Statutory Instruments
Exiting The European Union
Climate Change
Sift requirements satisfied
1st May 2019
Made
8th May 2019
Laid before Parliament
9th May 2019
Coming into force in accordance with regulation 1
The Secretary of State makes these Regulations in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018(1).
The requirements of paragraph 3(2) of Schedule 7 to that Act (relating to the appropriate Parliamentary procedure for these Regulations) have been satisfied.
1. These Regulations may be cited as the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) (No. 2) Regulations 2019 and come into force on the later of exit day or the 21st day after the day on which these Regulations are laid before Parliament.
2. The Greenhouse Gas Emissions Trading Scheme Regulations 2012(2) are amended by substituting in regulation 3(1) the following for the definition of “the Verification Regulation”—
““the Verification Regulation” means—
in relation to emissions occurring on or after 1st January 2019, Commission 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 as amended from time to time;
in relation to emissions occurring prior to 1st January 2019, Commission Regulation (EU) No 600/2012 of 21 June 2012 on the verification of greenhouse gas emission reports and tonne-kilometre reports and the accreditation of verifiers pursuant to Directive 2003/87/EC of the European Parliament and of the Council as amended from time to time;”.
3. In the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2019(3), omit regulation 113.
4. Commission Regulation (EU) No 601/2012 of 21 June 2012 on the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council is amended in accordance with regulations 5 and 6.
5. For Article 15(4)(a)(4) substitute—
“(a)with regard to the emission monitoring plan:
(i)a change of emission factor values laid down in the monitoring plan;
(ii)a change between calculation methods as laid down in Annex 3, or a change from the use of a calculation method to the use of estimation methodology in accordance with Article 54(2) or vice versa;
(iii)the introduction of new source streams;
(iv)changes in the status of the aircraft operator as a small emitter within the meaning of Article 54(1) or with regard to one of the thresholds provided by Article 28a(6) of Directive 2003/87/EC(5);”.
6. For Article 49(1)(6) substitute—
“1. The operator shall subtract from the emissions of the installation any amount of CO2 originating from fossil carbon in activities covered by Annex 1 to Directive 2003/87/EC that is not emitted from the installation, but:
(a)transferred out of the installation to any of the following:
(i)a capture installation for the purpose of transport and long-term geological storage in a storage site permitted in accordance with the CCS licensing regime;
(ii)a transport network with the purpose of long-term geological storage in a storage site permitted in accordance with the CCS licensing regime;
(iii)a storage site permitted in accordance with the CCS licensing regime for the purpose of long-term geological storage;
(b)transferred out of the installation and used to produce precipitated calcium carbonate, in which the used CO2 is chemically bound.”.
7. Commission 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 is amended in accordance with regulations 8 to 61.
8. In Article 1—
(a)in the first paragraph, for “Directive 2003/87/EC” substitute “the 2012 Regulations”;
(b)omit the second paragraph.
9. In Article 2 for the words from “Article 14” to the end, substitute “regulation 35(4) and paragraph 2(1)(e)(ii) of Schedule 4 to the 2012 Regulations”.
10. In Article 3—
(a)in the first sentence omit “Article 3 of Directive 2003/87/EC and”;
(b)before paragraph (1), insert—
“(A1) ‘the 2012 Regulations’ means the Greenhouse Gas Emissions Trading Scheme Regulations 2012;”;
(c)in paragraph (2), for “harmonised standards, within the meaning of point 9 of Article 2 of Regulation (EC) No 765/2008” substitute “EN ISO 14065:2013(7)”;
(d)in paragraph (3), omit the words “or a natural person otherwise authorised, without prejudice to Article 5(2) of that Regulation,”;
(e)after paragraph (4), insert—
“(4a) ‘aircraft operator’ means the person who operates an aircraft at the time it performs an aviation activity or, where that person is not known or is not identified by the owner of the aircraft, the owner of the aircraft;
(4b) ‘emissions’ has the meaning given in Article 3(b) of Directive 2003/87/EC;”;
(f)in paragraph (7), for the words from “Article 14(3)” to the end, substitute “regulation 35(4) and paragraph 2(1)(e)(ii) of Schedule 4 to the 2012 Regulations;”;
(g)after paragraph (7), insert—
“(7a) ‘greenhouse gas emissions permit’ has the same meaning as in the 2012 Regulations;
(7b) ‘aviation activity’ has the same meaning as in the 2012 Regulations;”;
(h)in paragraph (11), omit the words from “or pursuant to Article 11” to the end;
(i)after paragraph (12), insert—
“(12a) ‘the CCS licensing regime’ means Chapter 3 of Part 1 of the Energy Act 2008 and other domestic legislation which immediately before exit day implemented Directive 2009/31/EC(8);”;
(j)in paragraph (13), omit point (c);
(k)omit paragraphs (28) and (29).
