Input:
COMMISSION REGULATION (EU) No 920/2010
of 7 October 2010
for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (1), and in particular Article 19 thereof,
Having regard to Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (2), and in particular the first subparagraph, second sentence, Article 6(1) thereof,
Having consulted the European Data Protection Supervisor,
Whereas:
(1)
Article 6 of Decision No 280/2004/EC requires the Union and its Member States to apply the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol, adopted by Decision 12/CMP.1 of the Conference of the Parties to the UNFCCC serving as the Meeting of the Parties to the Kyoto Protocol (hereinafter Decision 12/CMP.1), for the establishment and operation of registries and the CITL.
(2)
Article 19(1) of Directive 2003/87/EC establishing greenhouse gas emission allowance trading within the Community (hereinafter ETS) requires that all allowances are held in the Union registry on accounts managed by the Member States. In order to ensure that Kyoto units and allowances can be held on the same Union registry accounts, the Union registry must also conform to the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol, adopted by Decision 12/CMP.1,
(3)
Article 20 of Directive 2003/87/EC requires that an independent transaction log (hereinafter European Union Transaction Log or EUTL) recording the issue, transfer and cancellation of allowances is established. Article 6(2) of Decision No 280/2004/EC requires that information on the issue, holding, transfer, acquisition, cancellation and withdrawal of assigned amount units, removal units, emission reduction units and certified emission reductions and the carryover of assigned amount units, emission reduction units and certified emission reductions is made available to the transaction log.
(4)
Article 19(3) of Directive 2003/87/EC requires that a regulation for a standardised and secured system of registries in the form of standardised electronic databases containing common data elements to track the issue, holding, transfer and cancellation of allowances, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers which are incompatible with the obligations resulting from the Kyoto Protocol is drawn up.
(5)
Each registry established in accordance with Article 6 of Decision No 280/2004/EC should contain at least one Party holding account, one retirement account, and the cancellation and replacement accounts required pursuant to Decision 13/CMP.1 of the Conference of the Parties to the UNFCCC serving as the Meeting of the Parties to the Kyoto Protocol (hereinafter Decision 13/CMP.1), and the Union registry holding all allowances pursuant to Article 19 of Directive 2003/87/EC should contain management accounts and user accounts required to implement the requirements of that Directive. Each account should be created in accordance with standardised procedures to ensure the integrity of the registries system and public access to information held in this system.
(6)
Each registry established in accordance with Article 6 of Decision No 280/2004/EC should issue assigned amount units (hereinafter AAUs) pursuant to Decision 13/CMP.1, whereas allowances should be issued in the Union registry. Registries established in accordance with Article 6 of Decision No 280/2004/EC should ensure that they keep a deposit of AAUs that is equal to the amount of allowances issued by them in the Union registry in order to ensure that any transactions with allowances may be followed up with corresponding transfers of AAUs via a clearing mechanism at the end of each period.
(7)
As Member States have no influence on the amount of allowances that account holders will choose to bank in their registries, any potential future international limitations on the banking of AAUs that serve as deposit for issued allowances would cause serious difficulties for those registries where a disproportionate number of such allowances are held. In order to ensure that the risks Member States face in this regard are shared equally among all Member States, the clearing mechanism should be set up in a way that upon its completion, an amount of AAUs is held in the Union registry's clearing account that is equal to allowances to be banked from the 2008-12 period.
(8)
Transactions with allowances within the Union registry should be carried out through a communication link involving the EUTL, whereas transactions with Kyoto units should be carried out through a communication link involving both the EUTL and the UNFCCC international transaction log (hereinafter ITL). Provisions should be adopted to ensure that Member States that are not able to issue AAUs under the Kyoto Protocol because they have no binding emission reduction commitment are able to continue their equal participation in the Union emissions trading system. Such participation would not be possible in the 2008-12 period as, unlike all other Member States, these Member States would not be able to issue allowances that are linked to AAUs recognised under the Kyoto Protocol. Such equal participation should be allowed through specific mechanisms within the Union registry.
(9)
The EUTL should perform automated checks on all processes in the registries system concerning allowances, verified emissions, accounts and Kyoto units, and the ITL should perform automated checks on processes concerning Kyoto units to ensure that there are no irregularities. Processes that fail these checks should be terminated in order to ensure that transactions in the Union registries system comply with the requirements of Directive 2003/87/EC and the requirements elaborated pursuant to the UNFCCC and the Kyoto Protocol.
(10)
Adequate and harmonised requirements on authentication and access rights should be applied to protect the security of information held in the integrated registries system and records concerning all processes, operators and persons in the registries system should be kept.
(11)
The Central Administrator should ensure that interruptions to the operation of the registries system are kept to a minimum by taking all reasonable steps to ensure the availability of the Union registry and the EUTL and by providing for robust systems and procedures for the safeguarding of all information.
(12)
The registry system should be able to accommodate the introduction of aviation into the scheme for greenhouse gas emission allowance trading within the Union from 1 January 2012 onwards. The majority of tasks emerging from the revision of the ETS, laid down in Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (3), need to be fulfilled only from 1 January 2013 onwards. Those requirements are separate from the functionalities that need to be in place in 2012 due to the introduction of aviation activities into the ETS.
(13)
Because aircraft operators are entitled to surrender a different set of allowances than operators of installations, aircraft operators should be provided a different type of account, the aircraft operator holding account. Allowances issued under the EU ETS Directive's Chapter II covering aviation are different from allowances issued heretofore, since they cover emissions that are for the most part not in the scope of the Kyoto Protocol. As such, they should be marked as different from other allowances.
(14)
Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (4) required that Kyoto units or allowances backed by Kyoto units surrendered by aircraft operators shall only be retired up to the quantity equal to domestic aviation emissions. However, as Member States cannot influence the choice of aircraft operators as to whether they surrender Chapter II allowances or units that may be retired, a centralised surrendering and redistribution system should be set up that guarantees that units surrendered by aircraft operators that may be retired are collected and used first of all to cover the domestic aviation emissions of all the Member States in an equal way. Member States should decide at a later stage how to use any units thus collected that may be retired.
(15)
For the purposes of implementing the ETS review and to accommodate the introduction of aviation in 2012, it is sufficient to merge on a technical level the current ETS registry functions of Member States and leave the technical implementation of Kyoto Protocol registry functions with separate Kyoto Protocol (hereinafter KP) registries operated by Member States.
(16)
To implement the changes introduced by Directive 2009/29/EC and to accommodate the introduction of aviation activities into the ETS in 2012, it is sufficient to merge on a technical level the current ETS registry functions of Member States and leave the technical implementation of registry functions with separate registries operated by Member States for so long as this is necessary. However, such a solution would not be cost-effective, as it would require the maintenance in each Member State of extensive parallel information technology capacities that would be little used. Thus, it is the aim of the Commission and the Member States to work together towards the establishment of a ‘Consolidated System of European Registries’ that would unite the KP registry-related information technology functions of all Member States.
(17)
The modalities determined in this Regulation for the accounting of allowances and Kyoto units and the possibility of setting up of the Consolidated System of European Registries is without prejudice to any future decision by the European Union concerning whether to commit to a joint Union emission reduction target or to separate Member State emission reduction targets under any future international climate change treaty.
(18)
According to Article 19(4) of Directive 2003/87/EC, there needs to be provision for processes for the change and incident management for the Union registry and appropriate modalities for the Union registry to ensure that initiatives of the Member States pertaining to efficiency improvement, administrative cost management and quality control measures are possible. The holding of all allowances in the Union registry should be without prejudice to the maintenance of national registries for emissions not covered by the ETS and the Union registry should provide the same quality of services as national registries.
(19)
As since 2009, the occurrence of VAT-fraud, money laundering and other criminal activities has increased significantly throughout the registries system, there is a need to provide more detailed and robust rules on checking identity information provided by account holders and people requesting to open accounts. In addition, Member State authorities need to be enabled to refuse the opening of an account to those that can be reasonably suspected of wanting to use the registries system for fraudulent purposes. Finally, detailed rules shall be provided to enable the swift and effective provision of data to law enforcement agencies, which should then be able to use data thus obtained for investigation purposes.
(20)
Commission Regulation (EC) No 994/2008 of 8 October 2008 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (5) repealed and replaced Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (6) 2012 onwards. As this Regulation substantially changes the provisions applicable from 1 January 2012 on several regulated areas, the interest of clarity requires that Regulation (EC) No 994/2008 is repealed and replaced in its entirety, while retaining the repeal and replace of Regulation (EC) No 2216/2004 provided for in Regulation (EC) No 994/2008.
(21)
Since Regulation (EC) No 2216/2004 will remain in force until the end of 2011, certain partial amendments of that Regulation are necessary with immediate effect. Those amendments relate to the fight against fraud and other criminal activities and the surrendering process. Obsolete provisions should also be deleted for the sake of clarity. Since the amendments related to anti-fraud activities and to the surrendering process should be applied as soon as possible, this Regulation should enter into force immediately following its publication.
(22)
Regulation (EC) No 2216/2004 should therefore be amended accordingly with immediate effect. That Regulation should be repealed as of 1 January 2012.
(23)
In accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (7) and Decision 13/CMP.1, specific reports should be made public on a regular basis to ensure that the public has access to information held within the integrated system of registries, subject to certain confidentiality requirements.
(24)
Union legislation concerning the protection of individuals with regard to the processing of personal data and on the free movement of such data, in particular Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (8), Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (9) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (10), should be respected where these are applicable to information held and processed pursuant to this Regulation.
(25)
The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SUBJECT MATTER AND DEFINITIONS
Article 1
Subject matter
This Regulation lays down general as well as operational and maintenance requirements concerning the standardised and secured registries system consisting of registries, and the independent transaction log provided for in Article 20(1) of Directive 2003/87/EC and Article 6 of Decision No 280/2004/EC. It also provides for a communication system between the registries system and the International Transaction Log established, operated and maintained by the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC).
