Commission Implementing Regulation (EU) 2024/1321 of 8 May 2024 amending Implementing Regulation (EU) 2018/2067 as regards the verification of data and the accreditation of verifiers
Commission Implementing Regulation (EU) 2024/1321of 8 May 2024amending Implementing Regulation (EU) 2018/2067 as regards the verification of data and the accreditation of verifiers(Text with EEA relevance)THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/ECOJ L 275, 25.10.2003, p. 32, ELI: http://data.europa.eu/eli/dir/2003/87/oj ., and in particular, Article 15, third subparagraph, and Article 30f(1) and (5), second subparagraph, thereof,Whereas:(1)Following the amendment of Directive 2003/87/EC by Directive (EU) 2023/959 of the European Parliament and of the CouncilDirective (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 (OJ L 130, 16.5.2023, p. 134, ELI: http://data.europa.eu/eli/dir/2023/959/oj)., Commission Implementing Regulation (EU) 2018/2067Commission Implementing Regulation (EU) 2018/2067 of 19 December 2018 on the verification of data and on the accreditation of verifiers pursuant to Directive 2003/87/EC of the European Parliament and of the Council (OJ L 334, 31.12.2018, p. 94, ELI: http://data.europa.eu/eli/reg_impl/2018/2067/oj). needs to be amended to incorporate rules applying to the verification of greenhouse gas emissions of installations for the incineration of municipal waste with a total rated thermal input exceeding 20 MW. To ensure harmonised approaches across installations carrying out combustion activities, the same requirements should apply to the verification of municipal waste incineration installations as to other combustion installations. Where a Member State has not required the installation for municipal waste incineration to have a greenhouse gas emission permit as referred to in Article 4 of the Directive 2003/87/EC, the verifier should focus its assessment on compliance with the monitoring plan.(2)Directive (EU) 2023/959 has extended the scope of activities listed in Annex I to Directive 2003/87/EC for the production of oil, the production of iron, the production of aluminium and alumina, the production of hydrogen and the transport of CO2 through other means than pipelines. To ensure alignment between Annex I to Directive 2003/87/EC and the scope of activities for which the verifier should be accredited to be able to carry out verification in those sectors, the scope of accreditation in Annex I to Implementing Regulation (EU) 2018/2067 needs to be updated.(3)Following the introduction of an obligation in Article 10a(1), third subparagraph, of Directive 2003/87/EC to make free allocation conditional upon implementation of energy efficiency improvement measures, new rules have been included in Commission Delegated Regulation (EU) 2019/331Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ L 59, 27.2.2019, p. 8, ELI: http://data.europa.eu/eli/reg_del/2019/331/oj). to set out when recommendations from the energy audit reports or certified energy management systems in accordance with Article 8 of Directive 2012/27/EU of the European Parliament and of the CouncilDirective 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ L 315, 14.11.2012, p. 1, ELI: http://data.europa.eu/eli/dir/2012/27/oj). are considered implemented. A key prerequisite for demonstrating implementation of those recommendations, is the confirmation by the verifier during the verification of the baseline data report or, where relevant, the annual activity level report, that the implementation of the energy efficiency recommendations is completed. Therefore, it is essential to provide a set of harmonised rules on the checks to be carried out by the verifier to confirm the completion of implementation of energy efficiency recommendations.(4)In accordance with Article 22a(3) of Delegated Regulation (EU) 2019/331, the verifier is to check whether an exception to conditionality under Article 22a(1), second subparagraph, of Delegated Regulation (EU) 2019/331 applies if the implementation of energy efficiency recommendations has not been completed. To ensure legal certainty and equal treatment between comparable cases, it is necessary to specify harmonised rules on the verifier’s assessment of the application of those exceptions.(5)In order for the verifier to carry out the necessary checks on the implementation of energy efficiency recommendations or the application of exceptions to conditionality, the operator should provide the verifier with relevant evidence and information related to the implementation of energy efficiency recommendations and the application of exceptions during the relevant stages of the verification.(6)To provide the competent authority with the necessary information to decide whether the conditions for free allocation in accordance with Article 22a of Delegated Regulation (EU) 2019/331 have been met and whether the allocation of emission allowances has to be reduced, specific rules need to be introduced regarding the verifier’s reporting of the results of the confirmation checks and any observations obtained during these confirmation checks.(7)Article 10a of Directive 2003/87/EC allows operators to cancel the reduction of free allocation after having completed the implementation of energy efficiency recommendations. A prerequisite for that cancellation is the verifier’s confirmation as part of the verification of the annual activity level report that the implementation of the energy efficiency recommendations has been completed. To support the establishment of an annual cycle for those purposes, it is important that observations made by the verifier during earlier verifications regarding the implementation of recommendations are followed-up and that this is checked by verifiers in subsequent verifications.