DENMARK Trends and Developments Contributed by: Johannes Grove Nielsen and Camilla Søgaard Hudson, Bech-Bruun
“Member States shall take the necessary meas - ures to ensure that when the ultimate responsi - bility for the purchase of the fuel, or the opera - tion of the ship, or both, is assumed by an entity other than the shipping company pursuant to a contractual arrangement, the shipping company is entitled to reimbursement from that entity for the costs arising from the surrender of allow - ances”. Thus, the EU has left it to the member states to implement measures that ensure shipping com - panies have access to reimbursement when the ultimate responsibility for the purchase of the fuel or the operation of the ship is assumed by an entity other than the shipping company pur - suant to a contractual arrangement. The “operation of the ship” under Article 3gc is to be understood as determining the cargo carried or the route and the speed of the ship, and Article 3gc is to be understood as regulating the ability of the ship-owner to, on a private law basis, redirect the claim. Thus, it is not the pur - pose of the provision to alter the public law obli - gations to report and surrender carbon allow - ances under the EU ETS regulation. Subject to the member states’ regulation of the relationship between national law and EU law, such measures will have to be transposed into the national law of the member states. National implementation in Scandinavia In Denmark, the EU ETS Directive has been transposed into Danish law through Law No 1767 of 28 December 2023 on CO₂ quotas and Executive Order No 1819 of 28 December 2023 on CO₂ quotas, both administered by the Danish Ministry of Climate, Energy and Utilities.
However, there has been no specific implemen - tation of Article 3gc into either the law or the executive order on CO₂ quotas. Instead, the provision has been considered implemented by incorporating the EU ETS regulation as an appendix to the executive order. This Danish implementation model raises questions about whether it provides sufficient grounds to ensure access to reimbursement of costs associated with allowances. The Danish Ministry of Climate, Energy and Utilities has not been delegated the authority to establish rules on a private law basis for recovering costs under the EU ETS regulation. This leaves an apparent risk that the costs, if put to the test, will not be recoverable. In Sweden, Article 3gc has been incorporated into national law through Section 11(b) of the Law on Reporting of Greenhouse Gas Emissions (Lag 2020:1173). The preparatory works clarify that all costs related to the surrendering of allow - ances are recoverable. In Norway, Article 3gc has been incorporated into national law through Section 6 of the CO₂ Quota Law (LOV-2023-12-15-91). The prepara - tory works clarify that the Norwegian provision is a purely private law provision regarding the cost allocation between the ship operator and the decision-maker who influences the ship’s quota- liable emissions. According to this provision, the ship-owner has the right to seek compensation from a third party for costs related to the sur - rendering of quotas. It is further clarified that the provision has no impact on the obligations imposed on the ship-owner under the quota reg - ulations and only regulates the internal matter between the ship-owner and the decision-maker who influences the greenhouse gas emissions.
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