11. After Article 3 insert—
In this Regulation:
(a)references to a national accreditation body are references to the national accreditation body of the United Kingdom appointed in accordance with Article 4(1) of Regulation (EC) No 765/2008;
(b)references to Implementing Regulation (EU) 2018/2066 are to be construed as references to Commission Regulation (EU) No 601/2012 and read in accordance with the following correlation table.
| Implementing Regulation (EU) 2018/2066 | Commission Regulation (EU) No 601/2012 |
| Article 1 to 49 | Article 1 to 49 |
| Article 50 | – |
| Article 51 to 54 | Article 50 to 53 |
| Article 55 | Article 54 |
| Article 56 | Article 55 |
| Article 57 | – |
| Article 58 | Article 57 |
| Article 59 | Article 58 |
| Article 60 | Article 59 |
| Article 61 to 65 | Article 60 to 64 |
| Article 66 | Article 65 |
| Article 67 to 68 | Article 66 to 67 |
| Article 69 to 75 | Article 69 to 75 |
| Article 76 | – |
| Article 77 to 78 | Article 76 to 77 |
| Annex 1 to 10 | Annex 1 to 10 |
| Annex 11 | –” |
12. In Article 4—
(a)for “the relevant harmonised standards as defined in point (9) of Article 2 of Regulation (EC) No 765/2008, or parts thereof, the references of which have been published in the Official Journal of the European Union” substitute “EN ISO 14065:2013”;
(b)for “the applicable harmonised standards” substitute “those standards”.
13. In Article 6—
(a)in the first paragraph omit “, baseline data report or new entrant data report”;
(b)in the second paragraph omit “or data relevant for free allocation”.
14. In Article 7—
(a)in paragraph 3, omit “responsible for Directive 2003/87/EC”;
(b)in paragraph 4,
(i)in the first subparagraph—
(aa)in point (a) omit the words from “or in Annex IV” to the end;
(bb)omit point (c);
(ii)omit the second subparagraph;
(iii)for the third subparagraph, substitute—
“For the purpose of point (d) of this paragraph, the verifier shall obtain clear and objective evidence from the operator or aircraft operator to support the reported aggregated emissions or tonne-kilometres taking into account all other information provided in the operator’s or aircraft operator’s report.”;
(c)for paragraph 5, substitute—
“5. If the verifier discovers that an operator or an aircraft operator is not complying with Implementing Regulation (EU) 2018/2066, that irregularity shall be included in the verification report even if the monitoring plan concerned has been approved by the competent authority.”;
(d)in paragraph 6, omit the second subparagraph.
15. In Article 9(1)—
(a)in point (b) omit “or the monitoring methodology plan, as appropriate”;
(b)in point (e) for “greenhouse gas emissions, tonne-kilometre data or data relevant for free allocation” substitute “greenhouse gas emissions or tonne-kilometre data”.
16. In Article 10(1)—
(a)omit point (c);
(b)in point (e), omit the words from “or Article 11(1)” to “as appropriate,”;
(c)omit point (f);
(d)in point (g), omit “or the monitoring methodology plan,”;
(e)for point (h), substitute—
“(h)the operator’s or aircraft operator’s annual emission or tonne-kilometre report, as appropriate;”;
(f)omit point (i);
(g)for point (m), substitute—
“(m)the verification report from the previous year, if the verifier did not carry out the verification for that particular operator or aircraft operator the previous year;”;
(h)in point (n), omit “or monitoring methodology plan, as appropriate”;
(i)in point (p)—
(i)for “Directive 2009/31/EC” substitute “the CCS licensing regime”;
(ii)for “required by that Directive and the reports required by Article 14 of that Directive” substitute “and reports required by that regime”.
17. In Article 11—
(a)in paragraph 3—
(i)for point (c), substitute—
“(c)the monitoring plan approved by the competent authority as well as the specifics of the monitoring methodology laid down in that monitoring plan;”;
(ii)for point (d), substitute—
“(d)the nature, scale and complexity of emission sources and source streams as well as the equipment and processes that have resulted in emissions or tonne-kilometre data, including the measurement equipment described in the monitoring plan, the origin and application of calculation factors and other primary data sources;”;
(b)in paragraph 4—
(i)for point (a), substitute—
“(a)whether the monitoring plan presented to it is the most recent version approved by the competent authority;”;
(ii)in point (b), omit “or of the monitoring methodology plan during the baseline period, as appropriate”;
(iii)in point (c), omit “where applicable,”;
(iv)omit point (d).
