向欧委会提交的CBAM细则评论意见（中/英文）

6月13日，欧委会发布了CBAM过渡期核算及报告细则的草案，并公开征求意见反馈。到征求意见截止时（7月11日晚），一共收到了187份反馈。

In this document, China Chamber of Commerce to the EU (CCCEU) gives feedback to the public consultation on the Draft Implementing Regulation as regards reporting obligations during the transitional period of the CBAM.

General comment

The CBAM requires foreign operators to learn and apply, in less than 18 months, a calculation methodology that is largely built upon the complex monitoring rules of the EU ETS. Despite the fact that the first reporting quarter will start in less than 3 months, the draft regulation in its current form falls far short of providing clarity and legal certainty. In order to avoid a painful and disordered transitional period for producers, importers, and EU authorities alike, we urge the Commission to provide sufficiently clear rules in a timely manner. Because the CO2 calculation methods are difficult to understand, we strongly recommend the Commission provide detailed guidelines with working examples to illustrate the calculation.

Article 2 Definitions

To avoid ambiguity, more definitions should be provided. For example, installation is a key concept and is vaguely defined in Regulation (EU) 2023/956 as a stationary technical unit where a production process is carried out. However, for third country operators unfamiliar with the EU ETS, that definition often led to confusion rather than clarity. The term should therefore be further defined or explained in a guideline with illustrative examples.

The definition raises the question of whether free allowances received under an emission trading scheme will be treated as rebates. In general, more guidance on the carbon price paid in third countries is needed.

Article 4 Calculation of embedded emissions

The calculation of indirect emissions is discussed in Recital 11, but not mentioned in Article 4. If the Implementing Regulation does not intend to further specify the calculation method for indirect emissions, it should at least reiterate the relevant provisions of Regulation (EU) 2023/956.

Knowing what calculation methods will be accepted as a way of derogation is key to stakeholders’ preparation work. Nevertheless, Article 4.2, especially the language of points (a) and (b) that specifies the alternative calculation methods, is startlingly confusing and invites speculation. In addition, there is no criteria for determining “similar coverage and accuracy”. Clarity is needed.

This paragraph allows the declarant, for a limited period of time, to fill the information gap on direct emissions using other methods. A similar situation where the declarant does not have the electricity consumption data is not considered. It is foreseeable that at the beginning of the transitional period the declarants and operators will have difficulties in collecting all the data needed. Detailed rules are therefore needed to cover all possible situations.

Article 5 Use of default values

It is natural to ask what happens if the 20% limit is exceeded. Assuming an operator doesn’t know the actual emissions of a purchased input material that is certain to account for more than 20% of the total emissions of the final product, then according to Article 5, it cannot fill the information gap by using a default value for the input. Thus, in order to report the emissions of the product, the operator has no other choice but to use the default value of the product (note that this choice is not even explicitly allowed in the IR). This scenario shows that Article 5 may unnecessarily obstruct the use of actual emissions and runs afoul of the principle set out in the CBAM Regulation.

Article 9 Modification and correction of CBAM reports

Please check if “reporting periods” should be replaced with “reporting quarters”.

Does this paragraph mean that after the period of time when modification is allowed, if a reporting declarant finds that a report submitted is incorrect or incomplete, it may still request a resubmission or correction? Is there a time limit on the right to make such a request? What is the relationship between the resubmission and correction under Article 9.3 and the correction procedure under Article 14.3?

Article 15 Confidentiality

Given the sensitive nature of the data reported, confidentiality is of paramount importance for third country operators. We note a few proposals to grant European industry access to data collected from third country operators. This is in stark contrast to the principle of fair competition. The slightest data leakage to European producers would jeopardize the credibility of the CBAM in its entirety.

Article 16 Penalties

Too much discretionary power is given to the competent authorities. Occasions of non-compliance of similar severity may be treated differently in different Member States. Therefore, more objective criteria are needed and the monetary range should be narrowed.

Additional comments on indirect emissions

Section 4.3 of Annex IV to Regulation (EU) 2023/956 governs default values for the indirect emissions. With respect to the first paragraph, we suggest the Commission clarify the meaning of the third option, i.e.，the CO2 emission factor of price-setting sources in the country of origin.

Section 6 of Annex IV to Regulation (EU) 2023/956 allows the use of actual emissions in the case of a direct physical link or a power purchase agreement (PPA). We urge the Commission provide guidance on the interpretation of the definition of PPA. Please note that if PPA is to be interpreted too narrowly, producers using renewable electricity will be treated the same as those using fossil fuel electricity, and thus will be punished rather than awarded for their decarbonization efforts. Recognizing the importance of ensuring environmental integrity, the CBAM must not create perverse incentives for the use and deployment of renewable electricity.