Amendments to Directive 2009/28/EC
Article 2
Directive 2009/28/EC is amended as follows:
1. In Article 2, the following points are added to the second paragraph:
  1. “waste” shall be defined as in Article 3(1) of Directive 2008/98/EC of the European Parliament and of the Council ; substances that have been intentionally modified or contaminated to meet that definition are not covered by this definition;
  2. “starch-rich crops” means crops comprising mainly cereals (regardless of whether only the grains are used, or the whole plant, such as in the case of green maize, is used), tubers and root crops (such as potatoes, Jerusalem artichokes, sweet potatoes, cassava and yams), and corm crops (such as taro and cocoyam);
  3. “ligno-cellulosic material” means material composed of lignin, cellulose and hemicellulose such as biomass sourced from forests, woody energy crops and forest-based industries' residues and wastes;
  4. “non-food cellulosic material” means feedstocks mainly composed of cellulose and hemicellulose, and having a lower lignin content than ligno-cellulosic material; it includes food and feed crop residues (such as straw, stover, husks and shells), grassy energy crops with a low starch content (such as ryegrass, switchgrass, miscanthus, giant cane and cover crops before and after main crops), industrial residues (including from food and feed crops after vegetal oils, sugars, starches and protein have been extracted), and material from biowaste;
  5. “processing residue” means a substance that is not the end product(s) that a production process directly seeks to produce; it is not a primary aim of the production process and the process has not been deliberately modified to produce it;
  6. “renewable liquid and gaseous transport fuels of non-biological origin” means liquid or gaseous fuels other than biofuels whose energy content comes from renewable energy sources other than biomass, and which are used in transport;
  7. “agricultural, aquaculture, fisheries and forestry residues” means residues that are directly generated by agriculture, aquaculture, fisheries and forestry; they do not include residues from related industries or processing;
  8. “low indirect land-use change-risk biofuels and bioliquids” means biofuels and bioliquids, the feedstocks of which were produced within schemes which reduce the displacement of production for purposes other than for making biofuels and bioliquids and which were produced in accordance with the sustainability criteria for biofuels and bioliquids set out in Article 17.
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2. Article 3 is amended as follows:
  1. in paragraph 1, the following subparagraph is added:
For the purpose of compliance with the targets referred to in the first subparagraph of this paragraph, the maximum joint contribution from biofuels and bioliquids produced from cereal and other starch-rich crops, sugars and oil crops and from crops grown as main crops primarily for energy purposes on agricultural land shall be no more than the energy quantity corresponding to the maximum contribution as set out in paragraph 4(d).
;
  2. in paragraph 4, the second subparagraph is amended as follows:
    1. point (a) is replaced by the following:
(a)
for the calculation of the denominator, that is the total amount of energy consumed in transport for the purposes of the first subparagraph, only petrol, diesel, biofuels consumed in road and rail transport, and electricity, including electricity used for the production of renewable liquid and gaseous transport fuels of non-biological origin, shall be taken into account;
    2. in point (b), the following sentence is added:
This point shall be without prejudice to point (d) of this paragraph and Article 17(1)(a);
    3. point (c) is replaced by the following:
(c)
for the calculation of the contribution from electricity produced from renewable sources and consumed in all types of electric vehicles and for the production of renewable liquid and gaseous transport fuels of non-biological origin for the purpose of points (a) and (b), Member States may choose to use either the average share of electricity from renewable energy sources in the Union or the share of electricity from renewable energy sources in their own country as measured two years before the year in question. Furthermore, for the calculation of the electricity from renewable energy sources consumed by electrified rail transport, that consumption shall be considered to be 2,5 times the energy content of the input of electricity from renewable energy sources. For the calculation of the electricity from renewable energy sources consumed by electric road vehicles in point (b), that consumption shall be considered to be five times the energy content of the input of electricity from renewable energy sources.
