Legal provisions of COM(2022)101 - Methods and procedure for making available own resources based on the Emissions Trading System, the Carbon Border Adjustment Mechanism and other measures

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dossier COM(2022)101 - Methods and procedure for making available own resources based on the Emissions Trading System, the Carbon Border Adjustment ...
document COM(2022)101 EN
date March 14, 2022

Contents

Chapter I - General Provisions

Article 1 - Subject matter

This Regulation lays down rules on calculating and making available to the Commission the own resources of the Union referred to in Article 2(1), point (e), ('Emissions Trading System-based own resource'), in Article 2(1), point (f), ('Carbon Border Adjustment Mechanism-based own resource') and in Article 2(1), point (g), ('reallocated profits-based own resource') of Decision (EU, Euratom) 2020/2053, on the measures to meet cash requirements and sets the calculation of the applicable rate of the own resource referred to in Article 2(1), point (d), ('GNI-based own resource') of that Decision.

Article 2 - Conservation of supporting documents

1. Member States shall take all appropriate measures to ensure that supporting documents concerning the establishment, calculation and making available of the Emissions Trading System-based own resource are kept for at least three calendar years following the end of the financial year in relation to which the own resources are made available, or three years following the termination of the relationship with an auction platform, whichever is longer. These documents shall include the following: 

(a)    reports referred to in Article 10(4), last subparagraph, of Directive 2003/87/EC of the European Parliament and of the Council 191;

(b)    documents containing information on auction results as set out in Article 61 of Commission Regulation No 1031/2010.

Member States shall keep supporting documents concerning the calculation and making available of the Carbon Border Adjustment Mechanism-based own resource and the reallocated profits-based own resource until 31 July of the fifth year following the financial year in relation to which the own resources are made available.

2. The time limits provided for in paragraph 1 shall be interrupted if the control and supervision measures referred to in Article 2 of Council Regulation (EU, Euratom) 2021/768 202 of the supporting documents referred to in paragraph 1 shows that a correction or adjustment is required.

3. Where a dispute between a Member State and the Commission concerning the obligation to make available a certain amount of the Emissions Trading System-based, Carbon Border Adjustment Mechanism-based and reallocated profits-based own resources is settled by mutual agreement or by a decision of the Court of Justice of the European Union, the Member State shall transmit the supporting documents necessary for the financial follow-up to the Commission within two months after that settlement.

Article 3 - Administrative cooperation

1. Each Member State shall inform the Commission of the following:

(a)the names of the departments or agencies responsible for establishing, calculating, collecting, making available and controlling the Emissions Trading System-based, Carbon Border Adjustment Mechanism-based and the reallocated profits-based own resources and the basic provisions relating to the role and operation of those departments and agencies;

(b)the general provisions laid down by law, regulation or administrative action and those relating to the accounting procedure concerning the establishment, the calculation or collection, making available and control by the Commission of the Emissions Trading System-based, Carbon Border Adjustment Mechanism-based and reallocated profits-based own resources;

(c)the precise title of all administrative and accounting records in which the Emissions Trading System-based, Carbon Border Adjustment Mechanism-based and reallocated profits-based own resources are entered, in particular those used for drawing up the accounts provided for in Article 5.

Member States shall inform the Commission immediately of any change in the names or provisions referred to in the first subparagraph.

2. The Commission shall, at the request of the Member State having provided the information, transmit to all Member States the information referred to in paragraph 1.

Article 4 - Effects on the GNI-based own resource

For the purposes of setting the uniform rate referred to in Article 5 of Regulation (EU, Euratom) No 609/2014, the revenue referred to in Article 2(1), points (e), (f) and (g), of Decision (EU, Euratom) 2020/2053 shall be added to the revenue referred to in Article 2(1), points (a), (b) and (c), of that Decision in order to calculate the part of the budget to be covered by the GNI-based own resource.

Chapter II - Accounts for Own Resources

Article 5 - Entry in the accounts and reporting

1. The accounts for own resources referred to in Article 6 of Regulation (EU, Euratom) No 609/2014 shall be used for the purposes of Emissions Trading System-based, Carbon Border Adjustment Mechanism-based and reallocated profits based own resources.

