Getting the Deal Through - Climate Regulation 2009 - Introductory chapter on European Union Climate Regulation

Introductory chapter on European Union Climate Regulation

Energy represents one of the greatest challenges Europe faces in the 21st century. Current warming trends are unequivocal.

Besides the uncertainties related to European Union ("EU") energy security, the role of Europe in the fight against climate change is one of the European institutions’ major preoccupations.

Climate Regulation potentially affects all activities which are contributing to global warming notably by burning fossil fuels. As a consequence such domain is at the stake of the economy of each country.

Reduction in greenhouse gas emissions is a priority objective . Monitoring and adapting to the inevitable consequences of climate change is also a prerequisite.

It is necessary to underline the correlation between energy, global warming and adaptation to climate change issues: Carbon reduction, offsetting and compensation are the principles behind the various activities in the emerging carbon markets.

All ranges of mitigation measures may contribute to reduce greenhouse gas emissions and help avoid, reduce or delay many impacts of climate change. Such policy instruments could create incentives for producers and consumers to significantly invest in products, technologies and processes which emit less greenhouse gases.

Since the early 1970s the international community has been discussing the problem of climate change, with the Stockholm Conference on the Human Environment of 1972.

The starting point of Climate Regulation is the Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change ("UNFCCC") , which sets national limits on carbon dioxide ("CO²") emissions and laid down the foundations for international emissions trading ("IET") schemes with the goal of achieving stabilization of greenhouse gas ("GHG") concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.

The Convention represents the first international effort to address climate change. However it is only a framework, the UNFCCC commitments were not sufficient.

As a result, the parties took a step further and set legally binding commitments for developed countries. The Kyoto Protocol itself entered into force on 16 February 2005. Both the EU and its MS are signatories to the Kyoto Protocol.

Article 4 of the Kyoto Protocol provides that two or several parties in Annex I may agree to jointly accomplish the objectives set up in Article 3, in which case they are under a global objective instead of a individual one. The EU opted in for this provision, thus replacing each individual objective of Member States ("MS") by a collective commitment.

The EU has negotiated a sharing agreement to redistribute the GHG emission commitments within the MS (see Decision n°2002/358 below).

The EU has consistently been one of the major supporters of the Kyoto Protocol. For several years now the EU has been committed to tackling climate change both internally and internationally and has placed it high on the EU agenda, as reflected in European climate change policy.

The Sixth Community Environment Action Programme established by Decision n°1600/2002/EC identifies climate change as a priority for action.

In a first phase (2000-2001) the EU put forward the European Climate Change Programme ("ECCP"), a package of measures including :
- a proposal for the implementation of the Kyoto Protocol ;
- a proposal for a Directive on emissions trading ;
- an action plan to implement cost-effective measures in diverse sectors ;
- a proposal for a Decision on new monitoring mechanisms.

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We will refer to the main ECCP as the milestone EU regulation, including in particular (but not limited to) :


- Decision n°94/69 of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change, by which the European Community ratified the UNFCCC, which entered into force on 21 March 1994.


- Decision n°2002/358 of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the UNFCCC and the joint fulfilment of commitments thereunder ;

Thus, Kyoto was adopted by Decision 2002/358. By such act, the EU commits itself under the Kyoto Protocol to achieve a reduction of 8% from 1990 emission levels.

More precisely the Decision commits the Community and its MS to reducing their aggregate anthropogenic emissions of GHG listed in Annex A to the Protocol by 8 % compared to 1990 levels in the period 2008 to 2012.

The EU has made its own internal agreements and distributed its 8% through a legally binding agreement among its Member States called "burden sharing agreement", depending on their expectations of economic growth, the energy mix and the industrial structure of each Member State .

This difference in shares comes from the principle of "common but differentiated responsibilities".

By 31 December 2006, the Community and each MS had to inform the UNFCCC Secretariat of the emission levels assigned to them pursuant to the Kyoto Protocol and Decision 2002/358/EC.


