Regulation (EU) 2023/1805 of the European Parliament and of the Council of 13 September 2023 on the use of renewable and low-carbon fuels in maritime transport, and amending Directive 2009/16/EC (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(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.