Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC

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         EU law EU case-law Official Journal National law and case-law Information Document 32018R2066 
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 Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council and amending Commission Regulation (EU) No 601/2012 (Text with EEA relevance.) Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council and amending Commission Regulation (EU) No 601/2012 (Text with EEA relevance.) Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council and amending Commission Regulation (EU) No 601/2012 (Text with EEA relevance.) C/2018/8588 
OJ L 334, 31/12/2018, p. 1–93
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	  31.12.2018    EN Official Journal of the European Union L 334/1 
            COMMISSION IMPLEMENTING REGULATION (EU) 2018/2066 of 19 December 2018
          on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council and amending Commission Regulation (EU) No 601/2012 (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC (1), and in particular Article 14(1) thereof, Whereas: (1) This Regulation should enter into force as a matter of urgency to take account of the First Edition of the International Standards and Recommended Practices on Environmental Protection - Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) (Annex 16, Volume IV to the Chicago Convention) adopted by the ICAO Council at the tenth meeting of its 214th session on 27 June 2018, that are intended to apply from 2019. (2) The complete, consistent, transparent and accurate monitoring and reporting of greenhouse gas emissions, in accordance with the harmonised requirements laid down in this Regulation, are fundamental for the effective operation of the system for greenhouse gas emission allowance trading (‘EU ETS’) established pursuant to Directive 2003/87/EC. (3) In the third trading period of the EU ETS (2013 to 2020), industrial operators, aviation operators, verifiers and competent authorities have gained experience of monitoring and reporting pursuant to Commission Regulation (EU) No 601/2012 (2). That experience has shown the need for improvement, clarification and simplification of the monitoring and reporting rules so as to promote further harmonisation and make the system more efficient. Regulation (EU) No 601/2012 has been substantially amended several times. Since further amendments are to be made, it should be replaced in the interests of clarity. (4) The definition of ‘biomass’ in this Regulation should be consistent with the definitions of ‘biomass’, ‘bioliquids’ and ‘biofuels’ in Article 2 of Directive 2009/28/EC of the European Parliament and of the Council (3), in particular since preferential treatment with regard to allowance surrender obligations under the EU ETS constitutes a ‘support scheme’ within the meaning of point (k) of Article 2, and consequently financial support within the meaning of Article 17(1)(c), of that Directive. (5) For reasons of consistency, definitions laid down in Commission Decision 2009/450/EC (4) and Directive 2009/31/EC of the European Parliament and of the Council (5) should apply to this Regulation. (6) To ensure the best possible operation of the monitoring and reporting system, Member States that designate more than one competent authority should ensure that those competent authorities coordinate their work in line with the principles set out in this Regulation. (7) The monitoring plan setting out detailed, complete and transparent documentation concerning the methodology of a specific installation or aircraft operator should be a core element of the system established by this Regulation. Regular updates of the plan should be required, both to respond to the verifier's findings and on the operator's or aircraft operator's own initiative. The main responsibility for the implementation of the monitoring methodology, parts of which are specified by procedures required by this Regulation, should remain with the operator or the aircraft operator. (8) As the monitoring plan constitutes the core element of the monitoring and reporting rules, any significant change to it should be subject to the competent authority's approval. However, in order to reduce the administrative burden on competent authorities and operators, certain types of change to the plan should not be considered significant and therefore not require formal approval. (9) It is necessary to establish basic monitoring methodologies to minimise the burden on operators and aircraft operators, and facilitate the effective monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC. Those methodologies should include basic calculation and measurement methodologies. The calculation methodologies should consist of a standard methodology and a mass-balance methodology. It should be possible to combine measurement methodologies, standard calculation methodology and mass-balance methodology within the same installation, provided