- The Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas("GHG") emission allowance trading (Emissions Trading Scheme - "ETS")within the Community and amending Council Directive 96/61 establishing the UE scheme for greenhouse gas.

This Directive aims to contribute to fulfilling the commitments of the European Community and its Member States more effectively, through an efficient European market in greenhouse gas emission allowances, with the least possible diminution of economic development and employment.

This Directive establishes a Community GHG emission trading scheme from 1 January 2005. In this context, 'allowance' means the entitlement to emit a tonne of CO²or an amount of any other GHG with an equivalent global warming potential during a specified period.

In January 2005 the European Union Greenhouse Gas Emission Trading System (EU ETS) commenced operation as the largest multi-country, multi-sector GHG ETS world-wide, which fully entered into force on 25 October 2003.

Under this Directive, with effect from 1 January 2005, all installations carrying out any of the activities listed in Annex I to the Directive (i.e. activities in the energy sector, iron and steel production and processing, the mineral industry and the wood pulp, paper and board industry) and emitting the specific GHG associated with such activity must be in possession of an appropriate permit issued by the competent authorities.

Applications for GHG emission permits must describe :

- the installation, its activities and the technology used;
- the materials used which could emit the greenhouse gases listed in Annex II;
- the sources of gas emissions;
- the measures planned to monitor and report emissions.

The authorities shall then issue a permit provided that they are satisfied the operator is capable of monitoring and reporting the emissions.

The issued permit shall contain details of:

- the name and address of the operator;
- the installation's activities and emissions;
- the monitoring methodology and frequency;
- the reporting requirements in respect of emissions;
- the obligation to surrender, during the first four months of each year, a quantity of allowances commensurate with the total emissions over the previous year.

It is also important to note that a permit may cover one or more installations on the same site operated by the same operator.

MS may allow operators of installations listed in Annex I to form a pool of installations carrying out the same activity . Operators wishing to form a pool must nominate a trustee to manage the installations' allowances and be responsible for surrendering allowances equal to the total emissions from the installations in the pool.

Moreover, MS could apply to the Commission for certain installations to be temporarily excluded from the scheme until 31 December 2007 at the latest.


Each MS must draw up a national allocation plan ("NAP") indicating the allowances it intends to allocate for the relevant period and how it proposes to allocate them to each installation. NAP shall be based on objective and transparent criteria, and comply with the criteria set out in Annex III to this Directive .

The plans covering the subsequent five-year period are to be published at least eighteen months before the beginning of the relevant period .

If a plan does not comply with the criteria in Article 10 of or Annex III to this Directive, the Commission may reject it within three months of notification.

For the new five-year implementation period beginning 1 January 2008 (until 2012), Member States must allocate 90% of the allowances free of charge .

Once allowances have been allocated to installations, these will be tradable within the Community and among the parties to Annex I of Kyoto.

MS will ensure the free circulation of allowances within the European Community. Each year, no later than 30 April, they will also make sure that the operators of the installations surrender the correct quantity of allowances commensurate with the total emissions over the previous year. The surrendered allowances are subsequently cancelled.

At the end of the year, the operator must submit a report to the competent authority detailing the greenhouse gas emissions produced by the installation during that year complying with the 'guidelines for the monitoring and reporting of emissions', adopted by the Commission on the basis of the criteria laid down in Annex IV to this Directive.

When verifying the reports submitted by operators, due account must be taken of the principles set out in Annex V to this Directive. If a report is not verified as satisfactory in accordance with the criteria in the Annex, the operator must cease trading allowances until the report is deemed satisfactory.

During the three-year period which started on 1 January 2005, Member States could apply to the Commission for certain installations to be issued with additional allowances in cases of force majeure. The Commission determined which situations constitute force majeure in a communication in 2004.

