Art. 26

32023R0956 → 02023R0956-20251020

Article 26 Penalties 1. An authorised CBAM declarant who fails to surrender, by 31 May 30 September of each year, the number of CBAM certificates that corresponds to the emissions embedded in goods imported during the preceding calendar year shall be held liable for the payment of a penalty. Such a penalty shall be identical to the excess emissions penalty set out in Article 16(3) of Directive 2003/87/EC and increased pursuant to Article 16(4) of that Directive, applicable in the year of importation of the goods. Such a penalty shall apply for each CBAM certificate that the authorised CBAM declarant has not surrendered. 1a. By way of derogation from paragraph 1 of this Article, where an authorised CBAM declarant fails to surrender the correct number of CBAM certificates as a result of incorrect information provided by a third party, namely an operator, a verifier or an independent person certifying the carbon price documentation referred to in Article 9(2), the competent authority may reduce the penalty referred to in paragraph 1 of this Article. The penalty thus imposed shall be effective, proportionate and dissuasive and shall take into account in particular the duration, gravity, scope, intentional nature or repetition of the non-compliance or the level of cooperation of the authorised CBAM declarant with the competent authority. 2. Where a person other than an authorised CBAM declarant introduces goods into the customs territory of the Union without complying with the obligations under this Regulation, that person shall be held liable for the payment of a penalty. Such a penalty shall be effective, proportionate and dissuasive and shall, depending in particular on the duration, gravity, scope, intentional nature and repetition of such non-compliance and the level of cooperation of the person with the competent authority, be an amount from three to five times the penalty referred to in paragraph 1, applicable in the year of introduction of the goods, for each CBAM certificate that the person has not surrendered. 2a. Paragraph 2 shall also apply to importers other than authorised CBAM declarants, where they exceed the single mass-based threshold. For that purpose, the entirety of the emissions embedded in the goods imported by such an importer in the relevant calendar year shall be taken into account. The payment of the penalty shall release the importer from the obligation to submit a CBAM declaration and to surrender CBAM certificates in respect of those imports. By way of derogation from the first subparagraph of this paragraph, the competent authority may reduce the penalty provided in paragraph 2 of this Article where an importer exceeded the single mass-based threshold by no more than 10 % of that threshold or in cases referred to in Article 17(7a). Such a penalty shall be effective, proportionate and dissuasive and shall not be lower than the penalty provided in paragraph 1. The payment of the penalty shall release the importer from the obligation to submit a CBAM declaration and to surrender CBAM certificates in respect of those imports. 3. The payment of the penalty in accordance with paragraphs 1 and 1a shall not release the authorised CBAM declarant from the obligation to surrender the outstanding number of CBAM certificates in a given year. 4. If the competent authority determines, including in light of the preliminary calculations made by the Commission in accordance with Article 19, that an authorised CBAM declarant has failed to comply with the obligation to surrender CBAM certificates as set out in paragraph 1 of this Article, or that a person has introduced goods into the customs territory of the Union without complying with the obligations under this Regulation as set out in paragraph 2 of this Article, the competent authority shall impose the penalty pursuant to paragraph 1 or 2 of this Article, as applicable. To that end, the competent authority shall notify the authorised CBAM declarant or, where paragraph 2 of this Article applies, the person: (a) that the competent authority has concluded that the authorised CBAM declarant or the person referred to in paragraph 2 of this Article failed to comply with the obligations under this Regulation; (b) of the reasons for its conclusion; (c) of the amount of the penalty imposed on the authorised CBAM declarant or on the person referred to in paragraph 2 of this Article; (d) of the date from which the penalty is due; (e) of the action that the authorised CBAM declarant or the person referred to in paragraph 2 of this Article is to take to pay the penalty; and (f) of the right of the authorised CBAM declarant or of the person referred to in paragraph 2 of this Article to appeal. 4a. For the purposes of paragraphs 1 and 2 of this Article, the competent authority shall calculate the total number of CBAM certificates that should have been surrendered, based on the net mass of the imported goods and by reference to the embedded emissions determined by default values in accordance with the methods set out in Annex IV and taking into account the adjustment for free allocation as referred to in Article 31. 5. Where the penalty has not been paid by the due date referred to in paragraph 4, point (d), the competent authority shall secure payment of that penalty by all means available to it under the national law of the Member State concerned. 6. Member States shall communicate the decisions on penalties referred to in paragraphs 1 and 2 to the Commission and shall register the final payment referred to in paragraph 5 in the CBAM registry.