Commission Implementing Regulation (EU) 2024/1321of 8 May 2024amending Implementing Regulation (EU) 2018/2067 as regards the verification of data and the accreditation of verifiers(Text with EEA relevance)

(o) any issues of non-compliance with Implementing Regulation (EU) 2018/2066 which have become apparent during the verification;

(p) if approval by the competent authority cannot be obtained in time for the method used to complete the missing data pursuant to Article 43m(1), third subparagraph, of this Regulation a confirmation whether the method used is conservative and whether it does or does not lead to material misstatements;

(q) recommendations for improvements, where applicable;

(r) the names of the EU ETS lead auditor, the independent reviewer and, where applicable, the EU ETS auditor and the technical expert that were involved in the verification of the regulated entity’s report;

(s) the date and signature by an authorized person on behalf of the verifier, including his name.

1. The verifier shall describe the misstatements, non-conformities and non-compliance with Implementing Regulation (EU) 2018/2066 in sufficient detail in the verification report to allow the regulated entity as well as the competent authority to understand the following:

(a) the size and nature of the misstatement, non-conformity or non-compliance with Implementing Regulation (EU) 2018/2066;

(b) why the misstatement has material effect, or not;

(c) to which element of the regulated entity’s report the misstatement refers, or to what element of the monitoring plan the non-conformity refers;

(d) to which Article in Implementing Regulation (EU) 2018/2066 the non-compliance relates.

Article 43s

Limitation of scope

The verifier may conclude that the scope of the verification referred to in Article 43r(1), point (c) is too limited in any of the following situations:

(a) data are missing that prevent a verifier from obtaining the evidence required to reduce the verification risk to the level needed to obtain reasonable level of assurance;

(b) the monitoring plan is not approved by the competent authority;

(c) the monitoring plan does not provide sufficient scope or clarity to conclude on the verification;

(d) the regulated entity has failed to make sufficient information available to enable the verifier to carry out the verification.

Article 43t

Addressing outstanding non-material non-conformities

1. The verifier shall assess whether the regulated entity has corrected the non-conformities indicated in the verification report related to the previous monitoring period according to the requirements on the regulated entity referred to in Article 75q(4) of Implementing Regulation (EU) 2018/2066, where relevant.

If the regulated entity has not corrected those non-conformities pursuant to Article 75q(4) of Implementing Regulation (EU) 2018/2066, the verifier shall consider whether the omission increases or may increase the risk of misstatements.

The verifier shall report in the verification report whether those non-conformities have been resolved by the regulated entity.

1. The verifier shall record in the internal verification documentation details of when and how identified non-conformities are resolved by the regulated entity during the verification.

Article 43u

Improvement of the monitoring and reporting process

1. Where the verifier has identified areas for improvement in the regulated entity’s performance related to points (a) to (d) of this paragraph, it shall include in the verification report recommendations for improvement related to the regulated entity’s performance on those points:

(a) the regulated entity’s risk assessment;

(b) the development, documentation, implementation and maintenance of data flow activities and control activities as well as the evaluation of the control system;

(c) the development, documentation, implementation and maintenance of procedures for data flow activities and control activities as well as other procedures that a regulated entity has to establish pursuant to Implementing Regulation (EU) 2018/2066;

(d) the monitoring and reporting of emissions, including in relation to achieving higher tiers, reducing risks and enhancing efficiency in the monitoring and reporting.

1. During verification following a year in which recommendations for improvement were made in a verification report, the verifier shall check whether the regulated entity has implemented those recommendations for improvement and the manner in which this has been done.

Where the regulated entity has not implemented those recommendations or has not implemented them correctly, the verifier shall assess the impact this has on the risk of misstatements and non-conformities.

Article 43v

Site visits and simplified verification

1. At one or more appropriate times during the verification process, the verifier shall conduct a site visit in order to assess the operation of measuring devices and monitoring systems, to conduct interviews, to carry out the activities required by this Chapter as well as to gather sufficient information and evidence enabling it to conclude whether the regulated entity’s report is free from material misstatements.

When carrying out site visits in accordance with the first subparagraph, the verifier shall also assess the completeness of released fuel streams and released fuel amounts.

1. The regulated entity shall provide the verifier access to its sites.

1. For the purposes of verifying the regulated entity’s emission report, the verifier shall decide, based on the risk analysis, whether visits to additional locations are needed, including where relevant parts of data flow activities and control activities are carried out in other locations such as company headquarters and other off-site offices.

