Key Benefits:
Interested audiences: economic operators involved in the production and distribution chain of biofuels and bioliquids.
Purpose: Implementation of biofuel and bioliquid sustainability criteria.
Entry into force: the text comes into force on the day after its publication.
Notice: the 2020 Energy Code sets a target of 10% renewable energy in the final consumption of energy in the transport sector and a target of 10% reduction in greenhouse gas emissions produced over the entire life cycle of fuels or the energy provided (e.g., electricity consumed in electric vehicles). Only biofuels and bioliquids that meet the criteria for sustainable development, referred to as "sustainability criteria", may be considered to assess the achievement of these objectives. Biofuels and bioliquids that do not meet the sustainability criteria cannot benefit from financial support for their consumption. This Order specifies, on the one hand, the modalities for calculating these objectives and, on the other, the modalities for implementing the sustainability criteria for biofuels and bioliquids.
References: This decree implements articles L. 641-6 to L. 641-8 and L. 661-2 to L. 661-9 of the energy code amended by theOrder No. 2011-1105 of September 14, 2011 transposition of the Directives 2009/28/EC and 2009/30/EC of the European Parliament and the Council of 23 April 2009 in the field of renewable energy and biofuels. This decree contributes to the transposition of these guidelines.
The Prime Minister,
On the report of the Minister of Ecology, Sustainable Development, Transport and Housing,
Having regard to Council Regulation (EC) No. 73/2009 of 19 January 2009 establishing common rules for direct support for farmers, including Article 6, paragraph 1, and Annex II, Part A, and item 9;
Considering the 2009/28/EC directive of the Parliament and the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and repealing Directives 2001/77/EC and 2003/30/EC, including Articles 17-19 and Annex 5;
In light of the Directive 2009/30/EC of the Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC with regard to specifications relating to gasoline, diesel and diesel, as well as the introduction of a mechanism to monitor and reduce greenhouse gas emissions, amending Council Directive 1999/32/EC with respect to the fuel specifications used by inland navigation vessels and repealing the Directive 93/12/EC,
Vu le Customs Codeincluding articles 265, 265 bis A and 266 quindecies;
Considering the energy code, including articles L. 661-2 to L. 661-9;
Considering the environmental code, including its article L. 120-1;
See?Order No. 2011-1105 of September 14, 2011 transposition of the Directives 2009/28/EC and 2009/30/EC of the European Parliament and the Council of 23 April 2009 in the field of renewable energy and biofuels;
The State Council (section of public works) heard,
Decrete:
For the calculation of the rate of 10% in the second paragraph of Article L. 641-6 of the Energy Code:
(a) Only gasoline, diesel, biofuels consumed in road and rail transport and electricity are taken into account in the denominator;
(b) All types of energy, produced from renewable sources, consumed in all modes of transport are taken into account in the numerator;
(c) The contribution of electricity produced from renewable sources and consumed in all types of electric vehicles for the application of points a and b is calculated on the basis of the national average share that represented two years before the year considered electricity produced from renewable sources in total electricity production; In addition, the consumption of electricity from renewable sources by electric road vehicles is considered to represent twice and a half the energy content of the electricity supply produced from renewable sources;
(d) Biofuels and bioliquids produced from waste and residues, cellulosic materials of non-food origin and lignocellulosic materials are counted for double their real calorific value. The list of these biofuels and bioliquids is set by a joint decree of ministers responsible for ecology, energy, customs and agriculture. The order specifies the terms of the double count to exclude any fraudulent use.
The obligation to reduce greenhouse gas emissions under Article L. 641-7 of the Energy Code is implemented under the following conditions:
(a) 6 per cent to be reached by 31 December 2020;
(b) 2% more to be achieved by 31 December 2020, which may be achieved by at least one of the following methods:
(i) The use of electric energy in any type of non-road road vehicle or mobile device, including inland navigation vessels, agricultural and forestry tractors and pleasure craft;
(ii) The use of any technology, including the trapping and storage of carbon dioxide, which could reduce greenhouse gas emissions generated throughout the life cycle of the fuel or energy provided;
(c) 2% additional to be achieved by 31 December 2020, which may be achieved through the use of credits acquired under the greenhouse gas emission quotas provided for in sections L. 229-5 et seq. of the Environmental Code, with a view to reducing emissions in the fuel supply sector.