Regarding applicable penalties, any operator failing to surrender, by 30 April at the latest, the quantity of allowances commensurate with the emissions from his installation during the previous year will be required to pay an excess emissions penalty. The penalty is EUR 100 for each tonne of carbon dioxide equivalent (EUR 40 during the three-year period starting on 1 January 2005) and will not release the operator from the obligation to surrender an amount of allowances equal to the excess emissions.

Each MS has determined its own sanctions regime covering infringements of this Directive and notified the Commission accordingly.

The Commission has also adopted a regulation (see Decision n°280/2004 below) establishing of a system of registries in the form of an electronic database for monitoring the issue, holding, transfer and cancellation of allowances. As a consequence, allowances traded in the EU ETS are held in accounts in electronic registries set up by MS.

The registries are overseen by a Central Administrator at EU level who, through the Community independent transaction log, will check each transaction for any irregularities. In this way, the registries system keep track of the ownership of allowances in the same way as a banking system keeps track of the ownership of money.

In this respect, the Commission will nominate a Central Administrator to maintain an independent transaction log recording the issue, transfer and cancellation of allowances at Community level. The Central Administrator will conduct an automated check on each transaction relating to allowances. If irregularities are identified, the transactions in question will be suspended until the irregularities have been corrected.

Each year, the MS will submit to the Commission a report on the application of this Directive and the Directive amending it. The Commission will publish an annual report based on these reports.

These registries will also guarantee public access to information, confidentiality and conformity with the provisions of the Kyoto Protocol .


- The Directive 2004/101/EC amending Directive 2003/87, in respect of the Kyoto Protocol's project mechanisms ;

Directive 2004/101 reinforces the link between the EU's emission allowance trading scheme and the Kyoto Protocol by making the latter's 'project-based' mechanisms (Joint Implementation and the Clean Development Mechanism) compatible with the scheme.

Directive 2003/87 states that the recognition of credits from project-based mechanisms for fulfilling obligations as from 2005 will increase the cost-effectiveness of achieving reductions of global greenhouse gas emissions and shall be provided for by provisions for linking the Kyoto project-based mechanisms, including joint implementation ("JI") and the clean development mechanism ("CDM"), with the EU ETS.

Linking the Kyoto project-based mechanisms to the Community scheme, while safeguarding the latter's environmental integrity, gives the opportunity to use emission credits generated through project activities eligible pursuant to Articles 6 and 12 of the Kyoto Protocol in order to fulfil MSs' obligations in accordance with Article 12(3) of Directive 2003/87.

As a result, this will increase the diversity of low-cost compliance options within the Community scheme leading to a reduction of the overall costs of compliance with the Kyoto Protocol while improving the liquidity of the Community market in greenhouse gas emission allowances.

This will enable operators to use these two mechanisms in the allowance trading scheme to fulfil their obligations. The result will be lower compliance costs for installations in the scheme. It is estimated that annual compliance costs in the period 2008-12 for all installations covered in the enlarged EU will be reduced by more than 20%.

By stimulating demand for JI credits, Community companies will invest in the development and transfer of advanced environmentally sound technologies and know-how. The demand for CDM credits will also be stimulated and thus developing countries hosting CDM projects will be assisted in achieving their sustainable development goals.

This Directive thus recognises JI and CDM credits as equivalent to EU emission allowances, except for those from land use, land use change and forestry activities. Credits from JI projects are called 'emission reduction units' ("ERU"), while credits from CDM projects are referred to as certified emission reductions ("CER").

The Directive also takes steps to prevent ERUs and CERs being counted twice ("double counting"), where they result from activities which also lead to a reduction in, or limitation of, emissions from installations covered by Directive 2003/87 .


- Decision n°280/2004 of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol.

This Decision n°280/2004 repeals Decision 93/389/EEC establishing the previous monitoring mechanism for Community CO2 and other greenhouse gas emissions.

This Decision came into force on 10 March 2004 marked the transposition of all the provisions of the Kyoto Protocol into Community law, in advance of the Protocol entering into force at international level.

This Decision establishes a new mechanism for monitoring and reporting GHG emissions so as to be able to evaluate more accurately and more regularly the progress made in reducing emissions with a view to complying with the Community's commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol.