the operator ensures that there are no omissions or double counting. (10) To minimise the burden on operators and aircraft operators, simplification with regard to the uncertainty assessment requirement, without reducing accuracy, should be provided. Considerably reduced requirements with regard to uncertainty assessment should be applied where measuring instruments are used under type-conform conditions, in particular where those instruments are under national legal metrological control. (11) It is necessary to define calculation factors which can be either default factors or determined by analysis. Requirements for analysis should retain the preference for use of laboratories accredited in accordance with the harmonised standard General requirements for the competence of testing and calibration laboratories (EN ISO/IEC 17025) for the relevant analytical methods, and provide requirements for demonstrating robust equivalence in the case of non-accredited laboratories, including in conformity with the harmonised standard Quality management systems – Requirements (EN ISO/IEC 9001) or other relevant certified quality management systems. (12) A transparent and consistent methodology for determining unreasonable costs should be laid down. (13) Further equivalence between calculation-based and measurement-based methodologies should be established. This will require better alignment of tier requirements. For the purpose of determining biomass fractions of CO2 when using continuous emissions measurement systems (CEMS), recent technological progress should be taken into account. Therefore, more flexible rules should be set for determining the biomass fraction, in particular allowing methods other than calculation-based approaches for this purpose. (14) Since emissions stemming from biomass are commonly rated as zero for the purpose of the EU ETS, simplified monitoring rules for pure biomass source streams should be laid down. Where fuels or materials are mixtures of biomass and fossil constituents, the monitoring requirements should be clarified. A better distinction should be made between the preliminary emission factor referring to the total carbon content and the emission factor referring only to the fossil CO2 fraction. For this purpose, separate tier definitions should be provided for the preliminary emission factor and the biomass/fossil fraction. As with other calculation factors, requirements should take into account the size of the installation and the greenhouse gas emissions associated with the fuel or material. To this end, minimum requirements should be defined. (15) Imposing a disproportionate monitoring effort on installations with lower, less consequential annual emissions should be avoided, while ensuring that an acceptable degree of accuracy is maintained. In that regard, special conditions should be laid down for installations considered to have low emissions and aircraft operators considered to be small emitters. (16) Article 27 of Directive 2003/87/EC allows Member States to exclude small installations from the EU ETS, subject to equivalent measures and provided that the conditions in that Article are met. Article 27a of Directive 2003/87/EC allows Member States to exclude installations emitting less than 2 500 tonnes, from the EU ETS provided that the conditions in that Article are met. This Regulation should not apply directly to installations excluded pursuant to Article 27 or 27a of the Directive 2003/87/EC unless the Member State decides otherwise. (17) To close potential loopholes connected to the transfer of inherent or pure CO2, such transfers should only be allowed subject to very specific conditions. In its judgment of 19 January 2017 in Case C-460/15 (6), the Court of Justice of the European Union found that the second sentence of Article 49(1) of Regulation (EU) No 601/2012 and point 10(B) of Annex IV to that Regulation are invalid in so far as they systematically include the carbon dioxide (CO2) transferred to another installation for the production of precipitated calcium carbonate in the emissions of the lime combustion installation, regardless of whether or not that CO2 is released into the atmosphere. In order to take account of the Court's judgment in Case C-460/15, the CO2 that is transferred for the production of precipitated calcium carbonate and ends up chemically bound in it should be recognised as not released into the atmosphere. However, those conditions should not exclude the possibility of future innovations. Regulation (EU) No 601/2012 should therefore be amended accordingly. (18) Since it is possible that not only CO2, but also N2O is transferred between installations, monitoring rules should be introduced for the transfer of N2O that are similar to those for the transfer of CO2. Furthermore, it is appropriate to extend the definition of inherent CO2 beyond the limits of CO2 contained in fuels to CO2 contained in any source stream to be monitored. (19) Specific aviation-related provisions on monitoring plans and the monitoring