Commission Implementing Regulation (EU) 2019/1842 of 31 October 2019 laying down rules for the application of Directive 2003/87/EC

This Regulation applies to the free allocation of allowances pursuant to Article 10a of Directive 2003/87/EC for the trading period from 2021 until 2030.

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

(1) ‘average activity level’ means, for each sub-installation, the arithmetic mean of the related annual activity levels for the two calendar years preceding the submission of a report referred to in Article 3(1);

(1a) ‘average of the expected activity level’ means for each sub-installation, the arithmetic mean of the related annual expected activity levels, determined based on the method set out in Annex I, for the two calendar years preceding the submission of the report referred to in Article 3(1);

(2) ‘incumbent installation’ means incumbent installation as defined in Article 2(1) of Delegated Regulation (EU) 2019/331;

(3) ‘heat benchmark sub-installation’ means heat benchmark sub-installation as defined in Article 2(3) of Delegated Regulation (EU) 2019/331;

(4) ‘fuel benchmark sub-installation’ means fuel benchmark sub-installation as defined in Article 2(6) of Delegated Regulation (EU) 2019/331;

(4a) ‘process emissions sub-installation’ means process emissions sub-installation as defined in Article 2(10) of Delegated Regulation (EU) 2019/331;

(5) ‘allocation period’ means allocation period as defined in Article 2(15) of Delegated Regulation (EU) 2019/331;

(6) ‘group’ means group as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and of the Council (1).

1. Starting in 2021, the operators of installations to which free allocation has been given, in accordance with Article 10a of Directive 2003/87/EC, for the trading period from 2021 until 2030 shall report annually on the activity level of each sub-installation in the preceding calendar year. ►M2 In 2021 and in 2026, this report shall include data for the two years preceding its submission.** ◄ **

New entrants may submit the reports referred to in Article 5 paragraph 2 of Delegated Regulation (EU) 2019/331 in the year after the first day of operations.

2. The activity level report must contain information on the activity level of each sub-installation and on each of the parameters listed in sections 1, except 1.3 (c), and 2.3 to 2.7 of Annex IV to Delegated Regulation (EU) 2019/331. The activity level report shall also contain information on the structure of the group, if any, to which the installation belongs and on whether any sub-installation has ceased to operate.

The competent authority may require operators to also report on any of the additional parameters included in Annex IV to Delegated Regulation (EU) 2019/331 in the activity level report or referred to in its paragraph 1.

3. ►M2 The activity level report shall be submitted by 31 March of each year, to the competent authority granting the free allocation, unless the competent authority has set an earlier time limit for this submission.** ◄ ** It shall be submitted together with a verification report on the activity level report issued pursuant to Implementing Regulation (EU) 2018/2067.

The competent authority may suspend the issuance of free emission allowances to an installation until the competent authority has established that there is no requirement to adjust the allocation to that installation or the Commission has adopted a Decision in accordance with Article 23(4) of Delegated Regulation (EU) 2019/331 concerning the adjustments to the allocation to that installation.

The competent authority shall suspend the issuance of free emission allowances in any of the following situations:

(a) no verified activity level report has been submitted by the operator;

(b) the verification report of the activity level report contains an opinion statement referred to in point (b), (c) or (d) of Article 27(1), first subparagraph, of Implementing Regulation (EU) 2018/2067.

Any suspension of the allocation of allowances in accordance with the third subparagraph of this paragraph shall remain until the competent authority has established that there is no requirement to adjust the allocation to that installation or the Commission has adopted a Decision in accordance with Article 23(4) of Delegated Regulation (EU) 2019/331 concerning the adjustments to the allocation to that installation.

Where applicable, the competent authority shall recover any excess allowances resulting from an over-allocation, in accordance with the procedure set out in Article 48(4) of Commission Delegated Regulation (EU) 2019/1122 (2).

The competent authority may require operators and verifiers to use electronic templates or specific file formats for the submission of activity level reports.

4. The competent authority shall assess the activity level report referred to in paragraphs 1 to 3 of this Article in accordance with the requirements of Articles 7 to 12 of Delegated Regulation (EU) 2019/331. The competent authority may make a conservative estimate of the value of any parameter in any of the following situations:▼M2 —————▼B(b) the verified value submitted is not in compliance with this Regulation or Delegated Regulation (EU) 2019/331;(c) the activity level report of an operator has not been verified in accordance with Implementing Regulation (EU) 2018/2067.