18. In Article 13—
(a)in paragraph 1, for point (c) substitute—
“(c)a data sampling plan setting out the scope and methods of data sampling related to data points underlying the aggregated emissions in the operator or aircraft operator’s emission report or the aggregated tonne-kilometre data in the aircraft operator’s tonne-kilometre report.”;
(b)in paragraph 2, for “Article 7(4)(b), (c), (d) or the second subparagraph of Article 7(4)” substitute “Article 7(4)(b) or (d)”.
19. In Article 14—
(a)in the first paragraph, omit “or monitoring methodology plan, as appropriate”;
(b)in the second paragraph in point (c), omit “or monitoring methodology plan, as appropriate,”.
20. In Article 16(2)—
(a)omit “or monitoring methodology plan, as appropriate”;
(b)omit point (b);
(c)for point (c), substitute—
“(c)for the purposes of verifying an operator’s emission report, the completeness of source streams and emission sources as described in the monitoring plan approved by the competent authority;”;
(d)in point (d) omit “listed in Annex I to Directive 2003/87/EC”.
21. In Article 17—
(a)omit paragraph 3;
(b)in paragraph 4, omit “or transferred N2O is not counted in accordance with Article 50 of that Regulation” and “or N2O transferred”;
(c)omit paragraph 5.
22. In Article 18, omit paragraph 3.
23. In Article 19, omit paragraph 3.
24. In Article 21—
(a)omit paragraph 4;
(b)in paragraph 5, omit “baseline data report or new entrant data report,”.
25. In Article 22—
(a)in paragraph 1—
(i)for the first subparagraph substitute—
“If the verifier identifies misstatements, non-conformities or non-compliance with Implementing Regulation (EU) 2018/2066 during the verification, it shall inform the operator or aircraft operator thereof on a timely basis and request relevant corrections.”;
(ii)for the third subparagraph substitute—
“Where a non-compliance with Implementing Regulation (EU) 2018/2066 has been identified, the operator or aircraft operator shall notify the competent authority and correct the non-compliance as appropriate without undue delay.”;
(b)for paragraph 2, substitute—
“The verifier shall document and mark as resolved in the internal verification documentation all misstatements, non-conformities or non-compliance with Implementing Regulation (EU) 2018/2066 that have been corrected by the operator or aircraft operator during the verification.”;
(c)in paragraph 3—
(i)in the second subparagraph, for “, tonne-kilometre data or data relevant for free allocation” substitute “or tonne-kilometre data”;
(ii)for the fourth subparagraph substitute—
“If the operator or aircraft operator does not correct the non-compliance with Implementing Regulation (EU) 2018/2066 in accordance with paragraph 1 before the verifier issues the verification report, the verifier shall assess whether the uncorrected non-compliance has an impact on the reported data and whether this leads to material misstatement.”.
26. In Article 23, omit paragraph 4.
27. In Article 24 in point (c), omit “or monitoring methodology plan, as appropriate”.
28. For Article 26(1)(c), substitute—
“(c)sufficient information to support the verification opinion, including justifications for judgments made on whether or not the misstatements identified have material effect on the reported emissions or tonne-kilometre data.”.
29. In Article 27—
(a)in paragraph 1—
(i)for “each emission report, tonne-kilometre report, baseline data report or new entrant data report” substitute “each emission report or tonne-kilometre report”;
(ii)omit point (e);
(b)in paragraph 3—
(i)for point (e), substitute—
“(e)the criteria used to verify the operator’s or aircraft operator’s report, including the permit, where applicable, and versions of the monitoring plan approved by the competent authority as well as the period of validity for each monitoring plan;”;
(ii)omit point (f);
(iii)in point (g) for “per activity referred to in Annex I to Directive 2003/87/EC and per installation or aircraft operator” substitute “per aviation activity and per aircraft operator or per activity, other than aviation, listed in Annex 1 to Directive 2003/87/EC and per installation”;
(iv)omit point (h);
(v)in point (i), omit “or baseline period”;
(vi)for point (o), substitute—
“(o)any issues of non-compliance with Implementing Regulation (EU) 2018/2066 which have become apparent during the verification;”;
(vii)omit points (q) and (r);
(c)in paragraph 4—
(i)for the first sub paragraph, substitute—
“The verifier shall describe the misstatements, non-conformities and non-compliance with Implementing Regulation (EU) 2018/2066 in sufficient detail in the verification report to allow the operator or aircraft operator as well as the competent authority to understand the following:”;
(ii)for point (a), substitute—
“(a)the size and nature of the misstatement, non-conformity or non-compliance with Implementing Regulation (EU) 2018/2066;”;
(iii)in point (c), omit “or the monitoring methodology plan”;
(iv)for point (d), substitute—
“(d)to which Article in Implementing Regulation (EU) 2018/2066 the non-compliance relates.”;
(d)in paragraph 5, for “a Member State” substitute “the competent authority”.