of greenhouse gas emissions should be laid down. (20) The estimation of missing data should be made consistent by requiring the use of conservative estimation procedures recognised in the monitoring plan or, where this is not possible, through the approval of an appropriate procedure by the competent authority and its inclusion in the monitoring plan. (21) Operators should be required regularly to review their monitoring methodology for improvement and to consider recommendations made by verifiers as part of the verification process. Where they do not use a methodology based on the tier system or fail to meet the highest tier methodologies, operators should report regularly on the steps they are taking to meet a monitoring methodology based on the tier system and to reach the highest tier required. To reduce the administrative burden related to reporting on improvements, intervals and reasons for reporting on improvements should be adjusted taking into account experiences in the administrative practice by Member States. (22) Pursuant to Articles 3e(1) and 28a(2) of Directive 2003/87/EC, aircraft operators may apply for an allocation of emission allowances free of charge, in respect of activities listed in Annex I to that Directive, based on verified tonne-kilometre data. (23) The use of information technology, including requirements for data-exchange formats and the use of automated systems, should be promoted and the Member States should therefore be allowed to require economic operators to use such systems. The Member States should also be allowed to elaborate their own electronic templates and file-format specifications which should, however, conform to minimum standards published by the Commission. (24) Rules for substances containing other forms of carbon leading to CO2 emissions than carbonate-containing materials should be laid down to provide more clarity on the monitoring and reporting rules for process emissions. The use of urea in flue-gas cleaning should be mentioned explicitly and a corresponding default emission factor should be listed. (25) Member States should be given sufficient time to adopt the necessary measures and establish the appropriate national institutional framework to ensure the effective application of this Regulation. This Regulation should therefore apply, including after another revision, before its start of applicability, in order to take further developments into account and to remove references to sources outside Union law where possible, from the beginning of the fourth trading period, except for the amendments to Regulation (EU) No 601/2012 that should apply as soon as possible. (26) Regulation (EU) No 601/2012 should be repealed from 1 January 2021. However, its effects should be maintained for the monitoring, reporting and verification of emissions and activity data occurring during the third EU ETS trading period. (27) This Regulation includes improvements to monitoring and reporting that take account of the First Edition of the International Standards and Recommended Practices on Environmental Protection - Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) (Annex 16, Volume IV to the Agreement) adopted by the ICAO Council at the tenth meeting of its 214th session on 27 June 2018. The Regulation on the verification of greenhouse gas emission reports and tonne-kilometre reports and the accreditation of verifiers pursuant to Directive 2003/87/EC is also being amended to take account of the First Edition of the International Standards and Recommended Practices, and these two instruments are being complemented by a Delegated Act pursuant to Article 28c of Directive 2003/87/EC. Regulation (EU) No 601/2012 should therefore be amended accordingly. (28) The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee, HAS ADOPTED THIS REGULATION: CHAPTER I 
GENERAL PROVISIONS
 
SECTION 1
 

Subject matter and definitions

 Article 1 Subject matter This Regulation lays down rules for the monitoring and reporting of greenhouse gas emissions and activity data pursuant to Directive 2003/87/EC in the trading period of the Union emissions trading system commencing on 1 January 2021 and subsequent trading periods. Article 2 Scope This Regulation shall apply to the monitoring and reporting of greenhouse gas emissions specified in relation to the activities listed in Annex I to Directive 2003/87/EC and activity data from stationary installations, from aviation activities and to the monitoring and reporting of tonne-kilometre data from aviation activities. It shall apply to emissions and activity data occurring from 1 January 2021. Article 3 Definitions For the purposes of this Regulation, the following definitions shall apply: (1) ‘activity data’ means data on the amount of fuels or materials consumed or produced by a process relevant for the calculation-based monitoring methodology, expressed in terajoules, mass in tonnes or (for gases) volume in normal cubic metres, as appropriate; (2) ‘trading period’ means a period as referred to in