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Document 52023PC0696
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 Maritime and Stationary)
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 Maritime and Stationary)
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 Maritime and Stationary)
COM/2023/696 final
EUROPEAN COMMISSION
Brussels, 3.11.2023
COM(2023) 696 final
2023/0392(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 Maritime and Stationary)
(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 Regulation (EU) 2023/957 amending Regulation (EU) 2015/757 in order to provide for the inclusion of maritime transport activities in the EU Emissions Trading System and for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types 1 , Directive (EU) 2023/959 amending Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union and Decision (EU) 2015/1814 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading system 2 , Decision (EU) 2023/852 amending Decision (EU) 2015/1814 as regards the number of allowances to be placed in the market stability reserve for the Union greenhouse gas emission trading system until 2030 3 , and Commission Decision (EU) 2023/1575 on the Union-wide quantity of allowances to be issued under the EU Emissions Trading System for 2024 4 .
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 for a specific review clause relating to application of Chapter IVa of Directive 2003/87/EC and, until the outcome of that review, Chapter IVa’s permitting and monitoring rules will not apply to Liechtenstein. This goes beyond what can be considered mere technical adaptations in the sense of Council Regulation No 2894/94 5 . The Union position shall therefore be established by the Council.
The specific circumstances of Liechtenstein justify this adaptation, as Liechtenstein has a bilateral treaty with Switzerland by which it first sets the same CO2 tax level as the CO2 tax of Switzerland (currently €120 per tonne CO2) and, second, by which it sets out that the CO2 tax is administered completely by Swiss authorities, including tax collection at the border between Liechtenstein and Austria, and paid by Swiss entities. This is because all fuel deliveries come from Switzerland, and fuel storage is done by Swiss entities. Therefore, there is a Liechtenstein-specific review for the duration of the ETS2 surrendering derogation, in case national carbon taxes are effectively higher than the ETS2 price at the time of the next Joint Committee Decision on incorporating amendments to Directive 2003/87/EC. This is expected following the indicative July 2026 review of Directive 2003/87/EC outlined in Article 30. Before that Joint Committee Decision enters into in force, the permitting, monitoring and reporting provisions for regulated entities would not apply to Liechtenstein.
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’ 6 .
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 Regulation (EU) 2023/957, Directive (EU) 2023/959, Decision (EU) 2023/852 and Commission Decision (EU) 2023/1575, 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.
2023/0392 (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 Maritime and Stationary)
(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 7 , 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 8 ('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)Regulation (EU) 2023/957 of the European Parliament and of the Council 9 , Directive (EU) 2023/959 of the European Parliament and of the Council 10 , Decision (EU) 2023/852 of the European Parliament and of the Council 11 and Commission Decision (EU) 2023/1575 12 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, 3.11.2023
COM(2023) 696 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 Maritime and Stationary)
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)Regulation (EU) 2023/957 of the European Parliament and of the Council of 10 May 2023 amending Regulation (EU) 2015/757 in order to provide for the inclusion of maritime transport activities in the EU Emissions Trading System and for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types 1 is to be incorporated into the EEA Agreement.
(2)Directive (EU) 2023/959 of the European Parliament and of the Council of 10 May 2023 amending Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union and Decision (EU) 2015/1814 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading system 2 is to be incorporated into the EEA Agreement.
(3)Decision (EU) 2023/852 of the European Parliament and of the Council of 19 April 2023 amending Decision (EU) 2015/1814 as regards the number of allowances to be placed in the market stability reserve for the Union greenhouse gas emission trading system until 2030 3 is to be incorporated into the EEA Agreement.
(4)Commission Decision (EU) 2023/1575 of 27 July 2023 on the Union-wide quantity of allowances to be issued under the EU Emissions Trading System for 2024 4 is to be incorporated into the EEA Agreement.
(5)The total quantity of allowances to be issued for the year 2027 under the new emissions trading system for buildings, road transport and additional sectors is to be published by the Commission by 1 January 2025 and will, as for the existing Emissions Trading System, establish the cap as an EEA-wide quantity of allowances. The EEA EFTA States should provide input data and will be consulted during the process of preparation of the relevant Commission Decision.
(6)The incorporation of Directive (EU) 2023/959 of the European Parliament and of the Council is without prejudice to the EFTA States’ assessment of Regulation (EU) 2023/955 of the European Parliament and of the Council of 10 May 2023 establishing a Social Climate Fund in the context of the scope of the EEA Agreement.