30. In Article 28—
(a)in point (c), omit “or monitoring methodology plan, as appropriate,”;
(b)omit point (e).
31. In Article 30(1)—
(a)for “points (a) to (e)” substitute “points (a) to (d)”;
(b)in point (c), omit the words from “or Article 11(2)” to the end;
(c)omit point (e).
32. In Article 31(3), omit point (d).
33. In Article 37(5), omit the second subparagraph.
34. For Article 38(1)(a) substitute—
“(a)knowledge of Directive 2003/87/EC, Implementing Regulation (EU) 2018/2066, this Regulation, relevant standards, and other relevant legislation, applicable guidelines, as well as relevant guidelines and legislation issued by the competent authority or Secretary of State;”.
35. In Articles 41 and 42, for “harmonised standard” in each place it occurs substitute “standard”.
36. In Article 43—
(a)for “harmonised standard” in each place it occurs substitute “standard”;
(b)in paragraph 3—
(i)in point (a), omit “or in the monitoring methodology plan, as applicable” and “or monitoring methodology plan”;
(ii)in point (b), for “emissions, tonne-kilometre data or data relevant for free allocation” substitute “emissions or tonne-kilometre data.”.
37. In Article 44, omit the second paragraph.
38. In Articles 46, 47, 48, and 49, for “harmonised standard” in each place it occurs substitute “standard”.
39. In Article 50—
(a)in paragraph 3, for “harmonised standard” substitute “standard”;
(b)omit paragraph 5.
40. In Articles 51 and 52, for “harmonised standard” in each place it occurs substitute “standard”.
41. In Article 54(4), in the second subparagraph for “Member States” substitute “The national accreditation body”.
42. In Article 55—
(a)in paragraph 1, for “national accreditation bodies appointed pursuant to Article 4(1) of Regulation (EC) No 765/2008” substitute “national accreditation body”;
(b)omit paragraphs 2 to 4;
(c)in paragraph 5, omit the words “and be granted formal recognition by the Member State,”;
(d)in paragraph 6, for “harmonised standard” substitute “standard”.
43. Omit Article 56.
44. In Article 57(4), for “harmonised standard” substitute “standard”.
45. In Article 58(2), omit the third subparagraph.
46. In Article 59(1)—
(a)in point (a), for “harmonised standard pursuant to Regulation (EC) No 765/2008” substitute “standard”;
(b)in point (b), omit the words from “Delegated Regulation” to “in Annex I of this Regulation,”.
47. In Article 60(2)(a) omit the words from “Delegated Regulation” to “in Annex I of this Regulation,”.
48. In Article 63(2), for “harmonised standard pursuant to Regulation (EC) No 765/2008” substitute “standard”.
49. Omit Articles 65 to 68.
50. In Article 69(1)—
(a)for “Member States” substitute “The competent authority”;
(b)omit the words from “or in accordance with Article 13” to the end.
51. In Article 70—
(a)in paragraph 1—
(i)for “Member State” substitute “the Secretary of State”;
(ii)omit the words “, or where applicable, the national authority entrusted with the certification of verifiers,”;
(b)in paragraph 2, for “pursuant to Article 18 of Directive 2003/87/EC in a Member State, the Member State” substitute “in the United Kingdom, the Secretary of State with the agreement of the other authorities”.
52. In Article 71(1)—
(a)omit “of each Member State”;
(b)for “those Member States” substitute “the United Kingdom”;
(c)omit point (d).
53. In Article 72—
(a)for “the following parties:” substitute “the competent authority.”;
(b)omit points (a) and (b).
54. In Article 73(1), omit “of the Member State where the verifier is carrying out the verification” and “which has accredited that verifier”.