    4. the following points are added:
      1. for the calculation of biofuels in the numerator, the share of energy from biofuels produced from cereal and other starch-rich crops, sugars and oil crops and from crops grown as main crops primarily for energy purposes on agricultural land shall be no more than 7 % of the final consumption of energy in transport in the Member States in 2020.
Biofuels produced from feedstocks listed in Annex IX shall not count towards the limit set out in the first subparagraph of this point.
Member States may decide that the share of energy from biofuels produced from crops grown as main crops primarily for energy purposes on agricultural land, other than cereal and other starch-rich crops, sugars and oil crops, does not count towards the limit set out in the first subparagraph of this point, provided that:
        1. verification of compliance with the sustainability criteria set out in Article 17(2) to (5) was carried out in accordance with Article 18; and
        2. those crops were grown on land that falls under point 8 of part C of Annex V and the corresponding bonus “e B” set out in point 7 of part C of Annex V was included in the calculation of greenhouse gas emissions, for the purposes of showing compliance with Article 17(2).
      2. each Member State shall seek to achieve the objective of there being a minimum level of consumption on their territory of biofuels produced from feedstocks and of other fuels, listed in part A of Annex IX. To that effect, by 6 April 2017, each Member State shall set a national target, which it shall endeavour to achieve. A reference value for this target is 0,5 percentage points in energy content of the share of energy from renewable sources in all forms of transport in 2020 referred to in the first subparagraph, to be met with biofuels produced from feedstocks and with other fuels, listed in part A of Annex IX. In addition, biofuels made from feedstocks not listed in Annex IX that were determined to be wastes, residues, non-food cellulosic material or ligno-cellulosic material by the competent national authorities and are used in existing installations prior to the adoption of Directive (EU) 2015/1513 of the European Parliament and of the Council , may be counted towards the national target.
Member States may set a national target lower than the reference value of 0,5 percentage points, based on one or more of the following grounds:
        1. objective factors such as the limited potential for the sustainable production of biofuels produced from feedstocks and of other fuels, listed in part A of Annex IX, or the limited availability of such biofuels at cost-efficient prices on the market;
        2. the specific technical or climatic characteristics of the national market for transport fuels, such as the composition and condition of the road vehicle fleet; or
        3. national policies allocating commensurate financial resources to incentivising energy efficiency and the use of electricity from renewable energy sources in transport.
When setting their national targets, Member States shall provide available information on the quantities of biofuels consumed from feedstocks and other fuels, listed in part A of Annex IX.
When setting policies for the promotion of the production of fuels from feedstocks listed in Annex IX, Member States shall have due regard to the waste hierarchy as established in Article 4 of Directive 2008/98/EC, including its provisions regarding life-cycle thinking on the overall impacts of the generation and management of different waste streams.
The Commission shall publish in accordance with Article 24 of this Directive:
        - the national targets of the Member States,
        - where available, the Member States' plans for achieving the national targets,
        - where applicable, the grounds for differentiation of the national targets of the Member States as compared to the reference value, notified in accordance with Article 4(2) of Directive (EU) 2015/1513; and
        - a synthesis report on Member States' achievements towards their national targets;
      3. biofuels produced from feedstocks listed in Annex IX shall be considered to be twice their energy content for the purpose of complying with the target set out in the first subparagraph.
;
  3. in paragraph 4, the third subparagraph is replaced by the following:
By 31 December 2017, the Commission shall present, if appropriate, a proposal permitting, subject to certain conditions, the whole amount of the electricity originating from renewable sources used to power all types of electric vehicles, and for the production of renewable liquid and gaseous transport fuels of non-biological origin to be considered.
;
  4. the following paragraph is added:
5.
With a view to minimising the risk of single consignments being claimed more than once in the Union, Member States and the Commission shall endeavour to strengthen cooperation among national systems and between national systems and voluntary schemes established pursuant to Article 18, including where appropriate the exchange of data. To prevent materials from being intentionally modified or discarded in order to fall under Annex IX, Member States shall encourage the development and use of systems which track and trace feedstocks and the resulting biofuels over the whole value chain. Member States shall ensure that when fraud is detected, appropriate action is taken. Member States shall by 31 December 2017, and every two years thereafter, report on the measures they have taken if they have not provided equivalent information on reliability and protection against fraud in their reports on progress in the promotion and use of energy from renewable sources drawn up in accordance with Article 22(1)(d).
