Commission Implementing Regulation (EU) 2022/996 of 14 June 2022 on rules to verify sustainability and greenhouse gas emissions saving criteria and low indirect land-use change-risk criteria (Text with EEA relevance)

CHAPTER I

INTRODUCTION

Article 1

Subject matter

This Regulation lays down implementing rules to ensure that it is verified in an efficient and harmonised manner that economic operators:

(a) comply with the sustainability criteria set in Article 29(2) to (7) of Directive (EU) 2018/2001;

(b) provide accurate data on greenhouse gas emission savings for the purposes of Article 25(2) and Article 29(10) of Directive (EU) 2018/2001;

(c) comply with the criteria for certification of low ILUC-risk biofuels, bioliquids and biomass fuels established by Delegated Regulation (EU) 2019/807.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘voluntary scheme’ means an organisation that certifies the compliance of economic operators with criteria and rules including, but not limited to, the sustainability and greenhouse gas saving criteria set out in Directive (EU) 2018/2001 and in Delegated Regulation (EU) 2019/807;

(2) ‘recognised voluntary scheme’ means a voluntary scheme recognised pursuant to Article 30(4) of Directive (EU) 2018/2001;

(3) ‘recognised national scheme’ means a national scheme recognised pursuant to with Article 30(6) of Directive (EU) 2018/2001;

(4) ‘certificate’ means a conformity statement by a certification body within the framework of a voluntary scheme, certifying that an economic operator complies with the requirements of Directive (EU) 2018/2001;

(5) ‘suspended certificate’ means a certificate temporarily invalidated due to non-conformities identified by the certification body or upon voluntary request of the economic operator;

(6) ‘withdrawn certificate’ means a certificate that has been permanently cancelled by the certification body or the voluntary scheme;

(7) ‘terminated certificate’ means a certification that has been voluntarily cancelled while it is still valid;

(8) ‘expired certificate’ means a certificate that is no longer valid;

(9) ‘sustainability and greenhouse gas emissions saving characteristics’ means the set of information describing a consignment of raw material or fuel that is required for demonstrating compliance of that consignment with the sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids and biomass fuels or the greenhouse gas emission savings requirements applicable for renewable liquid and gaseous transport fuels of non-biological origin and recycled carbon fuels;

(10) ‘mix of raw material for the purpose of further processing’ means the physical mixing of raw material for the sole purpose of producing biofuels, bioliquids or biomass fuels;

(11) ‘economic operator’ means a producer of raw material, a collector of waste and residues, an operator of installations processing raw material into final fuels or intermediate products, an operator of installations producing energy (electricity, heating or cooling) or any other operator, including of storage facilities or traders that are in physical possession of raw material or fuels, provided that they process information on the sustainability and greenhouse gas emissions saving characteristics of those raw materials or fuels;

(12) ‘first gathering point’ means a storage or processing facility managed directly by an economic operator or other counterpart under contractual agreement that is sourcing raw material directly from producers of agricultural biomass, forest biomass, wastes and residues or, in the case of renewable fuels of non-biological origin, the plant producing such fuels;

(13) ‘certification audit’ means an initial audit before participation in a scheme, with the purpose of issuing a certificate under a voluntary scheme;

(14) ‘certification body’ means an independent accredited conformity assessment body that concludes an agreement with a voluntary or national scheme recognised by the European Commission in accordance with Article 30(4)-(6) of Directive (EU) 2018/2001, to provide certification services for raw materials or fuels by carrying out audits of economic operators and issuing certificates on behalf of the voluntary or national schemes using the voluntary or national scheme’s certification system;

(15) ‘non-conformity’ means non-compliance of an economic operator or certification body with the rules and procedures, established by the voluntary scheme, of which they are members or under which they operate;

(16) ‘surveillance audit’ means any follow up audit of certificates issued by a certification body within the framework of a voluntary scheme after certification and before a re-certification audit, which can be carried out quarterly, half-annually or annually;

(17) ‘re-certification audit’ means an audit with the purpose of renewing a certificate issued by a certification body within the framework of a voluntary scheme;

(18) ‘interconnected infrastructure’ means a system of infrastructures, including pipelines, LNG terminals and storage facilities, which transports gases, that primarily consist of methane and include biogas and gas from biomass, in particular biomethane, or other types of gas that can technically and safely be injected into, and transported through the natural gas pipeline system, hydrogen systems as well as pipeline networks and transmission or distribution infrastructures for liquid fuels;

(19) ‘hydrogen system’ means a system of infrastructure, including hydrogen networks, hydrogen storage, and hydrogen terminals, which contains hydrogen of a high grade of purity;

(20) ‘legal predecessors’ means an economic operator that has been legally replaced by a new one, but no substantive changes or only superficial ones have been made regarding its ownership, management composition, working methods or scope of activity;

(21) ‘product group’ means raw materials, biofuels, bioliquids, non-gaseous biomass fuels with similar physical and chemical characteristics and similar heating values or gaseous biomass fuels, and LNG with similar chemical characteristics that all are subject to the same rules set out in Articles 7, 26 and 27 of Directive (EU) 2018/2001 for determining the contribution of biofuels, bioliquids and biomass fuels towards achieving the targets for renewable energy;

(22) ‘site’ means a geographical location, logistical facilities, transmission or distribution infrastructures with precise boundaries within which products can be mixed;

(23) ‘proof of sustainability’ means a declaration by an economic operator, made on the basis of a certificate issued by a certification body within the framework of a voluntary scheme certifying the compliance of a specific quantity of feedstock or fuels with the sustainability and greenhouse gas emissions savings criteria set out in Articles 25(2) and 29 of Directive (EU) 2018/2001;

(24) ‘raw material’ means substances that have not yet been processed into fuels including intermediate products;

(25) ‘fuels’ means fuels that are ready to be supplied for consumption, including biofuels, bioliquids, biomass fuels, renewable liquid and gaseous transport fuels of non-biological origin and recycled carbon fuels;

(26) ‘financial attractiveness test’ means the calculation of the Net Present Value (NVP) of an investment, based on additionality measures in the context of low ILUC-risk biomass certification;

(27) ‘non-financial barrier test’ means an assessment of the potential other barriers that are expected to prevent an economic operator from implementing additionality measures in the context of low ILUC-risk biomass certification;

(28) ‘Union database’ means the database provided for in Article 28, point 2 of Directive (EU) 2018/2001;

(29) ‘grassland’ has the meaning attributed to it in Article 1, point (1) of Commission Regulation (EU) No 1307/2014 (¹).

CHAPTER II

GENERAL RULES ON GOVERNANCE, INTERNAL MONITORING, COMPLAINTS PROCEDURES AND TRANSPARENCY OF VOLUNTARY SCHEMES

Article 3

Governance structure of the voluntary scheme

Article 4

Non-conformities of economic operators under the scheme

Article 5

Internal monitoring, complaints procedure and documentation management system

Voluntary schemes shall establish procedures for the lodging of complaints against economic operators or certification bodies. The complaints procedure shall be accessible on the voluntary scheme’s website and allow complaints to be sent electronically or by post. The complaints procedure shall also ensure the protection of persons who report infringements or lodge complainants in good faith in accordance with Directive (EU) 2019/1937 of the European Parliament and of the Council (²). The website shall indicate at least all of the following information:

(a) the information and the evidence to be provided to file a complaint, as well as the postal address or email address to which it is to be sent;

(b) guidance on which complaints are within the scope of the procedure;

(c) a step-by-step overview of how complaints are handled, from the receipt of the initial complaint through to resolution, and the associated timeframe for each step;

(d) the decision-making process for complaints and the process for appealing decisions;

(e) the consequences of the voluntary scheme finding a non-conformity as result of a complaint.

Voluntary schemes and certification bodies shall establish a documentation management system that addresses each of the following elements:

(a) general management system documentation (e.g. manuals, policies, definition of responsibilities);

(b) control of documents and records;

(c) management review of management system;

(d) internal auditing/internal monitoring;

(e) procedures for identification and management of non-conformities; and

(f) procedures for taking preventive actions to eliminate the causes of potential non-conformities.

Documentation shall be kept for a minimum of 5 years, or longer if required by the relevant national authority.

Article 6

Publication of information by voluntary schemes

Voluntary schemes shall make the following information publicly and freely available on a website:

(a) their governance structure, describing the roles of all relevant bodies, details on the ownership structure, composition and experience of the Board of Directors, Secretariat and Technical committee, or equivalent, as well as the list of members with voting rights or participants in the scheme, as appropriate;

(b) the list of economic operators participating in the scheme, their certification status, with their respective date of certificate issuance, suspension, withdrawal, termination or expiry, as well as the certificates or the summary audit reports drawn up in accordance with Annex II. Where audits identify critical or major non-conformities, voluntary schemes shall publish an aggregated list of these non-conformities together with a respective action plan and timing for their correction as agreed with the economic operators concerned. Specific information on the certificates or summary audit reports may be redacted to comply with personal data protection legislation. Economic operators whose certificates are withdrawn, terminated or expired shall be listed on the website for at least 24 months after the withdrawal, termination or expiration date. Changes in the certification status of economic operators shall be made public without delay;

(c) the latest version of their scheme documentation and the guidelines for audits. The documents shall include a date and version number and, where applicable, summarise any changes made compared to the previous document version;

(d) the contact details of the scheme, including telephone number, email address and correspondence address;

(e) the list of certification bodies carrying out independent auditing under the scheme, indicating for each certification body which national public authority or entity accredited or recognised it and which entity or national public authority of the Member State supervises it, in accordance with Article 30(9), second subparagraph, of Directive (EU) 2018/2001. Certification bodies that are no longer entitled to conduct independent auditing under the scheme shall be listed for at least 12 months after the last audit with an indication to that effect;

(f) the results of the annual monitoring activities of the voluntary scheme as summarised in the annual activity report.