Where a verifier has stated, in the verification report pursuant to Implementing Regulation (EU) 2018/2067, the existence of non-material misstatements which have not been corrected by the operator before issuing the verification report, the competent authority shall assess those misstatements, and make a conservative estimate of the value of a parameter, where possible. The competent authority shall inform the operator whether and which corrections are required to the activity level report. The operator shall make that information available to the verifier.

1. Where the final annual amount of emission allowances allocated free of charge has been reduced in accordance with Article 22a of Delegated Regulation (EU) 2019/331, the operator may recover the reduced allowances provided that the operator demonstrates to the satisfaction of the competent authority that one of the following conditions has been met:(a) all outstanding recommendations from energy efficiency audits or certified energy management systems referred to in Article 22a(1) of Delegated Regulation (EU) 2019/331 have been implemented and the verifier has confirmed during the verification of the annual activity level report that the implementation of these recommendations has been completed;(b) other measures have been implemented during or after the relevant baseline period which lead to greenhouse gas emission reductions within the installation equivalent to those recommended by the energy audit report or the certified energy management system referred to in Article 22a(1) of Delegated Regulation (EU) 2019/331 and the verifier has confirmed during the verification of the annual activity level report that the implementation of these measures has been completed and that these equivalent greenhouse gas emission reductions have been achieved.

2. Where the operator wishes to recover the reduced allowances in accordance with paragraph 1, the operator shall submit a request to recover the reduced allowances to the competent authority as part of the verified activity level report referred to in Article 3(3), first subparagraph. The competent authority shall assess the request and decide whether the conditions referred to in paragraph 1 have been met.

Where the competent authority decides that the conditions referred to in paragraph 1 have been met and the Commission has adopted a Decision in accordance with Article 23(4) of Delegated Regulation (EU) 2019/331 concerning the adjustments to the allocation to that installation, the operator shall receive each year the full amount of allowances for the remaining years in the allocation period starting from the year of the submission of the request to recover the reduced allowances.

1. Operators of installations that have submitted a climate-neutrality plan in accordance with Article 22b of Delegated Regulation (EU) 2019/331 shall draft a climate-neutrality report which shall contain the information listed in Annex II to this Regulation.

2. Operators referred to in paragraph 1 shall submit the climate-neutrality report and the corresponding verification report in accordance with Implementing Regulation (EU) 2018/2067 to the competent authority by 31 March 2026 in respect of the period until 31 December 2025 and by 31 March of each fifth year thereafter in respect of the preceding five-year period.

By derogation from the first subparagraph, the competent authority may set an earlier time limit for the submission of the climate-neutrality report and the corresponding verification report.

3. The Commission shall make available an electronic template or a specific file format for providing the information as specified in Annex II.

4. When drafting the climate-neutrality report, operators shall use the electronic template or specific file format referred to in paragraph 3.

5. By way of derogation from paragraphs 3 and 4, Member States may require operators to use electronic templates or specific file formats developed by those Member States for establishing and submitting climate-neutrality reports in accordance with delegated acts adopted pursuant to Article 10a(1), first subparagraph, of Directive 2003/87/EC.

1. Where the conditions laid down in Article 22b(1), second subparagraph, of Delegated Regulation (EU) 2019/331 have been met, after the reduction of allowances in accordance with the first subparagraph of that Article, the reduced allowances shall be allocated for each year in the applicable allocation period.

2. For the purposes of paragraph 1, the condition laid down in Article 22b(1), second subparagraph, point (b), of Delegated Regulation (EU) 2019/331 shall be met if all of the following applies:(a) the operator has submitted a verified climate-neutrality report by 31 March 2026, or by the earlier time limit set by the competent authority, in respect of the period until 31 December 2025 and by 31 March of each fifth year thereafter in respect of the preceding five-year period;(b) the climate-neutrality report has been verified as satisfactory in accordance with Implementing Regulation (EU) 2018/2067 and the verifier has confirmed that the milestones and targets laid down in the climate-neutrality plan have been achieved for the relevant five-year period;(c) the verified climate-neutrality report complies with Article 3b.

