(1)

Maritime transport accounts for around 75 % of the Union’s external trade and 31 % of its internal trade in terms of volume. 400 million passengers embark or disembark annually in ports of Member States, including around 14 million on cruise passenger ships. Maritime transport is therefore an essential component of the Union’s transport system and plays a critical role for the Union’s economy. The maritime transport market is subject to strong competition between economic actors within and outside the Union for which a level playing field is indispensable. The stability and prosperity of the maritime transport market and its economic actors rely on a clear and harmonised policy framework within which maritime transport operators, ports and other actors in the sector can operate on the basis of equal opportunities. Where market distortions occur, they risk putting maritime transport operators or ports at a disadvantage compared to their competitors within the maritime transport sector or in other transport sectors. In turn, it is possible for that disadvantage to result in a loss of competitiveness of the maritime transport industry, fewer jobs and a loss of connectivity for citizens and businesses.

(2)

According to the EU Blue Economy Report, 2022, the EU Blue Economy created a total of approximately 5,7 million jobs in 2014, of which 3,2 million were created through direct employment in the established sectors and an additional 2,5 million were generated via the respective supply chains. That report also states that Union maritime ports alone create approximately 2,5 million jobs (direct and indirect) in 2014. Of that amount of jobs, only approximately 0,5 million are captured by sectoral statistics, because maritime ports generate employment and economic benefits in other sectors such as logistics and maritime shipping services. The seven established sectors of the EU Blue Economy generated a gross value added of EUR 183,9 billion in 2019 (3).

(3)

According to the Commission Staff Working Document accompanying the Commission Communication of 9 December 2020 entitled ‘Sustainable and Smart Mobility Strategy – putting European transport on track for the future’, compared to other modes of transport, maritime transport remains the most carbon-efficient mode of transport per ton km. At the same time, ship traffic to or from ports in the European Economic Area accounts for some 11 % of all Union carbon dioxide (CO2) emissions from transport and 3 to 4 % of total Union CO2 emissions. CO2 emissions from maritime transport are expected to increase, unless further action is taken. All sectors of the Union economy are to contribute to the swift reduction of greenhouse gas (GHG) emissions to net zero at the latest by 2050, as enshrined in Regulation (EU) 2021/1119 of the European Parliament and of the Council (4). It is therefore essential for the Union to set out an appropriate pathway for the swift ecological transition of the maritime transport sector, which would also contribute to maintaining and further promoting the Union’s global leadership in relation to green technologies, services and solutions, and to further stimulating job creation in the related value chains while maintaining competitiveness.

(4)

To enhance the Union’s climate commitment under the Paris Agreement (5), adopted under the United Nations Framework Convention on Climate Change (the ‘Paris Agreement’), Regulation (EU) 2021/1119 aims to reduce GHG emissions (emissions after deduction of removals) by at least 55 % compared to 1990 levels by 2030 and puts the Union on a path to becoming climate neutral by 2050 at the latest. Additionally, various complementary policy instruments are needed to promote and speed up the use of sustainably produced renewable and low-carbon fuels, including in the maritime transport sector, while respecting the principle of technological neutrality. The necessary technology development and its deployment have to be under way by 2030 to prepare for much more rapid change thereafter. It is also essential to foster innovation and to support research for emerging and future innovation such as emerging alternative fuels, eco-design, bio-based materials, wind propulsion and wind-assisted propulsion.

(5)

In the context of fuel transition to renewable and low-carbon fuels and substitute sources of energy, it is essential to ensure the proper functioning of and fair competition in the Union maritime transport market regarding maritime fuels, which account for a substantial share of companies’ and operators’ costs. Policy measures should therefore be cost-effective. Differences in fuel requirements across Member States can significantly affect ship operators’ economic performance and negatively impact competition in the market. Due to the international nature of shipping, ship operators may easily bunker in third countries and carry large amounts of fuel, which could also contribute to a risk of loss of competitiveness of Union ports in comparison to non-Union ports. That situation could lead to carbon leakage and detrimental effects on the competitiveness of the sector if the availability of renewable and low-carbon fuels in maritime ports under the jurisdiction of a Member State is not accompanied by requirements for their use that apply to all ships arriving at and departing from maritime ports under the jurisdiction of Member States. Therefore, this Regulation should lay down measures to ensure that the penetration of renewable and low-carbon fuels in the maritime fuels market takes place under the conditions of fair competition on the Union maritime transport market.

(6)

The maritime transport sector is subject to strong international competition. Major differences in regulatory burdens across flag states have often led to unwanted practices such as the reflagging of ships. The sector’s intrinsic global character underlines the importance of a flag-neutral approach and of a favourable regulatory environment, which would help to attract new investment and safeguard the competitiveness of Union ports, shipowners and ship operators.