The underlying mechanism was designed to:
- monitor, in the MS, all anthropogenic GHG emissions (including their removal by sinks) not controlled by the Montreal Protocol on substances that deplete the ozone layer ;
- evaluate progress made in this field to ensure compliance with the Community's commitments concerning emissions and their removal ;
- implement the UNFCCC and the Kyoto Protocol ;
- ensure that information reported by the Community to the UNFCCC Secretariat is complete, accurate, consistent, transparent and comparable.

The MS (and the EU respectively) must devise, publish and implement national programmes (and a Community programme) to limit or reduce anthropogenic emissions by sources and enhance the removal, by sinks, of all GHG not controlled by the Montreal Protocol in order to provide for a transparent and accurate monitoring of the actual and projected progress of MS towards reducing these emissions, including the effect of Community measures.

The national programmes must include information on:
- the effect of national policies and measures on emissions and removals, broken down by gas and by sector;
- national projections for emissions and removal of CO² and other GHG for 2005, 2010, 2015 and 2020;
- measures being taken or planned to implement relevant Community policies and to comply with commitments under the Kyoto Protocol.

In addition to the information in national reports, MS must communicate other information to the Commission (by 15 January each year at the latest) for the assessment of actual progress and the preparation of annual reports as required under the UNFCCC and the Kyoto Protocol. Including :

- provisional data on emissions of carbon monoxide (CO), sulphur dioxide (SO²), nitrogen oxides (NOx) and volatile organic compounds for the twelve-month period preceding the previous year (i.e. year X-2), as well as finalised data for the year before that (year X-3);
- emissions of carbon dioxide (CO²), methane (CH4), nitrous oxide (N²O), hydrofluorocarbons (HFC), perfluorocarbons (PFC) and sulphur hexafluoride (SF6) in year X-2;
- greenhouse gas emissions resulting from land-use and forestry during year X-2;
- the accounting of emissions and removals resulting from land-use and forestry for the years between 1990 and year X-2;
- information from national registries established pursuant to Directive 2003/87/EC;
- information on indicators used during year X-2.

Each year, the Commission will compile a Community GHG inventory and report. It will circulate the report to the MS by 28 February, and to the UNFCCC Secretariat by 15 April each year.

By 30 June 2006 at the latest, the Commission must adopt a Community inventory system to ensure the comparability, consistency, completeness, accuracy, and timeliness of national inventories with regard to the Community inventory.


- Decision n°2005/166 of 10 February 2005 laying down rules implementing Decision n°280/2004 concerning a mechanism for monitoring Community GHG emissions and for implementing the Kyoto Protocol, and

This Decision establishes rules implementing Decision n°280/2004 as regards to the reporting of information referred to in Article 3(1) and(2) of Decision n°280/2004, in accordance with Article 3(3) of that Decision. This Decision establishes rules for the establishing of a Community inventory system in accordance with Article 4(2) of Decision n°280/2004.


- Decision n°2006/944 of 14 December 2006 determining the respective emission levels allocated to the Community and each of its MS under the Kyoto Protocol pursuant to Decision n°2002/358.

The Annex to this Decision set out the emission levels in terms of tonnes of Co² equivalent allocated to the Community and to MS for the first quantified emission limitation and reduction commitment period under the Kyoto Protocol.


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This 1st set of EU climate regulation set the seen but has now fairly evolved from its origin. Concrete steps have emerged in this field since the Community Lisbon Programme and the 2007 Lisbon Treaty, where recognition of EU competence to act in the energy field was reemphasized .

The principles of Energy Policy for Europe were elaborated with regards to the Commission Communication of 9 February 2005 "Winning the battle against global climate change" and the EU Commission's green paper "A European Strategy for Sustainable, Competitive and Secure Energy" on 8 March 2006.

It also includes an EU Energy Efficiency Action Plan, which was published by the European Commission in October 2006.