Article 2
Definitions
For the purposes of this Regulation, the definitions laid down in Article 3 of Directive 2003/87/EC shall apply. The following definitions shall also apply:
1.
‘account holder’ means a person who holds an account in the registries system;
2.
‘Central Administrator’ means the person designated by the Commission pursuant to Article 20 of Directive 2003/87/EC;
3.
‘competent authority’ means the authority or authorities designated by a Member State pursuant to Article 18 of Directive 2003/87/EC;
4.
‘KP Party’ means a Party to the Kyoto Protocol;
5.
‘trading platform’ is any type of multilateral exchange that brings together or facilitates the bringing together of multiple third-party buying and selling interests as defined in Article 4 of Directive 2004/39/EC of the European Parliament and of the Council (11), where the interests bought and sold are in allowances or Kyoto units;
6.
‘verifier’ means a verifier as defined in Annex I(5)(m) to Commission Decision 2007/589/EC (12);
7.
‘Assigned Amount Units’ or ‘AAUs’ are units issued pursuant to Article 7(3) of Decision No 280/2004/EC;
8.
‘Chapter II allowances’ are allowances issued under Chapter II of Directive 2003/87/EC;
9.
‘Chapter III allowances’ are all allowances not issued under Chapter II of Directive 2003/87/EC;
10.
‘long-term CERs’ or ‘lCERs’ are units issued for an afforestation or reforestation project activity under the CDM which, subject to Decision 5/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, expires at the end of the emission reduction crediting period of the afforestation or reforestation project activity under the CDM for which it was issued;
11.
‘Removal Units’ or ‘RMUs’ are units issued pursuant to Article 3 of the Kyoto Protocol;
12.
‘temporary CERs’ or ‘tCERs’ are units issued for an afforestation or reforestation project activity under the CDM which, subject to Decision 5/CMP.1, expires at the end of the Kyoto Protocol commitment period following the one during which it was issued;
13.
‘process’ means an automated technical means to carry out an action relating to an account or a unit in a registry;
14.
‘transaction’ means a process that includes the transfer of an allowance or Kyoto unit from one account to another account;
15.
‘surrender’ means the accounting of an allowance or a Kyoto unit by an operator or aircraft operator against the verified emissions of her installation or aircraft;
16.
‘cancellation’ means the definitive disposal of a Kyoto unit by its holder without accounting it against verified emissions;
17.
‘deletion’ means the definitive disposal of an allowance by its holder without accounting it against verified emissions;
18.
‘retirement’ means the accounting of a Kyoto unit by a Party to the Kyoto Protocol against the reported emissions of that Party;
19.
‘money laundering’ means the same as defined in Articles 1(2) of Directive 2005/60/EC of the European Parliament and the Council (13);
20.
‘serious crime’ means the same as defined in Article 3(5) of Directive 2005/60/EC;
21.
‘terrorist financing’ means the same as defined in Article 1(4) of Directive 2005/60/EC;
22.
‘registry administrator’ shall refer to the registry administrator of the Union registry or any other Kyoto Protocol registry;
23.
‘national administrator’ shall refer to the entity responsible for managing on behalf of a Member State a set of user accounts under the jurisdiction of a Member State in the Union registry, designated in accordance with Article 6;
24.
‘administrator of an account’ shall refer to the administrator determined for a particular type of account in the third column of Table I-I in Annex I.
CHAPTER II
THE REGISTRIES SYSTEM
Article 3
Registries
1. For the purposes of meeting their obligations as KP Parties and under Article 6 of Decision No 280/2004/EC to ensure the accurate accounting of Kyoto units, each Member State and the Union shall operate a registry (hereinafter ‘KP registry’) in the form of a standardised electronic database that complies with the UNFCCC's requirements concerning registries, and in particular the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol elaborated pursuant to Decision 12/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol.
2. For the purposes of meeting their obligations under Article 19 of Directive 2003/87/EC to ensure the accurate accounting of allowances, from 1 January 2012 onwards Member States shall use the Union registry, which shall also functions as a KP registry for the European Community as a separate KP Party. The Union registry shall provide to national administrators and account holders all the processes described in Chapters IV to VI.
3. By way of derogation from paragraph 1, Member States that are not able to issue AAUs due to reasons other than being determined by the UNFCCC to be ineligible to transfer ERUs, AAUs and CERs in accordance with the provisions of Decision 11/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (hereinafter ‘Member States with no KP registry’) are not required to set up a KP registry.
4. The Union registry and every other KP registry shall conform to the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol elaborated pursuant to Decision 12/CMP.1 and comply with the hardware, network and software and security requirements set out in the Data Exchange and Technical Specifications provided for in Article 71.
Article 4
European Union Transaction Log
1. For the purposes of meeting its obligations under Article 20 of Directive 2003/87/EC to maintain an independent transaction log that records and checks the issue, transfer and cancellations of allowances the Commission shall establish the European Union Transaction Log (EUTL) in the form of a standardised electronic database. The EUTL shall also serve to record all information relating to the holdings and transfers of Kyoto units made available in accordance with Article 6(2) of Decision No 280/2004/EC.
2. The Central Administrator shall operate and maintain the EUTL in accordance with the provisions of this Regulation.
3. The EUTL shall be capable of checking and recording all processes referred to under Article 3(2), and shall conform to the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol elaborated pursuant to Decision 12/CMP.1 and comply with the hardware, network and software requirements set out in the Data Exchange and Technical Specifications provided for in Article 71.
4. The EUTL shall be capable of recording all processes described in Chapters IV to VI.
Article 5
Communication links between registries, the ITL and the EUTL
1. The Union registry and every other KP registry shall maintain a communication link with the UNFCCC's International Transaction Log (hereinafter ‘ITL’) for the purposes of communicating transactions that transfer Kyoto units to or from other KP registries.
2. The EUTL shall also maintain a communication link with the ITL for the purposes of recording and checking transfers referred to under paragraph 1. For this purpose, the ITL communicates all proposed transfers involving a KP registry to the EUTL before the transfer is recorded.
3. The Union registry shall also maintain a direct communication link with the EUTL for the purposes of checking and recording transactions that transfer allowances and the account management processes described in Chapter IV. All transactions involving allowances shall take place within the Union registry, and shall be recorded and checked by the EUTL, but not by the ITL.
4. The Climate Change Committee may decide to consolidate the external communication links, the information technology infrastructure, user account access procedures, and the mechanisms for managing KP accounts of the Union registry with those of all other KP registries into a Consolidated System of European Registries, maintained by the Central Administrator. Upon the adoption of this decision, the Commission shall propose amendments to this Regulation to define the modalities of implementing a Consolidated System of European Registries.
5. The Central Administrator may establish a restricted communication link between the EUTL and the registry of an Accession Country for the purposes of enabling such registries to communicate with the ITL through the EUTL and to record verified emissions data of operators in the EUTL. Those registries must successfully complete all testing and initialisation procedures required of registries before the establishment of this communication link.
Article 6
National administrators and KP registry administrators
1. Each Member State shall designate a national administrator. The Member State shall access and manage its own accounts and the accounts in the Union registry under its jurisdiction through its national administrator. Each Member State's national administrator shall also act as the administrator of its KP registry. The KP registry administrator shall operate and maintain the KP registry of its Member State in accordance with the provisions of this Regulation.
2. The Central Administrator shall operate and maintain the Union registry. The Central Administrator shall also act as the KP registry administrator of the EU KP registry part of the Union registry.
3. The Member States and the Commission shall ensure that there is no conflict of interest among national administrators, the Central Administrator and holders of user accounts.
4. Each Member State shall notify the Commission of the identity and contact details of its national administrator.
5. The Commission shall coordinate the implementation of this Regulation with the registry administrators of each Member State and the Central Administrator. In particular, the Commission shall consult the administrators’ working group of the Climate Change Committee on issues and procedures related to the operation of registries and the implementation of this Regulation. The administrators’ working group shall agree on common operational procedures for the implementation of this Regulation, including change and incident management procedures for the Union registry. Rules of procedure for the registry administrators’ working group shall be adopted by the Climate Change Committee.
6. The Central Administrator, the competent authorities and national administrators shall only perform processes where these are necessary to carry out their respective functions.
CHAPTER III
UNITS
Article 7
Units
1. The Union registry shall be able to hold Chapter II allowances and Chapter III allowances.
2. Each KP registry and the Union registry shall be capable of holding AAUs, ERUs, CERs, RMUs, lCERs and tCERs (collectively referred to as ‘Kyoto units’).
CHAPTER IV
ACCOUNTS
SECTION 1
Provisions applicable to all accounts
Article 8
Accounts
1. The Union registry shall contain the accounts listed under the headings ‘II. Management accounts in the Union registry’ and ‘III. User accounts in the Union registry’ in Annex I.
2. The Union registry and every other KP registry shall contain the accounts listed under the heading ‘I. KP Party accounts in KP registries’ in Annex I.
3. The type of units that may be held by each account type are set out in Annex I, and the type of transactions that may be initiated or received by each account type are set out in Annex II.
Article 9
Account status
1. Accounts shall be in one of the following status: open, inactive, blocked or closed.
2. No processes may be initiated from blocked accounts, except for the surrendering of units, the entering of verified emissions, and the updating of account details.
3. No processes may be initiated from closed accounts. A closed account may not be re-opened, and may not receive any unit transfers.
Article 10
The administering of accounts
1. Every account shall have an administrator who is responsible for administering the account on behalf of a Member State or on behalf of the Union.
2. The administrator of an account is determined for each account type in the third column of Table I-1 in Annex I.
3. The administrator of an account shall have the responsibility to open, suspend access to or close an account, to approve authorised representatives, to permit such changes to account details that require the approval of the administrator, and to initiate transactions if this is requested by the account holder in accordance with Article 19(4).
4. User accounts shall be governed by the laws and fall under the jurisdiction of the Member State of their administrator and the units held in them shall be considered to be situated in that Member State's territory.
