7Carbon offsetting and reduction for international aviation
Summary and Committee’s conclusions
7.1The Council Decision (document (a)) and proposal for a Delegated Regulation (document (b)) under scrutiny concern the Union’s implementation of the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). The CORSIA agreement is a global measure aimed at reducing emissions from international aviation and delivering Carbon neutral growth for the sector by 2020.
Document (a) (proposal for a Council Decision)
7.2By way of background, the Committee considered document (a) on 21 November 2018. At that time, the official text of the proposal had not yet been received (OTNYR) due to its ‘limité’ marking.34 It has, however, since been adopted and the full text of the Council Decision published in the Official Journal. The Council Decision sets-out the position adopted by the Union—on the behalf of Member States—on the implementation of CORSIA. The Decision was adopted in response to a request by the International Civil Aviation Organisation (ICAO)—the international body charged with overseeing the application of CORSIA—for information from Contracting Parties regarding progress towards the implementation of CORSIA from 1 January 2019.
7.3Contracting Parties to CORSIA are obliged, in good faith, to implement its rules—which form part of ICAO’s ‘Standards and Recommended Practices’ (SARPs)—in national legislation. Contracting Parties must inform ICAO where national implementation is expected to differ from that set-out in the SARPs. The Union’s suggestion of adopting a collective position—on the behalf of Member States—was welcomed by the Government in the ‘unnumbered’ Explanatory Memorandum prepared for the Committee on the proposed Council Decision. The previous Minister with charge over the proposal (Baroness Sugg), explained that adopting a collective position would ensure that the UK’s response was consistent with that of other Member States and with the Treaties.
7.4In terms of substance, the Council Decision sets-out in an addendum how Member States should notify ICAO of ‘compliance with or differences from’ CORSIA and any “explanations in this respect”. The addendum is, in effect, a form in the style of a State letter—to ICAO—which has been pre-completed aside from including the name of the issuing Member State (this reads “insert your State”). It explains that the EU is currently in the process of transposing the CORISA monitoring, reporting and verification (MRV) requirements into Union legal acts under the EU Emissions Trading System (ETS). In correspondence dated 10 April 2019,35 the previous Minister with charge over the file (Baroness Sugg) describes the interaction between CORSIA and ETS: in that certain technical differences exist between the two in terms of MRV and that, as a consequence, changes must be made to EU law. These differences were highlighted in Member State letters to ICAO—as directed by the Council Decision—along with a commitment to bring ETS into line with CORSIA.
Document (b) (proposal for a Delegated Regulation)
7.5The Council Decision recalls the need for relevant EU law—namely ETS—to be amended in order to reflect the CORSIA MRVs. It notes that, in this regard, the Commission is currently in the process of adopting regulations. In her letter of 10 April 2019, Baroness Sugg notes that the majority of MRV requirements can be met by way of implementing Regulations.36 The Minister further explains that relevant changes to EU law will be made by a single delegated act and two implementing acts. The delegated act cited by the Minister is that currently under scrutiny.
7.6As required by the CORSIA SARPs, the proposed Delegated Regulation would extend the application of the ETS MRVs to flights outside of the European Economic Area (EEA) (which is not currently provided for by the ETS Directive). By-and-large, the proposal would set reporting requirements for air carriers. The proposal details:
- the aircraft operators that would be subject to the Regulation—small emitters would be exempt—and the Member States to which they would be assigned for administration purposes;
- the additional flights for which aircraft carriers would have to report emissions (i.e. flights outside of the EEA that are not currently included in the ETS MRV framework);
- those flights that would be out of scope (e.g. humanitarian, firefighting and medical flights);
- that reporting and verification of emissions would be in line with existing ETS MRV Regulations; and
- a mechanism by which requests for assistance from Eurocontrol—to supplement emissions data to improve the accuracy of emissions data reports—could be made.37
The proposal also provides that the Commission, rather than Member States (as is currently the case), would transmit emissions data to the secretariat of ICAO.
7.7On this last point, the Minister’s Explanatory Memorandum on the proposal (of 10 April 2019), notes that the Government is still considering its position on the Delegated Act, specifically, with regard to the proposed role of the Commission in reporting emissions data to ICAO on behalf of Member States. The Government is concerned that such action would not be in line with CORSIA SARPs which are said to make clear that the reporting responsibility rests with administering States (not Member States of the EU). The thrust of this point appears to be whether—in suggesting such a role for itself—the Commission is acting within the power conferred upon it by the parent act of the proposed Delegated Regulation (Article 28c of Directive 2003/87/EC (as amended by Directive (EU) 2018/410)).38 Article 28c is framed broadly and provides a power for the Commission to adopt Delegated Acts to supplement Directive 2003/87/EC concerning the “…appropriate monitoring, reporting and verification of emissions for the purpose of implementing the [sic] ICAO’s global market-based measure on all routes covered by it”. Whether it is appropriate—or, against its plain and natural meaning, “suitable or proper”—for the Commission to assume a wider reporting role for itself than it currently has, is a political question to be considered by Member States at forthcoming Working Group negotiations.39
7.8The Government also raises concerns that the proposal is not a faithful implementation of CORISA SARPs and, if adopted, would result in different rules for EU operators on intra-EEA versus extra-EEA flights and, furthermore, would make EU operators subject to different requirements versus their international counterparts. The Minister informs the Committee that this view is shared by other Member States but does not provide any further information on the specifics of these differences.