Communication from the Commission , of 10 January 2007, entitled: "Limiting Global Climate Change to 2 degrees Celsius - The way ahead for 2020 and beyond".

In March 2007, the European Council agreed a new Energy Policy for the EU, which comprises ambitious targets for the reduction of GHG, increase in energy efficiency and use of renewables and biofuels. Most notably, MS agreed to reduce GHG emissions in the EU by 20% by 2020 (compared to 2005 levels), and ensure that 20% of the EU's overall energy needs are met by renewable energy sources ("RES") by 2020? This position was clearly emphasised in the Commission Communication of 23 January 2008 entitled: "20 20 by 2020 - Europe's climate change opportunity".

The EU committed to reducing its overall emissions to at least 20% below 1990 levels by 2020 (to be scaled up this reduction to as much as 30% under a new global climate change agreement when other developed countries make comparable efforts).

In April 2009, the European Council and European Parliament agreed a "package" of legislation to implement this new Energy Policy , thus providing for a renewed internal domestic Climate Regulation.

We will summarise the key EU legislation to implement this Climate Change and Energy Package (the "20-20-20 Package"), namely :


- The RES Directive (2009/28/EC) on the promotion of the use of energy from RES and amending and subsequently repealing Directives 2001/77 and 2003/30, that sets a common EU framework for the promotion of RE.

It involves that, by 2020, 20% of the EU's final energy consumption (electricity, heat and transport fuels) come from RES, and 10% of each MS's transport energy consumption come from RES.

The RES Directive came into force on 25 June 2009 and must be implemented by MS into national law by 5 December 2010.


- The EU "ETS" Directive (2009/29/EC) amending Directive 2003/87 so as to improve and extend the GHG emission allowance trading scheme of the Community to cover some 40% of total EU GHG emissions.

Central to this renewed Climate Regulation strategy is a strengthening and expansion of the EU ETS, the EU's key tool for cutting emissions cost-effectively.

Emissions from the sectors covered by the system will be cut by 21% by 2020 compared with levels in 2005.

In fact, a single EU-wide cap on ETS emissions will be set, and free allocation of emission allowances will be progressively replaced by auctioning of allowances by 2020.

This "ETS" Directive amends and extends Directive 2003/87 and provides that, from the start of the 3rd ETS trading period in 2013, and running up to 2020, MS must auction an increasing amount of allowances to energy-intensive industries, rather than allocating them for free.

The energy sector will be required to purchase almost all of its allowances, to prevent windfall profits.

At least 50% of auction revenues must be used to reduce GHG emissions and assist in a move to a low carbon economy, including carbon capture and storage ("CCS)" projects, energy efficiency and measures to avoid deforestation.

This EU ETS Directive should also be read alongside Directive 2008/101 (the "Aviation" Directive), which was published in the OJEU on 13 January 2009 and amends the EU ETS to include aviation in its scope in 2012.

This "ETS" Directive must be implemented by MS into national laws in its entirety by 31 December 2012, though some provisions by 31 December 2009)

However, for sectors not covered by the ETS (e.g., farming, waste and households, transport (except aviation, which will join ETS in 2012)), GHG emissions will be cut to 10% below 2005 levels by 2020, through distinct binding national targets .

It must be underlined that each MS will contribute to this specific effort according to its relative wealth, with national emission targets ranging from -20% for richer MS to +20% for poorer ones.

The "Aviation" Directive 2008/101 was adopted as this sector also contributes to global climate change, and its contribution is increasing .

This Directive provides for one Member State to be responsible for administering each aircraft operator participating in the EU ETS.

The European Commission adopted on the 5 August 2009 a list of aircraft operators that have undertaken a relevant aviation activity on or after 1 January 2006, specifying the administering Member State for each aircraft operator. The list was published in the Official Journal on 22 August 2009 .


- The "Fuel Quality (Biofuels)" Directive (2009/30/EC), introduces detailed sustainability criteria for biofuels, including verification and reporting requirements, to avoid conflict of interests risks and to ensure they deliver real environmental benefits.