Article 11
Notifications from the administrators
The Central Administrator shall notify the holder and the administrator of a Union registry account of the initiation and completion or termination of any process related to the account through an automated mechanism described in the Data Exchange and Technical Specifications provided for in Article 71.
SECTION 2
Opening and updating of accounts
Article 12
Opening of KP Party accounts and management accounts
1. The Commission shall instruct the Central administrator to open the Union's KP Party accounts and all management accounts in the Union registry except the national allowance holding accounts.
2. The competent body of the Member State shall instruct the national administrator to open its national allowance holding account in the Union registry.
3. The instructions referred to in paragraphs 1 and 2 shall contain the information set out in Annex III.
4. Within 20 working days of the instruction, the registry administrator or the Central administrator shall open the KP Party account or management account.
Article 13
Opening of person holding accounts in the Union registry
1. A request for the opening of a person holding account in the Union registry shall be submitted to the national administrator of a Member State. The person requesting the account opening shall provide the information required by the national administrator, which shall include at least the information set out in Annex IV.
2. The Member State of the national administrator may require that EU persons requesting the account opening have their permanent residence or registration in the Member State of the national administrator administering the account.
3. Within 20 working days of the receipt of a complete set of information required in accordance with paragraph 1 and 2 and after approving the required number of authorised representatives in accordance with Article 20 the national administrator shall open a person holding account in the Union registry or inform the person requesting the account opening that it refuses to open the account.
4. If the national administrator refused opening the account, the person requesting the account opening may object to this refusal with the competent authority or relevant authority under national law, who shall either instruct the national administrator to open the account or uphold the refusal in a reasoned decision. Reasons for refusing the opening of an account may be that the person requesting the account opening is under investigation for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.
Article 14
Opening of trading platform holding accounts in the Union registry
1. Trading platforms may submit a request for the opening of a trading platform holding account in the Union registry. This request shall be submitted to the national administrator of a Member State that allows the opening of trading platform holding accounts. The person requesting the account opening shall provide the information required by the national administrator, which shall include the information set out in Annex IV and in Annex V.
2. Trading platforms must conform to the technical requirements described in the Data Exchange and Technical Specifications provided for in Article 71. The Member State of the national administrator may require that EU persons requesting the account opening have their permanent residence or registration in the Member State of the national administrator administering the account.
3. Within 20 working days of the receipt of the complete information required in accordance with paragraphs 1 and 2 and after approving the required number of authorised representatives in accordance with Article 20 the national administrator shall open a trading platform holding account in the Union registry or inform the person requesting the account opening that it refuses to open the account.
4. If the national administrator refused opening the account, the person requesting the account opening may object to this refusal with the competent authority or the relevant authority under national law, who shall either instruct the national administrator to open the account or uphold the refusal in a reasoned decision. Reasons for refusing the opening of an account may be that the person requesting the account opening is under investigation for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.
Article 15
Opening of operator holding accounts in the Union registry
1. Within 20 working days of the entry into force of a greenhouse gas emissions permit for the operation of a new installation, the competent authority issuing the permit shall provide its Member State’s national administrator with the information set out in Annex VII, and the operator shall request the national administrator to open an operator holding account in the Union registry.
2. If the competent authority so decides, the information referred to in paragraph 1 above may also be provided by the operator to the national administrator within the deadline set out in paragraph 1.
3. Within 20 working days of the receipt of all the information referred to in paragraph 1 and after approving the required number of authorised representatives in accordance with Article 20 the national administrator shall open a separate operator holding account for each installation in the Union registry.
Article 16
Opening of aircraft operator holding accounts in the Union registry
1. Within 20 working days from the approval of the monitoring plan of an aircraft operator, or by 1 January 2012, whichever is the later, the competent authority shall provide its national administrator with the information set out in Annex VIII and the aircraft operator shall request the national administrator to open an aircraft operator holding account in the Union registry. Each aircraft operator shall have one aircraft operator holding account.
2. If the competent authority so decides, the information referred to in paragraph 1 above may also be provided by the operator to the national administrator within the deadline set out in paragraph 1.
3. Within 40 working days of the receipt of the information referred to in paragraph 1. and after approving the required number of authorised representatives in accordance with Article 20 the national administrator shall open a separate aircraft operator holding account for each aircraft operator in the Union registry.
Article 17
Opening of verifier accounts in the Union registry
1. A request for the opening of a verifier account in the Union registry shall be submitted to the national administrator. The person requesting the account opening shall provide the information required by the national administrator, which shall include the information set out in Annex IV and Annex V.
2. Within 20 working days of the receipt of all the information referred to in paragraph 1 and after approving the required number of authorised representatives in accordance with Article 20, the national administrator shall open the verifier account in the Union registry.
Article 18
Terms and conditions of account holding
This Article contains no provisions.
Article 19
Authorised representatives
1. Each account shall have at least two authorised representatives. The authorised representative shall initiate transactions and other processes on behalf of the account holder through the website of the registry.
2. The administrator of the account may allow accounts to have additional authorised representatives who may view the account or whose agreement is required in addition to the agreement of an authorised representative to submit a request to carry out any process.
3. The administrator of the account may allow holders of user accounts to enable their accounts to be accessed through a trading platform. Account holders enabling their account to be accessed through a trading platform shall nominate as authorised representative a person who is already the authorised representative of a trading platform holding account.
4. If the authorised representative has no access to the internet, he may also request the administrator of the account to initiate transactions on his behalf, provided that the administrator allows such requests and access was not suspended in accordance with Article 27.
5. The Data Exchange and Technical Specifications may set a maximum number of authorised representatives and additional authorised representatives for each account type. A national administrator may set a lower maximum for its account, but the minimum number of authorised representatives must be three.
6. Authorised representatives and additional authorised representatives must be natural persons over 18 years. All authorised representatives and additional authorised representatives of a single account must be different persons but the same person can be an authorised representative or an additional authorised representative on more than one account. The Member State of the national administrator may require that at least one of the authorised representatives of user accounts must be a permanent resident in the Member State of the national administrator administering the account.
Article 20
Nominating and approval of authorised representatives and additional authorised representatives
1. When requesting the opening of an account, the person requesting the account opening shall nominate at least two authorised representatives, and that person may nominate additional authorised representatives if this is permitted by the administrator of the account.
2. When nominating an authorised representative or additional authorised representative, the person requesting the account opening shall provide the information required by the administrator. That information shall include at least the documents and identification information on the nominee set out in Annex IX.
3. Within 20 working days of the receipt of a complete set of information required in accordance with paragraph 2 the national administrator shall approve an authorised representative or additional authorised representative, or inform the person requesting the account opening that it refuses to approve. Where evaluation of the nominee information requires more time, the administrator may once extend the evaluation process by up to 20 additional working days, and notify the extension to the person requesting the account opening.
4. If the national administrator refused to approve an authorised representative or additional authorised representative, the person requesting the account opening may object to this refusal with the competent authority or the relevant authority under national law, who shall either instruct the national administrator to give its approval or uphold the refusal in a reasoned decision. Reasons for refusing the approval may be that the person nominated as authorised representative or additional authorised representative is under investigation for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.
5. The authorised representative of the ETS central clearing account shall act as the authorised representative of the Central Administrator. The authorised representative of each national allowance holding account shall act as the authorised representative of the national administrator for the Member State holding the national allowance holding account.
Article 21
Updating of account information and information on authorised representatives
1. All account holders shall notify the administrator of the account within 10 working days of any changes to the information submitted for the opening of an account, and for the nomination of an authorised representative or additional authorised representative. Aircraft operators shall notify the administrator of their account within 10 working days if they have undergone a merger of two or more aircraft operators or if they have split into two or more aircraft operators. If the account holder was required to provide evidence for a particular piece of information upon opening the account or the nomination of an authorised representative or additional authorised representative, the notification of changes shall likewise be accompanied with the required evidence. Within 15 working days of the receipt of such a notification and the accompanying evidence, the administrator of the account shall update the information on the account holder or refuse updating and inform the account holder thereof. Objections to such refusals may be raised with the competent authority or the relevant authority under national law in accordance with Articles 13(4), 14(4) or 20(4).
2. The holder of a person holding account, a trading platform holding account, a verifier account or an aircraft operator holding account may not sell or divest of the ownership of its account to another person. The account holder of an operator holding account may only sell or divest of its operator holding account together with the installation linked to the operator holding account.
3. An authorised representative or additional authorised representative may not transfer its status as such to another person.
4. Any account holder may notify the recalling of authorised representatives, provided that there remain at least two authorised representatives. Within 10 working days of the receipt of such a notification, the responsible administrator shall remove the authorised representative.
5. Any account holder may nominate new authorised representatives or additional authorised representatives in accordance with the procedure set out in Article 20.
6. If the administering Member State of an aircraft operator changes in accordance with the procedure set out in Article 18a of Directive 2003/87/EC or due to the enlargement of the European Union the Central Administrator shall update the national administrator of the corresponding aircraft operator holding account. Where the administrator of an aircraft operator holding account changes, the new administrator may require the aircraft operator to submit the account opening information required by the new administrator in accordance with Article 16 and the information required by the new administrator about authorised representatives in accordance with Article 20.
7. Except for the exception provided for in paragraph 6 above, the Member State responsible for managing an account shall not change.
SECTION 3
Closure of accounts
Article 22
Closure of KP Party accounts, management accounts, person holding accounts and trading platform holding accounts
Within 10 working days of the receipt of a request from the account holder to close a KP Party account in the Union registry, a management account, a person holding account or a trading platform holding account administered by it, the administrator shall close the account.
