Commission Implementing Regulation (EU) 2023/1773 of 17 August 2023 laying down the rules for the application of Regulation (EU) 2023/956 of the European Parliament and of the Council as regards reporting obligations for the purposes of the carbon border adjustment mechanism during the transitional period (Text with EEA relevance)

CHAPTER I

SUBJECT MATTER AND DEFINITIONS

Article 1

Subject matter

This Regulation lays down rules for reporting obligations laid down in Article 35 of Regulation (EU) 2023/956 in respect of goods listed in Annex I to that Regulation imported into the customs territory of the Union during the transitional period from 1 October 2023 to 31 December 2025 (‘transitional period’).

Article 2

Definitions

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

(1) ‘reporting declarant’ means any of the following persons: (a) the importer who lodges a customs declaration for release for free circulation of goods in its own name and on its own behalf; (b) the person, holding an authorisation to lodge a customs declaration referred to in Article 182(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council (¹), who declares the importation of goods; (c) the indirect customs representative, where the customs declaration is lodged by the indirect customs representative appointed in accordance with Article 18 of Regulation (EU) No 952/2013, when the importer is established outside the Union or where the indirect customs representative has agreed to the reporting obligations in accordance with Article 32 of Regulation (EU) 2023/956;

(2) ‘rebate’ means any amount that reduces the amount due or paid by a person liable for the payment of a carbon price, before its payment or after, in a monetary form or in any other form.

CHAPTER II

RIGHTS AND OBLIGATIONS OF REPORTING DECLARANTS RELATED TO REPORTING

Article 3

Reporting obligations of reporting declarants

Each reporting declarant shall provide, based on the data, that the operator may communicate, as provided in Annex III to this Regulation, the following information regarding goods listed in Annex I to Regulation (EU) 2023/956 imported during the quarter to which the CBAM report relates:

(a) the quantity of the goods imported, expressed in megawatt hours for electricity and in tonnes for other goods;

(b) the type of goods as identified by their CN code.

Each reporting declarant shall provide the following information regarding the embedded emissions of the goods listed in Annex I to Regulation (EU) 2023/956, as listed in Annex I to this Regulation, in the CBAM reports:

(a) the country of origin of the imported goods;

(b) the installation where the goods were produced, identified by the following data: (1) the applicable United Nations Code for Trade and Transport Location (UN/LOCODE) of the location; (2) the company name of the installation, the address of the installation and its English transcript; (3) geographical coordinates of the main emission source of the installation;

(c) the production routes used, defined in Section 3 of Annex II to this Regulation, which shall reflect the technology used for the production of the goods, and information on specific parameters qualifying the indicated production route chosen as defined in Section 2 of Annex IV, for determining the embedded direct emissions;

(d) the specific embedded direct emissions of the goods, which shall be determined by converting the attributed direct emissions of the production processes into emissions specific of the goods expressed as CO2e per tonne in accordance with Sections F and G of Annex III to this Regulation;

(e) the reporting requirements that have an effect on the embedded emissions of the goods as referred to in Section 2 of Annex IV to this Regulation;

(f) for electricity as imported goods, the reporting declarant shall report the following information: (1) the emission factor used for electricity, expressed as tonne CO2e per MWh (megawatt hour) as determined in accordance with Section D of Annex III to this Regulation; (2) the data source or method used for determining the emission factor of electricity as determined in accordance with Section D of Annex III to this Regulation;

(g) for steel goods, the identification number of the specific steel mill where a particular batch of raw materials was produced, where known.

For specific embedded indirect emissions, each reporting declarant shall report the following information, as listed in Annex I to this Regulation, in the CBAM reports:

(a) electricity consumption, expressed in megawatt hours, of the production process per tonne of goods produced;

(b) specify whether the declarant reports actual emissions or default values made available and published by the Commission for the transitional period in accordance with Section D of Annex III to this Regulation;

(c) the corresponding emissions factor of the electricity consumed;

(d) the amount of specific embedded indirect emissions, which shall be determined by converting the attributed embedded indirect emissions of the production processes into indirect emissions specific of the goods expressed as CO2e per tonne in accordance with Sections F and G of Annex III to this Regulation.

Article 4

Calculation of embedded emissions

For the purpose of Article 3(2), the specific embedded emissions of goods produced in an installation shall be determined using one of the following methods, which are based on the choice of monitoring methodology determined in accordance with point B.2 of Annex III to this Regulation, consisting of either:

(a) determining emissions from source streams on the basis of activity data obtained by means of measurement systems and calculation factors from laboratory analyses or standard values;

(b) determining emissions from emission sources by means of continuous measurement of the concentration of the relevant greenhouse gas in the flue gas and of the flue gas flow.

By way of derogation from paragraph 1, until 31 December 2024, the specific embedded emissions of goods produced in an installation may be determined using one of the following monitoring and reporting methods, if they lead to similar coverage and accuracy of emissions data compared to the methods listed in that paragraph:

(a) a carbon pricing scheme where the installation is located; or

(b) a compulsory emission monitoring scheme where the installation is located; or

(c) an emission monitoring scheme at the installation which can include verification by an accredited verifier.