For the purposes of Article L. 661-2 of the Energy Code, biofuels and bioliquids subject to this Order must meet the durability criteria set out in Articles L. 661-3 to L. 661-6 of the same Code and specified in Articles 4 and 5 of this Order.
However, the sustainability criteria defined in section L. 661-5 are exempted from biofuels and bioliquids produced from waste and residues other than residues from agriculture, aquaculture, fisheries and forestry. The list is set by joint decree of ministers responsible for ecology, energy, customs and agriculture.
For the purposes of Article L. 661-4 of the Energy Code, a joint decree of ministers responsible for ecology, energy, customs and agriculture:
1° Defines the modalities for calculating greenhouse gas emission reductions resulting from the production and use of biofuels and bioliquids for transport;
2° List of facilities listed in III of Article 7 of the above-mentioned Order of September 14, 2011.
I. ― The high-value land in terms of biodiversity, referred to in 1st of Article L. 661-5 of the Energy Code, includes:
1° Primary forests or other wooded areas composed of native gasoline, where there is no clear indication of human intervention and ecological processes are not significantly disrupted;
2° Areas affected by the law or a public person for the protection of nature and areas affected to the protection of ecosystems or rare, threatened or endangered species, recognized by international conventions or agreements or included in the lists established by intergovernmental organizations or the International Union for the Conservation of Nature, subject to their recognition by the European Commission, unless it is established that the production of raw materials did not compromise the objectives of nature
3° Prairies with a high biodiversity value including:
(a) Natural grasslands meeting criteria and located in geographical areas defined by the European Commission;
(b) Non-natural grasslands that, without human intervention, would lose their prairie character and are rich in species and non-degraded, unless it is established that the harvest of raw materials is necessary to preserve the prairie character.
The prohibition set out in 1° of section L. 661-5 applies to lands that were of high value in terms of biodiversity on or after January 1, 2008, whether or not they have retained that character.
II. ― Lands with a significant carbon stock, referred to in 2° of Article L. 661-5, include:
1° Wetlands, that is, permanently covered or saturated water lands or during an important part of the year;
2° Continuous forest areas of a surface of more than one hectare characterized by a tree population of more than five metres high and frondides covering more than 30% of the surface or by a settlement of trees capable of reaching these in situ thresholds;
3° The ranges of more than one hectare characterized by a tree population of a height greater than five metres and frondides covering between 10% and 30% of the surface or by a tree settlement capable of reaching these in situ thresholds, unless it is established that the carbon stock of the area, before and after conversion, meets the conditions set out in Article L. 661-4.
The prohibition set out in 2° of section L. 661-5 does not apply if obtaining raw materials is not likely to compromise the character of these lands as of January 1, 2008.
III. – The prohibition in section L. 661-5, 3°, does not apply if it is established that the cultivation and harvesting of raw materials from peatlands does not involve the drainage of previously undrained soils.
IV. ― The justifications to be provided to avail themselves of the exceptions provided for in 2° and 3° of I, 3° of II and III must be submitted by the producer of raw materials under conditions and in terms defined by joint decree of ministers responsible for ecology, energy, customs and agriculture.
V. ― The requirements and rules and good agricultural and environmental conditions referred to in section L. 661-6 are those set out in Schedule II, items 1 to 5 and 9, of the regulations (EC) referred to in January 19, 2009 and section 6, paragraph 1, of the Regulations.
The economic operators who:
1° Produce or harvest raw materials used for the production of biofuels or bioliquids;
2° Collect, store and market these raw materials in their unprocessed state;
3° Transform raw materials and market intermediate processed products;
4° Produce and market biofuels and bioliquids;
5° Make mixtures of biofuels and bioliquids and market these products;
6° Incorporate these products to produce liquid fuels or fuels, within the meaning of Customs CodeThat they put on consumption.
Each economic operator shall indicate to the agency designated in Article 11 that of the systems provided for in Article L. 661-7 to which it uses to justify that the sustainability criteria have been met. When using a voluntary system or agreement with third countries recognized by the European Commission, it shall transmit to it the reference of the decision of the European Commission recognizing that system or agreement and the documents attesting to its accession to that system or agreement.
In order to demonstrate continuous compliance with sustainability criteria, economic operators that mix batches of raw materials, semi-finished products or biofuels and bioliquids with different durability characteristics use a mass balance system to ensure that:
1° Information on the durability characteristics and volume of each batch remains relevant to characterize the mixture of these lots;
2° The sum of batches that will be taken from the mixture will present the same durability characteristics in the same quantities as the sum of batches that were added to the mixture.
The control provided for in Article L. 661-7 allows to verify whether the system used by the operator is accurate, reliable and fraud-proof. The control assesses the frequency and method of sampling and the validity of the data.
When using the national system, the operator under categories 1 to 5° of section 6 shall prepare and transmit to the customer a certificate of durability that contains all the useful information relating to the durability criteria, for each batch delivered with raw materials, semi-finished products or biofuels and bioliquids.
This includes information on the place of purchase, origin, nature and quantity of products and measures taken to protect soils, water, air, to restore degraded lands, to avoid excessive water consumption in areas where water is scarce and to take into account social requirements.
A joint decree of ministers responsible for ecology, energy, customs and agriculture specifies the conditions for the application of this Article, particularly with regard to the procedure for accession to the national system, the list of information to be included on certifications of sustainability, and the conditions for recognition of certifying bodies.
The operator of Class 6 of Article 6 establishes, in particular with the information collected, a declaration of durability for each batch of biofuels and bioliquids incorporated in fuels and fuels consumed. It shall transmit it to the designated body in section 11 as soon as the consumption is made.
To benefit from the tax benefits attached to these fuels and fuels, it also addresses the declaration of sustainability to the customs administration.
Ministers responsible for ecology, energy, customs and agriculture designate a body responsible for the sustainability of biofuels and bioliquids.
This body creates a dematerialized information system that meets conditions, including for archiving procedures, determined by decree of ministers responsible for ecology, energy, customs and agriculture. It manages this information system that includes the directory of the relevant economic operators, the systems or agreements to which everyone has declared to use and the information contained in the certificates and declarations of sustainability.
It provides economic operators with tools for the implementation of biofuel and bioliquid sustainability criteria.
It manages the national system for the economic operators that use it. As such, it shall take all measures to ensure that economic operators provide reliable information, make available to it, upon request, the data used to compile this information, submit their information to the control of the certifying bodies and justify the existence and frequency of these controls.
It provides its support to the State services in the exercise of their control missions. It provides the ministers responsible for ecology and energy with all the information and data needed to prepare reports to be communicated to the European Commission.
As a transitional measure and until the information system is put into service managed by the designated body in section 11, the Minister for Energy shall carry out the tasks set out in section 11.
Joint decrees of ministers responsible for ecology, energy, customs and agriculture specify the modalities for the implementation of this decree.
The Minister of Ecology, Sustainable Development, Transport and Housing, the Minister of Economy, Finance and Industry, the Minister of Budget, Public Accounts and State Reform, Spokesperson of the Government, the Minister of Agriculture, Food, Fisheries, Rurality and Land Management, and the Minister to the Minister of Energy, Finance and Industry,
Done on 9 November 2011.
François Fillon
By the Prime Minister:
The Minister of Ecology,
Sustainable Development,
Transport and housing,
Nathalie Kosciusko-Morizet
Minister of Economy,
finance and industry,
François Baroin
Minister of Budget, Public Accounts
and state reform,
Government spokesperson,
Valérie Pécresse
Minister of Agriculture, Food,
Fisheries, Rural
and landscaping,
Bruno Le Maire
Minister to the Minister of Economy,
finance and industry,
responsible for the industry,
energy and the digital economy,
Eric Besson
