Commission Delegated Regulation (EU) 2019/807Show full title

Article 1 Subject matter

This Regulation lays down the criteria for determining the high ILUC-risk feedstock for which a significant expansion of the production area into land with high carbon stock is observed, and for certifying low ILUC-risk biofuels, bioliquids and biomass fuels.

Article 2 Definitions

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

(1)

‘oil crops’ means food and feed crops such as rapeseed, palm, soybeans and sunflower, that are not starch rich crops and sugar crops that are commonly used as feedstock for the production of biofuels, bioliquids and biomass fuels;

(2)

‘unused land’ means areas which, for a consecutive period of at least 5 years before the start of cultivation of the feedstock used for the production of biofuels, bioliquids and biomass fuels, were neither used for the cultivation of food and feed crops, other energy crops nor any substantial amount of fodder for grazing animals;

(3)

‘abandoned land’ means unused land, which was used in the past for the cultivation of food and feed crops but where the cultivation of food and feed crops was stopped due to biophysical or socioeconomic constraints;

(4)

‘severely degraded land’ means land as defined in point 9 of Annex V, part C to Directive (EU) 2018/2001;

(5)

‘additionality measure’ means any improvement of agricultural practices leading, in a sustainable manner, to an increase in yields of food and feed crops on land that is already used for the cultivation of food and feed crops; and any action that enables the cultivation of food and feed crops on unused land, including abandoned land, for the production of biofuels, bioliquids and biomass fuels;

(6)

‘additional feedstock’ means the additional amount of a food and feed crop produced in a clearly delineated area compared to the dynamic yield baseline and that is the direct result of applying an additionality measure;

(7)

‘dynamic yield baseline’ means the average yield from the delineated area where an additionality measure has been taken, calculated over the 3-year period immediately preceding the year of the application of such measure, taking into account the average yield increase observed for that feedstock over the previous decade and the yield curves over the life time in case of permanent crops, excluding yield fluctuations;

(8)

‘land with high-carbon stock’ means wetlands, including peatland, and continuously forested areas within the meaning of Article 29(4)(a), (b) and (c) of Directive (EU) 2018/2001;

(9)

‘small holders’ means farmers who conduct independently an agricultural activity on a holding with an agricultural area of less than 2 hectares for which they hold ownership, tenure rights or any equivalent title granting them control over land, and who are not employed by a company, except for a cooperative of which they are members with other small holders, provided that such a cooperative is not controlled by a third party;

(10)

‘permanent crops’ means non-rotational crops other than permanent grassland and permanent pasture that occupy the land for five years or more and yield repeated harvests.

Article 3 Criteria for determining the high indirect land-use change-risk feedstock for which a significant expansion of the production area into land with high carbon stock is observed

For the purpose of determining the high indirect land-use change-risk feedstock for which a significant expansion of the production area into land with high-carbon stock is observed, the following cumulative criteria shall apply:

(a)

the average annual expansion of the global production area of the feedstock since 2008 is higher than 1 % and affects more than 100 000 hectares;

(b)

the share of such expansion into land with high-carbon stock is higher than 10 %, in accordance with the following formula:

where

x_hcs

=

share of expansion into land with high-carbon stock;

x_f

=

share of expansion into land referred to in Article 29(4)(b) and (c) of Directive (EU) 2018/2001;

x_p

=

share of expansion into land referred to in Article 29(4)(a) of Directive (EU) 2018/2001 including peatland;

PF

=

productivity factor.

PF shall be 1,7 for maize, 2,5 for palm oil, 3,2 for sugar beet, 2,2 for sugar cane and 1 for all other crops.

The application of the criteria in points (a) and (b) above shall be based on the information included in the Annex, as revised in accordance with Article 7.

Article 4 General criteria for certification of low indirect land-use change-risk biofuels, bioliquids and biomass fuels

1. Biofuels, bioliquids and biomass fuels may only be certified as low indirect land-use change-risk fuels if all the following criteria are met:

(a) the biofuels, bioliquids and biomass fuels comply with the sustainability and greenhouse gas emissions saving criteria set out in Article 29 of Directive (EU) 2018/2001;

(b) the biofuels, bioliquids and biomass fuels have been produced from additional feedstock obtained through additionality measures that meet the specific criteria set out in Article 5;

(c) the evidence needed to identify the additional feedstock and substantiate claims regarding the production of additional feedstock is duly collected and thoroughly documented by the relevant economic operators.

2. The evidence in point (c) of paragraph 1 shall at least include information on the additionality measures taken to produce additional feedstock, the delineated areas on which these measures have been applied and the average yield achieved from the land where these measures have been applied over the 3-year period immediately preceding the year when the additionality measure was applied.

Article 5 Additionality measures

1. Biofuels, bioliquids and biomass fuels may only be certified as low indirect land-use change-risk fuels if:

(a) the additionality measures to produce the additional feedstock meet at least one of the following conditions:

(i)

they become financially attractive or face no barrier preventing their implementation only because the biofuels, bioliquids and biomass fuels produced from the additional feedstock can be counted towards the targets for renewable energy under Directive 2009/28/EC or Directive (EU) 2018/2001;

(ii)

they allow for cultivation of food and feed crops on abandoned land or severely degraded land;

(iii)

they are applied by small holders;

(b) the additionality measures are taken no longer than 10 years before the certification of the biofuels, bioliquids and biomass fuels as low indirect land-use change-risk fuels.

Article 6 Auditing and verification requirements for certification of low indirect land-use change-risk biofuels, bioliquids and biomass fuels

1. For the purpose of certifying low indirect land-use change-risk biofuels, bioliquids and biomass fuels, economic operators shall:

(a) submit reliable information substantiating their claims ensuring that all requirements set out in Articles 4 and 5 have been duly fulfilled;

(b) arrange for an adequate standard of independent auditing of the information submitted and an adequate level of transparency reflecting the need for public scrutiny of the auditing approach; and

(c) provide evidence that audits are conducted.

2. The auditing shall verify that information submitted by economic operators is accurate, reliable and protected against fraud.

3. In order to demonstrate that a consignment is to be considered as a low indirect land-use change-risk biofuel, bioliquid or biomass fuel, economic operators shall use the mass balance system set out in Article 30(1) of Directive (EU) 2018/2001. Voluntary schemes may be used to demonstrate compliance with the criteria set out in Articles 4 to 6 in accordance with Article 30 of Directive (EU) 2018/2001.

Article 7 Monitoring and review

The Commission shall, by 30 June 2021, review all relevant aspects of the report on feedstock expansion, in particular the data on feedstock expansion, as well as the evidence on the factors justifying the small holders provision in Article 5(1), and, if appropriate, amend this Regulation. This revised report shall be submitted to the European Parliament and the Council and become the basis for the application of the criteria set out in Article 3.

The Commission shall review thereafter the data included in the report in light of evolving circumstances and latest available scientific evidence.

Article 8 Entry into force

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

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 13 March 2019.

For the Commission

The President

Jean-Claude Juncker