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Document 52023PC0678
Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement (ETS Aviation)
Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement (ETS Aviation)
Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement (ETS Aviation)
COM/2023/678 final
EUROPEAN COMMISSION
Brussels, 30.10.2023
COM(2023) 678 final
2023/0385(NLE)
Proposal for a
COUNCIL DECISION
on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement
(ETS Aviation)
(Text with EEA relevance)
EXPLANATORY MEMORANDUM
1.Subject matter of the proposal
This proposal concerns the decision establishing the position to be adopted on the Union's behalf in the EEA Joint Committee in connection with the envisaged adoption of the Joint Committee Decision concerning an amendment of Annex XX (Environment) to the EEA Agreement
2.Context of the proposal
2.1.The EEA Agreement
The Agreement on the European Economic Area (‘the EEA Agreement’) guarantees equal rights and obligations within the Internal Market for citizens and economic operators in the EEA. It provides for the inclusion of EU legislation covering the four freedoms throughout the 30 EEA States comprising of EU Member States, Norway, Iceland and Liechtenstein. In addition, the EEA Agreement covers cooperation in other important areas such as research and development, education, social policy, the environment, consumer protection, tourism and culture, collectively known as “flanking and horizontal” policies. The EEA Agreement entered into force on 1 January 1994. The Union together with its Member States is a party to the EEA Agreement.
2.2.The EEA Joint Committee
The EEA Joint Committee is responsible for the management of the EEA Agreement. It is a forum for exchanging views linked to the functioning of the EEA Agreement. Its decisions are taken by consensus and are binding on the Parties. The responsibility for coordinating EEA matters on the EU side is with the Secretariat General of the European Commission.
2.3.The envisaged act of the EEA Joint Committee
The EEA Joint Committee is expected to adopt the EEA Joint Committee Decision (‘the envisaged act’) regarding the amendment of Annex XX (Environment) to the EEA Agreement.
The purpose of the envisaged act is to incorporate into the EEA Agreement Directive (EU) 2023/958 as regards aviation’s contribution to the Union’s economy-wide emission reduction target and the appropriate implementation of a global market-based measure (ETS Aviation) 1 together with Decision (EU) 2023/136 as regards the notification of offsetting in respect of a global market-based measure for aircraft operators based in the Union 2 .
The envisaged act will become binding on the parties in accordance with Articles 103 and 104 of the EEA Agreement.
3.Position to be taken on the Union's behalf
The Commission submits the annexed draft Decision of the EEA Joint Committee for adoption by the Council as the Union’s position. The position, once adopted, should be presented in the EEA Joint Committee at the earliest possible opportunity.
The annexed draft Decision of the EEA Joint Committee provides that allowances will be deducted from the number of allowances that Iceland would otherwise auction, in order for the conditional allocation of those allowances in 2025 and 2026 only to aircraft operators in respect of flights departing from an aerodrome located in Iceland and arriving at an aerodrome located in the EEA, in Switzerland or in the United Kingdom, or departing from an aerodrome located in the EEA and arriving in Iceland. Any such conditional allocation will take place in a manner that will ensure full respect of and conformity with the principle of equal treatment of airlines on the same route and of the objectives, principles and other provisions of the EEA Agreement.
Any additional allowances allocated to aircraft operators shall be conditional on accelerated actions towards climate neutrality.
In 2026, the report adopted by the Commission should also evaluate the air connectivity of Iceland, including consideration of competitiveness, carbon leakage and environmental and climate impacts, and of the adaptations set out in this draft Decision. The results of the evaluation should, where appropriate, be taken into account for the future revision of Directive 2003/87/EC beyond 2024 to 2026.
This adaptation goes beyond what can be considered mere technical adaptations in the sense of Council Regulation No 2894/94 3 . The Union position shall therefore be established by the Council.
4.Legal basis
4.1.Procedural legal basis
4.1.1.Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 4 .
4.1.2.Application to the present case
The EEA Joint Committee is a body set up by an agreement, namely the EEA Agreement. The act, which the EEA Joint Committee is called upon to adopt, constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Articles 103 and 104 of the EEA Agreement.
The envisaged act does not supplement or amend the institutional framework of the Agreement. Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU in conjunction with Article 1(3) of Council Regulation No 2894/94.
4.2.Substantive legal basis
4.2.1.Principles
The substantive legal basis for a decision under Article 218(9) TFEU in conjunction with Article 1(3) of Council Regulation No 2894/94 depends primarily on the substantive legal basis of the EU legal act to be incorporated into the EEA Agreement.