The Commission shall be empowered to adopt delegated acts in accordance with Article 25a to amend the list of feedstocks in part A of Annex IX in order to add feedstocks, but not to remove them. The Commission shall adopt a separate delegated act in respect of each feedstock to be added to the list in part A of Annex IX. Each delegated act shall be based on an analysis of the latest scientific and technical progress, taking due account of the principles of the waste hierarchy established in Directive 2008/98/EC, and supporting the conclusion that the feedstock in question does not create an additional demand for land or cause significant distortive effects on markets for (by-)products, wastes or residues, that it delivers substantial greenhouse gas emission savings compared to fossil fuels, and that it does not risk creating negative impacts on the environment and biodiversity.
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3. In Article 5, paragraph 5 is replaced by the following:
5.
The Commission shall be empowered to adopt delegated acts in accordance with Article 25a concerning the adaptation of the energy content of transport fuels, as set out in Annex III, to scientific and technical progress.
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4. In Article 6, paragraphs 1 and 2 are replaced by the following:
1.
Member States may agree on and may make arrangements for the statistical transfer of a specified amount of energy from renewable sources from one Member State to another Member State. The transferred quantity shall be:
a
deducted from the amount of energy from renewable sources that is taken into account in measuring compliance by the Member State making the transfer with the requirements of Article 3(1), (2) and (4); and
b
added to the amount of energy from renewable sources that is taken into account in measuring compliance by another Member State accepting the transfer with the requirements of Article 3(1), (2) and (4).
2
The arrangements referred to in paragraph 1 of this Article in respect of Article 3(1), (2) and (4) may have a duration of one or more years. They shall be notified to the Commission not later than three months after the end of each year in which they have effect. The information sent to the Commission shall include the quantity and price of the energy involved.
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5. Article 17 is amended as follows:
  1. paragraph 2 is replaced by the following:
2.
The greenhouse gas emission saving from the use of biofuels and bioliquids taken into account for the purposes referred to in paragraph 1 shall be at least 60 % for biofuels and bioliquids produced in installations starting operation after 5 October 2015. An installation shall be considered to be in operation if the physical production of biofuels or bioliquids has taken place.
In the case of installations that were in operation on or before 5 October 2015, for the purposes referred to in paragraph 1, biofuels and bioliquids shall achieve a greenhouse gas emission saving of at least 35 % until 31 December 2017 and at least 50 % from 1 January 2018.
The greenhouse gas emission saving from the use of biofuels and bioliquids shall be calculated in accordance with Article 19(1).
;
  2. in paragraph 3, the second subparagraph is deleted.
6. Article 18 is amended as follows:
  1. in paragraph 3, the third subparagraph is replaced by the following:
The Commission shall adopt implementing acts in accordance with the examination procedure referred to in Article 25(3), to establish the list of appropriate and relevant information referred to in the first two subparagraphs of this paragraph. The Commission shall ensure, in particular, that the provision of that information does not represent an excessive administrative burden for operators in general or for smallholder farmers, producer organisations and cooperatives in particular.
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  2. in paragraph 4, the second subparagraph is replaced by the following:
The Commission may decide that voluntary national or international schemes setting standards for the production of biomass products contain accurate data for the purposes of Article 17(2), and/or demonstrate that consignments of biofuel or bioliquid comply with the sustainability criteria set out in Article 17(3), (4) and (5), and/or that no materials have been intentionally modified or discarded so that the consignment or part thereof would fall under Annex IX. The Commission may decide that those schemes contain accurate data for the purposes of information on measures taken for the conservation of areas that provide, in critical situations, basic ecosystem services (such as watershed protection and erosion control), for soil, water and air protection, the restoration of degraded land, the avoidance of excessive water consumption in areas where water is scarce and on the issues referred to in the second subparagraph of Article 17(7). The Commission may also recognise areas for the protection of rare, threatened or endangered ecosystems or species recognised by international agreements or included in lists drawn up by intergovernmental organisations or the International Union for the Conservation of Nature for the purposes of Article 17(3)(b)(ii).