(7)

In order to produce an effect on all activities in the maritime transport sector, this Regulation should apply to half of the energy used by a ship performing voyages arriving at a port under the jurisdiction of a Member State from a port outside the jurisdiction of a Member State, half of the energy used by a ship performing voyages departing from a port under the jurisdiction of a Member State and arriving at a port outside the jurisdiction of a Member State, the entirety of the energy used by a ship performing voyages arriving at a port under the jurisdiction of a Member State from a port under the jurisdiction of a Member State, and the energy used within a port under the jurisdiction of a Member State. Such a framework of application would ensure the effectiveness of this Regulation, including by increasing the positive impact on the environment of such framework. That framework should limit the risk of evasive port calls and the risk of delocalisation or rerouting of activities outside the Union. In order to ensure smooth operation of maritime traffic and to avoid distortions in the internal market, a level playing field among maritime transport operators and among ports with regard to all journeys arriving at or departing from ports under jurisdiction of Member States, as well as the stay of ships in those ports, should be ensured by consistent rules set out in this Regulation.

(8)

It is essential for the Commission and the competent authorities of Member States to continuously ensure that their administrative procedures reflect best practices and to take measures in order to ensure consistency, avoid duplication in sectoral legislation and simplify the enforcement of this Regulation, thereby keeping the administrative burden on shipowners, ship operators, ports and verifiers to a minimum.

(9)

This Regulation should be consistent with Regulation (EU) 2023/1804 of the European Parliament and of the Council (6), Directive (EU) 2023/959 of the European Parliament and of the Council (7), a Directive of the European Parliament and of the Council amending Directive (EU) 2018/2001 of the European Parliament and of the Council (8), Regulation (EU) 2018/1999 of the European Parliament and of the Council (9) and Directive 98/70/EC of the European Parliament and of the Council (10) as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652 (11), and a Council Directive restructuring the Union framework for the taxation of energy products and electricity (recast) in order to ensure the necessary degree of legal and investment certainty. Such consistency would ensure a coherent legislative framework for the maritime transport sector, that contributes to significantly increasing the production of sustainable alternative fuels, ensures the deployment of the necessary infrastructure and incentivises the use of those fuels in a steadily growing proportion of ships.

(10)

Consultations between the managing body of the port and port users and other relevant stakeholders, as provided for in Article 15(2) of Regulation (EU) 2017/352 of the European Parliament and of the Council (12), should take place in order to coordinate the availability of port services with regard to the alternative fuel supply that is planned and deployed in ports, as well as with regard to the demand expected from ships calling at those ports.

(11)

The rules laid down in this Regulation should apply in a non-discriminatory manner to ships regardless of their flag. For reasons of coherence with Union and international rules in the area of maritime transport, and in order to limit the administrative burden, this Regulation should apply to ships with a gross tonnage (GT) above 5 000, but should not apply to warships, naval auxiliaries, fish-catching or fish-processing ships, wooden ships of a primitive build, ships not propelled by mechanical means, or government ships used for non-commercial purposes. Although ships above 5 000 GT represent only approximately 55 % of all ships calling at ports under Regulation (EU) 2015/757 of the European Parliament and of the Council (13), they are responsible for approximately 90 % of CO2 emissions from the maritime transport sector. The Commission should regularly reassess the situation, with a view to eventually extending the scope of this Regulation to ships below 5 000 GT.

(12)

Member States which have no maritime ports on their territory, no accredited verifier, no ships flying their flag that fall under the scope of this Regulation, and which are not an administering state within the meaning of this Regulation do not need to take any action concerning the respective requirements under this Regulation for as long as those circumstances are present.

(13)

Given the increased costs for ships which comply with the requirements of this Regulation, the absence of a global measure exacerbates the risk of circumvention. Evasive port calls to ports outside of the Union and relocation of transhipment activities to ports outside of the Union will not only diminish the environmental benefits of internalising the cost of emissions from maritime transport activities but may lead to additional emissions due to the additional distance travelled by ships in order to evade the application of this Regulation. It is therefore appropriate to exclude from the concept of ‘port of call’ certain stops at non-Union ports. That exclusion should target ports in the Union’s vicinity where the risk of evasion is most significant. A limit of 300 nautical miles from a port under the jurisdiction of a Member State constitutes a proportionate response to evasive behaviour, balancing the additional burden and the risk of evasion. Moreover, the exclusion from the concept of port of call should only target stops by containerships at certain non-Union ports, where the transhipment of containers accounts for most container traffic. For such shipments, the risk of evasion, in the absence of mitigating measures, also consists in a shift of port hub to ports outside the Union, aggravating the effects of the evasion. To ensure the proportionality and equal treatment of the global measure, account should be taken of measures in third countries that are equivalent to this Regulation.

(14)

In order to take into account the specific situation of island regions, as underlined by Article 174 of the Treaty on the Functioning of the European Union (TFEU), and the need to preserve connectivity between islands and peripheral regions of the Union with central regions of the Union, temporary exemptions should be allowed for voyages performed by passenger ships other than cruise passenger ships between a port of call under the jurisdiction of a Member State and a port of call under the jurisdiction of the same Member State located on an island with fewer than 200 000 permanent residents.

(15)

Taking into account the special characteristics and constraints of the outermost regions of the Union, in particular their remoteness and insularity, special consideration should be given to preserving their accessibility and efficient connectivity by maritime transport. Therefore, for ships falling under the scope of this Regulation only half of the energy used on voyages departing from or arriving at a port of call located in an outermost region should be included in the scope of this Regulation. For the same reasons, temporary exemptions should be allowed for voyages between a port of call located in an outermost region and another port of call located in an outermost region, and in respect of the energy used by ships during their stay within the ports of call of the corresponding outermost regions.