55. Omit Articles 74 and 75.
56. In Article 76—
(a)in paragraph 1—
(i)in the first subparagraph omit “other national accreditation bodies,”;
(ii)omit the second subparagraph;
(b)in paragraph 2, omit point (b).
57. In Article 77(1)(b), for “emissions, tonne-kilometre reports, baseline data reports or new entrant data reports” substitute “emissions or tonne-kilometre reports”.
58. In Article 79, omit “This Regulation shall be binding in its entirety and directly applicable in all Member States.”.
59. In Annex 1—
(a)before the table—
(i)after “using” insert “aviation activities or in relation to the activities other than aviation using”;
(ii)omit the words from “and other activities pursuant to Articles 10a” to the end;
(b)in the table—
(i)in the rows for activity group 10—
(aa)for “Directive 2003/87/EC” substitute “the 2012 Regulations”;
(bb)for “Directive 2009/31/EC” in each place it occurs substitute “the CCS licensing regime”;
(ii)in the rows for activity group 11 for “Directive 2009/31/EC” substitute “the CCS licensing regime”;
(iii)omit the rows for activity groups 98 and 99.
60. In Annex 2, for “the harmonised standard pursuant to Regulation (EC) No 765/2008” substitute “EN ISO 14065:2013”.
61. In Annex 3, for “the harmonised standard pursuant to Regulation (EC) No 765/2008” substitute “EN ISO/IEC 17011:2017(9)”.
62. Commission 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 is revoked.
Henley
Parliamentary Under Secretary of State
Department for Business, Energy and Industrial Strategy
8th May 2019
(This note is not part of the Regulations)
These Regulations are made in exercise of the powers conferred by section 8 of the European Union (Withdrawal) Act 2018 in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union.
The Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2019 (the “Exit Regulations”) related to the continuation of the monitoring, reporting, accreditation and verification obligations of the EU Emissions Trading Scheme (EU ETS) in a no deal scenario. These Regulations address further deficiencies to the functioning of those obligations as a result of the coming into force of Article 76 of Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 on the monitoring and reporting of greenhouse gas emissions (“the new monitoring regulation”) and Commission Implementing Regulation (EU) 2018/2067 of 19 December 2018 on the verification of data and on the accreditation of verifiers (“the new verification regulation”).
Part 2 amends the Greenhouse Gas Emissions Trading Scheme Regulations 2012 (the “2012 Regulations”) to update the definition of “the Verification Regulation”.
Part 3 amends the Exit Regulations as a consequence of the amendments made by Article 76 of the new monitoring regulation, to Commission Regulation (EU) 601/2012 of 21 June 2012 on the monitoring and reporting of greenhouse gas emissions (“the previous monitoring regulation”).
In Part 4, regulations 5 and 6 address further deficiencies in the previous monitoring regulation introduced by Article 76 of the new monitoring regulation.
The remainder of Part 4 makes amendments to the new verification regulation to ensure the operability of verification requirements after exit. Part 4 also amends the new verification regulation to exclude provisions relating to free allocation, introduced by Commission 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 (the “FAR”) as after exit, in a no deal scenario the UK will no longer continue participating in the free allocation process.
Part 5 provides for the revocation of the FAR.
An impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector is foreseen.
S.I. 2012/3038, amended by S.I. 2013/755 (W.90), 2013/1037, 2013/3135, 2014/3125, 2015/912, 2015/933, 2015/1388 (W. 137), 2015/1849, 2016/28, 2017/1207, 2018/306, 2019/107 and S.R. 2016 No.28.
Amended by Article 76(2) of Commission 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.
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/EC.
Amended by Article 76(3) of Commission 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 and regulation 113 of S.I. 2019/107.
ISO 14065:2013 specifies principles and requirements for bodies that undertake validation or verification of greenhouse gas (GHG) assertions, available at https://www.iso.org/standard/60168.html. Copy available for inspection at the Department for Business, Energy & Industrial Strategy at 1 Victoria Street, London, SW1H 0ET, United Kingdom.
Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006. OJ L 140, 5.6.2009, p.114.
ISO/IEC 17011:2017 specifies requirements for the competence, consistent operation and impartiality of accreditation bodies assessing and accrediting conformity assessment bodies. Available at: https://www.iso.org/standard/67198.html. Copy available for inspection at the Department for Business, Energy & Industrial Strategy at 1 Victoria Street London, SW1H 0ET, United Kingdom.