(8)Articles 4 and 6 of Delegated Regulation (EU) 2019/331 require the monitoring methodology plan to be approved by the competent authority. Provisions related to the verifier’s validation of the monitoring methodology in the absence of the competent authority’s approval have become obsolete and should therefore be deleted.(9)Experience in the application of Implementing Regulation (EU) 2018/2067 has shown the need to clarify the requirement of verifier to check compliance with the sustainability and greenhouse gas savings criteria laid down in Article 29(2) to (7) and (10) of Directive (EU) 2018/2001 of the European Parliament and of the CouncilDirective (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (recast) (OJ L 328, 21.12.2018, p. 82, ELI: http://data.europa.eu/eli/dir/2018/2001/oj). where biomass fuels are used. In the interests of clarity, a provision should be added to require verifiers to check compliance with those criteria.(10)Experience has shown the need to clarify when virtual site visits are carried out, for what reason and when the last physical site visit was carried out. Such information allows competent authorities and national accreditation bodies to monitor compliance with the requirements concerning virtual site visits. In the interest of clarity and transparency, such information should be included in the verification report.(11)In the interest of clarity, it is important to align the verifier’s approach for identifying improvements related to the operator’s performance of monitoring and reporting allocation data with the approach for identifying opportunities for improving the monitoring and reporting of emissions. Recommendations related to allocation data should include improvements to achieve the highest level of accuracy concerning data sources listed in Annex VII to Delegated Regulation (EU) 2019/331.(12)Experience with the application of conditions for waiving site visits under Article 32(1) of Implementing Regulation (EU) 2018/2067 has shown that category A and B installations using natural gas or one or more de-minimis source streams, whereby natural gas is monitored through fiscal metering and default values are used for calculation factors for the natural gas, result in similar risks compared to situations where calculation factors are determined by the gas transporter without any input or processing from the operator. It is therefore appropriate to allow a waive of site visits also in cases where the calculation factor is determined by the gas transporter using online analysers that are subject to an appropriate legal regime for the control of fiscal analysers without any input from the operator.(13)Following the amendment of Directive 2003/87/EC by Directive (EU) 2023/958 of the European Parliament and of the CouncilDirective (EU) 2023/958 of the European Parliament and of the Council of 10 May 2023 amending Directive 2003/87/EC as regards aviation’s contribution to the Union’s economy-wide emission reduction target and the appropriate implementation of a global market-based measure (OJ L 130, 16.5.2023, p. 115, ELI: http://data.europa.eu/eli/dir/2023/958/oj)., new rules were introduced for the free allocation of allowances to aircraft operators. The allocation will no longer be based on reported tonne-kilometre data. Therefore, all provisions related to the verification of tonne-kilometre data have become obsolete and should be deleted accordingly reducing the administrative burden.(14)Following amendments in Directive (EU) 2023/958, Commission Implementing Regulation 2018/2066Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council and amending Commission Regulation (EU) No 601/2012 (OJ L 334, 31.12.2018, p. 1, ELI: http://data.europa.eu/eli/reg_impl/2018/2066/oj). lays down monitoring and reporting rules regarding the attribution of sustainable aviation fuels and their emissions to flights and, where the sustainable aviation fuel cannot be physically attributed to a specific flight, the proportionate attribution of those fuels and their emissions to flights departing from airports. In the interests of legal certainty and environmental integrity, it is appropriate to specify a set of harmonised rules for verifiers to check that the sustainable aviation fuels and their emissions are attributed correctly and the relevant requirements in Implementing Regulation (EU) 2018/2066 have been met.(15)Data in the aviation sector is to a large extent processed and recorded in automated systems which makes it possible to access data remotely. This justifies the application of virtual site visits outside force majeure circumstances in the aviation sector. To ensure the robustness of the verification, virtual site visits should only be allowed under strict conditions. National accreditation bodies should monitor the application of those conditions and the performance of verifiers during such site visits as part of the annual surveillance of verifiers.