1. For the purposes of increasing the preliminary annual number of emission allowances by 30 % in accordance with Article 22b(3) of Delegated Regulation (EU) 2019/331, operators shall submit to the competent authority documentary evidence of the legal commitment for the investment referred to in Article 22b(3), first subparagraph, point (b), of Delegated Regulation (EU) 2019/331, and documentary evidence that the investment leads to significant emission reductions before 2030.

2. The first time operators may submit the evidence referred to in paragraph 1, is by 31 March 2026 together with the verified climate-neutrality report. Where the conditions laid down in Article 22b(3) of Delegated Regulation (EU) 2019/331 are met in subsequent years, the operator shall submit the evidence referred to in paragraph 1 by 31 March of the relevant year together with the verified annual activity level report.

By derogation from the first subparagraph the competent authority may set an earlier time limit for the submission of the evidence and the verified climate-neutrality report.

3. The competent authority shall assess the evidence referred to in paragraph 1 and the verified climate neutrality report. On the basis of that assessment, the competent authority shall decide whether the conditions for increasing the preliminary annual number of emission allowances laid down in Article 22b(3) of Delegated Regulation (EU) 2019/331 have been met.

4. In order to demonstrate that the condition laid down in Article 22b(3), first subparagraph, point (e), of Delegated Regulation (EU) 2019/331 is met, the operator shall provide all of the following evidence to the competent authority:(a) that the operator has submitted a verified climate-neutrality report by 31 March 2026, or by the earlier time limit set by the competent authority, in respect of the period until 31 December 2025 and by 31 March of each fifth year thereafter in respect of the preceding five-year period;(b) that the climate-neutrality report has been verified as satisfactory in accordance with Implementing Regulation (EU) 2018/2067 and the verifier has confirmed that the milestones and targets laid down in the climate-neutrality plan have been achieved for the relevant five-year period;(c) that the verified climate-neutrality report complies with Article 3b.

5. Where the competent authority made the decision referred to in paragraph 3 during the allocation period, the operator shall receive, in the year in which the competent authority made that decision, the 30 % additional allowances for each of the preceding years in the allocation period. If after the year in which the competent authority made the decision referred to in paragraph 3, there are still years remaining in the relevant allocation period, the 30 % additional allowances shall be added to the preliminary annual number of emissions allowances to be allocated in accordance with Article 22b(3) of Delegated Regulation (EU) 2019/331.

6. The additional 30 % allowances shall no longer be disbursed if the competent authority or the national accreditation body has established that the climate-neutrality report was not verified in accordance with Implementing Regulation (EU) 2018/2067.

7. The operator shall return the additional 30 % allowances without delay in any of the following cases:(a) the achievement of the targets and milestones referred to in Article 10b(4), third subparagraph, point (b), of Directive 2003/87/EC is not confirmed by the verification carried out in accordance with Article 10b(4), fourth subparagraph, of that Directive;(b) an investment value equivalent to the value of that free additional allocation has not been invested to significantly reduce emissions before 2030 in accordance with Article 10b(4), second subparagraph, of Directive 2003/87/EC.

8. If the operator does not return the additional 30 % allowances pursuant to paragraph 7, the competent authority shall request the national registry administrator to no longer distribute the allocation of allowances free of charge to that operator until the additional 30 % allowances have been returned by the operator. Member States shall inform the Commission of any such requests.

1. The competent authority shall determine the average activity level of each sub-installation annually based on the activity level reports for the relevant two-year period.

2. The average activity level of new sub-installations and new entrants shall not be calculated for the first three calendar years of operation.

1. Every year the competent authority shall compare the average activity level of each sub-installation, determined in accordance with Article 4, with the historical activity level initially used to determine the free allocation. When the absolute value of the difference between the average activity level and the historical activity level of that sub-installation is more than 15 % of that historical activity level, the free allocation of allowances to that installation shall be adjusted. That adjustment shall apply as of the year following the two calendar years used for determining the average activity level and be made by increasing or decreasing the free allocation for the relevant sub-installation by the exact percentage change in the average activity level compared to the historical activity level initially used to determine the free allocation.