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  3. in paragraph 5, the following subparagraphs are added:
The voluntary schemes referred to in paragraph 4 (“the voluntary schemes”) shall regularly, and at least once per year, publish a list of their certification bodies used for independent auditing, indicating for each certification body by which entity or national public authority it was recognised and which entity or national public authority is monitoring it.
In order in particular to prevent fraud, the Commission may, on the basis of a risk analysis or the reports referred to in the second subparagraph of paragraph 6 of this Article, specify the standards of independent auditing and require all voluntary schemes to apply those standards. This shall be done by means of implementing acts adopted in accordance with the examination procedure referred to in Article 25(3). Such acts shall set a time frame by which voluntary schemes need to implement the standards. The Commission may repeal decisions recognising voluntary schemes in the event that those schemes fail to implement such standards in the time frame provided for.
;
  4. paragraph 6 is replaced by the following:
6.
Decisions under paragraph 4 of this Article shall be adopted in accordance with the examination procedure referred to in Article 25(3). Such decisions shall be valid for a period of no more than five years.
The Commission shall require that each voluntary scheme on which a decision has been adopted under paragraph 4 submit by 6 October 2016 and annually thereafter by 30 April, a report to the Commission covering each of the points set out in the third subparagraph of this paragraph. Generally, the report shall cover the preceding calendar year. The first report shall cover at least six months from 9 September 2015. The requirement to submit a report shall apply only to voluntary schemes that have operated for at least 12 months.
By 6 April 2017, and thereafter within its reports in accordance with Article 23(3), the Commission shall submit a report to the European Parliament and to the Council analysing the reports referred to in the second subparagraph of this paragraph, reviewing the operation of the agreements referred to in paragraph 4 or voluntary schemes in respect of which a decision has been adopted in accordance with this Article, and identifying best practices. The report shall be based on the best information available, including following consultations with stakeholders, and on practical experience in the application of the agreements or schemes concerned. The report shall analyse the following:
    - in general:
      1. the independence, modality and frequency of audits, both in relation to what is stated on those aspects in the scheme documentation, at the time the scheme concerned was approved by the Commission, and in relation to industry best practice;
      2. the availability of, and experience and transparency in the application of, methods for identifying and dealing with non-compliance, with particular regard to dealing with situations or allegations of serious wrongdoing on the part of members of the scheme;
      3. transparency, particularly in relation to the accessibility of the scheme, the availability of translations in the applicable languages of the countries and regions from which raw materials originate, the accessibility of a list of certified operators and relevant certificates, and the accessibility of auditor reports;
      4. stakeholder involvement, particularly as regards the consultation of indigenous and local communities prior to decision making during the drafting and reviewing of the scheme as well as during audits and the response to their contributions;
      5. the overall robustness of the scheme, particularly in light of rules on the accreditation, qualification and independence of auditors and relevant scheme bodies;
      6. market updates of the scheme, the amount of feedstocks and biofuels certified, by country of origin and type, the number of participants;
      7. the ease and effectiveness of implementing a system that tracks the proofs of conformity with the sustainability criteria that the scheme gives to its member(s), such a system intended to serve as a means of preventing fraudulent activity with a view, in particular, to the detection, treatment and follow-up of suspected fraud and other irregularities and where appropriate, number of cases of fraud or irregularities detected;
    - and in particular:
      1. options for entities to be authorised to recognise and monitor certification bodies;
      2. criteria for the recognition or accreditation of certification bodies;
      3. rules on how the monitoring of the certification bodies is to be conducted;
      4. ways to facilitate or improve the promotion of best practice.