1. By way of derogation from paragraph 1, the verifier may decide not to carry out site visits to regulated entities. This decision shall be based on the following criteria:

(a) the outcome of the risk analysis;

(b) the confirmation that all relevant data can be remotely accessed by the verifier;

(c) the confirmation that the relevant conditions for not carrying out the site visits, pursuant to Article 43w of this Regulation are met;

(d) the confirmation that the mandatory site visits, pursuant to paragraph 7 of this Article, are not applicable to that regulated entity.

The verifier shall inform the regulated entity of its decision without undue delay.

1. The regulated entity shall submit an application to the competent authority requesting the competent authority to approve the verifier’s decision not to carry out the site visit. The application shall at least consist of the following information:

(a) the outcome of the risk analysis;

(b) evidence that the relevant data can be remotely accessed;

(c) evidence that the relevant conditions for not carrying out the site visits, pursuant to Article 43w of this Regulation, are met;

(d) evidence that the mandatory site visits, pursuant to paragraph 7 of this Article, are not applicable to that regulated entity.

The approval of the competent authority shall not be required for regulated entities with low emissions, as specified in Article 75n(1) of Implementing Regulation (EU) 2018/2066.

1. Taking into account the information referred to in paragraph 5, points (a) to (d), the competent authority shall decide whether or not to approve the verifier’s decision not to carry out the site visit.

Where the competent authority has not replied to the application from the regulated entity, in accordance with paragraph 5 within two months upon its receipt, the verifier’s decision is considered approved.

1. The verifier shall always carry out site visits in the following situations:

(a) a regulated entity’s report is verified for the first time by the verifier;

(b) no site visit has been carried out by a verifier in the two reporting periods immediately preceding the current reporting period;

(c) significant modifications of the monitoring plan, in accordance with Article 75b(3) of Implementing Regulation (EU) 2018/2066, were made during the reporting period.

Article 43w

Conditions for not carrying out site visits

The conditions for not carrying out site visits shall be any of the following:

1. the verification of a regulated entity’s report concerns a category A entity, as specified in Article 75e(2), point (a), of Implementing Regulation (EU) 2018/2066, whereby:

(a) the fuel streams released for consumption by the regulated entity are commercial standard fuels;

(b) default values are applied for the calculation factors;

(c) a scope factor of 1 applies for each fuel stream pursuant to Article 75l(1) of Implementing Regulation (EU) 2018/2066;

1. the verification of a regulated entity’s report concerns a regulated entity with low emissions, as defined in Article 75n(1) of Implementing Regulation (EU) 2018/2066;

1. the verification of a regulated entity’s report concerns a category A entity, as specified in Article 75e(2), point (a), of Implementing Regulation (EU) 2018/2066, or a category B entity as specified in Article 75e(2), point (b), of that Implementing Regulation whereby:

(a) the regulated entity covered corresponds to an entity with reporting obligations under national legislation transposing Council Directives 2003/96/EC and (EU) 2020/262, on the basis of the measurement methods used for the purposes of those acts when those methods are based on national metrological control;

(b) the fuel streams covered correspond to energy products subject to national legislation transposing Directives 2003/96/EC and (EU) 2020/262, on the basis of the measurement methods used for the purposes of those acts when those methods are based on national metrological control;

(c) default values are applied for the calculation factors;

(d) a scope factor of 1 applies for each fuel stream pursuant to Article 75l(1) of Implementing Regulation (EU) 2018/2066.

Article 43x

Simplified verification plan and virtual site visits

Articles 34 and 34a shall apply to the verification of regulated entity’s emissions covered by Chapter IVa of Directive 2003/87/EC. For that purpose any reference to operator, installation and aircraft operator shall be read as if it were a reference to the regulated entity.

Article 43y

Scope of accreditation

The verifier shall only issue a verification report to a regulated entity that performs an activity that is covered by activity group No 1c in Annex I to this Regulation for which the verifier has been granted accreditation in accordance with Regulation (EC) No 765/2008 and this Regulation.

Article 43z

Verifier’s procedures and documentation

1. A verifier shall establish, document, implement and maintain one or more procedures for verification activities as provided for in Chapters IIIa, and the procedures and processes required by Annex II to this Regulation. When establishing and implementing these procedures and processes the verifier shall carry out the activities listed in Annex II to this Regulation in accordance with the harmonised standard referred to in that Annex.

1. Articles 41(2) and 42(1) of this Regulation shall apply to the verification of regulated entity’s emissions covered by Chapter IVa of Directive 2003/87/EC.

1. A verifier shall on a regular basis make information available to the regulated entity and other relevant parties in accordance with the harmonised standard referred to in Annex II to this Regulation.