Article 23
Closure of operator holding accounts
1. The competent authority shall notify the national administrator within 10 working days of a greenhouse gas emissions permit being revoked or surrendered for an installation that is, as a result, not covered by any such permit. The competent authority shall also notify the national administrator within 10 working days when it learns that an installation has closed without notifying the competent authority. Within 10 working days of being notified by the competent authority, the national administrator shall record in the Union registry the date on which the greenhouse gas emissions permit expires. Where an installation closes without the permit expiring, the date of closure notified by the competent authority shall be recorded as the permit expiry date.
2. The national administrator may close operator holding accounts by 30 June of the year after the year in which the permit expired if the relevant installation has surrendered an amount of allowances and Kyoto units at least equal to its verified emissions.
Article 24
Closure of aircraft operator holding accounts
Aircraft operator holding accounts shall only be closed by the national administrator if it was instructed by the competent authority to do so because the competent authority has discovered that the aircraft operator merged into another aircraft operator or the aircraft operator has permanently ceased all its operations covered by Annex I to Directive 2003/87/EC, either through a notification by the account holder or through other evidence.
Article 25
Closure of verifier accounts
1. Within 10 working days of the receipt of a request from a verifier to close its account, the national administrator shall close the verifier account.
2. The competent authority may also instruct the national administrator to close a verifier account where one of the following conditions is fulfilled:
(a)
the verifier's accreditation has expired or was withdrawn;
(b)
the verifier ceased its operations.
Article 26
Positive balance on accounts under closure
1. If there is a positive balance of allowances or Kyoto units on an account which an administrator is to close in accordance with Articles 22 to 25 and 28, the administrator shall first request the account holder to specify another account administered by the same administrator to which such allowances or Kyoto units shall then be transferred. If the account holder has not responded to the administrator’s request within 40 working days, the administrator may transfer the allowances to its national allowance holding account in the Union registry and the Kyoto units to a KP Party holding account in its KP registry.
2. If there is a positive balance of allowances or Kyoto units on an account to which access was suspended in accordance with Article 27(3), the competent authority may require in its instruction in accordance with Article 28(1) that the allowances are moved immediately to the relevant national allowance holding account and the Kyoto units are moved immediately to the relevant KP Party holding account.
SECTION 4
Suspension of access to accounts
Article 27
Suspension of access to accounts
1. An administrator may suspend the access of an authorised representative or an additional authorised representative to any accounts in its registry or to processes to which that authorised representative would otherwise have access if the administrator knows or has reasonable grounds to believe that the authorised representative has:
(a)
attempted to access accounts or processes which he is not authorised to access;
(b)
repeatedly attempted to access an account or a process using a non-matching username and password; or
(c)
attempted, or is attempting, to undermine the security of the registry or the registries system.
2. An administrator may suspend the access of all authorised representatives or additional authorised representatives to a specific account where one of the following conditions is fulfilled:
(a)
the account holder died without a legal successor or ceased to exist as a legal person;
(b)
the account holder did not pay its fees;
(c)
the account holder violated the terms and conditions applicable to the account;
(d)
the account holder did not agree to the changes in the terms and conditions set by the national administrator and the Central Administrator;
(e)
the account holder did not provide evidence concerning the changes to account information, or evidence concerning new account information requirements;
(f)
the account holder failed to maintain the required minimum number of authorised representatives for the account;
(g)
the account holder failed to maintain compliance with the Member State requirement to have an authorised representative with a permanent residence in the Member State of the administrator of the account;
(h)
the account holder failed to maintain compliance with the Member State requirement that the account holder have a permanent residence or registration in the Member State of the administrator of the account.
3. The national administrator may suspend access to a person holding account or a trading platform holding account if it considers that their opening should have been refused in accordance with Article 13(3) or Article 14(3).
4. The administrator of the account shall lift the suspension immediately once the situation giving rise to the suspension is resolved.
5. The account holder may object to the suspension of its access in accordance with paragraphs 1 and 3 with the competent authority or the relevant authority under national law within 30 calendar days, who shall either instruct the national administrator to reinstate access or uphold the suspension in a reasoned decision.
6. The competent authority, or in the case of accounts in the Union registry, the Central administrator may also instruct the administrator to implement a suspension.
7. When access to a trading platform holding account is suspended, the administrator shall also suspend access enabled for the trading platform to user accounts in accordance with Article 19(3). When access of authorised representatives and additional authorised representatives of a trading platform holding account is suspended, the administrator shall also suspend their access enabled for the trading platform to user accounts in accordance with Article 19(3).
8. Where the holder of an operator holding account or aircraft operator holding account is prevented from surrendering in the 10 working days preceding the surrender deadline laid down in Article 12(2a) and 12(3) of Directive 2003/87/EC due to suspensions in accordance with paragraphs 1 and 2, the national administrator shall, if so requested by the account holder and following submission of the authorised representative's identity by means of supporting evidence, surrender the number of allowances and ERUs and CERs specified by the account holder.
Article 28
Closure of accounts and removal of authorised representative on the administrator's initiative
1. If the situation giving rise to the suspension of access to accounts pursuant to Article 27 is not resolved within a reasonable period despite repeated notifications, the competent authority may instruct the national administrator to close those person holding accounts or trading platform holding accounts where access is suspended.
2. If a person holding account has a zero balance and no transactions have been recorded during a year, the national administrator may notify the account holder that the person holding account will be closed within 40 working days unless the national administrator receives within that period a request from the account holder that the person holding account be maintained. If the national administrator does not receive any such request from the account holder, the national administrator may close the account.
3. The national administrator shall close any operator holding account when the competent authority has instructed the national administrator to close the account because there is no reasonable prospect of further allowances being surrendered by the installation’s operator.
4. The national administrator may remove an authorised representative or an additional authorised representative if it considers that the approval of the authorised representative or an additional authorised representative should have been refused in accordance with Article 20(3), and in particular if it discovers that the documents and identification information provided in upon nomination were fraudulent or erroneous.
5. The account holder may object to the closure of its account in accordance with paragraph 1 or the removal of its authorised representative or additional authorised representative in accordance with paragraph 4 with the competent authority within 30 calendar days, who shall either instruct the national administrator to reinstate the account or the authorised representative or additional authorised representative or uphold the closure or removal in a reasoned decision.
CHAPTER V
VERIFIED EMISSIONS AND COMPLIANCE
Article 29
Verified emissions data for an installation or aircraft operator
1. Before submitting annual emissions data to the Union registry, each operator and aircraft operator shall select a verifier from the verifiers registered at the national administrator administering its account. If an operator or aircraft operator is also a verifier, it may not select itself as verifier.
2. The national administrator shall enter emissions data for a year between 1 January and 31 March of the following year. Emissions data for an installation may also be entered for a year during the course of that year if the installation's greenhouse gas permit has already expired. The competent authority may decide that instead of the national administrator, the account holder or the verifier (including those competent authorities acting as verifiers) shall be responsible for entering the emissions data within the deadline set out above.
3. Annual emissions data shall be submitted using the format set out in Annex X.
4. Upon the satisfactory verification in accordance with Article 15(1) of Directive 2003/87/EC of an operator’s report on the emissions from an installation during a previous year, or of an aircraft operator's report on the emissions from all aviation activities it performed during a previous year, the verifier shall approve the annual verified emissions.
5. The emissions approved in accordance with paragraph 4. shall be marked as verified in the Union registry by the national administrator. The competent authority may decide that instead of the national administrator, the verifier shall be responsible for marking emissions as verified in the Union registry.
6. The competent authority may instruct the national administrator to correct the annual verified emissions for an installation or an aircraft operator to ensure compliance with the detailed requirements established by the Member State pursuant to Annex V to Directive 2003/87/EC, by entering the corrected verified or estimated emissions for that installation or an aircraft operator for that year into the records of the Union registry.
7. Where, on 1 May of each year, no verified emissions figure has been recorded in the Union registry for an installation or an aircraft operator for a previous year or the verified emissions figure was proven to be incorrect, any substitute emissions figure estimate entered in the Union registry shall be calculated as closely as possible in accordance with the detailed requirements established by the Member State pursuant to Annex V to Directive 2003/87/EC.
Article 30
Blocking of accounts due to a failure to submit verified emissions
1. If, on 1 April of each year the annual verified emissions of an installation or aircraft operator for the preceding year have not been recorded in the Union registry, the Union registry shall set the corresponding operator holding account or aircraft operator holding account to blocked status.
2. When all overdue verified emissions of the installation or aircraft operator for the year have been recorded in the Union registry, the Union registry shall set the account to open status.
Article 31
Calculation of compliance status figures
1. On 1 May of each year, the Union registry shall determine the compliance status figure for the preceding year for every installation and aircraft operator with an open or blocked operator holding account or aircraft operator holding account by calculating the sum of all allowances, CERs and ERUs surrendered for the current period minus the sum of all verified emissions in the current period up to and including the current year, plus a correction factor.
2. The correction factor referred to in paragraph 1. shall be zero if the compliance status figure of the last year of the previous period was greater than zero, but shall remain as the compliance status figure of the last year of the previous period if this figure is less than or equal to zero.
3. The Union registry shall record the compliance status figure for every installation and aircraft operator for each year.
Article 32
Inactive aircraft operator holding accounts
1. If, by the deadline set out in Article 12(2a) of Directive 2003/87/EC for surrendering allowances, a verified emissions value of 0 is entered in the Union registry for an aircraft operator for the previous year in accordance with Article 29, the Union registry shall set the corresponding aircraft operator holding account to inactive status.
2. The Union registry shall set the account to open status when the verified emissions value for year before the current year is not 0.
CHAPTER VI
TRANSACTIONS
SECTION 1
Allocation and issue of allowances
Article 33
National allocation plan tables
1. The EUTL shall contain one national allocation plan table for each Member State for the 2008-2012 period. National allocation plan tables shall include the following information:
(a)
total number of allowances to issue to installations: in a single cell the total number of allowances that will be issued to installations for the period covered by the national allocation plan;
(b)
total number of allowances not allocated to incumbent installations (reserve): in a single cell the total number of allowances (issued or purchased) that are set aside for new entrant installations and auctioning for the period covered by the national allocation plan;
(c)
years: in individual cells for each of the years covered in the national allocation plan in ascending order;
(d)
Installation identification code of every installation that has a valid permit at the moment: in individual cells in ascending order. The installations listed shall include installations unilaterally included under Article 24 of Directive 2003/87/EC and shall not include any installations temporarily excluded under Article 27 of Directive 2003/87/EC;
(e)
Allocated allowances: the allowances to be allocated for a specified year for a specified installation shall be entered into the cell connecting that year to that installation’s identification code.
