating licence under
which the avia-
tion activities
listed in Annex I for which it is the aircraft operator were performed,
- address, telephone,
fax and email details for a contact person, and
- name of the aircraft
owner.
B. Tonne-kilometre data:
- number of flights by
aerodrome pair,
- number of
passenger-kilometres by aerodrome pair,
- number of
tonne-kilometres by aerodrome pair,
- chosen method for
calculation of mass for passengers and checked baggage,
- total number of
tonne-kilometres for all flights performed during the year to which the report
relates
falling within
the aviation activities listed in Annex I for which it is the aircraft
operator.';
3. Annex V shall be amended as
follows:
(a) the following title shall
be inserted after the title of the Annex:
`PART A - VERIFICATION OF
EMISSIONS FROM STATIONARY INSTALLATIONS';
(b) the following part shall
be added:
`PART B - VERIFICATION OF
EMISSIONS FROM AVIATION ACTIVITIES
13. The general principles
and methodology set out in this Annex shall apply to the verification of
reports of
emissions from
flights falling within an aviation activity listed in Annex I.
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Union 20.5.2008
For this purpose:
(a) in paragraph 3, the
reference to operator shall be read as if it were a reference to an aircraft
operator, and
in point (c) of that
paragraph the reference to installation shall be read as if it were a reference
to the
aircraft used to
perform the aviation activities covered by the report;
(b) in paragraph 5, the
reference to installation shall be read as if it were a reference to the
aircraft operator;
(c) in paragraph 6 the
reference to activities carried out in the installation shall be read as a
reference to avia-
tion activities covered by the report carried
out by the aircraft operator;
(d) in paragraph 7 the
reference to the site of the installation shall be read as if it were a
reference to the sites
used by the aircraft operator to perform
the aviation activities covered by the report;
(e) in paragraphs 8 and 9
the references to sources of emissions in the installation shall be read as if
they
were a reference to
the aircraft for which the aircraft operator is responsible; and
(f) in paragraphs 10 and
12 the references to operator shall be read as if they were a reference to an
aircraft
operator.
Additional provisions for the verification of aviation emission
reports
14. The verifier shall in
particular ascertain that:
(a) all flights falling
within an aviation activity listed in Annex I have been taken into account. In
this task the
verifier shall be
assisted by timetable data and other data on the aircraft operator's traffic
including data
from Eurocontrol
requested by that operator;
(b) there is overall
consistency between aggregated fuel consumption data and data on fuel purchased
or
otherwise supplied to
the aircraft performing the aviation activity.
Additional provisions for the
verification of tonne-kilometre data submitted for the purposes of
Articles 3e and 3f
15. The general principles and
methodology for verifying emissions reports under Article 14(3) as set out in
this
Annex shall, where applicable,
also apply correspondingly to the verification of aviation tonne-kilometre
data.
16. The verifier shall in
particular ascertain that only flights actually performed and falling within an
aviation
activity listed in Annex I
for which the aircraft operator is responsible have been taken into account in
that
operator's application
under Articles 3e(1) and 3f(2). In this task the verifier shall be assisted by
data on the
aircraft operator's
traffic including data from Eurocontrol requested by that operator. In
addition, the verifier
shall ascertain that the
payload reported by the aircraft operator corresponds to records on payloads
kept by
that operator for safety purposes.'.
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STATEMENT OF THE COUNCIL'S REASONS
I. INTRODUCTION
In December 2006, the
Commission adopted its proposal (1) for a Directive of the European Parliament
and of the Council amending
Directive 2003/87/EC so as to include aviation activities in the scheme for
greenhouse gas emission
allowance trading within the Community. This proposal was transmitted to the
Council on 22 December 2006.
The European Parliament
adopted its first-reading opinion on 13 November 2007.
The Economic and Social
Committee adopted its opinion on 30 May 2007 (2).
The Committee of the Regions
adopted its opinion on 10 October 2007 (3).
The Council adopted its
Common Position on 18 April 2008.
II. OBJECTIVE
The main objective of the
proposed Directive is to reduce the climate change impact attributable to avia-
tion, in view of the growing
emissions from the aviation sector, namely by including aviation activities
in the general Community
scheme for emissions trading (ETS).
The proposal takes the form
of an amendment to Directive 2003/87/EC (ETS Directive).
III. ANALYSIS OF THE COMMON
POSITION
General
The Common Position
incorporates a number of the European Parliament's first-reading amendments,
either verbatim, in part or
in spirit. These improve or clarify the text of the proposed Directive.
However, other amendments are
not reflected in the Common Position because the Council agreed that
they were either unnecessary
and/or impracticable, being insufficiently supported by current scientific
knowledge and entailing
increased and non-commensurate administrative costs for their implementa-
tion.