2. For own resources accounting purposes, the month shall end no earlier than 1 p.m. on the last working day of the month during which the calculation or the establishment took place.

3. The amounts from the Emissions Trading System-based own resource calculated in accordance with Article 7(1) for a given month shall be entered in the accounts at the latest on the first working day of the second month following the month in which the entitlement was established.

Member States shall make sure that the Commission receives a monthly statement from the platform on these amounts at the latest at the same date as the entering in the accounts.

The twelfths of the Emissions Trading System-based own resource referred to in Article 11(2) shall be entered in the accounts on the first working day of each month. The result of the calculation referred to in Article 12 shall be entered in the accounts annually on the first working day of March of the year following that in which the Commission informed the Member States of the amounts resulting from the calculation.

4. By 31 July of each year, each Member State shall send to the Commission an annual statement with the total amounts of the Carbon Border Adjustment Mechanism-based own resources calculated in accordance with Article 8, including corrections and adjustments calculated in accordance with Article 14.

The amounts from the Carbon Border Adjustment Mechanism-based own resources shall be entered in the accounts annually on the first working day of February of the year following the year in which each Member State sent its annual statement.

5. Each Member State shall send to the Commission by 31 July of the second year following the reporting year an annual statement with the amounts of residual profits reallocated to them as declared by the multinational enterprises in scope of the [Directive on implementation of the global agreement on re-allocation of taxing rights], calculated in accordance with Article 15, including corrections and adjustments calculated in accordance with Article 16.

The twelfths of the reallocated profits-based own resource for a given month, referred to in Article 15, shall be entered in the accounts on the first working day of each month, in the year following the year in which each Member State sent its annual statement.

6. The Commission may adopt implementing acts to establish forms for the own resources’ statements referred to in paragraphs 3 to 5. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 21(2).

Article 6 - Accounting corrections for the Emissions Trading System own resource based on auction revenues

For the Emissions Trading System-based own resource referred to in Article 2(1), point (e)(1) of Decision (EU, Euratom ) 2020/2053, any correction to the monthly statements referred to in Article 5(3), second subparagraph, may only be made for a given year until 31 December of the third year following the year in question, except on points notified before that date either by the Commission or by the Member State concerned.

Chapter III - Calculation of own resources

Article 7 - Calculation of the Emissions Trading System own resource

1. Member States shall make sure that the Emissions Trading System-based own resource referred to in Article 2(1), point (e)(1), of Decision (EU, Euratom) 2020/2053 is calculated by the auction platform by applying the uniform rate determined in Article 2(1), point (e) of that Decision to the number of allowances auctioned multiplied by the auction clearing price referred to in Article 7 of Regulation (EU) No 1031/2010. 

For the purposes of this Regulation, the Union’s entitlement to the Emissions Trading System-based own resource referred to in Article 2(1), point (e)(1), of Decision (EU, Euratom) 2020/2053 shall be established on the day the allowances were auctioned on the basis of the auction clearing price of that day established pursuant to Article 7 of Regulation (EU) No 1031/2010.

2. The Commission shall calculate the amount referred to in Article 2(1), point (e)(2), of Decision (EU, Euratom) 2020/2053 by applying the uniform rate referred to in Article 2(1), point (e), of that Decision to the annual amount of the following allowances, multiplied by the annual average price of allowances referred to in Article 7 of Regulation (EU) No 1031/2010 on the platform selected in accordance to Article 26 of that Regulation: 

(a)allowances freely allocated pursuant Article 10c of Directive 2003/87/EC;

(b)allowances cancelled pursuant to Article 6(1) of Regulation (EU) 2018/842 of the European Parliament and of the Council 21 3;

(c)allowances referred to in Article 10d(4) of Directive 2003/87/EC used for auctioning for the Modernisation Fund referred to in Article 10d(3) of that Directive.

The amount calculated in accordance with the first subparagraph shall be weighted by the volume of each auction.