Article 13 of Directive 2003/87/EC; (3) ‘tonne-kilometre’ means a tonne of payload carried a distance of one kilometre; (4) ‘source stream’ means any of the following: (a) a specific fuel type, raw material or product giving rise to emissions of relevant greenhouse gases at one or more emission sources as a result of its consumption or production; (b) a specific fuel type, raw material or product containing carbon and included in the calculation of greenhouse gas emissions using a mass-balance methodology; (5) ‘emission source’ means a separately identifiable part of an installation or a process within an installation, from which relevant greenhouse gases are emitted or, for aviation activities, an individual aircraft; (6) ‘uncertainty’ means a parameter, associated with the result of the determination of a quantity, that characterises the dispersion of the values that could reasonably be attributed to the particular quantity, including the effects of systematic as well as of random factors, expressed in per cent, and describes a confidence interval around the mean value comprising 95 % of inferred values taking into account any asymmetry of the distribution of values; (7) ‘calculation factors’ means net calorific value, emission factor, preliminary emission factor, oxidation factor, conversion factor, carbon content or biomass fraction; (8) ‘tier’ means a set requirement used for determining activity data, calculation factors, annual emission and annual average hourly emission, and payload; (9) ‘inherent risk’ means the susceptibility of a parameter in the annual emissions report or tonne-kilometre report to misstatements that could be material, individually or when aggregated with other misstatements, before taking into consideration the effect of any related control activities; (10) ‘control risk’ means the susceptibility of a parameter in the annual emissions report or tonne-kilometre report to misstatements that could be material, individually or when aggregated with other misstatements, and not prevented or detected and corrected on a timely basis by the control system; (11) ‘combustion emissions’ means greenhouse gas emissions occurring during the exothermic reaction of a fuel with oxygen; (12) ‘reporting period’ means a calendar year during which emissions have to be monitored and reported or, for tonne-kilometre data, the monitoring year as referred to in Articles 3e and 3f of Directive 2003/87/EC; (13) ‘emission factor’ means the average emission rate of a greenhouse gas relative to the activity data of a source stream assuming complete oxidation for combustion and complete conversion for all other chemical reactions; (14) ‘oxidation factor’ means the ratio of carbon oxidised to CO2 as a consequence of combustion to the total carbon contained in the fuel, expressed as a fraction, considering carbon monoxide (CO) emitted to the atmosphere as the molar equivalent amount of CO2; (15) ‘conversion factor’ means the ratio of carbon emitted as CO2 to the total carbon contained in the source stream before the emitting process takes place, expressed as a fraction, considering CO emitted to the atmosphere as the molar equivalent amount of CO2; (16) ‘accuracy’ means the closeness of the agreement between the result of a measurement and the true value of the particular quantity or a reference value determined empirically using internationally accepted and traceable calibration materials and standard methods, taking into account both random and systematic factors; (17) ‘calibration’ means the set of operations, which establishes, under specified conditions, the relations between values indicated by a measuring instrument or measuring system, or values represented by a material measure or a reference material and the corresponding values of a quantity realised by a reference standard; (18) ‘flight’ means flight as defined in point 1(1) of the Annex to Decision 2009/450/EC; (19) ‘passengers’ means the persons onboard the aircraft during a flight excluding its on duty crew members; (20) ‘conservative’ means that a set of assumptions is defined in order to ensure that no under-estimation of annual emissions or over-estimation of tonne-kilometres occurs; (21) ‘biomass’ means the biodegradable fraction of products, waste and residues from biological origin from agriculture (including vegetal and animal substances), forestry and related industries including fisheries and aquaculture, as well as the biodegradable fraction of industrial and municipal waste; it includes bioliquids and biofuels; (22) ‘bioliquids’ means liquid fuel for energy purposes other than for transport, including electricity and heating and cooling, produced from biomass; (23) ‘biofuels’ means liquid or gaseous fuel for transport produced from biomass; (24) ‘legal metrological control’ means the control of the measurement tasks intended for the field of application of a measuring instrument, for reasons of public interest, public health, public safety, public order, protection of the environment, the levying