(16)Directive (EU) 2023/959 has introduced a separate but parallel emissions trading system applicable to fuels released for consumption in the buildings and road transport sectors as well as in additional sectors which correspond to industrial activities not covered by Annex I to Directive 2003/87/EC ("buildings, road transport and additional sectors"). New provisions relating to the monitoring and reporting of emissions in those sectors have been included in Implementing Regulation (EU) 2018/2066. As a result of those changes, harmonised rules on the verification of emissions in those sectors and the accreditation of verifiers carrying out such verification should be added. Existing rules and provisions on the verification of emissions should be adapted accordingly.(17)The verification of greenhouse gas emissions and the accreditation of verifiers in accordance with Articles 15 and 30f of Directive 2003/87/EC and Annex V to that Directive, the definitions in Article 3, the obligation in Article 4 and the application of the requirements in Chapters II and III of Implementing Regulation (EU) 2018/2066 should be extended to cover the verification of regulated entity’s reports unless specific characteristics of the emissions trading system applicable to fuels released for consumption in buildings, road transport and additional sectors require other or more tailored rules. Similarly, requirements on the accreditation of verifiers in Chapter V of Implementing Regulation (EU) 2018/2066 and the requirements on cooperation and information exchange between national accreditation bodies and competent authorities in Chapter VI of that Regulation should apply to this separate emissions trading system.(18)It is important to delineate the roles and responsibilities of the verifier and the competent authority with respect to verification of regulated entity’s reports. In line with the principles of Annex V to Directive 2003/87/EC, the verifier should assess completeness and compliance of information in the regulated entity’s reports with the requirements listed in Annexes X and Xb to Implementing Regulation (EU) 2018/2066, opportunities for improvement of the monitoring and reporting process and the accuracy of the emission data. Similarly to the verification of operator’s report, the verifier should take the monitoring plan approved by the competent authority as a starting point and assess the regulated entity’s conformity with that plan. Where that monitoring plan is not approved, incomplete or has changed significantly without those changes being approved, it is important for the regulated entity to obtain the competent authority’s approval. Any non-compliance of the monitoring plan with the requirements laid down in Implementing Regulation (EU) 2018/2066, that has been identified by the verifier and not corrected by the regulated entity before the verification report is issued, should be reported in the verification report.(19)In accordance with Annex V, part C, points 1 to 5 and point 7 to Directive 2003/87/EC, the verifier is to carry out a site visit to check monitoring boundaries of the regulated entity, to assess the operation of measuring devices, systems and processes that are used by the regulated entities to determine the fuel quantities released for consumption, to conduct interviews and to carry out other activities. To prevent verifiers from having to visit bulk tank or storage facility locations, where the fuel amounts released for consumption are determined, processed and controlled by third parties or where the measured data is not used for determining and processing regulated entity’s emission data, a specific definition of site should be included. It is the verifier’s risk analysis that determines which locations at the site of the regulated entity should be visited. The verifier’s site visit should be waived only under specific conditions.(20)The exchange of relevant information between the regulated entity and the verifier is essential in all facets of the verification process, in particular in the pre-contractual phase, in the performance of a strategic analysis by the verifier and throughout the verification. It is necessary to establish harmonised requirements that should govern the provision of information between the regulated entity and the verifier at all times.(21)To avoid double-counting of emissions covered by the emissions trading system for buildings, road transport and additional sectors and the emissions trading system for stationary installations, aviation and maritime transport in accordance with Article 30f(5) of Directive 2003/87/EC, regulated entities are required in accordance with Implementing Regulation (EU) 2018/2066 to use their monitoring and reporting process by deducting from the total quantity of fuels released for consumption, the fuel quantities that are used in the same reporting year for activities covered by Annex I to Directive 2003/87/EC. Information from operators, aircraft operators and shipping companies on fuels supplied and the supply chain in accordance with Annex Xa to Implementing Regulation (EU) 2018/2066 is essential in order to determine what fuel quantity should be deducted from the total quantity of fuel release. To provide the regulated entity and the verifiers carrying out verification of regulated entity’s report with sufficient confidence in the accuracy of information listed to in Annex Xa to Implementing Regulation (EU) 2018/2066, it is appropriate for verifiers of operator’s or aircraft operator’s reports to assess that information as part of the verification of those reports and confirm that the fuels used from a supplier do not exceed the amount that the operator or aircraft operator has acquired from that supplier while taking into account the amounts stored in stock according to the methodology in the approved monitoring plan.