(16)

Member States that do not share a land border with any other Member State are particularly dependent on their maritime connection to the rest of the Union, in particular to maintain necessary connectivity for their citizens. Such Member States have to rely on public service contracts or public service obligations in order to achieve the goal of maintaining connectivity through passenger ships. A temporary exemption should be allowed in order to enable Member States to address the compelling need of providing a service of general economic interest and ensure connectivity as well as economic, social and territorial cohesion.

(17)

In addition to a general possibility for Member States to exempt voyages performed by passenger ships, other than cruise passenger ships, to islands with fewer than 200 000 permanent residents, a similar exemption should be allowed with regard to domestic voyages to islands which are performed within the framework of a public service contract or subject to a public service obligation. Such contracts and obligations have been established by Member States in order to ensure an appropriate level of connectivity to island regions at affordable prices, which would otherwise not have been achieved by market forces. Member States should be entitled to temporarily exempt such voyages performed by passenger ships between its mainland and an island of the same Member State, in order to maintain the conditions under which the public service contracts or public service obligations were established and ensure the sustained connectivity, as well as the economic, social and territorial cohesion, of the island concerned.

(18)

Article 2, point 1, of Council Regulation (EEC) No 3577/92 (14) establishes that the ports situated in Ceuta and Melilla are to be treated in the same way as island ports. Although they are not island ports by nature, their geographical position in mainland Africa and absence of land links with Spain means that, in relation to mainland Europe and in particular to Spain, those ports are comparable to island ports. Therefore, Ceuta and Melilla should be considered to be island ports in relation to the temporary exemption for the maritime cabotage between the mainland of a Member State and the islands under its jurisdiction.

(19)

Sailing in ice conditions, especially in the northern parts of the Baltic Sea, and the technical properties of ice-class ships cause additional costs for maritime transport and such costs could be further increased by this Regulation. Such additional costs for ice-class ships due to sailing in ice conditions and due to their technical properties should be mitigated in order to maintain a level playing field. Companies should therefore be allowed to apply a limited adjusted amount of energy used on board for ice-class ships. In addition, for a limited period of time, this Regulation should enable a share of the additional energy used during sailing in ice conditions to be exempted for the specific periods during which ice-class ships face conditions of navigation in ice. To that end, a verifiable methodology should be established to enable correlation between exempted share of energy and actual ice navigation conditions. The Commission should reassess such methodology, in particular in light of the robustness of the monitoring of the data necessary to report the distance and the additional energy of navigation in ice conditions, with a view to possibly extending that measure.

(20)

The entity responsible for ensuring compliance with this Regulation should be the company, defined as the shipowner or any other organisation or person, such as the manager or the bareboat charterer, that has assumed responsibility for the operation of the ship from the shipowner and that, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Management Code for the Safe Operation of Ships and for Pollution Prevention as implemented within the Union by Regulation (EC) No 336/2006 of the European Parliament and of the Council (15). The definition of company under this Regulation is in line with the global data collection system established in 2016 by the International Maritime Organization (IMO).

(21)

The development and deployment of new fuels and energy solutions requires a coordinated approach to match supply, demand and the provision of appropriate distribution infrastructure. While the current Union regulatory framework already partly addresses fuel production by means of Directive (EU) 2018/2001 and fuel distribution by means of Directive 2014/94/EU of the European Parliament and of the Council (16), there is also a need for a tool that establishes increasing levels of demand for renewable and low-carbon maritime fuels.

(22)

While instruments such as carbon pricing or targets for the carbon intensity of activity promote improvements in energy efficiency, they are not suited to bring about a significant shift towards renewable and low-carbon fuels in the short and medium term. A specific regulatory approach dedicated to the deployment of renewable and low-carbon maritime fuels and substitute sources of energy, such as wind or electricity, is therefore necessary.

(23)

Policy intervention to stimulate demand for renewable and low-carbon maritime fuels should be goal-based and respect the principle of technological neutrality. Accordingly, limits should be set on the GHG intensity of the energy used on board by ships without prescribing the use of any particular fuel or technology. Such limits should be set in relation to a reference value, corresponding to the fleet average GHG intensity of the energy used on board by ships in 2020 determined on the basis of the data monitored and reported in the framework of Regulation (EU) 2015/757, of the methodology and of the default values laid down in Annexes I and II to this Regulation.

(24)

Development and deployment of renewable and low-carbon fuels with a high potential for sustainability, commercial maturity and a high potential for innovation and growth to meet future needs should be promoted. This will support creating innovative and competitive fuels markets and ensure sufficient supply of sustainable maritime fuels in the short and long term to contribute to Union transport decarbonisation ambitions, while strengthening the Union’s efforts towards a high level of environmental protection. For this purpose, sustainable maritime fuels produced from feedstock listed in Parts A and B of Annex IX to Directive (EU) 2018/2001, as well as synthetic maritime fuels, should be eligible. In particular, sustainable maritime fuels produced from feedstock listed in Part B of Annex IX to Directive (EU) 2018/2001 are essential, as the most commercially mature technology for the production of such maritime fuels with a view to decarbonising maritime transport will already be available in the short term.