7.9The Minister briefly covers the potential implications of the UK’s withdrawal from the EU on the Government’s plans to give effect to the Delegated Regulation in domestic law. If the UK leaves the EU before the Act enters into force, the Minister states that it would not be copied onto the statute book. Furthermore, she explains that without legislation to implement CORSIA on international flights, there would be no legal basis in UK law to require operators to monitor and report on flights outside of the EEA (the only obligation remaining from the EU’s framework—although not strictly legal—would be for UK operators to report on intra-EEA flights).
7.10Of particular concern in this regard is the Minister’s mention of “high compliance on flights both inside and outside [of] the EEA should the UK choose to set up a voluntary scheme [Committee’s own emphasis added]”. It appears that the Minister—in the event of EU exit occurring before the adoption of the Delegated Act—is countenancing replacing the current EU-derived legal framework with a non-compulsory system akin to that of the United States (whose arrangements are cited). On the basis of UK carrier cooperation with US authorities and the US system, the Minister states that she would “expect high compliance” in the event that the Government followed such a path.
Implementing Regulations
7.11As mentioned above at paragraph 5, at the time of the publication of the draft Council Decision, the Commission suggested that two Implementing Acts would also be forthcoming in addition to the Delegated Act under scrutiny. After the adoption of the Council Decision, these Implementing Acts were fast-tracked through the relevant Comitology Committee—that on Climate Change—and adopted on 19 December 2018 (before the 1 January 2019 CROSIA SARPs deadline).40
7.12The Acts are interesting as, together, they set out the details of how aircraft operators are to discharge their obligations relating to the monitoring and reporting of greenhouse gas emissions under the ETS Directive—as required by CORSIA SARPs—and, in general, how competent authorities in Member States are to handle the verification of these reports and the accreditation and supervision of verification bodies (known as ‘verifiers’).
7.13Save for passing mention of these Acts in the Minister’s letter of 10 April, no further information is provided by the Government. Given that the Act on the monitoring and reporting of greenhouse gas emissions covers legal obligations owed by business, this would have been welcome. It would have also have been useful to have seen—and to have assessed—the results of any impact assessment undertaken by the Government. It is worthwhile noting that Committee officials were not consulted on the deposit of either Implementing Act.
7.14We thank Baroness Sugg for her correspondence on document (a) and for depositing the related Delegated Act (document (b)). The Committee wishes her well in her new post as Parliamentary Under Secretary of State at the Department for International Development. We look forward to working with her replacement at the Department for Transport (Baroness Vere).
7.15With regard to document (a) (the proposal for a Council Decision), the Committee is content to clear the file from scrutiny. We thank Baroness Sugg and officials at the Department for Transport for enabling the Committee’s scrutiny of the file whilst it was marked as limité.
7.16On document (b) (the proposal for a Delegated Regulation), we retain the file under scrutiny and request further information on the following points:
- does the Government believe that the Commission is acting within the powers conferred upon it by the parent act of the proposal—Article 28c of Directive 2003/87/EC (as amended by Directive (EU) 2018/410)—by suggesting it transmit emissions data to ICAO on behalf of Member States;
- the alleged differences between CORSIA SARPs and the Delegated Act, in particular, details of how the rules for EU operators on intra-EEA versus extra-EEA flights and between EU operators and their international counterparts would diverge; and
- on the Government’s plans for giving domestic effect to the proposal, how, in the event of the UK leaving the EU before the Delegated Act becomes applicable, it would consult with and notify relevant stakeholders—including Parliament—on whether it will copy the provisions of the Act into UK law or, as intimated by the Minister, establish a voluntary reporting system.
7.17We request a response to these questions within three weeks of the adoption of the Delegated Act along with information on how the Government voted.
7.18We note the importance of the two Implementing Acts that have recently been adopted alongside the publication of the proposal under scrutiny. Unlike the proposed Delegated Act, that covering the monitoring and reporting of greenhouse gas emissions relates directly to legal obligations owed by business. We appreciate the short time-frame against which both Acts were adopted and the often complicated and somewhat opaque process involved in the operation of Comitology committee working. This having been said, given the linkages between these Acts and the Delegated Act under scrutiny, the Committee would have expected to have been consulted on deposit or, failing this, provided with more information on any Government assessment of their importance.
Full details of the documents
(a) Proposal for a Council Decision on the position to be taken on behalf of the European Union in the International Civil Aviation Organisation, in respect of the First Edition of the International Standards and Recommended Practices on Environmental Protection—Carbon Offsetting and Reduction Scheme for International Aviation: (40193),—; (b) Commission Delegated Regulation (EU) supplementing Directive 2003/87/EC of the European Parliament and of the Council as regards measures adopted by the International Civil Aviation Organisation for the monitoring, reporting and verification of aviation emissions for the purpose of implementing a global market-based measure: (40488), 7252/19, C(19) 1644.
Previous Committee Reports
(a) Forty-fifth Report HC-301 xliv (2017–19) chapter 7 (21 November 2018); (b) None.
34 The Council Decision was marked as limité as the Union believed that its publication could affect ongoing negotiations in ICAO.
35 Letter from Baroness Sugg to Sir William Cash MP, 10 April 2019
36 It is also worth noting that, in order to fully implement CORSIA, a revision will also be made to the ETS Directive.
37 Eurocontrol is an intergovernmental organisation charged with the coordination and planning of air traffic control in Europe.
38 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC; and Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814.
39 Cambridge Dictionary, ‘appropriate’ (May 2019).
40 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 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.
Published: 11 June 2019