(7)Based on Liechtenstein’s regional union with Switzerland and in accordance with the bilateral treaty on environmental charges 5 , a CO2 tax is applied in Liechtenstein, whose administration, including collection, monitoring and reporting is carried out by Swiss authorities and entities. Therefore for Liechtenstein, in respect to the new emissions trading system for buildings, road transport and additional sectors, a review of the end date of the derogation according to Article 30e(3) of Directive 2003/87/EC and an exemption from related administrative rules until then and corresponding adjustments in the sources of emission data are appropriate.
(8)The figures published by Decision (EU) 2023/1575 for the Union-wide quantity of allowances for 2024 and the yearly reduction of the allowances to be issued resulting from the application of the linear reduction factor include the EFTA States, in line with Directive (EU) 2023/959.
(9)Annex XX to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Annex XX to the EEA Agreement shall be amended as follows:
1.Point 21al (Directive 2003/87/EC of the European Parliament and of the Council) shall be amended as follows:
(i)the following indent is added:
‘-32023 L 0959: Directive (EU) 2023/959 of the European Parliament and of the Council of 10 May 2023 (OJ L 130, 16.5.2023, p. 134).’;
(ii)adaptation (d) shall be replaced by the following adaptation:
‘(d)Article 3d(4), the fourth sentence of the second subparagraph of Article 3ga(3), Article 10(3), Article 30d(6) and first subparagraph of Article 30e(3)(h) shall not apply to the EFTA States.’;
(iii)in adaptation (e), the words “The following paragraphs shall be inserted in Article 9” is replaced by the words “The following paragraphs shall be added after the first paragraph of Article 9”;
(iv)adaptation (j) is deleted; adaptations (f) to (i) are renumbered as (g) to (j);
(v)the following adaptation is inserted after adaptation (e):
‘(f)The following paragraph shall be added after the second paragraph of Article 9:
“In respect of the EFTA States, the figures taken into account for the calculation of the EEA-wide quantity of allowances to be issued from 2024 onwards pursuant to this Article are set out in Part B of the Appendix.”’;
(vi)adaptations (t) and (u) are renumbered as adaptations (z) and (za); adaptations (l) to (s) are renumbered as adaptations (o) to (v); adaptation (k) is renumbered as adaptation (l);
(vii)the following adaptations are inserted after (j):
‘(k)In Article 10a(1), the words “, or equivalent obligations, in accordance with national law in the EFTA States,” shall be inserted after the words “Article 8 of Directive 2012/27/EU of the European Parliament and of the Council”.;
(viii)the following adaptations are inserted after adaptation (l):
‘(m)The following subparagraph shall be inserted after the second subparagraph of Article 12(3-d):
“Decisions regarding the EFTA States, shall be made by the EEA Joint Committee, in accordance with the procedures laid down in the EEA Agreement.”
(n)The following subparagraph shall be inserted after Article 12(3-c):
“Decisions regarding requests made by two EFTA States, shall be made by the EEA Joint Committee, in accordance with the procedures laid down in the EEA Agreement.”’;
(ix)the text of adaptation (o) shall be replaced by the following:
‘The following sentence shall be inserted after the second sentence of Article 16(3):
“The EFTA States shall provide for excess emissions penalties that are equivalent to those in the EU Member States.”’;
(x)the text of adaptation (s) shall be replaced by the following:
‘The following subparagraph shall be added in Article 18b(1):
“For the purposes of carrying out their tasks under the Directive, the EFTA States and the EFTA Surveillance Authority may request the assistance of EMSA or another relevant organisation and may conclude to that effect any appropriate arrangements with those organisations.”’;
(xi)the following adaptation is inserted after adaptation (v):
‘(w)The following sentence is added in the sixth subparagraph of Article 30d(4):
“In the case referred to in this subparagraph, the share of allowances of the EFTA States made available for the Social Climate Fund in accordance with Article 10a(8b) of this Directive, paragraph 3 of this Article and this paragraph shall not be affected.”
