Commission Implementing Regulation (EU) 2023/2122 of 17 October 2023 amending Implementing Regulation (EU) 2018/2066 as regards updating the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council

Article 1

Implementing Regulation (EU) 2018/2066 is amended as follows:

(1) Article 2 is replaced by the following: ‘Article 2 This Regulation shall apply to the monitoring and reporting of greenhouse gas emissions specified in relation to the activities listed in Annexes I and III to Directive 2003/87/EC, to activity data from stationary installations, to aviation activities and to released fuel amounts from activities referred to in Annex III to that Directive. It shall apply to emissions, activity data and released fuel amounts occurring from 1 January 2021.’;

(2) Article 3 is amended as follows: (a) point (3) is deleted; (b) point (7) is replaced by the following: ‘(7) “calculation factors” means net calorific value, emission factor, preliminary emission factor, oxidation factor, conversion factor, carbon content, biomass fraction or unit conversion factor;’; (c) point (8) is replaced by the following: ‘(8) “tier” means a set requirement used for determining activity data, calculation factors, annual emission and annual average hourly emission, released fuel amount and scope factor;’; (d) point (9) is replaced by the following: ‘(9) “inherent risk” means the susceptibility of a parameter in the annual emissions report to misstatements that could be material, individually or when aggregated with other misstatements, before taking into consideration the effect of any related control activities;’; (e) point (10) is replaced by the following: ‘(10) “control risk” means the susceptibility of a parameter in the annual emissions report to misstatements that could be material, individually or when aggregated with other misstatements, and not prevented or detected and corrected on a timely basis by the control system;’; (f) point (12) is replaced by the following: ‘(12) “reporting period” means a calendar year during which emissions have to be monitored and reported;’; (g) point (13) is replaced by the following: ‘(13) “emission factor” means the average emission rate of a greenhouse gas relative to the activity data of a source stream or a fuel stream assuming complete oxidation for combustion and complete conversion for all other chemical reactions;’; (h) point (20) is replaced by the following: ‘(20) “conservative” means that a set of assumptions is defined in order to ensure that no under-estimation of annual emissions occurs;’; (i) the following point (21ca) is inserted: ‘(21ca) “municipal waste” means municipal waste as defined in Article 3, point (2b), of Directive 2008/98/EC;’; (j) the following point (23a) is inserted: ‘(23a) “eligible aviation fuel” means fuel types eligible for the support under Article 3c(6) of Directive 2003/87/EC;’; (k) the following point (34a) is inserted: ‘(34a) “mixed aviation fuel” means a fuel which contains both eligible aviation fuel and fossil fuel;’; (l) the following point (38a) is inserted: ‘(38a) “eligible fraction” means the ratio of eligible aviation fuel blended in the fossil fuel;’; (m) point (48) is deleted; (n) point (59) is replaced by the following: ‘(59) “proxy data” means annual values which are empirically substantiated or derived from accepted sources and which an operator or regulated entity as defined in Article 3 of Directive 2003/87/EC uses to substitute the activity data, the released fuel amounts or the calculation factors for the purpose of ensuring complete reporting when it is not possible to generate all the required activity data, released fuel amounts or calculation factors in the applicable monitoring methodology;’; (o) the following points are added: ‘(64) “fuel stream” means a fuel as defined in Article 3, point (af), of Directive 2003/87/EC, released for consumption through specific physical means, such as pipelines, trucks, rail, ships or fuel stations, and giving rise to emissions of relevant greenhouse gases as a result of its consumption by categories of consumers in sectors covered by Annex III to Directive 2003/87/EC; (65) “national fuel stream” means the aggregation, per fuel type, of fuels streams of all regulated entities in the territory of a Member State; (66) “scope factor” means the factor between zero and one that is used to determine the share of a fuel stream that is used for combustion in sectors covered by Annex III to Directive 2003/87/EC; (67) “released fuel amount” means data on the amount of fuel as defined in Article 3, point (af), of Directive 2003/87/EC which is released for consumption and expressed as energy in terajoules, mass in tonnes or volume in normal cubic metres or the equivalent in litres, where appropriate, before application of a scope factor; (68) “unit conversion factor” means a factor converting the unit in which released fuel amounts are expressed, into amounts expressed as energy in terajoules, mass in tonnes or volume in normal cubic metres or the equivalent in litres, where appropriate, which comprises all relevant factors such as the density, the net calorific value or (for gases) the conversion from gross calorific value to net calorific value, as applicable; (69) “final consumer” for the purposes of this Regulation means any natural or legal person that is the end user of the fuel as defined in Article 3, point (af) of Directive 2003/87/EC, whose annual fuel consumption does not exceed 1 tonne of CO2; (70) “released for consumption” for the purposes of this Regulation means the moment where the excise duty on a fuel, as defined in Article 3, point (af), of Directive 2003/87/EC, becomes chargeable in accordance with Articles 6(2) and (3) of Council Directive (EU) 2020/262 (¹) or, where applicable, in accordance with Article 21(5) of Council Directive 2003/96/EC (2), unless the Member State has used the flexibility provided under Article 3 (ae), point (iv), of Directive 2003/87/EC, in which case it means the moment designated by the Member State as creating obligations under Chapter IVa of that Directive.