2. The national allocation plan tables shall follow the format set out in Annex XI.
Article 34
Union aviation allocation table
1. The EUTL shall contain a single Union aviation allocation table for the year 2012. This table shall tabulate the following information:
(a)
the total number of Chapter II allowances to be allocated in the Union in 2012;
(b)
the number of Chapter II allowances already allocated for free to each account holder listed in the table;
(c)
the number of Chapter II allowances not yet allocated by the Member States, shown separately for each Member State;
(d)
the identity of the receivers of the allocation(in the case of allowances allocated through auction, the receiver shall be the auctioneer).
2. The Union aviation allocation table shall follow the format set out in Annex XII.
Article 35
Entry into the EUTL of national allocation plan tables
1. At least 12 months before the start of the 2008-2012 period, each Member State shall notify to the Commission its national allocation plan table, corresponding to the decision taken under Article 11(2)of Directive 2003/87/EC.
2. If the national allocation plan table is based upon the national allocation plan notified to the Commission which was not rejected under Article 9(3) of Directive 2003/87/EC or on which the Commission has accepted proposed amendments, the Commission shall instruct the Central Administrator to enter the national allocation plan table into the EUTL.
Article 36
Entry of allocation decisions in the Union aviation allocation table
If the Chapter II allowance allocation decisions taken by Member States under Article 3e(4), of Directive 2003/87/EC with respect to the year 2012 are in conformity with Directive 2003/87/EC, the Commission shall instruct the Central Administrator to enter the allocation decisions into the Union aviation allocation table in the EUTL.
Article 37
Corrections of national allocation plan tables
1. For the 2008-2012 period, the national administrator shall carry out corrections to the national allocation plan table in the EUTL without notifying the Commission in advance, where:
(a)
a new entrant was granted an allocation;
(b)
the Member State has replenished the reserve through the purchase of allowances;
(c)
an installation's permit has expired and any allocation not yet delivered to its account are moved to the reserve;
(d)
an installation was split into two or more installations;
(e)
two or more installations were merged into one installation.
Those corrections shall not change the total issued quantity of allowances set out in the national allocation plan table.
2. A Member State shall notify in advance any correction other than those referred to in paragraph 1 to its national allocation plan together with each corresponding correction in its national allocation plan table to the Commission. If the correction to the national allocation plan table is based upon the national allocation plan notified to the Commission which was not rejected under Article 9(3) of Directive 2003/87/EC or on which the Commission has accepted amendments and that correction results from improvements in data, the Commission shall instruct the Central Administrator to enter the corresponding correction into the national allocation plan table held in the EUTL.
3. Subsequent to any correction made pursuant to paragraph 2 which occurs after allowances have been issued or allocated, and which reduces the total quantity of allowances for the 2008-2012 period, the national administrator shall transfer the number and type of allowances specified by the Union registry to the Union allowance deletion account for the relevant period.
Article 38
Corrections of the Union aviation allocation table
1. The national administrator may carry out the corresponding corrections to the Union aviation allocation table in the EUTL without notifying the Commission in advance, where:
(a)
a new aircraft operator started operating;
(b)
an auctioneer was awarded Chapter II allowances for auctioning;
(c)
an aircraft operator was split into two or more aircraft operators;
(d)
two or more aircraft operators have merged into a single aircraft operator.
2. Such corrections shall not change the total quantity of Chapter II allowances set out in the Union aviation allocation table.
3. A Member State shall notify any correction other than those referred to in paragraph 1. and required to correct an over-allocation caused by an error by the Commission or a Member State to its Chapter II allowance allocation decision taken under Article 3e, paragraph (4) of Directive 2003/87/EC to the Commission. If the correction is in conformity with Directive 2003/87/EC, the Commission shall instruct the Central Administrator to correct the Union aviation allocation table on the basis of this decision and enter it into the EUTL.
4. After any correction made pursuant to paragraph 2. which occurs after Chapter II allowances have been allocated in accordance with Article 41 and which reduces the total quantity of Chapter II allowances for the 2008-2012 period, the national administrator shall, transfer the number of Chapter II allowances specified by the Central administrator to the Union allowance deletion account for the relevant period.
5. If a merger between aircraft operators involves aircraft operators that are administered by different Member States, the correction under paragraph (1)(d) shall be initiated by the national administrator administering the aircraft operator whose allocation is to be merged into the allocation of another aircraft operator. Before carrying out the correction, consent shall be obtained from the national administrator administering the aircraft operator whose allocation will incorporate the allocation of the merged aircraft operator.
Article 39
Issuance of Chapter III allowances
1. After the national allocation plan table has been entered into the EUTL, the national administrator shall, by 28 February of the first year of the 2008-12 period:
(a)
transfer an amount of AAUs issued for the 2008-2012 period that is equal to the quantity of Chapter III allowances to be issued from a KP Party holding account to the ETS AAU deposit account;
(b)
issue the total quantity of Chapter III allowances set out in the national allocation plan table into its national allowance holding account in the Union registry.
2. Prior to the action referred to in paragraph 1, KP registry administrators shall notify the account ID of the designated ETS AAU deposit account in their KP registry to the Central Administrator.
3. The Union registry shall assign each allowance a unique unit identification code upon their issuance in accordance with paragraph 1.
4. Member States with no KP registry shall not carry out the action under point (a) of paragraph 1.
Article 40
Allocation of Chapter III allowances
1. Without prejudice to Articles 37 and 47, by 28 February of each year, the national administrator shall transfer from the national allowance holding account to the relevant open operator holding account the proportion of the total quantity of Chapter III allowances issued which has been allocated to the corresponding installation for that year in accordance with the relevant section of the national allocation plan table.
2. Where foreseen for an installation in the national allocation plan of the Member State, the national administrator may transfer that proportion at a later date of each year.
3. If an installation is allocated additional Chapter III allowances in the national allocation plan table as a result of corrections in accordance with Article 37, the national administrator shall transfer from the national allowance holding account to the relevant open operator holding account the additionally allocated Chapter III allowances for the current year at the time when instructed to do so by the competent authority.
Article 41
Allocation of Chapter II allowances
1. After the Union aviation allocation table has been entered into the EUTL, the national administrator shall by 28 February 2012, create a quantity of Chapter II allowances on each open aircraft operator holding account that is equal to the allocation set out in the Union aviation allocation table for the holder of that account for that year.
2. The Union registry shall assign each allowance a unique unit identification code upon their creation in accordance with paragraph 1.
3. If an account holder is allocated additional Chapter II allowances in the Union aviation allocation table as a result of corrections in accordance with Article 38, the national administrator shall, when instructed by the competent authority, create an additional quantity of allocated Chapter II allowances on each open aircraft operator holding account that is equal to the additional allocation set out in the Union aviation allocation table for the holder of that account for the current year.
4. Where an inactive aircraft operator holding account does not receive allowances under paragraph 1, those allowances shall not be created in the account should it be subsequently set to open status.
Article 42
Allocation of Chapter III allowances following their sale by Member State
During the 2008-2012 period, if instructed to do so by the competent authority, following a sale of 2008-2012 Chapter III allowances by a Member State, the national administrator shall transfer a quantity of Chapter III allowances from the national allowance holding account to the holding account designated by the competent authority.
SECTION 2
Transfers of allowances and Kyoto units
Article 43
Transfers of allowances by account holders
Upon request of an account holder, the Union registry shall carry out any transfer of allowances held in its Union registry account to any other account in the Union registry, unless such transfer is prevented by the status of the initiating account or the type of allowances that may be held in the acquiring account in accordance with Article 8(3).
Article 44
Transfers of Kyoto units by account holders
Upon request of an account holder, the Union registry shall carry out any transfer of Kyoto units held in a Union registry account to any other account in the Union registry or in a KP registry, unless such transfer is prevented by the status of the initiating account or the Kyoto units that may be held in the acquiring account in accordance with Article 8(3).
Article 45
Minimum holding of Chapter III allowances in Union registry holding accounts administered by the same Member State
1. If a proposed transfer of allowances by an account holder in accordance with Article 43 would result in the total amount of 2008-12 period Chapter III allowances held in all the Union registry accounts administered by the national administrator of a particular Member State dropping below the quantity of Kyoto units required to be held in the KP registry of that Member State under Decision 11/CMP.1 as the commitment period reserve, minus the amount of Kyoto units currently held in the KP registry of that Member State outside of the ETS AAU deposit account and the cancellation account, the EUTL shall reject the proposed transfer.
2. If a proposed transfer of allowances by an account holder in accordance with Article 43 would result in the total amount of 2008-2012 period Chapter III allowances held in all the Union registry accounts administered by the national administrators of the oldest fifteen Member States dropping below the quantity of Kyoto units required to be held in the KP registries of these Member States under Decision 11/CMP.1 as the commitment period reserve of the European Union, minus the amount of Kyoto units currently held in the KP registries of those Member States outside of the ETS AAU deposit accounts and the cancellation accounts, the EUTL shall reject the proposed transfer.
SECTION 3
Surrender of allowances, ERUs and CERs
Article 46
Surrender of allowances
1. An operator or aircraft operator shall surrender allowances for the 2008-2012 period by proposing to the Union registry to:
(a)
move a specified number of 2008-12 period allowances from the relevant operator holding account or aircraft operator holding account into the Union allowance deletion account;
(b)
record the number and type of transferred allowances as surrendered for the emissions of the operator's installation or the emissions of the aircraft operator in the current period.