Article 5

Use of estimated values

By way of derogation from Article 4, up to 20 % of the total embedded emissions of complex goods may be based on estimations made available by the operators of the installations.

Article 6

Data collection and reporting regarding inward processing

For goods placed under inward processing and subsequently released for free circulation either as the same goods or as processed products, the reporting declarant shall submit in the CBAM reports, for the quarter following the quarter where the discharge from customs procedure occurred in accordance with Article 257 of Regulation (EU) No 952/2013, the following information:

(a) the quantities of goods listed in Annex I to Regulation (EU) 2023/956 that have been released for free circulation following inward processing during that period;

(b) embedded emissions corresponding to those quantities of goods referred to in point (a) that have been released for free circulation following inward processing during that period;

(c) the country of origin of the goods referred to in point (a), where known;

(d) the installations where the goods referred to in point (a) were produced, where known;

(e) the quantities of goods listed in Annex I to Regulation (EU) 2023/956 placed under inward processing that resulted in processed products that have been released for free circulation during that period;

(f) embedded emissions corresponding to the goods that have been used to produce the quantities of processed products referred to in point (e);

(g) in case of waiver for the bill of discharge granted by customs in accordance with Article 175 of Commission Delegated Regulation (EU) 2015/2446 (²) the reporting declarant shall submit the waiver.

The embedded emissions referred to in the first subparagraph shall be calculated as follows:

(a) the embedded emissions of paragraph 2, point (b), shall be the total embedded emissions of the goods placed under inward processing that are imported; and

(b) the embedded emissions of paragraph 2, point (f), shall be the total embedded emissions of the goods placed under inward processing that were used in one or more processing operations multiplied by the percentage quantities of the processed products obtained therefrom that are imported.

Article 7

Reporting of information regarding the carbon price due

Where applicable, the reporting declarant shall provide in the CBAM reports the following information regarding the carbon price due in a country of origin for the embedded emissions:

(a) the type of product indicated by CN code;

(b) the type of carbon price;

(c) the country, where a carbon price is due;

(d) form of rebate or any other form of compensation available in that country that would have resulted in a reduction of that carbon price;

(e) the amount of the carbon price due, a description of the carbon pricing instrument and possible compensation mechanisms;

(f) indication of the provision of the legal act providing for the carbon price, rebate, or other forms of relevant compensation, including a copy of the legal act;

(g) the quantity of embedded direct or indirect emissions covered;

(h) the quantity of embedded emissions covered by any rebate or other form of compensation, including free allocations, if applicable.

Article 8

Submission of CBAM reports

In the CBAM Transitional Registry the reporting declarant shall provide information and indicate, whether:

(a) the CBAM report is submitted by an importer in its own name and on its own behalf;

(b) the CBAM report is submitted by an indirect customs representative on behalf of an importer.

Article 9

Modification and correction of CBAM reports

CHAPTER III

ADMINISTRATION REGARDING CBAM REPORTING

Article 10

CBAM Transitional Registry

Article 11

Checks of CBAM reports and use of information by the Commission

Article 12

Indicative assessment by the Commission

Article 13

Incomplete or incorrect CBAM reports

A CBAM report shall be considered incorrect in any of the following cases:

(a) the data or information in the submitted report do not comply with the requirements laid down in Articles 3 to 7 and Annex III to this Regulation;

(b) the reporting declarant has submitted wrongful data and information;

(c) where the reporting declarant does not provide an adequate justification for the use of reporting rules other than those listed in Annex III to this Regulation.

Article 14

Assessment of CBAM reports and use of information by the competent authorities

Within the transitional period or thereafter, the competent authorities may initiate the correction procedure regarding any of the following:

(a) incomplete or incorrect CBAM reports;

(b) failure to submit a CBAM report.

Article 15

Confidentiality

By way of derogation from the first subparagraph, such information may be disclosed without permission where this Regulation provides for it and where the competent authority is obliged or authorised to disclose it by virtue of Union or national law.

CHAPTER IV

ENFORCEMENT

Article 16

Penalties

Member States shall apply penalties in the following cases:

(a) where the reporting declarant has not taken the necessary steps to comply with the obligation to submit a CBAM report; or

(b) where the CBAM report is incorrect or incomplete in accordance with Article 13, and the reporting declarant has not taken the necessary steps to correct the CBAM report where the competent authority initiated the correction procedure in accordance with Article 14(4).