(25)

Indirect land-use change occurs when the cultivation of crops for biofuels, bioliquids and biomass fuels displaces traditional production of crops for food and feed purposes. Such additional demand increases the pressure on land and can lead to the extension of agricultural land into areas with high-carbon stock, such as forests, wetlands and peatland, causing additional GHG emissions and loss of biodiversity. Research has shown that the scale of the effect depends on a variety of factors, including the type of feedstock used for fuel production, the level of additional demand for feedstock triggered by the use of biofuels, bioliquids and biomass fuels, and the extent to which land with high-carbon stock is protected worldwide. The level of GHG emissions caused by indirect land-use change cannot be unequivocally determined with the level of precision required for the establishment of emission factors required by the application of this Regulation. However, there is evidence that all fuels produced from feedstock cause indirect land-use change to various degrees. In addition to the GHG emissions linked to indirect land-use change, which is capable of negating some or all GHG emissions savings of individual biofuels, bioliquids or biomass fuels, indirect land-use change poses risks to biodiversity. Those risks are particularly serious in connection with a potentially large expansion of production determined by a significant increase in demand. Accordingly, the use of food and feed crop-based fuels should not be promoted under this Regulation. Directive (EU) 2018/2001 already limits and sets a cap on the contribution of such biofuels, bioliquids and biomass fuels to the GHG emissions savings targets in the road and rail transport sector considering their lower environmental benefits, lower performance in terms of GHG reduction potential and broader sustainability concerns.

(26)

In order to create a clear and predictable legal framework and thereby encourage the early market development and deployment of the most sustainable and innovative fuel technologies with growth potential to meet future needs, a dedicated incentive for renewable fuels of non-biological origin (RFNBO) is necessary. This incentive is justified by the fact that those types of fuels have high potential to introduce renewable energy into the marine bunker fuel mix, by their significant decarbonisation potential, as well as by their estimated production costs in the short- and mid-term. When produced from renewable electricity and carbon captured directly from the air, synthetic fuels can achieve up to 100 % emissions savings compared to fossil fuels. They also have considerable advantages compared to other types of sustainable fuels with regard to resource efficiency of the production process, in particular as regards water consumption. However, the production costs of RFNBO are currently much higher than the market price of conventional fuel and are expected to retain such higher costs in the mid-term. Therefore, this Regulation should provide for a combination of measures to ensure the support for the uptake of sustainable RFNBO, including the possibility to use a ‘multiplier’ until the end of 2033, allowing the energy from RFNBO to count twice. In addition, a 2 % RFNBO subtarget should apply as of 2034 if, further to monitoring of the market, the Commission reports that the share of RFNBO in the maritime bunker fuels used by ships falling under the scope of this Regulation is less than 1 % by 2031. That combination of measures to support RFNBO is intended to give ship operators and fuel suppliers a signal of opportunity for investment for the uptake of that type of renewable, scalable and sustainable fuel, as it provides both an end target giving the fuel suppliers certainty regarding future minimum demand as well as the opportunity for the market to find the most efficient way to adjust accordingly. Given that a market for maritime RFNBO is yet to develop, this Regulation includes safeguards and flexibility towards different possible market uptake scenarios.

(27)

Although RFNBO present a high potential to meet decarbonisation needs in the maritime sector, it is possible that other fuels will also present comparable decarbonisation potential. Factors such as technology maturity or availability to the maritime sector may affect the uptake of renewable and low-carbon fuels in different ports. Therefore, it is essential to ensure technological neutrality and avoid unduly discriminating against other fuels that achieve similar GHG intensity reductions as RFNBO, as well as to avoid penalising ships that use such fuels. To this end, it is important to note the GHG saving threshold of 70 % required for RFNBO, as set out by a Directive of the European Parliament and of the Council amending Directive (EU) 2018/2001 of the European Parliament and of the Council, Regulation (EU) 2018/1999 of the European Parliament and of the Council and Directive 98/70/EC of the European Parliament and of the Council as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652. Such threshold can also be met by fuels other than RFNBO, of biologic or synthetic origin.

(28)

The maritime transport sector currently has insignificant levels of demand for food- and feed crop-based biofuels, bioliquids and biomass fuels, since over 99 % of currently used maritime fuels are of fossil origin. The non-eligibility of food- and feed crop-based fuels for contributing to the objectives of this Regulation also minimises any risk to the slowing down of decarbonisation of the transport sector, which could otherwise result from a shift of crop-based biofuels from road transport to maritime transport. It is essential to minimise such a shift, as road transport currently remains by far the most polluting transport sector and maritime transport currently uses predominantly fuels of fossil origin. It is therefore appropriate to avoid the creation of a potentially large demand for food- and feed crop-based biofuels, bioliquids and biomass fuels by promoting their use under this Regulation. Accordingly, the additional GHG emissions and loss of biodiversity caused by all types of food- and feed crop-based fuels require that those fuels be considered to have the same emission factors as the least favourable pathway.

(29)

The long lead times associated with the development and deployment of new fuels and energy solutions for maritime transport, as well as the long average lifespan of ships, which typically ranges between 25 and 30 years, require rapid action and the establishment of a clear and predictable long-term regulatory framework that facilitates planning and investment from all the stakeholders concerned. Such regulatory framework will facilitate the development and deployment of new fuels and energy solutions for maritime transport, and encourage investment from stakeholders. Such regulatory framework should also define limits for the GHG intensity of the energy used on board by ships until 2050. Those limits should become more ambitious over time to reflect the expected technology development and increased production of renewable and low-carbon maritime fuels.