2. Chapter II allowances may only be surrendered by aircraft operators.
3. An allowance that was already surrendered may not be surrendered again.
Article 47
Surrender of allowances on instruction of the competent authority
If instructed to do so by the competent authority, the national administrator shall surrender part or all of the proportion of the total quantity of allowances issued which has been allocated to an installation or an aircraft operator for a specific year, by recording the number of surrendered allowances for that installation or aircraft operator for the current period.
Article 48
The surrender of CERs and ERUs
1. The surrender of ERUs and CERs by an operator in accordance with Article 11a of Directive 2003/87/EC shall take place through an operator proposing to the Union registry to:
(a)
move a specified number of 2008-2012 period CERs or ERUs from the relevant operator holding account into:
(i)
a KP Party holding account of the administering Member State, in the case of accounts administered by Member States with a KP registry;
(ii)
the cancellation account of the Union registry, in the case of accounts administered by Member States with no KP registry;
(b)
record the number of transferred CERs and ERUs as surrendered for the emissions of the operator's installation in the current period.
2. The surrender of ERUs and CERs by an aircraft operator in accordance with Article 11a of Directive 2003/87/EC shall take place through the aircraft operator proposing to the Union registry to:
(a)
move a specified number of 2008-2012 period CERs or ERUs from the relevant aircraft operator holding account into the aviation surrender set-aside account in the Union registry;
(b)
record the number of transferred CERs and ERUs as surrendered for the emissions of the aircraft operator in the current period.
3. The Union registry shall only allow surrenders of CERs and ERUs up to:
(a)
the maximum quantity set by the national administrator of an operator holding account, in the case of operators;
(b)
for 2012, 15 % of the number of allowances required to be surrendered pursuant to Article 12(2a) of Directive 2003/87/EC in the case of aircraft operators.
4. The Union registry shall reject any request to surrender CERs and ERUs that would surpass the maximum amount of CERs and ERUs that may be surrendered by the operators of a Member State in accordance with the national allocation plan of the Member State.
5. The Union registry shall reject any request to surrender CERs or ERUs that are prohibited from being used in the ETS in accordance with Article 11a of Directive 2003/87/EC.
6. A CER or ERU that was already surrendered may not be surrendered again nor transferred to an operator or person holding account in the EU ETS.
7. The Union registry shall provide automated processes to ensure that account holders cannot surrender units into incorrect accounts under Articles 46 and 48.
SECTION 4
Deletion of allowances and cancellation of Kyoto units
Article 49
Deletion of allowances
1. The Union registry shall carry out any request from an account holder pursuant to Article 12(4) of Directive 2003/87/EC to delete allowances held in the accounts of the account holder by:
(a)
transferring a specified number of allowances from the relevant account into the Union allowance deletion account; and
(b)
recording the number of transferred allowances as deleted for the current year.
2. Deleted allowances shall not be recorded as surrendered for any emissions.
3. The Union registry shall reject the request for the deletion of allowances if it is initiated by an account administered by a Member State that has no KP registry and it would result in a minimum deposited quantity calculated for that Member State in accordance with Article 52 that is lower than the gateway quantity calculated for that Member State in accordance with Article 53.
Article 50
Cancellation of Kyoto units
The Union registry shall carry out any request from an account holder pursuant to Article 12(4) of Directive 2003/87/EC to cancel Kyoto units held in the accounts of the account holder by transferring a specified type and number of Kyoto units from the relevant account into the cancellation account of the account administrator's KP registry.
SECTION 5
Transaction reversal
Article 51
Reversal of finalised processes initiated in error
1. If an account holder or a registry administrator acting on behalf of the account holder unintentionally or erroneously initiated one of the transactions listed in paragraph 2, the account holder may propose to the administrator of its account to carry out a reversal of the completed transaction in a written request. The request shall be duly signed by the authorised representative or representatives of the account holder that are authorised to initiate the type of transaction to be reversed and shall be posted within 5 working days of the finalisation of the process. The request shall contain a statement indicating that the transaction was initiated erroneously or unintentionally.
2. Account holders may propose the reversal of the following transactions:
(a)
allocation of Chapter III allowances;
(b)
allocation of Chapter II allowances;
(c)
surrender of allowances;
(d)
surrender of CERs and ERUs;
(e)
deletion of allowances;
(f)
cancellation of Kyoto units.
3. If the administrator of the account establishes that the request fulfils the conditions under paragraph 1 and the administrator agrees with the request, it may propose the reversal of the transaction in the Union registry.
4. The Union registry shall accept the proposal for reversal, block the units that are to be transferred by the reversal and forward the proposal to the Central Administrator provided that all of the following conditions are met:
(a)
the transaction to be reversed was not completed more than 30 working days prior to the account administrator's proposal in accordance with paragraph 3;
(b)
no operator would become non-compliant for a previous year as a result of the reversal;
(c)
the destination account of the transaction to be reversed still holds the amount of units of the type that were involved in the transaction to be reversed;
(d)
the transaction to be reversed was not yet followed up by a deduction in accordance with Article 52 from the minimum deposited quantity after an accounting transfer made on the basis of the transaction to be reversed;
(e)
the allocation of Chapter III allowances to be reversed was carried out after the expiry date of the installation's permit.
5. The Central Administrator shall approve the proposal within 10 working days. Where the transaction to be reversed involves transfers of Kyoto units from one KP registry to another KP registry, this approval shall only be given if the ITL administrator agreed to reverse the transaction in the ITL.
6. The Union registry may complete the reversal with different units of the same unit type that are on the destination account of the transaction that is being reversed.
SECTION 6
Accounting mechanisms
Article 52
Minimum deposited quantity on the ETS AAU deposit account
1. The EUTL shall record a minimum deposited quantity for each Member State. In the case of Member States with KP registries, the EUTL will prevent transfers of Kyoto units from their ETS AAU deposit account that would result in Kyoto unit holdings on the ETS AAU deposit account that are below the minimum deposited quantity. In the case of Member States with no KP registry, the minimum deposited quantity is a value used in the clearing process.
2. The EUTL shall add a quantity to the minimum deposited quantity after an issue of Chapter III allowances has taken place in accordance with Article 39, where the addition shall be equal to the amount of Chapter III allowances issued.
3. The EUTL shall deduct a quantity from the minimum deposited quantity immediately after:
(a)
a transfer of Chapter III allowances to the Union allowance deletion account has taken place as a result of downwards correction of Chapter III allowances after their allocation in accordance with Article 37(3), where the deduction shall be equal to the amount of Chapter III allowances transferred;
(b)
a set-aside of Kyoto units against surrenders of Chapter III allowances by aircraft operators in accordance with Article 54 has taken place, where the deduction shall be equal to the amount set-aside;
(c)
a cancellation of Kyoto units against deletions of Chapter III allowances in accordance with Article 55(1) has taken place, where the deduction shall be equal to the quantity cancelled;
(d)
a deletion of allowances set out in Article 55(2) took place, where the deduction shall be equal to the quantity deleted.
4. The Central Administrator shall carry out a deduction of a quantity from the minimum deposited quantity recorded in the EUTL after the clearing transactions in accordance with Article 56 have taken place. The deduction shall equal the total amount of Chapter III allowances surrendered by user accounts administered by the national administrator of the Member State for the 2008-12 period; plus the clearing value calculated in accordance with Article 56(3).
Article 53
Gateway quantity and gateway deposit account
1. The EUTL shall record a gateway quantity for each Member State with no KP registry.
2. The EUTL shall add a quantity to the gateway quantity after Chapter III allowances are transferred from a user account administered by a Member State with no KP registry to a user account administered by another Member State, where the addition shall be equal to the amount of Chapter III allowances transferred.
3. The EUTL shall deduct a quantity from the gateway quantity after Chapter III allowances are transferred from a user account administered by a Member State to a user account administered by a Member State with no KP registry, where the deduction shall be equal to the amount of Chapter III allowances transferred.
4. The EUTL will not allow any transfer of Chapter III allowances out of accounts administered by a Member State with no KP registry that would result in a gateway quantity that is higher than the amount of Kyoto units held in the gateway deposit account for that Member State.
5. Until 1 July 2013 or the completion of the clearing set out in Article 56, whichever is later, the EUTL will not allow any transfer of Kyoto units out of the gateway deposit account for a particular Member State with no KP registry that would result in holdings on the gateway deposit account for the Member State that are lower than the gateway quantity.
6. After 1 July 2013 or the completion of the clearing set out in Article 56, whichever is later, the Central Administrator shall reset the gateway quantity to zero and empty the gateway deposit account through transfers carried out in the following order of precedence:
(a)
transfers in accordance with in Article 54(2);
(b)
transfers to the ETS AAU deposit account of the Member State served by the gateway up to the quantity needed to ensure the banking of all Chapter III allowances in accordance with Article 57;
(c)
transfers to the KP Party holding account of the European Union up to the amount of any previous transfers from that account to the gateway deposit account;
(d)
transfers to the KP Party holding account of the Member State served by the gateway deposit account.
Article 54
Setting aside of AAUs against surrenders of Chapter III allowances by aircraft operators
1. By 5 May 2013 and each year thereafter, KP registry administrators of Member States with KP registries shall transfer to the aviation surrender set-aside account in the Union registry an amount of AAUs that is equal to the amount of Chapter III allowances surrendered for the current period by aircraft operators pursuant to Article 46 between 1 May of the preceding year and 30 April of the current year.
2. By 1 July 2013 or when the clearing process in Article 56 is completed, whichever is later, the Central Administrator shall transfer from the gateway deposit account of a Member State with no KP registry to the aviation surrender set-aside account in the Union registry an amount of Kyoto units that is equal to the lower of the following:
(a)
the total amount of Chapter III allowances surrendered from aircraft operator holding accounts administered by that Member State with no KP registry;
(b)
the total amount of units held on the gateway account.
