Key Benefits:
President of the Republic,
On the report of the Prime Minister, the Minister of Economy and Finance and the Minister of Ecology, Sustainable Development and Energy,
Having regard to the Constitution, including article 38;
Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003, establishing a system for the exchange of greenhouse gas emission quotas in the Community and amending Council Directive 96/61/EC, last amended by Directive 2009/29/EC of the European Parliament and the Council of 23 April 2009;
In light of Commission Decision 2011/278/EU of 27 April 2011 defining transitional rules for the whole Union concerning the harmonized allocation of free-of-charge emission quotas in accordance with Article 10 bis of the Directive 2003/87/EC of Parliament and the Council;
Considering Commission Regulation (EU) No. 920/2010 of 7 October 2010 concerning a standardized and secure registry system in accordance with European Parliament and Council Directive 2003/87/EC and Decision No. 280/2004/EC of the European Parliament and Council;
Considering Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, management and other aspects of the auction of greenhouse gas emission quotas in accordance with European Parliament Directive 2003/87/EC and the Council establishing a system for the exchange of greenhouse gas emission quotas in the Community;
In view of Commission Regulation (EU) No 1193/2011 of 18 November 2011 establishing the Union register for the exchange period beginning on 1 January 2013 and for the following exchange periods of the EU's emission quota system in accordance with Directive 2003/87/EC of the European Parliament and the Council and Decision No. 280/2004/EC of the European Parliament and the Council and amending Regulation (EU) No.
Considering the environmental code, including its article L. 120-1;
Vu le monetary and financial code ;
Vu la Act No. 2011-12 of 5 January 2011 bringing various provisions to adapt legislation to European Union law, including Article 2;
Having regard to the advice of the Local Finance Committee (the Standards Assessment Advisory Board) dated 12 April 2012;
The Council of State heard;
The Council of Ministers heard,
Order:
The legislative provisions of the Environmental Code are amended in accordance with sections 2 to 17 below.
I. ― Section L. 229-5 is amended as follows:
1° The first paragraph is replaced by the following:
"The provisions of this section apply to classified facilities and equipment and facilities necessary for the operation of a basic nuclear facility referred to in Article L. 593-3 that reject a greenhouse gas in the atmosphere and carry out one of the activities listed by decree in the Council of State. For the establishment of this list, consideration shall be given to the production capacity or performance of the facility or equipment. » ;
2° After the third paragraph, the following provisions shall be inserted:
" – greenhouse gases are the gases listed in Appendix I of Directive 2003/87/EC of 13 October 2003 and other gaseous components of the atmosphere, both natural and anthropogenic, that absorb and return infrared radiation;
" — a ton of carbon dioxide equivalent is a metric ton of carbon dioxide (CO2) or a quantity of any other greenhouse gases referred to in Appendix II of Directive 2003/87/EC of 13 October 2003 with equivalent global warming potential; "
II.-It is inserted after article L. 229-5 an article L. 229-5-1 as follows:
"Art. L. 229-5-1.-I. ― Public, private and public health institutions of public interest mentioned in theArticle L. 6111-1 of the Public Health Code are excluded from the emission quota system when they adopt measures to achieve emission reductions equivalent to those that would be obtained by maintaining them in this system.
"The State shall submit to the public the list of establishments excluded from the emission quota system and the information relating to the equivalent measures and the monitoring measures referred to in (a) and (b) of Article 27 of Directive 2003/87/EC of 13 October 2003, as provided for in Article L. 120-1.
“II. ― A decree in the Council of State specifies the rules for calculating emission limits applicable to these institutions. »
III.-Article L. 229-6 is amended as follows:
1° The second paragraph is replaced by the following:
"The authorizations provided for in Articles L. 512-1, L. 593-7, L. 593-25 and L. 593-30 and the requirements for the application of these authorizations as provided for in Articles L. 593-10, L. 593-27 and L. 593-32 shall take place from the authorization provided for in the preceding paragraph. » ;
2° In the third paragraph, after the words: "installations", the word "categorized" is inserted;
3° After the third preambular paragraph, a sub-item reads as follows:
"A decision of the Minister for Nuclear Safety, taken after the advice of the Nuclear Safety Authority, sets out the modalities for the implementation of the specific monitoring, reporting and control obligations to which the equipment and facilities referred to in the first paragraph of section L. 593-3 are subject to the scope of this section. »
Article L. 229-7 is amended as follows:
1° The fourth preambular paragraph is deleted;
2° The last paragraph is replaced by the following:
"The operator may, within the limits of the percentages referred to in Article 11 bis of Directive 2003/87/EC of 13 October 2003, fulfil the obligation set out in the fourth paragraph of this Article by means of certain units registered in the Union Register referred to in Article L. 229-16. These units cover:
"- units from the project activities referred to in Article L. 229-22;
" – units from other activities than the above project activities intended to reduce emissions in accordance with multilateral or bilateral agreements concluded by the European Union with third countries;
" – units from a binding system of exchange of emission rights recognized by an agreement between the European Union and the national, sub or supranational entity of which this system depends;
"– units from greenhouse gas emission reduction projects not covered by the community emission quota exchange system and carried out in the territory of a Member State of the European Union.