If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2.Application to the present case
Since the Joint Committee Decision incorporates into the EEA Agreement Directive (EU) 2023/958 together with Decision (EU) 2023/136, it is appropriate to base this Council decision on the same substantive legal base as the acts that are incorporated. Therefore, the substantive legal basis of the proposed decision is Article 192(1) of the TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with Article 218(9) TFEU and Article 1(3) of Council Regulation No 2894/94.
5.Publication of the envisaged act
As the act of the EEA Joint Committee will amend Annex XX (Environment) to the EEA Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2023/0385 (NLE)
Proposal for a
COUNCIL DECISION
on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement
(ETS Aviation)
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) in conjunction with Article 218(9) thereof,
Having regard to Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area 5 , and in particular Article 1(3) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)The Agreement on the European Economic Area 6 ('the EEA Agreement') entered into force on 1 January 1994.
(2)Pursuant to Article 98 of the EEA Agreement, the EEA Joint Committee may decide to amend, inter alia, Annex XX (Environment) to the EEA Agreement.
(3)Directive (EU) 2023/958 of the European Parliament and of the Council 7 and Decision (EU) 2023/136 of the European Parliament and of the Council 8 should be incorporated into the EEA Agreement.
(4)Annex XX (Environment) to the EEA Agreement should therefore be amended accordingly.
(5)The position of the Union within the EEA Joint Committee should therefore be based on the attached draft Decision,
HAS ADOPTED THIS DECISION:
Article 1
The position to be adopted, on behalf of the Union, within the EEA Joint Committee on the proposed amendment to Annex XX (Environment) to the EEA Agreement, shall be based on the draft decision of the EEA Joint Committee attached to this Decision.
Article 2
This Decision shall enter into force on the date of its adoption.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 30.10.2023
COM(2023) 678 final
ANNEX
to the
Proposal for a
COUNCIL DECISION
on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning an amendment to Annex XX (Environment) to the EEA Agreement
(ETS Aviation)
ANNEX
DRAFT DECISION OF THE EEA JOINT COMMITTEE
No […]
of […]
amending Annex XX (Environment) to the EEA Agreement
THE EEA JOINT COMMITTEE,
Having regard to the Agreement on the European Economic Area (“the EEA Agreement”), and in particular Article 98 thereof,
Whereas:
(1)Directive (EU) 2023/958 of the European Parliament and of the Council of 10 May 2023 amending Directive 2003/87/EC as regards aviation’s contribution to the Union’s economy-wide emission reduction target and the appropriate implementation of a global market-based measure 1 is to be incorporated into the EEA Agreement.
(2)Decision (EU) 2023/136 of the European Parliament and of the Council of 18 January 2023 amending Directive 2003/87/EC as regards the notification of offsetting in respect of a global market-based measure for aircraft operators based in the Union 2 is to be incorporated into the EEA Agreement.
(3)Directive (EU) 2023/958 establishes a special mechanism for bridging the cost difference between sustainable aviation fuels and fossil fuels, which has a higher level of support for certain islands in the Union. This higher level of support should also apply to Iceland.
(4)Directive (EU) 2023/958 extends, for the final time, a time-bound exemption for flights operated to and from relevant third countries. Iceland is in a specific geographic situation which it assesses as leading to special adverse impacts on air connectivity and risks of carbon leakage. In order to address this, for the interim period of that time-bound exemption, and in a manner that will ensure full respect of and conformity with the principle of equal treatment of airlines on the same route and of the objectives, principles and other provisions of the EEA Agreement, a mechanism should be established for conditional allocation of additional allowances to aircraft operators in respect of flights departing from an aerodrome located in Iceland and arriving at an aerodrome located in the EEA, in Switzerland or in the United Kingdom, or departing from an aerodrome located in the EEA and arriving in Iceland. The allowances allocated under this mechanism are to be deducted from the number of allowances otherwise allocated for auctioning by Iceland. Any additional allowances allocated to aircraft operators pursuant to such a mechanism shall be conditional on accelerated efforts by those operators towards meeting the objective of climate neutrality.
(5)In 2026, there should be a report evaluating the air connectivity of Iceland, including consideration of competitiveness and carbon leakage, as well as environmental and climate impacts, and of the adaptations set out in this Decision. The results of this evaluation should, where appropriate, be taken into account for the future revision of Directive 2003/87/EC beyond the period of 2024 to 2026.
(6)Annex XX to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Point 21al (Directive 2003/87/EC of the European Parliament and of the Council) of Annex XX to the EEA Agreement shall be amended as follows:
1.The following indents are added:
‘-32023 D 0136: Decision (EU) 2023/136 of the European Parliament and of the Council of 18 January 2023 (OJ L 19, 20.1.2023, p. 1),
-32023 L 0958: Directive (EU) 2023/958 of the European Parliament and of the Council of 10 May 2023 (OJ L 130, 16.5.2023, p. 115).’