When determining the actual amount of a penalty, for the unreported emissions calculated on the basis of the default values made available and published by the Commission for the transitional period, the competent authorities shall consider the following factors:

(a) the extent of unreported information;

(b) the unreported quantities of imported goods and the unreported emissions relating to those goods;

(c) the readiness of the reporting declarant to comply with requests for information or to correct the CBAM report;

(d) the intentional or negligent behaviour of the reporting declarant;

(e) the past behaviour of the reporting declarant as regards compliance with the reporting obligations;

(f) the level of cooperation of the reporting declarant to bring the infringement to an end;

(g) whether the reporting declarant has voluntarily taken measures to ensure that similar infringements cannot be committed in the future.

CHAPTER V

TECHNICAL ELEMENTS REGARDING THE CBAM TRANSITIONAL REGISTRY

SECTION 1

Introduction

Article 17

Central system in scope

The CBAM Transitional Registry shall be interoperable with:

(a) the Uniform User Management and Digital Signature (UUM&DS) system for the purposes of users registration and access management for the Commission, Member States, and reporting declarants, as referred to in Article 16 of Implementing Regulation (EU) 2023/1070;

(b) the Economic Operator Registration and Identification (EORI) for the purpose of validating and retrieving the Economic Operator Identity Information, as referred to in Article 30 of Implementing Regulation (EU) 2023/1070, for the data laid out Annex V to this Regulation;

(c) the Surveillance system for the purpose of retrieving information on Customs Imports Declarations for goods listed in Annex I to Regulation (EU) 2023/956 for checks of the CBAM reports and compliance, developed through the UCC Surveillance 3 (SURV3), as referred to in Article 99 of Implementing Regulation (EU) 2023/1070;

(d) the TARIC System as referred to in Regulation (EEC) No 2658/87.

Article 18

Contact points for the electronic systems

The Commission and Member States shall designate contact points for each of the electronic systems referred to in Article 17 of this Regulation, for the purposes of exchanging information to ensure a coordinated development, operation, and maintenance of those electronic systems.

The Commission and Member States shall communicate the details of these contact points to each other and inform each other immediately of any changes to those details.

SECTION 2

CBAM Transitional Registry

Article 19

Structure of the CBAM Transitional Registry

The CBAM Transitional Registry shall consist of the following common components (‘common components’):

(a) the CBAM Trader Portal (CBAM TP);

(b) the CBAM Competent Authorities Portal (CBAM CAP) with two segregated spaces: (1) one for the National Competent Authorities (CBAM CAP/N); and (2) another for the Commission (CBAM CAP/C);

(c) the CBAM User Access Management;

(d) the CBAM Registry Back End Services (CBAM BE);

(e) the public CBAM page on the Europa website.

Article 20

Terms of collaboration in the CBAM Transitional Registry

Article 21

The CBAM User Access Management

Article 22

CBAM Trader Portal

The CBAM Trader Portal shall be used by the reporting declarant for:

(a) the submission of the CBAM reports via a web interface or a System-to-System interface; and

(b) receiving notifications related to their CBAM compliance obligations.

Article 23

CBAM Competent Authorities Portal (CBAM CAP) for the CBAM National Competent Authorities (CBAM CAP/N)

Article 24

CBAM Competent Authorities Portal (CBAM CAP) for the Commission (CBAM CAP/C)

Article 25

The CBAM Registry Back End Services (CBAM BE)

The CBAM Registry Back End Services shall serve all requests placed by:

(a) the reporting declarants via the CBAM Trader Portal;

(b) the competent authorities via the CBAM Competent Authority Portal/N;

(c) the Commission via the CBAM Competent Authority Portal/C.

Article 26

Access management system

The Commission shall set up the access management system to validate the access requests submitted by reporting declarants and other persons within the UUM&DS system as referred to in Article 17(1), point (a) by connecting the Member States’ identity and the EU identity and access management systems pursuant to Article 27.

Article 27

Administration management system

The Commission shall set up the administration management system to manage the authentication and authorisation, the identification data of reporting declarants and other persons for the purposes of allowing access to the electronic systems.

Article 28

Member States’ identity and access management systems

The Member States shall set up or use existing an identity and access management systems to ensure:

(a) a secure registration and storage of identification data of reporting declarants and other persons;

(b) a secure exchange of signed and encrypted identification data of reporting declarants and other persons.

SECTION 3

Functioning of the electronic systems and training in the use thereof

Article 29

Development, testing, deployment, and management of the electronic systems

Article 30

Maintenance and changes to the electronic systems

Article 31

Temporary failure of the electronic systems

Article 32

Training support on the use and functioning of the common components

The Commission shall support the Member States on the use and functioning of the common components of the electronic systems by providing the appropriate training material.

SECTION 4

Data protection, data management and the ownership and security of the electronic systems

Article 33

Personal data protection

The personal data registered in the CBAM Transitional Registry, and the components of electronic systems developed at national level shall be processed for the purposes of implementing the Regulation (EU) 2023/956 having regard to the specific objectives of those databases as set out in this Regulation. The purposes for which the personal data could be processed shall be the following:

(a) authentication purposes and access management;

(b) monitoring, checks and review of CBAM reports;

(c) communication and notifications;

(d) compliance and judicial proceedings;