(22)To provide full transparency on the accuracy of the information listed in Annex Xa to Implementing Regulation (EU) 2018/2066, it is essential for the verifier carrying out verification of operator’s or aircraft operator’s reports to report on the results of the assessment of information listed in Annex Xa to Implementing Regulation (EU) 2018/2066 and describe any observations in the verification report, including any identified and uncorrected misstatements, non-conformities, non-compliance with Implementing Regulation (EU) 2018/2066 or recommendations for improvement. Such information should be made available by the operator or aircraft operator to the relevant regulated entity together with information listed in Annex Xa in accordance with Article 75v(2) of Implementing Regulation (EU) 2018/2066.(23)Such information allows the verifier carrying out verification of regulated entity’s reports to perform consistency checks between the information listed in Annex Xa to Implementing Regulation (EU) 2018/2066 and information on fuels consumed listed in Annex Xb to that Regulation and subsequently determine whether the fuel quantities deducted in accordance with Article 75v(4) of that Regulation are accurate, and the total greenhouse gas emissions reported by the regulated entity are free from material misstatements. Harmonised rules on the checks to be carried out as part of the data verification and assessment of the monitoring methodology and scope factor are necessary.(24)In order to plan the verification of regulated entity’s report and support the verifier’s assessment of whether a misstatement, non-conformity or non-compliance has a material impact on the emission data, an appropriate materiality level should be defined for the verification of the regulated entity’s report. To reduce the administrative burden while still ensuring the environmental integrity of the system and robustness of verification, a stricter materiality level only applies to regulated entities with the highest levels of emissions, namely annual emissions above 500 kilo-tonnes of CO2.(25)As is the case for the verification of operator’s reports, it is the verifier’s responsibility to assess whether the misstatement, non-conformity or non-compliance with Implementing Regulation 2018/2066, individually or when aggregated, exceeds the applicable materiality level and should therefore be regarded as material. Even if the materiality level is not exceeded, the verifier should determine whether the relevant issue has material impact given the nature, size and particular circumstances of that particular issue.(26)To ensure the proper functioning of the monitoring and reporting process, providing recommendations for continuous improvement of the regulated entity’s monitoring and reporting should be part of the verification activities performed by the verifier.(27)It is important for verifiers to be competent in carrying out verification of regulated entity’s reports. In order for the verifier to assess the specific monitoring and reporting boundaries and aspects of the regulated entity related to the emission trading system for buildings, road transport and additional sectors, specific competence criteria should be defined for verifiers carrying out verification of regulated entity’s reports. For that purpose, a separate accreditation scope should be created so that the accreditation bodies can evaluate the verifier’s competence and performance against these specific criteria and accredit the verifiers against that particular scope.(28)To reduce the risk of endangering the impartiality of the verifier, the lead auditor should be rotated after having carried out the verification of the same regulated entity’s report for five consecutive years. This requirement should not preclude the verifier from taking additional measures to reduce impartiality risks.(29)The monitoring and reporting for the new emissions trading system for buildings, road transport and additional sectors is to start on 1 January 2025. In accordance with Article 30f of Directive 2003/87/EC, the first verified regulated entity’s report is to be submitted to the competent authority by 30 April 2026, in relation to the reporting year 2025. Therefore, it is appropriate that the relevant provisions related to the verification of the regulated entity’s reports for the new emissions trading system should become applicable to the verification of regulated entity’s greenhouse gas emissions occurring from 1 January 2025 onwards. Similarly, the relevant provisions related to the verification of information listed in Annex Xa to Implementing Regulation (EU) 2018/2066 should also become applicable from the 2025 reporting year onwards.(30)The amendments related to the verification of baseline data and the verifier’s checks on the implementation of energy efficiency recommendations and the application of exceptions to conditionality should enter into force as a matter of urgency as the verified baseline data reports as part of the application of free allocation needs to be submitted by 30 May 2024 as required by Article 4(1) of Delegated Regulation (EU) 2019/331, therefore this Regulation should enter into force on the day following that of its publication.(31)The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee,HAS ADOPTED THIS REGULATION: