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New rules for ensuring a level playing field for sustainable air transport (ReFuelEU Aviation)

Sara Notario , 9 novembre 2023

On 18th October 2023, the Regulation (EU) 2023/2405 on ensuring a level playing field for sustainable air transport (ReFuelEU Aviation) was adopted under Article 100(2) TFEU (Title VI – Transports). The Regulation will enter into force on 1st January 2024, with the exception of some provisions entering into force in January 2025.

One key objective of the EU common transport policy is sustainable development. Under Regulation (EU) 2021/1119 and as part of the “Fit for 55 package”, the EU has established legal obligations to achieve climate neutrality by 2050 and a reduction of net greenhouse gas emissions by at least 55% compared to 1990 by 2030. Air transport plays a crucial role in the Union’s economy as well as its contribution to the fight against climate change. General rules on renewable energy for the transport sector are set out in Directive (EU) 2018/2001.

A ramp-up of production, supply and uptake of sustainable aviation fuels (SAF) – synthetic aviation fuels, aviation biofuels or recycled carbon aviation fuels complying with the Renewable Energy Directive - is deemed necessary to achieve such ambitious objectives. However, the intensified competition for SAF - a limited feedstock – has the potential of leading to shortages of supply, distorting the market and affecting the competitiveness of the aviation sector as a whole, especially in relation to the implementation of the EU Emissions Trading System (Directive 2003/87/EC) and, at the international level, of the International Civil Aviation Organisation’s Carbon Offsetting and Reduction Scheme for International Aviation (Council Decision (EU) 2020/954).

By laying down harmonised rules on the uptake and supply of SAF, the ReFuelEU Aviation Regulation aims at ensuring a level playing field between economic actors globally and across the Union and, more specifically, at preventing divergent requirements that would exacerbate refuelling practices distorting competition between aircraft operators. At the same time, this instrument contributes to increasing shares of SAF introduced at Union airports.

The Regulation applies to aircraft operators (operating at least 500 commercial passenger air transport flights or 52 commercial all-cargo air transport flights), to Union airports (as defined in Article 2, point (1), Directive 2009/12/EC), their respective managing bodies (as defined in Article 2, point (2), Directive 2009/12/EC), as well as aviation fuel suppliers (as defined in Article 2(2), point (38), Directive (EU) 2018/2001). Its scope of application is limited to commercial air transport flights, unless provided otherwise in Article 2(3). Given their exceptional use, military aircrafts and flights used only for operations for humanitarian, repatriation and returns are excluded. The European Commission has the duty to provide, pursuant to Article 2(4), an updated and consolidated list of Union airports and aircraft operators concerned. Pursuant to Article 17, it shall also report to the European Parliament and the Council on the application of the Regulation every four years (starting from 2027).

The Regulation lays down different obligations for three main actors: aviation fuel suppliers, aircraft operators and Union airports.

Pursuant to Article 4, aviation fuel suppliers shall ensure that all aviation fuel made available to aircraft operators at each Union airport contains the minimum shares of SAF (2% from 2025; 6% from 2030; 20% from 2035; 34% from 2040; 42% from 2045; 70% from 2050) as set out in Annex I of the Regulation, including when such minimum shares are reached using renewable hydrogen for aviation and low-carbon aviation fuels. Suppliers must report every year, starting from 2025, relevant information, such as the amount of SAF supplied at each Union airport under Article 10 of the Regulation.

Pursuant to Article 5 and dependent upon exceptions foreseen in this provision, aircraft operators have the obligation of uplifting fuel of at least 90% of the yearly aviation fuel required. They also have the duty to report every year, starting from 2025, to the competent authorities and the EU Aviation Safety Agency (‘the Agency’) relevant information, such as the total amount of aviation fuel uplifted at each Union airport and the total flights operated covered by the Regulation. Given the increase in costs for the use of SAF, aircraft operators might resort to benefits. Yet, under Article 9, they cannot claim benefits for the use of the same SAF under more than one greenhouse gas scheme.

Pursuant to Article 6 of the Regulation, Union airport managing bodies shall take all necessary measures to facilitate access of aircraft operators to aviation fuels containing minimum shares of SAF. Cooperation with the respective Member State is encouraged to develop national policies for the deployment of alternative fuel infrastructure in airports under Article 7, in particular hydrogen.

A further novelty of this Regulation is the establishment of a voluntary environmental labelling scheme for the measurement of the environmental performance of flights, as foreseen in Article 14. Each label consists of the expected carbon footprint per passenger, the expected CO₂ efficiency per kilometre, as determined by the Agency on the basis of standardised and science-based methodology.

Concerning penalties applicable to infringements of the Regulation, this rests within the competence of Member States.

With adoption of the ReFuel EU Aviation, a balancing test between the protection of market competition and sustainable development goals operates. The harmonisation of rules governing SAF at the Union level, on the one side, will allow economic operators to compete on the aviation fuel market on an equal footing and, on the other, will boost the gradual introduction of SAF in the Union aviation market. In view of establishing a more comprehensive approach for sustainable development, a potential future integration of military aircrafts within the scope of the regulation (such an application has been deemed an ‘unnecessary burden’ in casu) could contribute to a deeper achievement of the ambitious objectives set at the Union and international levels.

Reproduction autorisée avec la référence suivante : Sara Notario, New rules for ensuring a level playing field for sustainable air transport (ReFuelEU Aviation), actualité du CEJE n° 38/2023, 9 novembre 2023, disponible sur www.ceje.ch