Article 43za

Impartiality and independence

1. A verifier shall be independent from a regulated entity and impartial in carrying out its verification activities.

To ensure independence and impartiality, the verifier and any part of the same legal entity shall not be a regulated entity, the owner of a regulated entity or owned by it nor shall the verifier have relations with the regulated entity that could affect its independence and impartiality. The verifier shall also be independent from bodies that trade emission allowances under the greenhouse gas emission allowances trading system established pursuant to Article 19 of Directive 2003/87/EC.

1. A verifier shall be organised in a manner that safeguards its objectivity, independence and impartiality. For the purposes of this Regulation, the relevant requirements on the structure and organisation of the verifier laid down in the harmonised standard referred to in Annex II shall apply.

1. A verifier shall not carry out verification activities for a regulated entity that poses an unacceptable risk to its impartiality or that creates a conflict of interest for it. The verifier shall not use personnel or contracted persons in the verification of a regulated entity’s report that involves an actual or potential conflict of interest. The verifier shall also ensure that the activities of personnel or organisations do not affect the confidentiality, objectivity, independence and impartiality of the verification. For this purpose, the verifier shall monitor the risks to impartiality and take appropriate action to address those risks.

An unacceptable risk to impartiality or a conflict of interest referred to in the first sentence of the first subparagraph shall be considered to have arisen in particular in either of the following cases:

(a) where a verifier or any part of the same legal entity provides consulting services to develop part of the monitoring and reporting process that is described in the monitoring plan approved by the competent authority, including the development of the monitoring methodology, the drafting of a regulated entity’s report and the drafting of the monitoring plan;

(b) where a verifier or any part of the same legal entity provides technical assistance to develop or maintain the system implemented to monitor and report emissions.

1. A conflict of interest for a verifier in the relations between it and a regulated entity shall be considered to have arisen in particular in either of the following cases:

(a) where the relationship between the verifier and the regulated entity is based on common ownership, common governance, common management or personnel, shared resources, common finances and common contracts or marketing;

(b) where the regulated entity has received consulting services referred to in point (a) of paragraph 3 or technical assistance referred to in point (b) of that paragraph from a consultancy body, technical assistance body or another organisation having relations with the verifier and threatening the impartiality of the verifier.

For the purposes of point (b) of the first subparagraph, the verifier’s impartiality shall be considered compromised where the relations between the verifier and the consultancy body, technical assistance body or the other organisation is based on common ownership, common governance, common management or personnel, shared resources, common finances, common contracts or marketing and common payment of sales commission or other inducement for the referral of new clients.

1. A verifier shall not outsource the closing of the agreement between the regulated entity and the verifier, the independent review or the issuance of the verification report. For the purposes of this Regulation, when outsourcing other verification activities, the verifier shall meet the relevant requirements laid down in the harmonised standard referred to in Annex II.

However, contracting individuals to carry out verification activities shall not constitute outsourcing for the purposes of the first subparagraph if the verifier, when contracting those persons, takes full responsibility for the verification activities performed by contracted personnel. When contracting individuals for carrying out verification activities the verifier shall require these individuals to sign a written agreement that they comply with the procedures of the verifier and that there is no conflict of interest in carrying out these verification activities.

1. A verifier shall establish, document, implement and maintain a process to ensure continuous impartiality and independence of the verifier, parts of the same legal entity as the verifier, other organisations referred to in paragraph 4, and of all personnel and contracted persons involved in the verification. That process shall include a mechanism to safeguard the impartiality and independence of the verifier and shall meet the relevant requirements laid down in the harmonised standard referred to in Annex II.

6a.

When verifying the same regulated entity as in the previous year, the verifier shall consider the risk to impartiality and take measures to reduce the risk to impartiality.

1. As of 2026, where the EU ETS lead auditor undertakes annual verification of emissions covered by Chapter IVa of Directive 2003/87/EC for a period of five consecutive years for a given regulated entity, it shall then take a three consecutive years break from providing verification services to the same regulated entity.;

Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ L 283, 31.10.2003, p. 51, ELI: http://data.europa.eu/eli/dir/2003/96/oj).

Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ L 58, 27.2.2020, p. 4, ELI: http://data.europa.eu/eli/dir/2020/262/oj).