To this extend it is also necessary to refer to the Commission Communication of 8 February 2006 entitled "An EU Strategy for Biofuels" .


- The "CCS" Directive (2009/31/EC) amending Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce GHG emissions and amending Council Directive 1999/32 as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12 also came into force on 25 June 2009.

The Commission is currently developing a programme of work aiming to ensure this, both within the EU and internationally . One of its aims is to encourage a network of demonstration plants across Europe and in key third countries.

It must be implemented by MS into national law by 31, December 2010, in order to help promote the development and safe use of carbon capture and storage (CCS) technologies, allowing the CO² emitted by industrial processes to be captured and stored underground where it cannot contribute to global warming.

The "CCS" Directive represents the basis of a new legal framework for the geological storage of CO², to reduce GHG emissions from fossil fuels powered plants, by setting out site selection criteria.

It focuses on enabling a legal framework addressing the environmental integrity of the technique and other deployment issues .

It details what must be included in storage permits, and requires the provision of financial security by operators and monitoring (both during and after operation), in order to allow site restoration.

The risk of carbon leakage is also analysed and addressed in the new ETS Directive so that, to preserve the environmental integrity of the EU’s policies. A draft Commission decision under the ETS contains a list of sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage, based on the criteria set out in the new ETS Directive. A sector or sub-sector may be added to this list, on the basis of new information, if it satisfies the relevant criteria.


- Decision n°406/2009 on effort sharing, which came into force on 25 June 2009, sets different, burden sharing, targets for each MS and provides binding GHG emissions limits for certain categories of emissions that are not subject to the EU ETS, for the period 2013-2020 to contribute to the EU's overall 20% cutting GHG emissions objective. Through this measure, stricter GHG emissions cut may be provided, in the event that an international climate change agreement is reached to succeed the Kyoto Protocol.


- Regulation n°443/2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO2 emissions from light-duty vehicles.

Regulation n° 443/2009 limits carbon dioxide emissions for new passenger cars (which came into force on 8 June 2009) encourages car industry to invest in low-carbon and energy efficient technologies and eco-innovation to promote the long-term EU competitiveness.

Its aim is to reduce CO² emissions from new cars sold in the EU (regardless of the country of manufacture).


Some key elements of the adopted Regulation are as follows:

- Limit value curve: the fleet average to be achieved by all cars registered in the EU is 130 grams per kilometre (g/km). A so-called limit value curve implies that heavier cars are allowed higher emissions than lighter cars while preserving the overall fleet average;

- Phasing-in of requirements: in 2012, 65% of each manufacturer's newly registered cars must comply on average with the limit value curve set by the legislation. This will rise to 75% in 2013, 80% in 2014, and 100% from 2015 onwards;

- Lower penalty payments for small excess emissions until 2018: If the average CO² emissions of a manufacturer's fleet exceed its limit value in any year from 2012, the manufacturer has to pay an excess emissions premium for each car registered. This premium amounts to €5 for the first g/km of exceedance, €15 for the second g/km, €25 for the third g/km, and €95 for each subsequent g/km. From 2019, already the first g/km of exceedance will cost €95 ;

- Long-term target: a target of 95g/km is specified for the year 2020. The modalities for reaching this target and the aspects of its implementation including the excess emissions premium will have to be defined in a review to be completed no later than the beginning of 2013 ;

- Eco-innovations: because the test procedure used for vehicle type approval is outdated, certain innovative technologies cannot demonstrate their CO2-reducing effects under the type approval test. As an interim procedure until the test procedure is reviewed by 2014, manufacturers can be granted a maximum of 7g/km of emission credits on average for their fleet if they equip vehicles with innovative technologies, based on independently verified data.

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Based on these texts, the EU is putting in place an ambitious energy policy covering the full range of energy sources from fossil fuels (oil, gas and coal) to nuclear energy and renewables (solar, wind, biomass, geothermal, hydro-electric and tidal).