3. The Commission shall calculate the amount referred to in Article 2(2a) of Decision (EU, Euratom) 2020/2053. The calculations shall be made until the financial year 2030 on the basis of the figures relating to the following:

(a)aggregate GNI at market prices of the second year preceding the relevant financial year (n-2) as transmitted by the Member States to the Commission  in the current financial year pursuant to Article 2 of Regulation (EU) 2019/516 of the European Parliament and of the Council 22 4;

(b)Emissions Trading System amounts corresponding to the revenues established in accordance with paragraphs 1 and 2.

4. For each of the relevant Member States, the sum of the amount calculated by applying the uniform rate of Article 2(1), point (e), of Decision (EU, Euratom) 2020/2053 to the amounts as referred to in Article 2(1), point (e)(2), of that Decision and the application of the mechanism in Article 2(2a) of Decision (EU, Euratom) 2020/2053 shall constitute the ‘total adjustment amount’ to the Emissions Trading System-based own resource.

5. By 31 May of each year, the Commission shall transmit an estimate of the total adjustment amount referred to in paragraph 4 for the following financial year to the Member States.

6. The Commission shall, before the end of May of the following financial year, make an updated estimate of the total adjustment amounts referred to in paragraph 4, based on the data at its disposal at that time. Any appreciable differences in relation to original estimates may be entered in a draft amending budget and give rise to readjustments of the twelfths referred to in Article 11(2) that have been credited since the beginning of the financial year.

Article 8 - Calculation of the Carbon Border Adjustment Mechanism-based own resource

The Carbon Border Adjustment Mechanism-based own resource shall be calculated through the application of the call rate referred to in Article 2(1), point (f), of Decision (EU, Euratom) 2020/2053 on the following:

(a)the price paid by the authorised declarant for the CBAM certificates corresponding to the total embedded emissions declared in accordance with Article 6(2), point (c), of Regulation (EU) [XXX] of the European Parliament and of the Council 23 5 for one year, and

(b)the price paid by the authorised declarant for any cancelled certificates by 30 June of the year of the Carbon Border Adjustment Mechanism declaration in accordance with Article 24 of that Regulation.

 Article 9

Calculation of the reallocated profits-based own resource

1. The reallocated profits-based own resource to be made available shall be calculated by applying the uniform call rate referred to in Article 2(1), point (g), of Decision (EU, Euratom) 2020/2053 to the annual share of residual profit of multinational enterprises reallocated to each Member State.

2. The Commission shall calculate the amounts of the reallocated profits-based own resource for the following year, on the basis of the annual statements referred to in Article 5(5).

Chapter IV - Making available Own Resources

Article 10 - Treasury and accounting arrangements

Article 9 of Regulation (EU, Euratom) No 609/2014 shall apply to the own resources referred to in Article 2(1), points (e), (f) and (g), of Decision (EU, Euratom) 2020/2053.

Article 11 - Making available the Emissions Trading System-based own resource

1. The Member States shall ensure that the amounts calculated pursuant to Article 7(1) are credited by the clearing systems or settlement systems connected to the auction platforms, appointed pursuant to Articles 26 and 30 of Regulation (EU) No 1031/2010, to the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014 or to another account indicated by the Commission, in accordance with Article 44 of Regulation (EU) No 1031/2010 in a timely manner and not later than the first working day of the second month following the month during which the entitlement was established. 

2. The total adjustment amounts referred to in Article 7(4) shall be credited on the first working day of each month, the amounts being one twelfth of the relevant totals in the budget, converted in national currencies at the rates of exchange of the last day of quotation of the calendar year preceding the budget year, as published in the Official Journal of the European Union, C series. Article 10a(2), (4) and (5) of Regulation (EU, Euratom) No 609/2014 shall apply to these monthly twelfths.