(3) in Article 15(4), point (b) is deleted;

(4) Article 18 is amended as follows: (a) paragraph 1 is replaced by the following: ‘1. Where an operator or aircraft operator claims that applying a specific monitoring methodology would incur unreasonable costs, the competent authority shall assess whether the costs are unreasonable, taking into account the operator’s justification. The competent authority shall consider costs unreasonable where the cost estimate exceeds the benefit. To that end, the benefit shall be calculated by multiplying an improvement factor by a reference price of EUR 80 per allowance and costs shall include an appropriate depreciation period based on the economic lifetime of the equipment.’ ; (b) paragraph 4 is replaced by the following: ‘4. Measures relating to the improvement of an installation’s monitoring methodology shall not be deemed to incur unreasonable costs up to an accumulated amount of EUR 4 000 per reporting period. For installations with low emissions that threshold shall be EUR 1 000 per reporting period.’ ;

(5) Article 39 is amended as follows: (a) the following paragraph 2a is inserted: ‘2a. Where the operator uses a mass balance in accordance with Article 25, and biomass complying with the criteria of Article 38(5) is used as input material or fuel, and output materials contain carbon, the operator shall provide to the competent authority data on the biomass fraction of the carbon content of the output streams. The operator shall thereby provide evidence that the installation’s total emissions are not systematically underestimated by the applied monitoring methodology and that the total mass of carbon corresponding to the biomass fractions of the carbon contained in all relevant output materials does not exceed the total mass of biomass fractions of the carbon contained in input materials and fuels. For the purpose of this paragraph, paragraphs 3 and 4 of this Article shall apply regarding the biogas fraction of natural gas used as input.’ ; (b) paragraph 3 is replaced by the following: ‘3. By way of derogation from paragraphs 1 and 2 of this Article and Article 30, except for the purposes of Article 43(4), the operator shall not use analyses or estimation methods in accordance with paragraph 2 of this Article to determine the biomass fraction of natural gas received from a gas grid to which biogas is added. The operator may determine that a certain quantity of natural gas from the gas grid is biogas by using the methodology set out in paragraph 4.’ ;

(6) In Article 43(4) the following subparagraph is added: ‘Where the method proposed by the operator involves continuous sampling from the flue gas stream and the installation consumes natural gas from the grid, the operator shall subtract the CO2 stemming from any biogas contained in the natural gas from the total measured CO2 emissions. The biomass fraction of the natural gas shall be determined in accordance with Articles 32 to 35.’;

(7) Article 48 is amended as follows: (a) in paragraph 2, first subparagraph, the following sentence is added: ‘For the determination of the biomass fraction of the inherent CO2 in accordance with Article 39, the operator of the transferring installation shall ensure the chosen monitoring methodology does not systematically underestimate the transferring installation’s total emissions.’; (b) in paragraph 3, the first subparagraph is replaced by the following: ‘3. The operators may determine quantities of inherent CO2 transferred out of the installation both at the transferring and at the receiving installation. In that case, the quantities of respectively transferred and received inherent CO2 and the corresponding biomass fraction shall be identical.’ ;

(8) in Chapter IV, the title is replaced by the following: ‘MONITORING OF EMISSIONS FROM AVIATION’;

(9) in Article 51, paragraph 2 is deleted;

(10) in Article 52, paragraph 2 is deleted;