This new developments in Climate Regulation represent a major contribution to combating climate change and will lead to a low-carbon economy, which represents a major economic opportunity for the European Union.

As a conclusion, a fully fledged policy in the fight against global warming and adaptation to climate change is required to achieve the "20-20-20" targets, with a mix of command and control measures and market-based mechanisms.

The EU has adopted targets to reduce GHG emissions by at least 20% by 2020 without prejudice to the position it will take in the next international negotiations on Post-Kyoto and calls for the EU to set the target in international negotiations of reducing greenhouse gas emissions in developed countries by 30% (compared to 1990 levels) by 2020.

Developed countries should commit to cutting their GHG emissions by 30% compared to 1990 levels by 2020, as part of a post-2012 international agreement. Adaptation is also a necessary element that must be comprehensively addressed, as emphasised in the EU policy paper – financing the fight against climate change in developing countries.

By 31 December 2012, Kyoto Commitment Period will expire for Annex I Countries while EU ETS will enter Phase III. No agreement on a Post-Kyoto follow-up treaty as yet been found.

Thus a agreement in the forthcoming Copenhagen Conference on climate change in December 2009 is decisive. Together the 27 EU countries can represent a significant influence in the future of international Climate Regulation. The EU will play a constructive role during the final phase of the negotiation to obtain a legally binding agreement for the period starting 1 January 2013 that builds on the Kyoto protocol and incorporates all its essentials.

The Copenhagen agreement will need to include provisions on the 2°C objective, ambitious emission reduction commitments by developed countries, appropriate mitigation action by developing countries, adaptation, technology and a deal on financing, adaptation, mitigation and good governance.

the conclusions adopted by the Council on 21 October 2009 (doc. 14790/09), together with these European Council conclusions (15265/09) and the attached guidelines give the Union a strong negotiating position.


Corinne LEPAGE
First Vice President of the of the ENVI Commission at the European Parliament
With the assistance of Adrien FOURMON

La procédure de raccordement des installations photovoltaïques en Métrole et dans les DOM

Retrouvez l'article complet publié sur le site de l'ARER reproduit ci-dessous.
Télécharger la/les pièce(s) jointe(s) associée(s) :http://www.arer.org/pj/articles/535_ARER-PV-procedure-raccordement-2010.pdf

La procédure de traitement des demandes de raccordement des installations de production d’électricité photovoltaïques au réseau public de distribution géré par ERDF est définie dans le cadre de sa documentation technique de référence.

Cette documentation technique de référence est mentionnée dans les textes réglementaires (décrets n°2003-229 du 13 mars 2003 et n°2008-386 du 23 avril 2008).

Elle a pour objet de rendre publiques les méthodes générales et les hypothèses utilisées pour les études de raccordement, menées dans un cadre transparent et non discriminatoire par le gestionnaire de réseau public de distribution.

Elle répond également aux exigences de la décision du 7 avril 2004 de la Commission de régulation de l'énergie (CRE) qui a prévu que l'ensemble des règles appliquées par les gestionnaires de réseaux publics d'électricité soient portées à la connaissance des utilisateurs de ces réseaux.

Cette documentation précise les règles de gestion des files d’attente et les principes des relations contractuelles entre les porteurs de projets et ERDF depuis la demande de raccordement jusqu’à la mise en service industrielle de l’installation de production.

Pour les installations de production d’électricité de puissance > 36 kVA, au réseau public de distribution" la procédure actuellement en vigueur telle que modifiée le 26/04/2010 est la version n°8 référencée "ERDF-PRO-RES_21E.