(30)

This Regulation should establish the methodology and the formula for the calculation of the yearly average GHG intensity of the energy used on board by a ship. That formula should be based on the fuel consumption reported by ships and consider the relevant emission factors of the consumed fuels. The use of substitute sources of energy, such as wind or electricity, should also be reflected in the methodology.

(31)

In order to provide a more complete picture of the environmental performance of the various energy sources, the GHG performance of fuels should be assessed on a well-to-wake basis, taking into account the impacts of energy production, transport, distribution and use on board. This is to provide incentives regarding technologies and production pathways that provide a lower GHG footprint and real benefits compared to the existing conventional fuels.

(32)

The well-to-wake performance of renewable and low-carbon maritime fuels should be established using default or actual and certified emission factors covering the well-to-tank and tank-to-wake emissions. For the purpose of this Regulation, only default well-to-tank emission factors and default tank-to-wake CO2 emission factors for fossil fuels should be used.

(33)

In the event of technological progress concerning new GHG abatement technologies, such as onboard carbon capture, the Commission should assess the possibility to reflect, in the GHG intensity and compliance balance formulas set out in Annexes I and IV respectively, the contribution of such technologies to lowering the GHG direct emissions on board ships.

(34)

A comprehensive approach to the most relevant GHG emissions (CO2, CH4 and N2O) is necessary to promote the use of energy sources providing a lower GHG footprint overall. In order to reflect the global warming potential of methane and nitrous oxides, the limit set by this Regulation should therefore be expressed in terms of ‘CO2 equivalent’.

(35)

The use of renewable energy sources and alternative propulsion, such as wind and solar energy, greatly reduces the GHG intensity of the overall ship energy use. The difficulty to accurately measure and quantify those energy sources (intermittence of the energy use, direct transfer as propulsion, etc.) should not impede their recognition in the overall ship energy use through means of approximations of their contribution to the ship’s compliance balance.

(36)

Air pollution produced by ships (sulphur oxides, nitrogen oxides and particulate matter) in ports is a significant concern for coastal areas and port cities. Therefore, specific and stringent obligations should be imposed to reduce emissions from ships moored at the quayside.

(37)

The obligation for ports to provide on-shore power supply (OPS), laid down in Regulation (EU) 2023/1804, should be matched by a corresponding obligation set out in this Regulation for ships to connect to OPS infrastructure while moored at the quayside, in order to ensure the effectiveness of that infrastructure and avoid the risk of stranded assets.

(38)

The use of OPS abates air pollution produced by ships and reduces the amount of GHG emissions generated by maritime transport. OPS represents an increasingly clean power supply available to ships, in view of the growing shares of renewables and fossil-free energy sources in the Union electricity mix. While only the provision on OPS connection points is covered by Directive 2014/94/EU, the demand for, and as a result the deployment of, that technology have remained limited. Therefore, specific rules should be established to mandate the use of OPS by containerships and passenger ships, since those are the ship categories that produce the highest amount of emissions per ship while moored at the quayside, according to the data collected within the framework of Regulation (EU) 2015/757 in 2018.

(39)

In addition to OPS, other technologies might be capable of offering equivalent environmental benefits in ports. When the use of an alternative technology is demonstrated to be equivalent to the use of OPS, a ship should be exempted from the obligation to use OPS.

(40)

Different OPS projects and solutions have been tested for ships at anchorage, but there is currently no mature and scalable technical solution available. For that reason, the obligation to use OPS should be, in principle, limited to ships moored at the quayside. Nevertheless, the Commission should regularly reassess the situation, with a view to extending that obligation to ships at anchorage, when the necessary technologies are sufficiently mature. In the meantime, Member States should be allowed to impose, in certain cases, the obligation to use OPS on ships at anchorage, for example in ports that are already equipped with such technology or are located in areas where any pollution should be avoided.

(41)

Exceptions from the obligation to use OPS should also be provided for a number of objective reasons, subject to verification by the competent authority of the Member State of the port of call or any duly authorised entity, after consulting relevant entities where appropriate. Such exceptions should be limited to unscheduled port calls, which are not made on a systematic basis, for reasons of safety or saving life at sea, to short stays of ships moored at the quayside of less than two hours as this is the minimum time required for connection, to cases of unavailability or incompatibility of OPS, to the use of onboard energy generation under emergency situations and to maintenance and functional tests.

(42)

In ports falling under the requirements of Article 9 of Regulation (EU) 2023/1804, exceptions applicable in the event of unavailability or incompatibility of OPS should be limited after shipowners and port operators have had sufficient time to make the necessary investments, in order to provide the necessary incentives for those investments and avoid unfair competition. Ship operators should plan carefully their port calls to make sure that they can carry out their activities when moored at the quayside without emitting air pollutants and GHG, in order to protect the environment in coastal areas and port cities. A limited number of exceptions applicable in the event of unavailability or incompatibility of OPS should be provided for to cater for situations where OPS was not provided, for reasons beyond the control of the ship operator. In order to mitigate the risk of stranded assets, incompatibility of OPS infrastructure on board and at berth as well as alternative fuel demand and supply imbalances, frequent consultation meetings between relevant stakeholders should be organised to discuss and take decisions on requirements and future plans.