Article 55
Cancellation of Kyoto units against deletions of Chapter III allowances
1. By 5 May 2013 and each year thereafter each KP registry administrator shall transfer an amount of AAUs, ERUs or CERs, but not lCERs or tCERs to the cancellation account in the Union registry. The transferred amount shall be equal to the amount of Chapter III allowances deleted in accordance with Article 49 from user accounts administered by its Member State between 1 May of the preceding year and 30 April of the current year.
2. By way of derogation from paragraph 1 a registry administrator is not obliged to transfer to the cancellation account in the Union registry amounts of AAUs, ERUs, or CERs equal to deletions which meet one of the following conditions:
(a)
the deletion was carried out in an account administered by a Member State that has no KP registry;
(b)
the deletion took place after 30 April of the year following the last year of the period.
Article 56
Clearing of allowance transfers
1. After the end of the 2008-2012 period, in order to ensure that transfers of Chapter III allowances between accounts administered by national administrators of different Member States are followed up with an equal amount of Kyoto units transferred between KP registries, paragraphs 2 to 4 shall apply.
2. On the first working day following 1 June 2013, or the day after all changes to minimum deposit quantities related to downwards corrections to allowances set out in Article 52(3)(a) are completed, whichever is later, the Central Administrator shall calculate a clearing value for each Member State and notify the national administrators thereof.
3. In the case of Member States with a KP registry, the clearing value shall be equal to:
(a)
the minimum deposit quantity on 1 June; minus
(b)
the total amount of Chapter III allowances surrendered by operators administered by the national administrator of the Member State for the 2008-12 period.
4. In the case of Member States with no KP registry, the clearing value shall be equal to the gateway quantity calculated in accordance with Article 53 on 1 June 2013.
5. Within 5 working days of the notification set out in paragraph 2, each KP registry administrator whose Member State has a positive clearing value shall transfer an amount of AAUs equal to the clearing value to the ETS central clearing account in the Union registry. In the case of Member States with no KP registry, this transfer shall be carried out by the Central Administrator from the gateway deposit account for the Member State with no KP registry.
6. Within 5 working days of the completion of the transfers set out in paragraph 5, the Central Administrator shall transfer an amount of AAUs from the ETS central clearing account in the Union registry to a KP Party holding account in the KP registry of each Member State with a negative clearing value that is equal to the positive equivalent of the clearing value. In the case of Member States with no KP registry, this amount shall be transferred to the gateway deposit account.
Article 57
Banking between periods
Within 10 working days of the completion of the clearing transactions set out in Article 56, the Union registry shall delete Chapter III allowances and Chapter II allowances valid for the 2008-2012 period held in user accounts in the Union registry and issue an equal amount of Chapter III allowances valid for the 2013-2020 period to the same accounts.
Article 58
Retirement of AAUs, ERUs or CERs against the domestic aviation emissions of aircraft operators
1. By 30 September of the year following the year of entry into force of this Regulation, the Central Administrator shall transfer an amount of Kyoto units from the aviation surrender set-aside account in the Union registry to the Party holding account of each Member State that is equal to those verified emissions by aircraft operators that are included in the national inventory under the UNFCCC of that Member State for that year. The amounts thus transferred shall constitute of AAUs to the extent possible. If the AAUs in the aviation surrender set-aside account are not sufficient for completing all transfers, the Central Administrator shall preferentially transfer AAUs to those Member States whose domestic aviation emissions are lower than the amount of AAUs they transferred into the aviation surrender set-aside account in accordance with Article 54(1).
2. If the holdings of the aviation surrender set-aside account are not enough to carry out the transfer set out in paragraph 1, all amounts to be transferred shall be reduced with a factor that shall equal the total units held on the aviation surrender set-aside account divided by the total amount of units required to be transferred.
CHAPTER VII
TECHNICAL REQUIREMENTS OF THE REGISTRIES SYSTEM
SECTION I
Availability
Article 59
Availability and reliability of the Union registry and the EUTL
1. The EUTL shall respond to any message from any registry within 24 hours of its receipt.
2. The Central Administrator shall take all reasonable steps to ensure that:
(a)
the Union registry is available for access by account holders 24 hours a day, 7 days a week;
(b)
the communication links referred to in Article 5(1) and (2) between the Union registry and the EUTL are maintained 24 hours a day, 7 days a week;
(c)
backup hardware and software necessary in the event of a breakdown in operations of the primary hardware and software is provided for;
(d)
the Union registry and the EUTL respond promptly to requests made by account holders.
3. The Central Administrator shall ensure that the Union registry and EUTL incorporate robust systems and procedures for the safeguarding of all data and the prompt recovery of all data and operations in the event of a disaster.
4. The Central Administrator shall keep interruptions to the operation of the Union registry and EUTL to a minimum.
Article 60
Helpdesks
1. National administrators shall provide assistance and support to holders of accounts in the Union registry that are administered by them through national helpdesks.
2. The Central Administrator shall provide support to national administrators through a Central Helpdesk for the purposes of helping them to provide assistance in accordance with paragraph 1.
SECTION 2
Security, and authentication
Article 61
Authentication of registries and the EUTL
1. The identity of the Union registry shall be authenticated towards the EUTL with digital certificates and usernames and passwords as indicated in the Data Exchange and Technical Specifications provided for in Article 71.
2. The Member States and the Union shall use the digital certificates issued by the Secretariat to the UNFCCC, or an entity designated by it, to authenticate their registries to the ITL for the purposes of establishing the communication link referred to in Article 5.
Article 62
Accessing accounts in the Union registry
1. Account holders shall be able to access their accounts in the Union registry through the secure area of the Union registry. The Central administrator shall ensure that the secure area of the Union registry website is accessible through the Internet. The website of the Union registry shall be available in all languages of the European Union.
2. The Central administrator shall ensure that accounts in the Union registry where access through trading platforms in accordance with Article 19(3) is enabled and one authorised representative is also the authorised representative of a trading platform holding account are accessible to the trading platform operated by the holder of that trading platform holding account.
3. Communications between authorised representatives or trading platforms and the secure area of Union registry shall be encrypted in accordance with the security requirements set out in the Data Exchange and Technical Specifications provided for in Article 71.
4. The Central administrator shall take all necessary steps to ensure that unauthorised access to the secure area of the Union registry website does not occur.
5. If the security of the credentials of an authorised representative or additional authorised representative has been compromised, the authorised representative or additional authorised representative shall immediately inform the administrator of the account thereof and request a replacement.
Article 63
Authentication and authorisation of authorised representatives in the Union registry
1. The Union registry shall issue each authorised representative and additional authorised representative with a username and password to authenticate them for the purposes of accessing the registry.
2. An authorised representative or additional authorised representative shall only have access to the accounts within the Union registry which he is authorised to access and shall only be able to request the initiation of processes which he is authorised to request pursuant to Article 19. That access or request shall take place through a secure area of the website of the Union registry.
3. In addition to the username and password referred to in paragraph 1, national administrators shall provide secondary authentication to all accounts administered by them. The types of secondary authentication mechanisms that can be used to access the Union registry shall be set out in the Data Exchange and Technical Specifications provided for in Article 71.
4. The administrator of an account may assume that a user who was successfully authenticated by the Union registry is the authorised representative or additional authorised representative registered under the provided authentication credentials, unless the authorised representative or additional authorised representative informs the administrator of the account that the security of his credentials has been compromised and requests a replacement.
Article 64
Suspension of all access by authorised representatives due to a security breach
1. The Central Administrator may suspend access to the Union registry or the EUTL if there is a breach of security of the Union registry or the EUTL which threatens the integrity of the registries system, including the back-up facilities referred to in Article 59.
2. The administrator of a KP registry may suspend access by all users to its KP registry if there is a breach of security of the KP registry which threatens the integrity of the registries system, including the back-up facilities referred to in Article 59.
3. In the event of a breach of security that may lead to suspension of access, the administrator who becomes aware of the breach shall promptly inform the Central Administrator of any risks posed to other parts of the registries system. The Central Administrator shall then inform all other administrators.
4. If an administrator becomes aware of a situation that requires the suspension of all access to its system, it shall inform the Central Administrator and account holders with such prior notice of the suspension as is practicable. The Central Administrator will then inform all other administrators as soon as possible.
5. The notice referred to in paragraph 3 shall include the likely duration of the suspension and shall be clearly displayed on the public area of that KP registry’s website or on the public area of the EUTL's website.
Article 65
Suspension of processes
1. The Commission may instruct the Central Administrator to temporarily suspend the acceptance by the EUTL of some or all processes originating from a KP registry, if that registry is not operated and maintained in accordance with the provisions of this Regulation and shall immediately notify the administrator of the KP registry thereof.
2. The Commission may instruct the Central Administrator to temporarily suspend the acceptance by the EUTL of some or all processes originating from the Union registry, if it is not operated and maintained in accordance with the provisions of this Regulation and shall immediately notify national administrators thereof.
3. The administrator of a KP registry may request the Central Administrator to temporarily suspend the transmission of all or some of the processes to its KP registry for the purposes of carrying out maintenance on its KP registry.
4. The Central administrator may temporarily suspend the initiation or acceptance of some or all processes in the Union registry for the purposes of carrying out scheduled maintenance on the Union registry.
5. A KP registry administrator may request the central administrator to reinstate processes suspended in accordance with paragraph 1 if it estimates that the outstanding issues that caused the suspension have been resolved. The Central administrator shall inform the registry administrator of its decision as soon as possible.
SECTION 3
Automated checking, recording and completing of processes
Article 66
Automated checking of processes
1. All processes must conform to the general IT-requirements of electronic messaging that ensure the successful reading, checking and recording of a process by the Union registry. All processes must conform to the specific process-related requirements set out in Chapters IV to VI of this Regulation.
2. The EUTL shall conduct automated checks for all processes to identify irregularities, hereinafter referred to as ‘discrepancies’, whereby the proposed process does not conform to the requirements of Directive 2003/87/EC and of this Regulation.