Article 12 - Emissions Trading System-based own resource – balancing exercise

1. For each Member State, the Commission shall calculate: 

(a)the difference between the estimate for the total adjustment amount as referred to in Article 7(4), and the result of the calculation of the total adjustment amount on the basis of the most recent GNI and emissions trading system data;

(b)the product of multiplying the total amount resulting from the calculation referred to in point (a) by the percentage that the GNI of each Member State represents in the GNI of all Member States, as applicable on 15 January to the budget in force for the year following that in which the most recent GNI and emissions trading system data was supplied.

2. The difference between the amounts resulting from the calculations in accordance with paragraph 1 for each Member State is the ‘net amount’. The calculation of the net amount shall be definitive and not subject to any further adjustment.

For the purposes of the calculation of the net amount, amounts shall be converted between the national currency and the euro at the rates of exchange of the last day of quotation of the year in which the most recent GNI and Emissions Trading System data was supplied, the rates being those published in the Official Journal of the European Union, C series.

The Commission shall inform the Member States of the amounts resulting from the calculation of the net amount before 1 February of the year following the financial year in which the most recent GNI and Emissions Trading System data was supplied. Each Member State shall enter the net amount in the account referred to in Article 9(1) of Regulation (EU, Euratom) 609/2014 on the first working day of March of the year following that in which the Commission informed the Member States of the amounts resulting from the calculation.

Article 13 - Making available the Carbon Border Adjustment Mechanism-based own resources

The amounts calculated pursuant to Article 8 for each calendar year shall be credited annually on the first working day of February of the year following the year in which each Member State sent its annual statement, converted into national currencies at the rates of exchange of the last day of quotation of the calendar year preceding the budget year when the amounts are called.

Article 14 - Corrections or adjustments to the Carbon Border Adjustment Mechanism-based own Resources

1. Any corrections or adjustments applied, following inspections referred to in Article 2(6b) of Regulation (EU, Euratom) 2021/768 for previous financial years, or for any other reason, shall give rise to a particular adjustment of the entries in the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014. Member States shall include those corrections, after application of the call rate referred to in Article 2(1), point (f), of Decision (EU, Euratom) 2020/2053, in their next annual statement referred to in Article 5(4). The Commission shall inform the Member State about the amount of the particular adjustment to be included in its next annual statement following its on-the-spot inspections. 

2. Corrections and adjustments referred to in paragraph 1 shall be made available on the first working day of February of the year following the year in which each Member State sent its annual statement.

3. No further corrections shall be made to the statements referred to in Article 5(4) after 31 July of the fifth year following the financial year concerned, except on points notified within this time limit either by the Commission or by the Member State.

4. The operations referred to in this Article constitute revenue operations in respect of the financial year in which they are to be entered in the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014.

Article 15 - Making available of the reallocated profits-based own resource

The amounts calculated pursuant to Article 9 for each calendar year shall be credited on the first working day of each month, in the year following the year in which each Member State sent its annual statement, the amounts being one twelfth of the relevant totals in the budget, converted in national currencies at the rates of exchange of the last day of quotation of the calendar year preceding the budget year, as published in the Official Journal of the European Union, C series. Article 10a(2), (4) and (5) of Regulation (EU, Euratom) No 609/2014 shall apply to these monthly twelfths.

Article 16 - Adjustments to the reallocated profits-based own resource

1. Any corrections or adjustments following inspections referred to in article 2(6c) of Regulation (EU, Euratom) 2021/768 for previous financial years, or for any other reason, shall give rise to a particular adjustment of the entries in the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014. The Commission shall inform the Member State about the amount of the particular adjustment to be included in its next annual statement referred to in Article 5(5) following its on-the-spot inspections. Member States shall include other corrections, after application of the call rate referred to in Article 2(1), point (g), of Decision (EU, Euratom) 2020/2053/EU, in their next annual statement referred to in Article 5(5).

2. That particular adjustment shall be made available by twelfths, on the first working day of each month, in the year following the year in which each Member State sent its annual statement.

3. No further corrections shall be made to the statements referred to in Article 5(5) after 31 July of the fifth year following the financial year concerned, except on points notified within this time limit either by the Commission or by the Member State.

4. The operations referred to in this Article constitute revenue operations in respect of the financial year in which they are to be entered in the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014.