(43)

The requirement for ports to provide OPS, laid down in Regulation (EU) 2023/1804, takes into account the types of ships served and the respective traffic volumes of maritime ports. The requirement for ships to connect to OPS should not apply to ships when calling at ports that are not covered by the OPS requirement set out in that Regulation, unless the port has OPS installed and available at the visited quayside, in which case the ship should be required to connect to OPS from 1 January 2035.

(44)

Considering the positive effects of the use of OPS on local air pollution and the need to incentivise the uptake of that technology in the short term, the carbon intensity of the production of the electricity supplied at berth should be counted as zero. The Commission should envisage the possibility to take into account the actual GHG emissions related to the electricity delivered through OPS at a later stage.

(45)

The implementation of this Regulation should take due account of the diverse governance models for ports across the Union, in particular as regards the responsibility for issuing a certificate exempting a ship from the obligation to connect to OPS.

(46)

Coordination between ports and ship operators is crucial to ensure smooth connection procedures to OPS in ports. Ship operators should inform the ports they call at about their intention to connect to OPS and about the amount of power needed during the given call, in particular when it exceeds the estimated needs for that ship category.

(47)

From 2035, the number of exceptions granted under this Regulation from the obligation to connect to OPS, which apply to certain cases where the ship is unable to connect to OPS, should be limited per ship during a reporting period. To ensure fair treatment of ships and to reflect the differences in their operating profiles, the number of exceptions should reflect the frequency of their port calls but should never amount to more than ten port calls per reporting period. However, a ship should not be penalised and port calls should not be counted against the maximum number of exceptions where, prior to arrival to a port, the ship has requested to connect to OPS and that request has been accepted by the port or the duly authorised entity, but the ship is unable to connect to OPS, and it is able to demonstrate that it could not have reasonably known it would be unable to connect to OPS.

(48)

A robust and transparent monitoring, reporting and verification system should be put in place by this Regulation in order to trace compliance with its provisions. Such system should apply in a non-discriminatory way to all ships and require third party verification in order to ensure the accuracy of the data submitted within that system. In order to facilitate achieving the objective of this Regulation, any data already reported for the purposes of Regulation (EU) 2015/757 should be used, when necessary, for verifying compliance with this Regulation in order to limit administrative burden imposed on companies, verifiers and competent authorities.

(49)

Companies should be responsible for monitoring and reporting the amount and type of energy used on board by ships in navigation and at berth, as well as other relevant information, such as information on the type of engine on board or presence of wind-assisted propulsion technologies, with a view to showing compliance with the limit on the GHG intensity of the energy used on board by a ship set out by this Regulation. To facilitate the fulfilment of those monitoring and reporting obligations and the carrying-out of verification activities by the verifiers, similarly to Regulation (EU) 2015/757, companies should document the envisaged monitoring method and provide further details on the application of this Regulation in a monitoring plan. The monitoring plan, as well as its subsequent modifications, if applicable, should be submitted to and assessed by the verifier.

(50)

In order to limit the administrative burden, a unique monitoring, reporting and verification system for companies should be established for the purpose of implementing Union legal acts on reduction of GHG emissions from maritime transport. To that purpose, shortly after the publication of this Regulation, the Commission should examine the consistency of this Regulation with Regulation (EU) 2015/757 and possible duplication between those two regulations and, where appropriate, prepare a legislative proposal to amend this Regulation or Regulation (EU) 2015/757.

(51)

A robust certification and monitoring of fuels is essential to achieve the objectives of this Regulation and guarantee the environmental integrity of the renewable and low-carbon fuels that are expected to be deployed in the maritime sector. Such certification should be undertaken by means of a transparent and non-discriminatory procedure. With a view to facilitating certification and limiting the administrative burden, the certification of fuels defined in accordance with Directive (EU) 2018/2001 or, where applicable, with the relevant provisions of a Union legal act concerning the internal markets in renewable and natural gases and in hydrogen, should rely on the rules established by those Union legal acts for certification. That approach to certification should also apply to fuels bunkered outside the Union, which should be considered to be imported fuels, in a similar way as in Directive (EU) 2018/2001. Where companies intend to depart from the default values provided for by those Union legal acts or by this new framework, that should only be done when values can be certified by one of the voluntary schemes recognised under Directive (EU) 2018/2001 or, where applicable, under a Union legal act which concerns the internal markets in renewable and natural gases and in hydrogen, and which establishes certain GHG emissions savings thresholds as well as the methodologies for their calculation (for well-to-tank values).

(52)

The possibility to calculate actual tank-to-wake emission factors, deviating from those defined in Annex II, should be made available to companies, provided that such calculation is determined in accordance with and supported by recognised international standards relevant for the subject matter. Such calculation of tank-to-wake emission factors should be primarily scoped to laboratory testing or direct emissions measurement of slipped emissions from energy converters, including internal combustion engines, fuel cells and associated reforming units, gas turbines or boilers. Since actual tank-to-wake CO2 emission factors are related to the fuel composition rather than the energy converter, they should not be different from the default values contained in Annex II. Those tank-to-wake emission factors should only be recalculated, in particular for synthetic fuels or biofuels, in the event that any relevant international standard is developed to that effect. It should not be possible to deviate from the default values presented for the CO2 combustion emission factors for fossil fuels.