The Common Position also
includes a number of changes other than those envisaged in the European
Parliament's first-reading
opinion as, in a number of cases, provisions from the original Commission
proposal have been
supplemented with new elements or entirely redrafted, with some completely new
provisions inserted.
In addition, a number of
drafting changes merely seek to clarify the text or to ensure the overall
coher-
ence of the Directive.
Specific
(1) Start date and scope of
the scheme
The Council, agreeing with
the European Parliament, has rejected the two-stage approach proposed by
the Commission and has opted
for a single starting date for all flights to be included in the scheme.
This was deemed necessary to
ensure the scheme's enhanced environmental impact whilst minimising
distortion of competition.
However, the Council, contrary to the Commission and the European
Parliament, which both
suggested 2011 as the start year, decided that delaying the scheme for one
year,
i.e. 2012, would be
reasonable in view of the procedural steps involved in the adoption of the
legisla-
tion, the complexity of the
scheme and the need to provide for a number of implementing measures.
(1) Doc. 5154/07 - COM(2006) 818
final.
(2) OJ C 206, 27.7.2007, p. 47.
(3) OJ C 305, 15.12.2007, p. 15.
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(2) Allocation
The Council, very much like the
European Parliament, considers the issue of allocation of allowances of
central importance for the
functioning of the scheme. In this respect, the Council has introduced a
number of changes to the
Commission proposal that would bring its contents closer to the spirit of a
number of EP amendments, even
though it did not incorporate them literally in the text of the
Common Position.
Thus, whilst the Council has
maintained the cap of 100 % of historical emissions, as in the Commission
proposal, it has nonetheless
pointed towards a possible future reduction as part of a review of the func-
tioning of the Directive in
relation to aviation activities, to be carried out by 2015 (Article 30(4)).
The Council agreed with the
Commission's choice of allocation mechanism that would work partly by
allocation of allowances
free-of-charge based on a simple benchmark and partly by auctioning.
The Council has nevertheless slightly adjusted the
benchmark by introducing modifications to the
payload (which it increased to
110 kg per passenger and their checked baggage) and to the distance
(with 95 km added to the greater
circle distance) used to calculate the aviation activity (tonne kilometre)
of each aircraft operator.
Concerning the levels of
auctioning, the Council has rejected the Commission proposal to use a
percentage corresponding to the
average percentage proposed by the Member States that would include
auctioning in their national
allocation plans (NAPs), opting instead for a fixed percentage of 10 %.
Additionally, the Council also
introduced the explicit possibility for that percentage to be increased as
part of the general review of the
ETS Directive. Thus, although not incorporating EP amendment 74, the
Common Position shares in fact
the general spirit of that amendment as it acknowledges the desirability
of providing for a (gradual)
increase in the level of auctioning. The choice of an initially lower
percentage
of auctioning coupled with the
possibility of future increases was considered preferable by the Council,
as a more cautious approach
ensuring, on the one hand, that aviation would not be treated significantly
differently from other sectors
falling within the ETS, whilst providing, on the other hand, for better adap-
tation to the overall functioning
of the Community scheme.
On the use of the proceeds
generated from auctioning, the Council adopts a slightly modified posi-
tion with regard to both Commission
and European Parliament. According to the current wording of
Article 3d(4), it is for Member
States to decide how these revenues are to be used. Nevertheless,
Article 3d(4) provides that these
proceeds should be used to tackle climate change both in the EU and in
third countries and to cover the
administrative costs of running the scheme. This modification seeks to
ensure respect of the overriding
constitutional and/or budgetary principles in the domestic legal orders
of a number of Member States.
One of the major new elements
that the Council has introduced to the Commission proposal relates to
the creation of a special reserve
for new entrants or fast-growing aircraft operators (i.e. operators
that can demonstrate a growth
rate of 18 % annually in the years following the base year used for the
allocation of allowances).
According to Article 3f, a set percentage (3 %) of allowances would be set
aside to be distributed to
eligible aircraft operators on the basis of a benchmark system similar to the
system used for the initial
allocation. The introduction of such a provision would ensure that new
aircraft operators or aircraft
operators in Member States with initially very low (but currently increasing)
mobility rates would not be
penalised by the scheme. The Council has counterbalanced any possible
market distortions by making the
distribution of allowances under the special reserve a one-off, along-
side a provision that the
resulting annual allocation per tonne-kilometre to eligible aircraft operators
shall not be greater than the
annual allocation per tonne-kilometre to aircraft operators under the main
allocation (Article 3f(6)). Thus,
the Council is in fact moving in the same direction as EP amendments
22, 28 and 33. Nevertheless, the
functioning of the special reserve as envisaged in the Common Position
would entail lower administrative
costs and would not introduce significant distortions in the market.