"The conditions for the use of these units are determined by the acts of execution of the European Union under articles 11 bis, 24 bis and 25 of Directive 2003/87/EC of 13 October 2003. »
Section L. 229-8 is replaced by the following provisions:
"Art. L. 229-8.-I. ― Quotas that are not issued for free are auctioned.
“II. ― The amount of quotas issued free of charge for each facility referred to in the first paragraph of Article L. 229-5 in accordance with Article 10 bis, paragraphs 4 to 7, of Directive 2003/87/EC of 13 October 2003 corresponds to 80% of the amount determined in accordance with the measures referred to in paragraph 1 of this Article of the Directive and then decreases annually in equal quantities to 30% as from 2020.
"By derogation from the above provisions, the amount of quotas free of charge for facilities in sectors or subsectors exposed to a significant risk of carbon leakage is 100% of the quantity determined in accordance with the measures referred to in paragraph 1 of Article 10 bis of this Directive. These sectors and subsectors are determined in accordance with paragraph 13 of Article 10 bis of the same Directive.
"No quota is granted free of charge to electric producers defined in the u of section 3 of Directive 2003/87/EC of 13 October 2003, to capture facilities, pipelines for transport or carbon dioxide storage sites, subject to paragraphs 4 and 8 of Article 10 bis and without prejudice to Article 10 quater of this directive. »
Section L. 229-9 is replaced by the following provisions:
"Art. L. 229-9.-The quantity of quotas issued free of charge is by installation, this amount being the sum of quotas issued by sub-installation under conditions specified by decree in the Council of State. »
In the first paragraph of Article L. 229-11, the words "covered by a plan" are deleted.
In article L. 229-12, the word "five" is replaced by the word "8. »
Section L. 229-13 is replaced by the following provisions:
"Art. L. 229-13.-The quotas issued as of 1 January 2013 are valid for emissions produced during eight-year periods, the first of which begins on 1 January 2013.
"Four months after the beginning of each eight-year period, the quotas that are no longer valid and have not been returned and cancelled are cancelled. Quotas are issued to persons for the current period in order to replace any quota that they held and which was cancelled in accordance with the preceding provision. »
After the second paragraph of Article L. 229-14, it is inserted a paragraph as follows:
"by each operator of the equipment and facilities referred to in the first paragraph of Article L. 593-3 and of the classified facilities referred to in the second paragraph of this Article, of the greenhouse gas emissions of its equipment or installations, verified at the costs of the operator by an organization declared to the administrative authority and accredited to that effect, and then validated by the Nuclear Safety Authority. The declaration of greenhouse gas emissions by an operator shall be deemed to be validated if the Nuclear Safety Authority has not made an observation within a time limit set out in the order provided for in section L. 229-6; "
Article L. 229-15 is amended as follows:
1° The second paragraph of I is deleted;
2° In II, the words: "by any natural person who is a member of the European Community, by any legal person in the European Community and by the Member States themselves" are replaced by the words: "by any natural person and by any legal person, in accordance with the provisions of the regulations made under Article 19 of the Directive of 13 October 2003 regulating the opening of accounts in the Union Register. » ;
3° The second paragraph of II is deleted;
4° In III, the words ", or any supra or subnational entity" are inserted after the words "or any other state".
Section L. 229-16 is replaced by the following provisions:
"Art. L. 229-16.-I. ― A European Register of Greenhouse Gas Emission Quotas records the quotas as well as the units defined in Article L. 229-7 issued, detained, transferred and cancelled in accordance with the terms and conditions set out in the Regulation under Article 19 of Directive 2003/87/EC of 13 October 2003.
“II. ― The role of national administrator for this register is exclusively delegated to a legal entity designated by decree in the Council of State, which also sets out the terms and conditions for the application of this II, including the duties of the delegate and the conditions of his remuneration. »
Section L. 229-17 is replaced by the following provisions:
"Art. L. 229-17.-The State may include, after approval by the European Commission, activities and greenhouse gases that are not mentioned in Annex I to Directive 2003/87/EC of 13 October 2003.
"The application of the emission quota system to the above activities and gases and the allocation of additional quotas avoid potential competition distortions and preserve the environmental integrity of this system. »
Section L. 229-18 is amended as follows:
1° In the third paragraph of I, after the words: "at facilities", the word is inserted: "categorized";
2° After the third paragraph of I, a sub-item is inserted:
" — or where the Nuclear Safety Authority finds that the declaration on the emissions of the equipment and facilities referred to in the first paragraph of Article L. 593-3 or of the classified facilities referred to in the second paragraph of that Article in that year does not meet the conditions set out in the order set out in Article L. 229-6 which is applicable to them. The decision, which must be motivated, then intervenes at the latest on the expiry of the period referred to in Article L. 229-14, III; » ;
3° The third, fourth and fifth sub-items of II are replaced by the following:
"The amount of this fine is set at € 100 per non-restituted quota.