of taxes and duties, the protection of consumers and fair trading; (25) ‘maximum permissible error’ means the error of measurement allowed as specified in Annex I and instrument-specific annexes to Directive 2014/32/EU of the European Parliament and of the Council (7), or national rules on legal metrological control, as appropriate; (26) ‘data-flow activities’ mean activities related to the acquisition, processing and handling of data that are needed to draft an emissions report from primary source data; (27) ‘tonnes of CO2(e)’ means metric tonnes of CO2 or CO2(e); (28) ‘CO2(e)’ means any greenhouse gas, other than CO2, listed in Annex II to Directive 2003/87/EC with an equivalent global-warming potential as CO2; (29) ‘measurement system’ means a complete set of measuring instruments and other equipment, such as sampling and data-processing equipment, used to determine variables such as the activity data, the carbon content, the calorific value or the emission factor of the greenhouse gas emissions; (30) ‘net calorific value’ (NCV) means the specific amount of energy released as heat when a fuel or material undergoes complete combustion with oxygen under standard conditions, less the heat of vaporisation of any water formed; (31) ‘process emissions’ means greenhouse gas emissions other than combustion emissions occurring as a result of intentional and unintentional reactions between substances or their transformation, including the chemical or electrolytic reduction of metal ores, the thermal decomposition of substances and the formation of substances for use as product or feedstock; (32) ‘commercial standard fuel’ means the internationally standardised commercial fuels that exhibit a 95 % confidence interval of not more than 1 % for their specified calorific value, including gas oil, light fuel oil, gasoline, lamp oil, kerosene, ethane, propane, butane, jet kerosene (jet A1 or jet A), jet gasoline (jet B) and aviation gasoline (AvGas); (33) ‘batch’ means an amount of fuel or material representatively sampled and characterised, and transferred as one shipment or continuously over a specific period of time; (34) ‘mixed fuel’ means a fuel which contains both biomass and fossil carbon; (35) ‘mixed material’ means a material which contains both biomass and fossil carbon; (36) ‘preliminary emission factor’ means the assumed total emission factor of a fuel or material based on the carbon content of its biomass fraction and its fossil fraction before multiplying it by the fossil fraction to produce the emission factor; (37) ‘fossil fraction’ means the ratio of fossil carbon to the total carbon content of a fuel or material, expressed as a fraction; (38) ‘biomass fraction’ means the ratio of carbon stemming from biomass to the total carbon content of a fuel or material, expressed as a fraction; (39) ‘energy balance method’ means a method to estimate the amount of energy used as fuel in a boiler, calculated as the sum of utilisable heat and all relevant losses of energy by radiation, transmission and via the flue gas; (40) ‘continuous emission measurement’ means a set of operations having the objective of determining the value of a quantity by means of periodic measurements, applying either measurements in the stack or extractive procedures with a measuring instrument located close to the stack, whilst excluding measurement methodologies based on the collection of individual samples from the stack; (41) ‘inherent CO2’ means CO2 which is part of a source stream; (42) ‘fossil carbon’ means inorganic and organic carbon that is not biomass; (43) ‘measurement point’ means the emission source for which continuous emission measurement systems (CEMS) are used for emission measurement, or the cross-section of a pipeline system for which the CO2 flow is determined using continuous measurement systems; (44) ‘mass and balance documentation’ means the documentation specified in international or national implementation of the standards and recommended practices (SARPs) laid down in Annex 6 to the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 and specified in Section 3 of Subpart C of Annex IV to Commission Regulation (EU) No 965/2012 (8), or equivalent applicable international rules; (45) ‘distance’ means the great-circle distance between the aerodrome of departure and the aerodrome of arrival, in addition to a fixed factor of 95 km; (46) ‘aerodrome of departure’ means the aerodrome at which a flight constituting an aviation activity listed in Annex I to Directive 2003/87/EC begins; (47) ‘aerodrome of arrival’ means the aerodrome at which a flight constituting an aviation activity listed in Annex I to Directive 2003/87/EC ends; (48) ‘payload’ means the total mass of freight, mail, passengers and baggage carried onboard an aircraft during a flight; (49) ‘fugitive emissions’ means irregular or unintended emissions from sources that are not localised, or too diverse or too small to be monitored individually; (50) ‘aerodrome’ means aerodrome as defined in point 1(2) of the Annex to