(11) Article 53 is amended as follows: (a) in paragraph 1, the following subparagraph is added: ‘For the purpose of reporting pursuant to Article 7 of Commission Delegated Regulation (EU) 2019/1603 (^*3), the aircraft operator shall determine and report as a memo-item the CO2 emissions which result from multiplying the annual consumption of each fuel by the preliminary emission factor. (b) in paragraph 6, the following subparagraph is inserted after the first subparagraph: ‘The aircraft operators shall use the default emissions factors set out in Table 1 in Annex III as the preliminary emission factor.’;

(12) Article 54 is amended as follows: (a) paragraph 1 is replaced by the following: ‘1. For mixed fuels, the aircraft operator may either assume the absence of biofuel and apply a default fossil fraction of 100 %, or determine a biofuel fraction in accordance with paragraph 2 or 3. The aircraft operator may also report neat biofuels with 100 % biomass fraction.’ ; (b) in paragraph 2, the following subparagraphs are added: ‘Additionally, the aircraft operator shall provide evidence to the satisfaction of the competent authority that the biofuel is attributed to the flight immediately following the fuel uplift of that flight. Where several subsequent flights are carried out without fuel uplift between these flights, the aircraft operator shall split the amount of biofuel and assign it to these flights proportionally to the emissions from those flights calculated using the preliminary emission factor.’; (c) paragraph 3 is replaced by the following: ‘3. Where purchased biofuel batches are not physically delivered to a specific aircraft, the aircraft operator shall not use analyses to determine the biomass fraction of the fuels used. Where biofuel cannot be physically attributed at an aerodrome to a specific flight, the aircraft operator shall attribute the biofuels to its flights for which allowances have to be surrendered in accordance with Article 12(3) of Directive 2003/87/EC proportionally to the emissions from those flights departing from that aerodrome calculated using the preliminary emission factor. The aircraft operator may determine the biomass fraction using purchase records of biofuel of equivalent energy content, provided that the aircraft operator provides evidence to the satisfaction of the competent authority that the biofuel was delivered to the fuelling system of the departure aerodrome in the reporting period, or 3 months before the start, or 3 months after the end, of that reporting period.’ ; (d) the following paragraph 3a is inserted: ‘3a. For the purpose of paragraphs 2 and 3 of this Article, the aircraft operator shall provide evidence to the satisfaction of the competent authority that: (a) the total amount of biofuel claimed does not exceed the total fuel usage of that aircraft operator for flights for which allowances have to be surrendered according to Article 12(3) of Directive 2003/87/EC, originating from the aerodrome at which the biofuel is supplied; (b) the amount of biofuel for flights for which allowances have to be surrendered according to Article 12(3) of Directive 2003/87/EC does not exceed the total quantity of biofuel purchased from which the total quantity of biofuel sold to third parties is subtracted; (c) the biomass fraction of the biofuel attributed to flights aggregated per aerodrome pair does not exceed the maximum blending limit for that biofuel as certified according to a recognised international standard; (d) there is no double counting of the same biofuel quantity, in particular that the biofuel purchased is not claimed to be used in an earlier report or by anyone else, or in another system. For the purpose of points (a) to (c) of the first subparagraph, any fuel remaining in tanks after a flight and before an uplift is assumed to be 100 % fossil fuel. For the purpose of demonstrating compliance with the requirements referred to under point (d) of the first subparagraph of this paragraph, the aircraft operator may use the data recorded in the Union database set up in accordance with Article 28(2) of Directive (EU) 2018/2001.’ ; (e) paragraph 4 is replaced by the following: ‘4. The emission factor for biofuel shall be zero. For the purpose of this paragraph, Article 38(5) shall apply to combustion of biofuel by aircraft operators. The emission factor of each mixed fuel shall be calculated and reported as the preliminary emission factor multiplied by the fossil fraction of the fuel.’ ;

(13) the following Article 54a is inserted: ‘Article 54a Specific provisions for eligible aviation fuels

Additionally, the aircraft operator shall provide evidence to the satisfaction of the competent authority that the eligible aviation fuel is attributed to the flight immediately following the uplift of that flight. Where several subsequent flights are carried out without fuel uplift between these flights, the aircraft operator shall split the amount of eligible aviation fuel and assign it to these flights proportionally to the emissions from those flights calculated using the preliminary emission factor.

The aircraft operator may determine the eligible fraction using purchase records of the eligible aviation fuel of equivalent energy content, provided that the aircraft operator provides evidence to the satisfaction of the competent authority that the eligible aviation fuel was delivered to the fuelling system of the departure aerodrome in the reporting period or 3 months before the start, or 3 months after the end, of that reporting period.