Article 7

Change of scheme by economic operators

Voluntary schemes shall require economic operators to disclose the following information in their applications for certification:

(a) whether they or their legal predecessor are currently participating in another voluntary scheme or have participated in another voluntary scheme in the last 5 years;

(b) all relevant information, including the mass balance data and the auditing reports and, where applicable, any decisions to suspend or withdraw their certificates in the last 5 years;

(c) whether they withdrew from a scheme before the first surveillance audit.

Voluntary schemes shall exclude from the scheme economic operators in the following cases:

(a) they do not disclose the information in paragraph 1, point (a) and point (b);

(b) they or their legal predecessor failed the initial audit under another scheme, unless such initial audit took place more than 3 years before the application or if in the meantime the other scheme ceased its certification activities, which prevented the economic operator for reapplying. Where a voluntary scheme accepts the justification of the economic operators and decides to assess their application, the scope of the initial audit shall be adjusted to cover all relevant issues and specifically focus on the shortcomings identified in the initial audit that they failed in the other scheme;

(c) they or their legal predecessor withdrew from another scheme before the first surveillance audit took place, unless the operator can prove that it had a valid reason for doing so. Where a voluntary scheme accepts the justification provided by the economic operator, the scope of the initial audit shall be adjusted to cover all relevant issues of the surveillance audit.

Article 8

Recognition of other voluntary schemes

Where part of the supply chain relies on other voluntary schemes, they shall accept evidence of voluntary schemes recognised in accordance with Article 30(4) of Directive (EU) 2018/2001, only to the extent of the scope of their recognition.

Article 9

Recognition of national schemes

Voluntary schemes shall not refuse recognition of recognised national schemes as regards the verification of compliance with the sustainability and GHG emissions saving criteria set out in Article 29(2) to (7) and (10) of Directive (EU) 2018/2001, with the GHG savings thresholds set out in Article 25(2) of that Directive and with the criteria for certification of low ILUC-risk biofuels, bioliquids and biomass fuels set out in Delegated Regulation (EU) 2019/807.

CHAPTER III

AUDIT PROCESS, AUDIT SCOPE, QUALIFICATIONS OF AUDITORS AND AUDIT SUPERVISION

Article 10

Audit process and levels of assurance

Voluntary schemes may authorise a certification body to perform the verification of compliance with different certification frameworks during the same auditing process, as long as the certification body certifies that economic operators satisfy the requirements in line with Article 1. Voluntary schemes that allow a certificate duration longer than one year shall ensure the carrying out of an annual surveillance audit of all economic operators participating in the scheme. However, in the case of group audits, the annual audit may cover a sample of the group members in accordance with Article 12. The frequency of surveillance audits shall be increased on the basis of the level of overall risk related to the profile of the economic operator, the supply chain and the results of previous audits. The technical reviewer shall be responsible for validating the results of surveillance audits.

Voluntary schemes shall establish detailed procedures setting out how audits are planned and conducted and how audit reports are drawn up. Voluntary schemes shall ensure that certification bodies conduct audits in accordance with ISO 19011 or the equivalent. Voluntary schemes shall also ensure an efficient and timely exchange of audit information between them to support the effective preparation and conduct of the audit. The audit shall include at least the following elements:

(a) identification of the activities undertaken by the economic operator which are relevant to the scheme’s criteria;

(b) identification of the relevant systems of the economic operator and its overall organisation with respect to the scheme’s criteria and checks of the effective implementation of relevant control systems;

(c) analysis of the risks which could lead to a material misstatement, based on the auditor’s professional knowledge and the information submitted by the economic operator. That analysis shall take into consideration the overall risk profile of the activities, depending on the level of risk of the economic operator and the supply chain, above all at the immediately upstream and downstream stages, for example, for economic operators that handle material listed in Annex IX. The audit intensity or scope, or both, shall be adapted to the level of overall risk identified, also based on plausibility checks of the production capacity of a plant and the declared quantities of produced fuels;

(d) a verification plan which corresponds to the risk analysis and the scope and complexity of the economic operator’s activities, and which defines the sampling methods to be used with respect to that operator’s activities;

(e) implementation of the verification plan by gathering evidence in accordance with the defined sampling methods, plus all relevant additional evidence, upon which the verifier’s conclusion will be based;

(f) a request to the operator for the provision of any missing elements of audit trails, an explanation of variations, or the revision of claims or calculations, before reaching a final verification conclusion;

(g) verification of the accuracy of data recorded by the economic operators or their representatives in the Union database.

The intentional violation of a voluntary scheme’s standards such as fraud, irreversible non-conformity, or a violation that jeopardies the integrity of the voluntary scheme shall be considered to be a critical non-conformity. Critical non-conformities shall include, but are not limited to, the following:

(a) non-compliance with a mandatory requirement of Directive (EU) 2018/2001, such as land conversion which contravenes Article 29(3), (4) and (5) of that Directive;

(b) fraudulent issuance of a proof of sustainability or self-declarations, for example, intentional duplication of a proof of sustainability to seek financial benefit;