The Commission shall make the reports drawn up by the voluntary schemes available, in an aggregated form or in full if appropriate, on the transparency platform referred to in Article 24.
A Member State may notify its national scheme to the Commission. The Commission shall give priority to the assessment of such a scheme. A decision on the compliance of such a notified national scheme with the conditions set out in this Directive shall be adopted in accordance with the examination procedure referred to in Article 25(3), in order to facilitate mutual bilateral and multilateral recognition of schemes for verification of compliance with the sustainability criteria for biofuels and bioliquids. Where the decision is positive, schemes established in accordance with this Article shall not refuse mutual recognition with that Member State's scheme, as regards the verification of compliance with the sustainability criteria set out in Article 17(2) to (5).
;
  5. paragraph 8 is replaced by the following:
8.
At the request of a Member State or on its own initiative, the Commission shall examine the application of Article 17 in relation to a source of biofuel and, within six months of receipt of a request decide, in accordance with the examination procedure referred to in Article 25(3), whether the Member State concerned may take biofuel from that source into account for the purposes of Article 17(1).
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7. Article 19 is amended as follows:
  1. paragraphs 3, 4 and 5 are replaced by the following:
3.
The typical greenhouse gas emissions from cultivation of agricultural raw materials included in the reports referred to in paragraph 2 in the case of Member States, and, in the case of territories outside the Union, in reports equivalent to those referred to in paragraph 2 and drawn up by competent bodies, may be reported to the Commission.
4
The Commission may decide, by means of an implementing act adopted in accordance with the examination procedure referred to in Article 25(3), that the reports referred to in paragraph 3 of this Article contain accurate data for the purposes of measuring the greenhouse gas emissions associated with the cultivation of biofuel and bioliquid feedstocks typically produced in those areas for the purposes of Article 17(2).
5
By 31 December 2012 at the latest and every two years thereafter, the Commission shall draw up and publish a report on the estimated typical and default values in parts B and E of Annex V, paying special attention to greenhouse gas emissions from transport and processing.
In the event that the reports referred to in the first subparagraph indicate that the estimated typical and default values in parts B and E of Annex V might need to be adjusted on the basis of the latest scientific evidence, the Commission shall, as appropriate, submit a legislative proposal to the European Parliament and to the Council.
;
  2. paragraph 6 is deleted;
  3. in paragraph 7, the first, second and third subparagraphs are replaced by the following:
7.
The Commission shall keep Annex V under review, with a view, where justified, to the addition of values for further biofuel production pathways for the same or for other raw materials. That review shall also consider the modification of the methodology laid down in part C of Annex V, particularly with regard to:
    - the method of accounting for wastes and residues;
    - the method of accounting for co-products;
    - the method of accounting for cogeneration; and
    - the status given to agricultural crop residues as co-products.
The default values for waste vegetable or animal oil biodiesel shall be reviewed as soon as possible. In the event that the Commission's review concludes that additions to Annex V should be made, the Commission shall be empowered to adopt delegated acts pursuant to Article 25a to add, but not to remove or amend, estimated typical and default values in parts A, B, D and E of Annex V for biofuel and bioliquid pathways for which specific values are not yet included in that Annex.
;
  4. paragraph 8 is replaced by the following:
8.
Where necessary in order to ensure the uniform application of point 9 of Part C of Annex V, the Commission may adopt implementing acts setting out detailed technical specifications and definitions. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(3).
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8. Article 21 is deleted.
9. In Article 22(1), the second subparagraph is amended as follows:
  1. point (i) is replaced by the following:
(i)
the development and share of biofuels made from feedstocks listed in Annex IX including a resource assessment focusing on the sustainability aspects relating to the effect of the replacement of food and feed products for biofuel production, taking due account of the principles of the waste hierarchy established in Directive 2008/98/EC and the biomass cascading principle, taking into consideration the regional and local economic and technological circumstances, the maintenance of the necessary carbon stock in the soil and the quality of the soil and the ecosystems;
;
  2. the following point is added:
(o)
the amounts of biofuels and bioliquids in energy units corresponding to each category of feedstock group listed in part A of Annex VIII taken into account by that Member State for the purpose of complying with the targets set out in Article 3(1) and (2), and in the first subparagraph of Article 3(4).