Article 17 - Interest on amounts made available belatedly

1. Any delay in making the entry of the Emissions Trading System-based, the Carbon Border Adjustment Mechanism-based and the reallocated profits-based own resource in the account referred to in Article 9(1) of Regulation (EU, Euratom) No 609/2014 shall give rise to the payment of interest by the Member State concerned.

2. The recovery of amounts of interest below EUR 1000 shall be waived.

3. Interest shall be levied at the rates and conditions provided for in Article 12(4) and (5) of Regulation (EU, Euratom) No 609/2014.

4. For the payment of interest referred to in paragraphs 1 and 2, Article 9(2) and (3) of Regulation (EU, Euratom) No 609/2014 shall apply.

CHAPTER V -

PAYMENT UNDER RESERVATION AND REVIEW PROCEDURE

Article 18 - Payment under reservation

1. In the case of a disagreement between a Member State and the Commission concerning corrections and adjustments referred to in Articles 14 and16, the Member State may, when making a payment of the contested amount, express reservations as to the position of the Commission.

Member States shall provide information about these reservations, for the amounts related to the Carbon Border Adjustment Mechanism-based own resources, together with their annual statement referred to in Article 5(4) and, for the amounts related to the reallocated profits-based own resource, together with their statement referred to in Article 5(5). Member States shall notify the lifting of reservations to the Commission as soon as possible.

If the disagreement referred to in the first paragraph is resolved in favour of the Member State, that Member State shall be authorised by the Commission to deduct the amount paid from its next own resources payment or payments.

2. Entry in the account under Article 9(1) of Regulation (EU, Euratom) No 609/2014 of the payment under reservation shall interrupt the period for which interest accrues, as referred to in Article 17.

3. By the end of September of each year, the Commission shall provide an annual information note showing the overview of the total amount paid under reservation and the total amount of reservations lifted during the preceding year.

Article 19 - Review procedure

1. In the case of a disagreement between a Member State and the Commission concerning corrections and adjustments referred to in Articles 14 and 16, the Member State may request the Commission to review its assessment within six months from its receipt. Such request shall provide reasons for the review requested, and include the evidence and supporting documents on which it is based. The request and the ensuing procedure shall not change the obligation of the Member States to make available own resources when they are due to the budget of the Union. 


2. Within three months from the receipt of the request provided for in paragraph 1, the Commission shall notify to the Member State its comments on the reasons provided in the request. In duly justified cases, the Commission may extend this time limit once by another three months and inform the Member State concerned accordingly. Where the Commission finds it necessary to request additional information, the time limit referred to in paragraph 2 shall run from the date of receipt of the requested additional information. The Member State concerned shall provide the additional information within three months. At the request of the Member State concerned, the three month time limit shall be extended once by another three months.


3. Where the Member State cannot provide any further relevant information for the review procedure, it may notify the Commission thereof. The Commission shall then act notify its comments on the basis of the information available. The time limit referred to in paragraph 2 shall in that case run from the date of receipt of that notification.


4. The review procedure shall end at the latest 2 years after the Member State sent its request for the review referred to in paragraph 1.

Chapter VI - Management of cash resources

Article 20 - Requirements on management of cash resources and execution of payment orders

Articles 14 and 15 of Regulation (EU, Euratom) No 609/2014 shall apply to the own resources referred to in Article 2(1), points (e) to (g), of Decision (EU, Euratom) 2020/2053.

Chapter VII - Final provisions

Article 21 - Committee procedure

1. The Commission shall be assisted by a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

Article 22 - Entry into force and application

This Regulation shall enter into force on the day of entry into force of Decision 20xx/xxxx/EU, Euratom amending Decision 2020/2053/EU, Euratom. It shall apply from 1 January 2023.

However, Article 2(3), Article 5(5) and Articles 9, 15 and 16 shall apply from the date of application of the [Directive on implementation of the global agreement on re-allocation of taxing rights] or the day of the entry into force and effect of the Multilateral Convention, whichever is the later.

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