Ce document, comporte page 10 le paragraphe concernant la période de transition relative aux installations photovoltaïque au sol qui stipule que :

"Pour conserver sa place dans la file d’attente, le demandeur de tout projet photovoltaïque dont la convention de raccordement n’a pas été envoyée par ERDF au 1er décembre 2009 et dont le projet est soumis à autorisation d’urbanisme selon les dispositions du décret n° 2009-1414 du 19 novembre 2009, devra transmettre à ERDF l’autorisation d’urbanisme applicable au projet dans les 6 mois qui suivent la date d’entrée en vigueur du décret pré-cité fixée au 1er décembre 2009, soit au plus tard le 1er juin 2010. Durant la période qui s'achève le 1er juin 2010, la PTF déjà reçue par le demandeur reste valable à l’exception des délais d’établissement de la convention de raccordement.

A défaut de la fourniture de l’autorisation d’urbanisme, le projet sort de plein droit de la file d’attente. Le cas échéant, les acomptes versés seront remboursés au demandeur après déduction des dépenses déjà engagées par ERDF."

En parallèle, il convient de faire état de la Procédure de traitement des demandes de raccordement des installations de production d’électricité aux réseaux publics de distribution en Corse et dans les départements et collectivités d’outre-mer appliquée par EDF-SEI.

Conformément au référentiel SEI REF 02, EDF SEI applique la procédure d’ERDF pour le raccordement des installations de production aux réseaux publics de distribution en Corse, dans les DOM et dans les COM de Saint-Barthélemy, Saint-Martin et Saint-Pierre et Miquelon.

Cette procédure a été modifiée suite au décret 2009-1414 du 19 novembre 2009 relatif aux procédures administratives applicables à certains ouvrages de production d’électricité(cf. Référentiel Technique – SEI REF 07 Version : V1).

Procédure de traitement des demandes de raccordement des , la SEI REF 07 Version : V1 dont la date d'application remonte au 01/12/2009.

Il convient de souligner les termes de l'article 5.1 de cette documentation technique de référence (relatif aux projets photovoltaïques au sol entrés en file d’attente avant le 1er décembre 2009 et pour lesquels la convention de raccordement n’a pas été envoyée au demandeur par EDF SEI à cette date), lequel prévoit :

« Pour conserver sa place dans la file d’attente, le demandeur de tout projet photovoltaïque dont la proposition de convention de raccordement n’a pas été envoyée par EDF SEI au 1er décembre 2009 et dont le projet est soumis à autorisation d’urbanisme selon les dispositions du décret n° 2009-1414, devra transmettre au gestionnaire de réseaux, l’autorisation d’urbanisme applicable au projet dans les 9 mois qui suivent la date d’entrée en vigueur du décret pré-cité fixée au 1er décembre 2009, soit au plus tard le 1er septembre 2010. »

On reviendra également su l'article 5.2 (relatif aux projets photovoltaïques au sol entrés en file d’attente avant le 1er décembre 2009 et pour lesquels la convention de raccordement a été envoyée au demandeur par EDF SEI avant cette date), qui dispose :

"Conformément à l’article L111-6 du code de l’urbanisme, le raccordement ne peut être mis en service sans l’autorisation d’urbanisme requise par le code de l’urbanisme.
Le demandeur de tout projet photovoltaïque dont la proposition de convention de raccordement a été envoyée par EDF SEI avant le 1er décembre 2009 et dont le projet est soumis à autorisation d’urbanisme selon les dispositions du décret n° 2009-1414, devra transmettre au gestionnaire de réseaux l’autorisation d’urbanisme
applicable au projet dans les 9 mois qui suivent la date d’entrée en vigueur du décret pré-cité fixée au 1er décembre 2009, soit au plus tard le 1er septembre 2010.
A défaut, le projet sort de plein droit de la file d’attente. Le cas échéant, les acomptes versés seront remboursés au demandeur après défalcation des dépenses déjà engagées par EDF SEI.
Cette disposition ne s’applique pas aux projets non soumis aux dispositions du décret n°2009-1414.".

On notera donc la différence de traitement en terme de délais de régularisation des dossiers de projets photovoltaïques au regard du droit de l'urbanisme, entre la Métropole et les zones non interconnectées au réseau métropolitain.

Adrien FOURMON