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10. Article 23 is amended as follows:
  1. the last sentence in paragraph 1 is deleted;
  2. paragraph 4 is replaced by the following:
4.
In reporting on greenhouse gas emission savings from the use of biofuels and bioliquids, the Commission shall use the amounts reported by Member States in accordance with point (o) of Article 22(1), including the provisional mean values of the estimated indirect land-use change emissions and the associated range derived from the sensitivity analysis as set out in Annex VIII. The Commission shall make data on the provisional mean values of the estimated indirect land-use change emissions and the associated range derived from the sensitivity analysis publicly available. In addition, the Commission shall evaluate whether and how the estimate for direct emission savings would change if co-products were accounted for using the substitution approach.
;
  3. in paragraph 5, points (e) and (f) are replaced by the following:
    1. the availability and sustainability of biofuels made from feedstocks listed in Annex IX, including an assessment of the effect of the replacement of food and feed products for biofuel production, taking due account of the principles of the waste hierarchy established in Directive 2008/98/EC and the biomass cascading principle, taking into consideration the regional and local economic and technological circumstances, the maintenance of the necessary carbon stock in the soil and the quality of soil and ecosystems;
    2. information on, and analysis of, the available scientific research results regarding indirect land-use change in relation to all production pathways, accompanied by an assessment of whether the range of uncertainty identified in the analysis underlying the estimations of indirect land-use change emissions can be narrowed and the possible impact of Union policies, such as environment, climate and agricultural policies, can be factored in; and
    3. technological developments and availability of data on the use, economic and environmental impacts of biofuels and bioliquids produced in the Union from dedicated non-food crops grown primarily for energy purposes.
;
  4. in paragraph 8, point (b) of the first subparagraph is replaced by the following:
(b)

with respect to the targets referred to in Article 3(4), a review of:
    1. the cost-efficiency of the measures to be implemented to achieve the targets;
    2. an assessment of the feasibility of reaching the targets whilst ensuring the sustainability of biofuels production in the Union and in third countries, and considering economic, environmental and social impacts, including indirect effects and impacts on biodiversity, as well as the commercial availability of second-generation biofuels;
    3. the impact of the implementation of the targets on the availability of foodstuffs at affordable prices;
    4. the commercial availability of electric, hybrid and hydrogen-powered vehicles, as well as the methodology chosen to calculate the share of energy from renewable sources consumed in the transport sector;
    5. the evaluation of specific market conditions, considering, in particular, markets in which transport fuels represent more than half of the final energy consumption, and markets which are fully dependent on imported biofuels;
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11. Article 25 is replaced by the following:

Committee procedure
Article 25
1
Except in the cases referred to in paragraph 2, the Commission shall be assisted by the Committee on Renewable Energy Sources. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council .
2
For matters relating to the sustainability of biofuels and bioliquids, the Commission shall be assisted by the Committee on the Sustainability of Biofuels and Bioliquids. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
3
Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the Committees deliver no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
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12. The following Article is inserted:

Exercise of the delegation
Article 25a
1
The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2
The power to adopt delegated acts referred to in Articles 3(5), 5(5) and 19(7) shall be conferred on the Commission for a period of five years from 5 October 2015.
3
The delegation of power referred to in Articles 3(5), 5(5) and 19(7) may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4
As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5
A delegated act adopted pursuant to Articles 3(5), 5(5) and 19(7) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council.
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13. Annex V is amended and Annexes VIII and IX are added in accordance with Annex II to this Directive.
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ L 312, 22.11.2008, p. 3).’.
Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources (OJ L 239, 15.9.2015, p. 1).’;
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’.