(x)As regards the EFTA States, Article 30e(3)(a) is replaced by the following paragraph:
“The EFTA State concerned notifies the EFTA Surveillance Authority of that national carbon tax at the latest 2 months after the entry into force of EEA Joint Committee Decision xx/2023 of xx [this Decision], and documenting the tax level by providing references to the relevant national instrument regarding the current tax rate and the indicated tax rates up to 2030; the EFTA State concerned notifies the EFTA Surveillance Authority of any subsequent change to the national carbon tax; the EFTA Surveillance Authority shall promptly, and not later than 1 month thereafter, communicate any notification from an EFTA State to the Commission;”
(y)The following subparagraph shall be added in Article 30e(3):
“For Liechtenstein, the application of the end date of the derogation, 31 December 2030, will be reviewed as part of the next Joint Committee Decision concerning Directive 2003/87/EC following the July 2026 review of the Directive, taking into account the relevant rules applicable in Liechtenstein due to its regional union with Switzerland and in particular the CO2 tax and its administration as regulated in accordance with the bilateral treaty on environmental charges in view of their equivalence with the emissions trading system for buildings, road transport and additional sectors, and to the extent possible the results of the Commission review of the implementation of Chapter IVa of Directive 2003/87/EC in accordance with to Article 30i of that Directive.
Until the next Joint Committee Decision on Directive 2003/87/EC enters into force, Articles 30b and 30f of Directive 2003/87/EC shall not apply in Liechtenstein. Any data relevant for adjustments of the Union wide quantity of allowances for Liechtenstein relating to the emissions trading system established under Chapter IVa of Directive 2003/87/EC will be taken from UNFCCC greenhouse gas emission inventories for Liechtenstein as long as monitoring data according to Article 30f of the Directive is not available.”’;
(xii)the text of Part B of the appendix of adaptation (za) shall be replaced by the following:
‘PART B
EFTA States’ figures relevant to the calculation and adjustment of
the EEA-wide quantity of allowances to be issued from 2021 to 2030
pursuant to Articles 9 and 9a of Directive 2003/87/EC
For the determination of these figures, the linear factor of 2.2% from 2021 to 2023, 4.3% from 2024 to 2027 and 4.4% from 2028 has been applied.
|
CAP 2021-2030 |
Iceland |
Norway |
|
2021 |
1 432 642 |
16 304 948 |
|
2022 |
1 393 440 |
15 858 793 |
|
2023 |
1 354 238 |
15 412 638 |
|
2024 |
1 227 504 |
14 242 697 |
|
2025 |
1 148 901 |
13 331 215 |
|
2026 |
1 045 721 |
12 140 314 |
|
2027 |
967 476 |
11 235 954 |
|
2028 |
887 411 |
10 310 563 |
|
2029 |
807 347 |
9 385 171 |
|
2030 |
727 282 |
8 459 779 |
These figures do not include the allowances corresponding to the inclusion in the scope of the ETS Directive of greenhouse gas emissions other than CO2 emissions from maritime transport activities as of 1 January 2026 and the coverage of emissions of offshore ships as of 1 January 2027, based on their emissions for the most recent year for which data are available.”’.
2.The following indents are added in point 21alj (Decision (EU) 2015/1814 of the European Parliament and of the Council):
‘-32023 D 0852: Decision (EU) 2023/852 of the European Parliament and of the Council of 19 April 2023 (OJ L 110, 25.4.2023, p. 21),
-32023 L 0959: Directive (EU) 2023/959 of the European Parliament and of the Council of 10 May 2023 (OJ L 130, 16.5.2023, p. 134).’
3.The following point is inserted after point 21apn (Commission Decision (EU) 2020/1722):
‘21apo. 32023 D 1575: Commission Decision (EU) 2023/1575 of 27 July 2023 on the Union-wide quantity of allowances to be issued under the EU Emissions Trading System for 2024 (OJ L 192, 31.7.2023, p. 30).’
4.Point 21aw (Regulation (EU) 2015/757 of the European Parliament and of the Council) shall be amended as follows:
(i)the title is replaced by the following:
‘Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of greenhouse gas emissions from maritime transport, and amending Directive 2009/16/EC’;
(ii)the following indent is added:
‘-32023 R 0957: Regulation (EU) 2023/957 of the European Parliament and of the Council of 10 May 2023 (OJ L 130, 16.5.2023, p. 105).’.
Article 2
The texts of Regulation (EU) 2023/957, Directive (EU) 2023/959 and Decisions (EU) 2023/852 and (EU) 2023/1575 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 6*.
[It shall apply from 31 December 2023.]
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
[…]