For heat benchmark sub-installations, fuel benchmark sub-installations and process emissions sub-installations the adjustment referred to in the first subparagraph shall be based on the average of the expected activity level. Adjustments for each of those sub-installations shall only be made if the absolute value of the adjustment is more than 15 %.

1a. For the purpose of paragraph 1, second subparagraph, and where the value of the difference referred to in paragraph 1, first subparagraph, is exceeded, the operator shall attribute the relevant amounts of heat, fuel and process emissions to each relevant product in accordance with the methodology set out in Annex I, applying the same methods as for attributing data to sub-installations as set out in Section 3.2 of Annex VII to Delegated Regulation (EU) 2019/331. The operator shall describe the applied methodologies in the monitoring methodology plan as approved in accordance with Article 6 of that Regulation.

2. When an adjustment in accordance with paragraph 1 has been made, during an allocation period, further adjustments can only take place if the absolute value of the difference between the average activity level and the historical activity level of that sub-installation, exceeds the nearest 5 % interval, beyond the 15 % change, which caused the previous adjustment of free allocation to that installation, by increasing or decreasing the free allocation for the relevant sub-installation by the exact percentage change in the average activity level compared to the historical activity level initially used to determine the free allocation.

For heat benchmark sub-installations, fuel benchmark sub-installations and process emissions sub-installations the value of the difference referred to in the first subparagraph shall refer to the average of the expected activity level.

3. If the increase or decrease of the average activity level of a sub-installation no longer exceeds 15 % compared to the historical activity level initially used to determine the free allocation, the free allocation of allowances to that sub-installation shall be equal to the initial allocation determined by Article 16 or 18 of Delegated Regulation (EU) 2019/331, as of the year following the two calendar years used for determining the average activity level.

4. If a sub-installation has ceased operation, it shall not be entitled to the free allocation for the remainder of the calendar year following the day of cessation of operations, on a pro-rata basis, and the free allocation of that sub-installation shall be set to zero as of the year following the cessation of operations.

5. For new sub-installations and for new entrants, for the first three calendar years of operation the free allocation of emission allowances shall not be adjusted. For the first and second calendar years of operation, the free allocation of emission allowances shall be based on the activity level of each year respectively, for the third calendar year of operation the free allocation of emission allowances shall be based on the historical activity level used to determine free allocation.

6. The final annual amount of emission allowances allocated for free to an installation shall be the sum of emission allowances of all sub-installations calculated in accordance with Article 16 or 18, as applicable, of Delegated Regulation (EU) 2019/331.

4. Where the activity level report submitted pursuant to Article 3 indicates that the rolling average of two years of a parameter listed in Article 16(5), Article 19, 20, or 21 of Delegated Regulation (EU) 2019/331, other than activity levels, has changed by more than 15 % for a sub-installation, compared to the value used to determine the initial level of free allocation, the free allocation of allowances to that installation shall be adjusted, as of the year following the two years used for determining the change of the parameter.

When an adjustment in accordance with the first subparagraph has been made, during an allocation period, further adjustments to a parameter can only take place if the absolute value of the rolling average of the relevant parameter compared to the value used to determine the initial level of free allocation, exceeds the nearest 5 % interval, beyond the 15 % change, which caused the previous adjustment of free allocation to that installation, by increasing or decreasing the free allocation for the relevant sub-installation by the exact percentage change of that comparison.

If the increase or decrease of the rolling average of the two preceding calendar years of the relevant parameter no longer exceeds 15 % compared to the value used to determine the initial level of free allocation of a sub-installation, the free allocation of allowances to that sub-installation shall be equal to the value used to determine the initial level of free allocation, as of the year following the two calendar years used for determining the rolling average.

The adjustment to the free allocation of allowances to an installation pursuant to Article 5(1), (2) and (3) and Article 6 shall only be made if the adjustment of the annual preliminary amount of emission allowances allocated for free to the sub-installation is at least 300 emission allowances in the aggregate.

The competent authorities shall submit to the Commission the information laid down in Article 3(2) from all activity level reports submitted in accordance with Article 3(1) and (3), without undue delay upon assessment of the reports.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.