(30) in Article 44, the first subparagraph is replaced by the following:

A verifier issuing a verification report to an operator, an aircraft operator or regulated entity shall be accredited for the scope of activities referred to in Annex I for which the verifier is carrying out the verification of an operator’s or aircraft operator’s report or regulated entity’s report.;

(31) Article 45 is replaced by the following:

Article 45

Objectives of accreditation

During the accreditation process and the monitoring of accredited verifiers, each national accreditation body shall assess whether the verifier and its personnel undertaking verification activities:

(a) have the competence to carry out the verification of operator’s or aircraft operator’s reports or regulated entity’s reports in accordance with this Regulation;

(b) are performing the verification of operator’s or aircraft operator’s reports or regulated entity’s report in accordance with this Regulation;

(c) meet the requirements referred to in Chapter III and, for the purpose of verifying the regulated entity’s report, Articles 43y to 43za.

;

(32) in Article 48(1), point (c) is replaced by the following:

(c) witnessing of a representative part of the requested scope for accreditation and the performance and competence of a representative number of the applicant’s staff involved in the verification of the operator’s or aircraft operator’s report or regulated entity’s report to ensure that the staff are operating in accordance with this Regulation.;

(33) in Article 56, the first subparagraph is replaced by the following:

Where a Member State considers that it is economically not meaningful or sustainable to appoint a national accreditation body or to provide accreditation services within the meaning of Articles 15 or 30f of Directive 2003/87/EC, that Member State shall have recourse to a national accreditation body of another Member State.;

(34) in Article 58(2), the second subparagraph is replaced by the following:

The assessment team shall include at least one person with the knowledge of the monitoring and reporting of greenhouse gas emissions pursuant to Implementing Regulation (EU) 2018/2066 that are relevant for the scope of accreditation and the competence and understanding required to assess the verification activities within the installation, aircraft operator or regulated entity for that scope, and at least one person with the knowledge of relevant national legislation and guidance.;

(35) in Article 62, the introductory sentence is replaced by the following:

Where the national accreditation body has received a complaint concerning the verifier from the competent authority, the operator, aircraft operator, regulated entity or other interested parties, the national accreditation body shall, within a reasonable time but no later than three months from the date of its receipt:;

(36) Article 69 is replaced by the following:

Article 69

Electronic data exchange and use of automated systems

1. Member States may require verifiers to use electronic templates or specific file formats for verification reports in accordance with Article 74(1) or Article 75u of Implementing Regulation (EU) 2018/2066 or in accordance with Article 13 of Delegated Regulation (EU) 2019/331.

1. Standardised electronic templates or file format specifications may be made available for further types of communication between the operator, aircraft operator, regulated entity, verifier, competent authority and national accreditation body in accordance with Article 74(2) or Article 75u of Implementing Regulation (EU) 2018/2066.

;

(37) in Article 71(1), point (a) is replaced by the following:

(a) the anticipated time and place of the verification, including whether a physical or virtual site visit will be carried out;;

(38) in Article 73(1), points (a) and (b) are replaced by the following:

(a) relevant results from checking the operator’s or aircraft operator’s report or regulated entity’s report and the corresponding verification reports, in particular of any identified non-compliance of that verifier with this Regulation;

(b) results from the inspection of the operator, aircraft operator or regulated entity where those results are relevant for the national accreditation body concerning the verifier’s accreditation and surveillance or where those results include any identified non-compliance of that verifier with this Regulation;;

(39) in Article 76, paragraph 1 is replaced by the following:

1. National accreditation bodies, or where applicable national authorities referred to in Article 55(2), shall set up and manage a database and allow access to that database to other national accreditation bodies, national authorities, verifiers, operators, aircraft operators, regulated entities and competent authorities.

The body recognised under Article 14 of Regulation (EC) No 765/2008 shall facilitate and harmonise access to the databases to enable efficient and cost-effective communication between national accreditation bodies, national authorities, verifiers, operators, aircraft operators, regulated entities and competent authorities, and may reconcile those databases into a single and centralised database.

;

(40) Article 77(1) is amended as follows:

(a) points (a) and (b) are replaced by the following:

(a) the planned time and place of the verifications that the verifier is scheduled to perform, including whether a physical or virtual site visit will be carried out;

(b) the address and contact details of the operators or aircraft operators whose emissions, baseline data reports, new entrant data reports or annual activity level reports are subject to its verification;;

(b) the following point (ba) is inserted:

(ba) the address and contact details of the regulated entities whose emission reports are subject to verification;;

(c) point (c) is replaced by the following:

(c) the names of the members of the verification team and the scope of the accreditation under which the operator’s, aircraft operator’s or regulated entity’s activity falls.;

(41) Annexes I and II to Implementing Regulation (EU) 2018/2067 are amended in accordance with the Annex to this Regulation.

Article 2

Entry into force and application

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.