(53)

Verification activities are carried out by verifiers. In order to ensure impartiality and effectiveness, verifiers should be independent and competent legal entities and should be accredited by national accreditation bodies established pursuant to Regulation (EC) No 765/2008 of the European Parliament and of the Council (17). Verifiers should be equipped with means and staff commensurate with the size of the fleet for which they perform verification activities under this Regulation. Verification should ensure the accuracy and completeness of the monitoring and reporting by companies and the compliance with this Regulation.

(54)

Based on the data and information monitored and reported by companies, the verifiers should calculate and establish the yearly average GHG intensity of energy used on board by a ship and the ship’s compliance balance with respect to the limit, including any compliance surplus or deficit, as well as determine whether the ship has complied with the obligation to use OPS. The verifier should notify that information to the company concerned. Where the verifier is the same entity as the verifier for the purposes of Regulation (EU) 2015/757, such notification could be done together with the verification report under that Regulation.

(55)

The Commission should establish and ensure the functioning of an electronic database that registers the performance of each ship and ensures its compliance with this Regulation (the ‘FuelEU database’). The FuelEU database should be used for all most important actions necessary to fulfil the obligations set out in this Regulation. In order to facilitate reporting and limit administrative burden to companies, verifiers and other users, the FuelEU database should build upon the existing THETIS-MRV module or, to the extent possible, should be developed as an upgraded version of it. The FuelEU database should also enable information and data collected for the purposes of Regulation (EU) 2015/757 to be used.

(56)

Compliance with this Regulation will depend on elements that might be beyond the control of the company, such as issues related to fuel availability or fuel quality. Therefore, companies should be allowed the flexibility of rolling-over a compliance surplus from one year to another or borrowing an advance compliance surplus, within certain limits, from the following year. The use of OPS at berth, being of high importance for local air quality in port cities and coastal areas, should not be eligible for similar flexibility provisions.

(57)

In order to avoid technology lock-in and continue supporting the deployment of the most performant solutions, companies should be allowed to pool the performances of different ships. To that effect, it should be possible to use the over-performance of one ship to compensate the under-performance of other ships, provided that the total pooled compliance is positive. This creates a possibility to reward over-compliance and provides incentives for investment in more advanced technologies. The possibility to opt for pooled compliance should remain voluntary and should be subject to agreement of the companies concerned.

(58)

A document of compliance (the ‘FuelEU document of compliance’) issued by a verifier or, where applicable, the competent authority of the administering State, following the procedures established by this Regulation, should be held by ships as evidence of compliance with the limits on the GHG intensity of the energy used on board by a ship and with the obligation to use OPS. Verifiers or, where applicable, the competent authority of the administering State should record in the FuelEU database the issuance of the FuelEU document of compliance.

(59)

The number of non-compliant port calls should be determined by verifiers in accordance with a set of clear and objective criteria taking into account all relevant information, including time of stay, the amount and type of energy consumed, and the application of any exceptions, for each port call falling under the scope of this Regulation. That information should be made available by the companies to the verifiers for the purpose of determining compliance.

(60)

Without prejudice to the possibility of complying through the flexibility and pooling provisions, ships that do not meet the limits on the yearly average GHG intensity of the energy used on board should be subject to a penalty that has dissuasive effect, is proportionate to the extent of the non-compliance and removes any economic advantage of non-compliance, thus preserving a level playing field in the sector (the ‘FuelEU penalty’). The FuelEU penalty should be based on the amount and cost of renewable and low-carbon fuels that the ships should have used to meet the requirements of this Regulation.

(61)

A FuelEU penalty should be imposed also for each non-compliant port call. That FuelEU penalty should be proportionate to the cost of using the electricity at sufficient level, should have a dissuasive effect as regards the use of more polluting energy sources and should be expressed in a fixed amount in EUR, multiplied by the established total electrical power demand of the ship at berth and by the total number of hours, rounded up to the nearest whole hour, spent at berth in non-compliance with OPS requirements. Due to lack of accurate figures on the cost of providing OPS in the Union, this rate should be based on the average electricity price in the Union for non-household consumers multiplied by a factor of two to account for other charges related to the provision of the service, including, inter alia, connection costs and investment recovery elements.

(62)

The revenue generated by the payment of FuelEU penalties and collected by the administering States should be used to promote the distribution and use of renewable and low-carbon fuels in the maritime transport sector and help maritime transport operators to meet their climate and environmental goals.

(63)

While the company should remain responsible for fulfilling monitoring and reporting obligations under this Regulation, as well as for paying the FuelEU penalties, in line with the ‘polluter pays’ principle and in order to promote the uptake of cleaner fuels, the entity responsible for purchasing the fuel or for taking operational decisions that affect the GHG intensity of the energy used by the ship could, through contractual agreements with the company, in the event of compliance deficit, be put under the obligation to reimburse or otherwise compensate the company with respect to the cost of the FuelEU penalties resulting from the operation of the ship. That company should be able to, on a contractual basis, request the verifier to calculate the amount of the FuelEU penalties corresponding to the operation of the ship by the other entity during the reporting period. Within this context, operation of the ship should be understood to mean determining the cargo carried, the route and the speed of the ship. Similarly, while the company should remain responsible for fulfilling monitoring and reporting obligations under this Regulation, as well as for paying the FuelEU penalties, companies and fuel suppliers should be able to, by means of contractual agreements, agree on mutual commitments to produce, supply and purchase predetermined quantities of certain fuels. Such contractual agreements could provide for the liability of fuel suppliers to compensate the company for the payment of penalties in cases where fuels were not made available to the company as agreed.