"The administrative authority shall impose a fine in respect of the operator of a facility excluded from the exchange system pursuant to section L. 229-5-1 proportional to the volume of excess emissions. The amount of this fine is fixed by decree. It corresponds to the mean value of the emission quota for the year prior to the emission declaration per ton equivalent carbon dioxide.
"The recovery of these fines is made for the public treasury as in respect of foreign tax and domain claims.
"The decision making the fine may also provide that the name of the operator or agent will be made public when it becomes final.
"In the event that an aircraft operator referred to in section L. 229-5 does not comply with the requirements of this II, it may be subject to an operating ban under the conditions set out in section 16 of Directive 2003/87/EC of 13 October 2003. »
In the second paragraph of Article L. 229-21, the words: "at the end of each five-year period provided for in Article L. 229-8 under the conditions fixed by the decree in the Council of State provided for in Article L. 229-24" are replaced by the words: "at the end of each period referred to in Article L. 229-13 in the conditions fixed by the decree in the Council of State.
Section 3 of chapter IX of title II of Book II is amended to read:
1° The title is supplemented by the words "and other units";
2° Sub-section 3 becomes sub-section 4 and Article L. 229-24-1 becomes Article L. 229-24-2;
3° After L. 229-24, a sub-section 3 is inserted as follows:
"Subsection 3
“Other units
"Art. L. 229-24-1.-I. ― Subject to the fact that France meets the eligibility criteria which, if any, accompany the agreements to which the European Union is a party, any person may acquire, hold and assign units other than those defined in Articles L. 229-22 and L. 229-24 and accepted in accordance with Article L. 229-7.
“II. ― These units are movable property exclusively materialized by an inscription to the account of their holder in the European register referred to in Article L. 229-16. They are negotiable, transmitted by bank transfer and confer identical rights to their holders. They can be surrendered as soon as they are issued. »
In sections L. 229-17, L. 229-18, L. 229-21, L. 229-22, L. 229-23 and L. 229-24, the words "national register referred to in Article L. 229-16" or "national register" are replaced by the words "European register referred to in Article L. 229-16".
The second paragraph of section L. 593-3 is supplemented by the words: ", as well as those provided for in section 2 of chapter IX of title II of Book II with the exception of the decisions to allocate greenhouse gas emission quotas made under sections L. 229-7 to L. 229-9. »
The legislative provisions of the monetary and financial code are amended in accordance with articles 19 to 22 below.
Article L. 561-2 is supplemented by a paragraph as follows:
« 17° Persons authorized under Article L. 621-18-5, Part I. »
2° of Article L. 561-36 is replaced by the following provisions:
« 2° By the Financial Markets Authority on Management Companies and Portfolio Management Corporations, as part of their activities referred to in the 6th of Article L. 561-2, on Central Depositaries and Managers of Financial Instrument Settlement and Delivery Systems, on persons authorized under Article L. 621-18-5 and on financial investment advisors; "
In chapter III of title I of book VI, a section 5 is inserted as follows:
“Section 5
"Authorization of credit institutions and investment companies to submit directly an offer on behalf of their customers at the greenhouse gas emission quota auction
"Art. L. 613-35.-The authorization set out in 3 of Article 18 of Regulation (EU) No 1031/2010 of the European Commission of 12 November 2010 relating to the timing, management and other aspects of the auction of greenhouse gas emission quotas is issued to credit institutions and investment companies by the prudential control authority, after the advice of the Autorité des marchés financiers. The opinion of the latter concerns the conditions referred to in a, b and d of section 59, paragraph 5, of the above-mentioned regulation. The authorization shall be withdrawn according to the same procedure, without prejudice to the penalties provided for in Article L. 612-39. »
An article L. 621-18-5 is inserted as follows:
"Art. L. 621-18-5.-I. ― The Autorité des marchés financiers issues the authorization set out in paragraph 2 of Article 18 of Regulation (EU) No 1031/2010 of the European Commission of 12 November 2010 concerning the timing, management and other aspects of the auction of greenhouse gas emission quotas. Its general regulation specifies the conditions for the issuance and withdrawal of this authorization, if any after the opinion of the Energy Control Board.
“II. ― The Autorité des marchés financiers provides, in respect of persons authorized under I, a control, investigation and sanction authority, under the conditions set out in section 4 of the Single Chapter of Title II of Book VI.
"III. ― The Authority shall establish the procedures for handling complaints addressed to it when a person who has received the authorization referred to in I or section L. 613-35 fails to meet its obligations under paragraphs 2 and 3 of Article 59 of Regulation (EU) No 1031/2010 of the European Commission of 12 November 2010. »
This Order comes into force on January 1, 2013, with the exception of sections 10, 11, 16 and 19 to 22, which apply effective July 1, 2012.
The Prime Minister, the Minister of Economy and Finance and the Minister of Ecology, Sustainable Development and Energy are responsible for the application of this Order, which will be published in the Official Journal of the French Republic.
Done on 28 June 2012.
François Hollande
By the President of the Republic:
The Prime Minister,
Jean-Marc Ayrault
The Minister of Ecology,
Sustainable Development
and energy,
Delphine Batho
Minister of Economy and Finance,
Pierre Moscovici