Decision 2009/450/EC; (51) ‘aerodrome pair’ means a pair constituted by the aerodrome of departure and the aerodrome of arrival; (52) ‘standard conditions’ means temperature of 273,15 K and pressure conditions of 101 325 Pa defining normal cubic metres (Nm3); (53) ‘storage site’ means storage site as defined in Article 3(3) of Directive 2009/31/EC; (54) ‘CO2 capture’ means the activity of capturing from gas streams CO2 that would otherwise be emitted, for the purposes of transport and geological storage in a storage site permitted under Directive 2009/31/EC; (55) ‘CO2 transport’ means the transport of CO2 by pipelines for geological storage in a storage site permitted under Directive 2009/31/EC; (56) ‘geological storage of CO2’ means geological storage of CO2 as defined in Article 3(1) of Directive 2009/31/EC; (57) ‘vented emissions’ means emissions deliberately released from an installation by provision of a defined point of emission; (58) ‘enhanced hydrocarbon recovery’ means the recovery of hydrocarbons in addition to those extracted by water injection or other means; (59) ‘proxy data’ means annual values which are empirically substantiated or derived from accepted sources and which an operator uses to substitute the activity data or the calculation factors for the purpose of ensuring complete reporting when it is not possible to generate all the required activity data or calculation factors in the applicable monitoring methodology; (60) ‘water column’ means water column as defined in Article 3(2) of Directive 2009/31/EC; (61) ‘leakage’ means leakage as defined in Article 3(5) of Directive 2009/31/EC; (62) ‘storage complex’ means storage complex as defined in Article 3(6) of Directive 2009/31/EC; (63) ‘transport network’ means transport network as defined in Article 3(22) of Directive 2009/31/EC. 
SECTION 2
 

General principles

 Article 4 General obligation Operators and aircraft operators shall carry out their obligations related to the monitoring and reporting of greenhouse gas emissions under Directive 2003/87/EC in accordance with the principles laid down in Articles 5 to 9. Article 5 Completeness Monitoring and reporting shall be complete and cover all process and combustion emissions from all emission sources and source streams belonging to activities listed in Annex I to Directive 2003/87/EC and other relevant activities included pursuant to Article 24 of that Directive, and of all greenhouse gases specified in relation to those activities, while avoiding double-counting. Operators and aircraft operators shall take appropriate measures to prevent any data gaps within the reporting period. Article 6 Consistency, comparability and transparency 1.   Monitoring and reporting shall be consistent and comparable over time. To that end, operators and aircraft operators shall use the same monitoring methodologies and data sets, subject to changes and derogations approved by the competent authority. 2.   Operators and aircraft operators shall obtain, record, compile, analyse and document monitoring data, including assumptions, references, activity data and calculation factors, in a transparent manner that enables the reproduction of the determination of emissions by the verifier and the competent authority. Article 7 Accuracy Operators and aircraft operators shall ensure that emission determination is neither systematically nor knowingly inaccurate. They shall identify and reduce any source of inaccuracies as far as possible. They shall exercise due diligence to ensure that the calculation and measurement of emissions exhibit the highest achievable accuracy. Article 8 Integrity of the methodology and of the emissions report Operators and aircraft operators shall enable reasonable assurance of the integrity of emission data to be reported. They shall determine emissions using the appropriate monitoring methodologies set out in this Regulation. Reported emission data and related disclosures shall be free from material misstatement as defined in Article 3(6) of Commission Implementing Regulation (EU) 2018/2067 (9), avoid bias in the selection and presentation of information, and provide a credible and balanced account of an installation's or aircraft operator's emissions. In selecting a monitoring methodology, the improvements from greater accuracy shall be balanced against additional costs. Monitoring and reporting of emissions shall aim for the highest achievable accuracy, unless this is technically not feasible or incurs unreasonable costs. Article 9 Continuous improvement Operators and aircraft operators shall take account of the recommendations included in the verification reports issued pursuant to Article 15 of Directive 2003/87/EC in their consequent monitoring and reporting. Article 10 Coordination Where a Member State designates more than one competent authority pursuant to Article 18 of Directive 2003/87/EC, it shall coordinate the work carried out by those authorities pursuant to this Regulation. CHAPTER II 
MONITORING PLAN
 
SECTION 1
 

General rules