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(3) Exemptions
The Council has refined further a
number of exemptions from the scheme, taking into consideration
the corresponding EP amendments
(i.e. amendments 51, 52, 53, 70 and 79). Thus, it has opted not to
exclude flights by EU Heads of
State from the scheme, but has chosen to include exemptions for flights
related to search and rescue,
fire-fighting flights, humanitarian flights and emergency medical service
flights. Furthermore, flights
performed exclusively for the purpose of checking, testing or certifying
aircraft or equipment, whether
airborne or ground-based, are also excluded.
The Common Position has
introduced an additional exemption from the scheme, namely a `de minimis'
clause entailing the exclusion of
flights performed by a commercial air transport operator operating, for
three consecutive four-month
periods, fewer than 243 flights per period. The Council has coupled this
exemption with a corresponding
definition of `commercial air transport operator' and a recital aiming to
ensure that operators with very
low traffic levels, including many operators from developing countries,
would not be faced with
disproportionate administrative costs. Thus, a strong political signal is sent
to
developing countries, whilst at
the same time red tape and the general administrative burdens associated
with the administering of the
scheme are reduced. The possible adverse effects on the market are taken
into account by opting for a
neutral criterion for the exclusion, based on `pure' activity.
The Council, very much like the
European Parliament, has also taken into consideration the special
needs of outermost regions and
the particular status of flights performed under public service
obligations (PSOs). The Common
Position excludes from the scheme flights performed in the frame-
work of public service
obligations on routes within outermost regions or on routes where the capacity
offered does not exceed 30 000
seats per year, and provides also for the corresponding recital. In this
respect, therefore, it goes
beyond EP amendment 78.
(4) Other issues
A new article is inserted
(Article 3g) imposing on Member States an additional obligation to ensure that
aircraft operators submit to the
relevant competent authority monitoring and reporting plans setting
out measures to monitor and
report emissions and tonne-kilometre data for the purpose of applying for
allowances to be issued.
A number of new paragraphs are
added to the enforcement article of the ETS Directive (Article 16),
providing for the possibility for
an administering Member State to request the Commission to impose an
operating ban at Community level
on an aircraft operator that fails to comply with the requirements of
the Directive. Whilst the
imposition of an operating ban is viewed as an enforcement measure of last
resort, its inclusion was
considered necessary, in order to guarantee the full compliance of aircraft
opera-
tors with the scheme, a matter of
utmost importance to the Council.
Furthermore, the Council has modified the Commission proposal as
regards the conversion of allow-
ances and their subsequent use
towards international commitments, opting for a `semi-open'
scheme and deleting the provision
from the Commission's proposal that would have enabled aircraft
operators to convert their
allowances into allowances that can be used by other operators. In recognition
of the fact that domestic (and
not international) aviation is part of Member State's commitments for the
first commitment period under the
Kyoto Protocol, a new paragraph is added to current Article 19 of
the ETS Directive providing for
the Regulation on Registries to ensure that allowances, CERs and ERUs
are only transferred to Member
States' retirement accounts for the first commitment period under the
Kyoto Protocol if they correspond
to emissions included in the national totals of Member State's national
inventories for that period.
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The Council has also
substantially amended Article 25a, which now seeks to clarify the various
institu-
tional procedures available to
the Commission for adapting, adjusting or amending the Directive
following consultation or
conclusion of new agreements with third countries. The importance of
seeking a global solution to
the issue of reducing emissions from aviation activities is emphasised, as is
the need to seek the optimal
interaction between the Community scheme and equivalent schemes from
third countries. In this
respect, even though the Council chose not to incorporate verbatim the corre-
sponding EP amendment
(amendment 49), the spirit of the Common Position follows very closely its
rationale.
Finally, a number of points are
added to the current review clause of the ETS Directive (Article 30), to
serve as a `check-list' for
reviewing the functioning of the Directive in relation to aviation activities
and
for addressing any problems that might be bound to arise
from the inclusion of these activities in the
general ETS.
IV. CONCLUSION
The Council believes that the
Common Position represents a balanced package of measures that would
contribute to reducing aviation
emissions in a manner consistent with the policies and objectives of the
EU, as expressed also within
the UNFCCC, whilst ensuring that the scheme is applied to all aircraft
operators without distinction
as to nationality and, therefore, that the inclusion of aviation in the Com-
munity ETS should not lead to
distortions of competition.
The Council looks forward to constructive
discussions with the European Parliament with a view to the
early adoption of the
Directive.