Commission Delegated Regulation (EU) 2019/331Show full title

Commission Delegated Regulation (EU) 2019/331 of 19 December 2018 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (Text with EEA relevance)

[F1Article 2bU.K.Free allocation in [F22026 and 2027-2030 allocation periods]: applications by incumbent installations that will not produce electricity for sale for consumption outside the installation

1.Despite Article 2a(1)(b), an application under Article 4 for free allocation in the [F32027-2030] allocation period may be made in respect of an installation that is an electricity generator as if the restriction referred to in Article 2a(1)(b) did not apply, provided that [F4the documents submitted as part of the first stage of the application are] accompanied by a statement by the operator of the installation that the condition in paragraph 2 will be met.

2.The condition is that the installation will not produce any electricity (other than relevant CHP electricity) for sale for consumption outside the installation in the period beginning with the date of [F5the submission of documents as part of the first stage of] the application and ending with 31 December 2030 (the “relevant period”).

3.Where [F6the documents submitted as part of the first stage of such an application are] accompanied by the statement referred to in paragraph 1:

(a)

the regulator must assess the statement and any evidence provided and include the statement, evidence and regulator’s assessment in the information sent to the UK ETS authority under Article 15a(3) for assessment by the UK ETS authority under Article 15a(4) [F6or, where relevant, under article 7(8) of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2025 for assessment under article 7(9) of that Order];

(b)

if the UK ETS authority considers that the condition in paragraph 2 will be met, for the purposes of determining the application, the application must be treated as made in respect of an installation that is not an electricity generator (and to which the restriction in Article 2a(1)(b) does not apply);

(c)

if the UK ETS authority does not consider that the condition in paragraph 2 will be met, the UK ETS authority must inform the regulator, and the regulator must inform the operator of the installation.

4.Paragraphs 5 to 8 apply where:

(a)

an application under Article 4 for free allocation in the [F72027-2030] allocation period in respect of an electricity generator is treated as made in respect of an installation that is not an electricity generator in accordance with paragraph 3(b) and is assessed as valid under Article 15a(4) [F8or, in the case of a type 2 2026 incumbent (as defined in Part 2 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2025), under article 7(9) of that Order]; and

(b)

the regulator considers at any time (including on receipt of a report under Article 3 of the Activity Level Changes Regulation) that the installation has produced electricity (other than relevant CHP electricity) for sale for consumption outside the installation in the relevant period.

5.The regulator must:

(a)

determine the historical activity level (if any) of each sub-installation of the installation that the regulator considers would have been determined under this Regulation or the Activity Level Changes Regulation [F9or, in the case of a type 2 2026 incumbent, Part 2 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2025] if the application had been treated as made in respect of an electricity generator (and to which the restriction in Article 2a(1)(b) applies);

(b)

calculate the preliminary and final annual number of allowances (if any) to be allocated in respect of the installation, and of each sub-installation of the installation, for each scheme year in the [F102026 allocation period and the 2027-2030] allocation period beginning with the relevant scheme year, that the regulator considers would have been calculated under this Regulation [F11, the Activity Level Changes Regulation and Part 2 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2025] if the application had been treated as made in respect of an electricity generator (and to which the restriction in Article 2a(1)(b) applies);

(c)

send evidence of the matters referred to in paragraph 4(b) and the determination and calculation referred to in points (a) and (b) of this paragraph to the UK ETS authority.

6.If the UK ETS authority considers that the installation has produced electricity (other than relevant CHP electricity) for sale for consumption outside the installation in the relevant period, the UK ETS authority must:

(a)

approve the final annual number of allowances to be allocated in respect of the installation, for each scheme year in the [F122026 allocation period and the 2027-2030] allocation period beginning with the relevant scheme year, making any corrections to the historical activity levels or preliminary or final annual number of allowances that the UK ETS authority considers appropriate;

(b)

inform the regulator accordingly.

7.The regulator must give notice to the operator of the installation of the final annual number of allowances approved.

8.For the purposes of Article 5 of the Activity Level Changes Regulation, the reference in paragraph 3 of that Article to the initial allocation must be read as including a reference to the initial allocation that would have been approved if the application had been treated as made in respect of an electricity generator (and to which the restriction in Article 2a(1)(b) applies).

9.Where paragraph 4(a) applies to an installation, unless the final annual number of allowances is recalculated and approved under paragraphs 5 and 6, despite the amendment made to Article 3(2) of the Activity Level Changes Regulation by article 22 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2023, the activity level report required by Article 3 of the Activity Level Changes Regulation must contain the information referred to in section 1.4(e) of Annex 4 to this Regulation.

10.In this Article, “relevant scheme year”, in relation to an installation, means:

(a)

if the installation first produces electricity (other than relevant CHP electricity) for sale for consumption outside the installation in the period beginning with the date of [F13the submission of documents as part of the first stage of] the application and ending with 31 December 2026, the 2026 scheme year;

(b)

if the installation first produces electricity (other than relevant CHP electricity) for sale for consumption outside the installation on or after 1 January 2027, the scheme year in which the installation first produces such electricity.]

Textual Amendments

F1Arts. 2b, 2c inserted (E.W.S.) (1.1.2024 immediately after S.I. 2023/850 comes into force) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2023 (S.I. 2023/1387), arts. 2(1), 14 (which amendment was extended to N.I. (1.1.2025) by virtue of S.I. 2024/1366, arts. 2(2)(a), 45(2))