2.Adaptations (b) to (d) are replaced by the following adaptations:
(b)In point (c) of the third subparagraph of Article 3c(6), the words “, and at airports located in Iceland” shall be inserted after the words “sustainable air transport”.
(c) In paragraph 1 of Article 3d, the following subparagraph shall be inserted after the first subparagraph:
“From 1 January 2025 until 31 December 2026, Iceland shall, each year, allocate free allowances to aircraft operators, in accordance with the principle of equal treatment applicable under the EEA Agreement, including equal treatment between airlines on the same route, up to a level of the number of allowances to be auctioned by Iceland pursuant to Article 3d(3), in respect of flights departing from an aerodrome located in Iceland and arriving at an aerodrome located in the EEA, in Switzerland or in the United Kingdom, or departing from an aerodrome located in the EEA and arriving in Iceland. The additional free allocation for 2025 and 2026 shall not exceed the level of free allocation in 2024, and shall be subject to the application of the linear reduction factor referred to in Article 9. If there are insufficient allowances, a uniform adjustment shall be applied in respect of all allocations. The number of allowances equal to the additional free allocation under this subparagraph shall be deducted from the number of allowances to be auctioned by Iceland pursuant to Article 3d(3). All free allocation pursuant to this subparagraph shall be administered by Iceland in the Union Registry. Aircraft operators shall apply to the Icelandic competent authority, which shall allocate allowances in accordance with this subparagraph, subject to the submission and publication by the aircraft operator of a climate-neutrality plan. A climate-neutrality plan shall be consistent with the climate neutrality objectives of Iceland, and the European Union and its Member States, pursuant to the Paris Agreement and shall specify:
- the details described in the third subparagraph of Article 10b(4);
- further measures, undertaken and planned, of the aircraft operator to meet the objective of this Directive until 31 December 2026; and,
- how the airline’s public advocacy activities align with the climate neutrality objective.
The plan shall be submitted together with confirmation from an independent verifier in accordance with the verification and accreditation procedures provided for in Article 15 of Directive 2003/87/EC.
The above allocation by the Icelandic competent authority on the additional allocation of allowances shall be made following the submission and publication by the aircraft operator of the climate-neutrality plan. As regards actual fulfilment by the aircraft operator of the measures planned and committed to in the climate-neutrality plan, the independent verifier shall examine this each year. In case the independent verifier reports non-fulfilment by an aircraft operator of its own plan, the Icelandic competent authority shall claim the freely allocated allowances back.”
(d)Article 3d(4) shall not apply to the EFTA States.’
3.Adaptations (e) and (f) are deleted. Adaptations (g) to (t) are renumbered as adaptations (e) to (r).
4.The following adaptations are inserted after adaptation (r):
‘(s)The following shall be inserted after point (d) of paragraph 8 of Article 30:
“(e)an evaluation of the air connectivity of Iceland, including consideration of competitiveness and carbon leakage, as well as environmental and climate impacts, and of the adaptations set out in Decision of the EEA Joint Committee No XX/2023 of [this decision].”
(ea)In the course of the process set out in Article 102 of the EEA Agreement for any future revision of this Directive, the EEA Joint Committee shall be mindful of the results and elements of the evaluation referred to in paragraph 8 of Article 30.’.
5.Adaptations (u) and (v) are renumbered as adaptations (t) and (u).
Article 2
The texts of Directive (EU) 2023/958 and Decision (EU) 2023/136 in the Icelandic and Norwegian languages, to be published in the EEA Supplement to the Official Journal of the European Union, shall be authentic.
Article 3
This Decision shall enter into force on […], or on the day following the last notification to the EEA Joint Committee under Article 103(1) of the EEA Agreement, whichever is the later 3*.
Article 4
This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal of the European Union.
Done at Brussels, […].
For the EEA Joint Committee
The President
[…]
The Secretaries
To the EEA Joint Committee
[…]
Joint Declaration by the Contracting Parties
to Decision of the EEA Joint Committee No …/… incorporating Directive (EU) 2023/958 of the European Parliament and of the Council and Decision (EU) 2023/136 of the European Parliament and of the Council into the Agreement
Directive (EU) 2023/958 of the European Parliament and of the Council of 10 May 2023 includes appropriate implementation of measures adopted by the International Civil Aviation Organisation. The Contracting Parties share the understanding that the incorporation of the Directive is without prejudice to the scope of the EEA Agreement.