(64)

Enforcement of the obligations relating to this Regulation should be based on existing instruments, including those established under Directives 2009/16/EC (18) and 2009/21/EC (19) of the European Parliament and of the Council. Additionally, Member States should lay down the rules on sanctions applicable to infringements of this Regulation. The sanctions provided for should be effective, proportionate and dissuasive. To avoid undue or double punishment for the same infringements, such sanctions should not duplicate the FuelEU penalties applied in a case where a ship has a compliance deficit or made non-compliant port calls. The document confirming compliance of the ship with the requirements of this Regulation should be added to the list of certificates and documents referred to in Annex IV to Directive 2009/16/EC.

(65)

In order to reduce the administrative burden on companies, for each company only one Member State should be responsible for supervising the enforcement of this Regulation. The relevant provisions of Directive 2003/87/EC of the European Parliament and of the Council (20) should be applied to determine the administering State in respect of each company. The administering State should be allowed to conduct additional checks on the compliance of a specific ship with this Regulation, for the two previous reporting periods, and should also ensure that the FuelEU penalties are paid in due time.

(66)

Given the importance of consequences that the measures taken by the verifiers under this Regulation may have for the companies concerned, in particular regarding the determination of non-compliant port calls, calculation of the amounts of FuelEU penalties and refusal to issue a FuelEU document of compliance, those companies should be entitled to apply for a review of such measures to the competent authority of the Member State where the verifier was accredited. In light of the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, decisions taken by the competent authorities under this Regulation should be subject to review by a court of the Member State of that competent authority, carried out in accordance with its national law.

(67)

In order to maintain a level playing field through the efficient functioning of this Regulation, the power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission in respect of: amendment of the list of well-to-wake emission factors; information about the RFNBO subtarget; amending the existing table set out in Annex III by adding other zero-emission technologies; establishment of further methods and criteria of accreditation of verifiers; adaptation of a FuelEU penalty factor based on the developments in the cost of energy; and amendment of the numerical factor amount of the FuelEU penalty, based on the indexation of the average cost of electricity in the Union. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (21). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(68)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (22). The Commission should take into account the possibility of reusing information and data collected for the purposes of Regulation (EU) 2015/757 when it establishes, by means of implementing acts, the list of neighbouring container transhipment ports excluded from the definition of ports of call; the criteria for assessment of the production capacity and availability of RFNBO in the maritime transport sector and the method to calculate the factor of price difference between RFNBO and fossil fuels; the specification of rules for the application of the RFNBO subtarget, if applicable; the detailed criteria for acceptance of the technologies and the way they are operated to be considered as zero-emission technologies; the information from ships intending to connect to OPS or use a zero-emission technology in ports and the procedure for providing such information; the templates for standardised monitoring plans, including the technical rules for their uniform application; the list of international standards and certification references to demonstrate actual tank-to-wake emission factors; further specifications of the rules for verification activities referred to in this Regulation; rules for access rights to and the functional and technical specifications of the FuelEU database; and models for the FuelEU document of compliance.

(69)

Given the international dimension of the maritime transport sector, a global approach to limiting the GHG intensity of the energy used by ships is preferable as such an approach would be significantly more effective due to its broader scope. In that context, and with a view to facilitating the development of international rules within the IMO, the Commission should share relevant information on the implementation of this Regulation with the IMO and other relevant international bodies, and relevant submissions should be made to the IMO, continuing the Union’s efforts to promote ambitious maritime decarbonisation targets at an international level. Where an agreement on a global approach is reached on matters of relevance to this Regulation, the Commission should review this Regulation with a view to aligning it, where appropriate, with the international rules.

(70)

The Commission should ensure implementation and availability of tools for collaboration and exchange of best practices for the maritime transport sector, as defined in the Commission Staff Working Document entitled ‘Better Regulation Guidelines’.

(71)

Given that this Regulation will result in additional adjustment costs and administrative costs, the overall regulatory burden for the maritime transport sector should be kept under close review. To that end, the Commission should present a report to the European Parliament and to the Council evaluating the functioning of this Regulation. The Commission should assess in that report the extent to which the objectives of this Regulation have been met and to which extent it has impacted the competitiveness of the sector. That report should also cover the interaction of this Regulation with other relevant Union legal acts, including possible actions and measures that have been or could be taken to reduce the total cost pressure on the maritime transport sector.

(72)

Since the objective of this Regulation, namely the uptake of renewable and low-carbon fuels and substitute sources of energy by ships arriving at, staying within or departing from ports under the jurisdiction of a Member State across the Union, cannot be sufficiently achieved by the Member States without risking to introduce barriers to the internal market and distortions of competition between ports and between maritime transport operators, but can rather, by reason of its scale and effects, be better achieved by introducing uniform rules at Union level that create economic incentives for maritime operators to continue operating unimpededly while meeting obligations on the use of renewable and low-carbon fuels, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,