Article 67
Detection of discrepancies
1. In case of processes completed through the direct communication link between the Union registry and the EUTL referred to in Article 5(2), the EUTL shall terminate any processes where it identifies discrepancies upon conducting the automated checks referred to in Article 66(2), and shall inform thereof the Union registry and the administrator of the accounts involved in the terminated transaction by returning an automated check response code. The Union registry shall immediately inform the relevant account holders that the process has been terminated.
2. In case of transactions completed through the ITL referred to in Article 5(1), the ITL shall terminate any processes where discrepancies are identified either by the ITL or the EUTL upon conducting the automated checks referred to in Article 66(2). Following a termination by the ITL, the EUTL shall also terminate the transaction. The ITL informs the administrators of the registries involved of the termination of the transaction by returning an automated check response code. If one of the registries involved is the Union registry, the Union registry shall also inform the administrator of the Union registry accounts involved in the terminated transaction by returning an automated check response code. The Union registry shall immediately inform the relevant account holders that the process has been terminated.
Article 68
Detection of discrepancies by the registries
1. The Union registry and every other KP registry shall contain check input codes and check response codes to ensure the correct interpretation of information exchanged during each process. The check codes shall correspond to those contained in the Data Exchange and Technical Specifications provided for in Article 71.
2. Prior to and during the execution of all processes the Union registry shall conduct appropriate automated checks to ensure that discrepancies are detected and incorrect processes are terminated in advance of automated checks being conducted by the EUTL.
Article 69
Reconciliation - Detection of inconsistencies by the EUTL
1. The EUTL shall periodically initiate data reconciliation to ensure that the EUTL's records of accounts, holdings of Kyoto units and allowances match the records of these holdings in the Union registry. For that purpose the EUTL shall record all processes.
2. The ITL periodically initiates data reconciliation to ensure that the ITL's records of the holdings of Kyoto units match the records of these holdings in the Union registry and every other KP registry.
3. If during the data reconciliation process referred to in paragraph 1, an irregularity, hereinafter referred to as ‘inconsistency’, is identified by EUTL, whereby the information regarding accounts, holdings of Kyoto units and allowances provided by the Union registry as part of the periodic reconciliation process differs from the information contained in the EUTL, the EUTL shall ensure that no further processes may be completed with any of the accounts, allowances or Kyoto units which are the subject of the inconsistency. The EUTL shall immediately inform the Central Administrator and the administrators of the relevant accounts of any inconsistency.
Article 70
Finalisation of processes
1. All transactions communicated to the ITL in accordance with Article 5(1) shall be final when the ITL notifies to the EUTL that it has completed the process.
2. All transactions and other processes communicated to the EUTL in accordance with Article 5(3) shall be final when the EUTL notifies to the Union registry that it has completed the processes.
3. The data reconciliation process referred to in Article 69(1) shall be final when all inconsistencies between the information contained in the Union registry and the information contained in the EUTL for a specific time and date have been resolved, and the data reconciliation process has been successfully re-initiated and completed.
SECTION 4
Specifications and change management
Article 71
Data Exchange and Technical Specifications
Following an opinion of the Climate Change Committee pursuant to Article 3 of Council Decision 1999/468/EC (14), the Commission shall adopt the Data Exchange and Technical Specifications necessary for exchanging data between registries and transaction logs, including the identification codes, automated checks and response codes, as well as the testing procedures and security requirements necessary for the launching of data exchange. The Data Exchange and Technical Specifications shall be consistent with the functional and technical specifications for data exchange standards for registry systems under the Kyoto Protocol elaborated pursuant to Decision 12/CMP.1.
Article 72
Change management
If a new version or release of a KP registry, including the Union registry is required, that registry shall complete the testing procedures set out in the Data Exchange and Technical Specifications provided for in Article 71 before a communication link is established and activated between the new version or release of that registry and the EUTL or ITL.
CHAPTER VIII
RECORDS, REPORTS, CONFIDENTIALITY AND FEES
Article 73
Records
1. The Union registry and every other KP registry shall store records concerning all processes and account holders for 15 years or until any questions of implementation relating to them have been resolved, whichever is later.
2. National administrators shall be able to access, query and export all records held in the Union registry in relation to accounts that are administered by them.
3. Records shall be stored in accordance with the data logging requirements described in the Data Exchange and Technical Specifications provided for in Article 71.
Article 74
Reporting
1. The Central Administrator shall make available the information listed in Annex XIII at the frequencies and to the recipients set out in Annex XIII in a transparent and organised manner via the EUTL website. The Central Administrator shall not release additional information held in the EUTL or in the Union registry unless this is permitted under Article 75.
2. National administrators may also make available the part of the information listed in Annex XIII that they have access to in accordance with Article 73 at the frequencies and to the recipients set out in Annex XIII in a transparent and organised manner on a site publicly accessible via the Internet. National administrators shall not release additional information held in the Union registry unless this is permitted under Article 75.
3. The EUTL website shall allow recipients of the reports listed in Annex XIII to query those reports using search facilities.
4. KP registry administrators shall comply with the requirement to publish the information relating to the issuance of ERUs specified in paragraph 46 of the Annex to Decision 13/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol within a week after the issuance has taken place.
5. The Union registry and each KP registry shall comply with the requirement to publish the information specified in points (a), (d), (f) and l of paragraph 47 of the Annex to Decision 13/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on 1 January of the fifth year after the recording of the information.
6. The Union registry and each KP registry shall comply with the requirement to publish the information specified in points (b), (c), (e), and from (g) to (k) of paragraph 47 of the Annex to Decision 13/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on 1 January of the first year after the recording of the information.
Article 75
Confidentiality
1. All information, including the holdings of all accounts and all transactions, held in the EUTL and the Union registry and every other KP registry shall be considered confidential for any purpose other than the implementation of the requirements of this Regulation, Directive 2003/87/EC or national law.
2. The following entities may obtain data stored in the Union registry and the EUTL:
(a)
the law enforcement and tax authorities of a Member State;
(b)
the European Anti-fraud Office of the European Commission;
(c)
Europol;
(d)
national administrators of Member States.
3. Data may be provided to the entities listed under paragraph 2. upon their request to the Central Administrator or to a national administrator if such requests are justified and necessary for the purposes of investigation, detection and prosecution of fraud, tax administration or enforcement, money laundering, terrorism financing or serious crime.
4. An entity receiving data in accordance with paragraph 3 shall ensure that the data received is only used for the purposes stated in the request in accordance with paragraph 3 and is not made available deliberately or accidentally to persons not involved in the intended purpose of the data use. This provision shall not preclude these entities to make the data available to other entities listed in paragraph 2, if this is necessary for the purposes stated in the request made in accordance with paragraph 3.
5. Upon their request, the Central administrator may provide access to anonymised transaction data to the entities listed in paragraph 2. for the purpose of looking for suspicious transaction patterns. Entities with such access may notify suspicious transaction patterns to other entities listed in paragraph 2.
6. National administrators shall make available through secure means to all other national administrators the names and identities of persons whom they refused to open an account for in accordance with Article 13(3) or 14(3), or whom refused to nominate as an authorised representative or additional authorised representative in accordance with Article 20(3).
7. National administrators may decide to notify to national law enforcement authorities all transactions that involve a number of units above the amount determined by the national administrator and to notify any account that is involved in a number of transactions within a 24-hour period that is above the amount determined by the national administrator.
8. Account holders may request from the national administrator in writing that the public website of the Union registry should not display some or all of the data items in, rows 2 to 12 of Table VII-II of Annex VII.
9. Account holders may request from the national administrator in writing that the public website of the Union registry display some or all of the data items in rows 3 to 15 of Table IX-I of Annex IX.
10. Neither the EUTL nor KP registries shall require account holders to submit price information concerning allowances or Kyoto units.
Article 76
Fees
1. The Central Administrator shall not charge any fees to holders of accounts in the Union registry.
2. National administrators may charge reasonable fees to holders of accounts administered by them.
3. No fees shall be charged for the transactions described in Chapter VI.
4. National administrators shall notify the charged fees to the Central Administrator and shall notify it of any changes in the fees within 10 working days. The Central Administrator shall display any fees notified to it on its public website.
CHAPTER IX
TRANSITIONAL AND FINAL PROVISIONS
Article 77
Migration and Decoupling
1. When implementing this Regulation, the following migration process shall apply:
(a)
KP registry administrators shall convert any allowances held in any account that are recognised as AAUs by the ITL into AAUs by removing the allowance element from the unique unit identification code of each such AAU and transfer them into the ETS AAU deposit account in their KP registry;
(b)
the Central Administrator shall:
(i)
create an amount of allowances not recognised as AAUs by the ITL in the Union registry that is equal to the amount transferred in accordance with paragraph (1)(a);
(ii)
make available in the Union registry a set of accounts equivalent to the set from which allowances were transferred in accordance with paragraph (1)(a);
(iii)
transfer an amount of allowances created in accordance with (i) to accounts referred to in (ii). The amount of allowances transferred to each such account shall be equal to the amount transferred from the equivalent account in accordance with paragraph (1)(a).
2. The KP registry administrators and the Central Administrator shall ensure that relevant historical data related to the account is transferred from the Member States’ registries to the Union registry.
3. The migration process shall be implemented in accordance with procedures defined in the Data Exchange and Technical Specifications referred to in Article 71. In the course of the migration process, operation of the registry system may be suspended by the Central Administrator for a period of up to 14 calendar days.
Article 78
Amendments of Regulation (EC) No 2216/2004
Regulation (EC) No 2216/2004 is amended as follows:
1.
in Article 6, the following paragraph 4 is added:
‘4. The Central Administrator may establish a restricted communication link between the CITL and the registry of an Accession Country for the purposes of enabling such registries to communicate with the UNFCCC independent transaction log through the CITL and to record verified emissions data of operators in the CITL. Such registries must successfully complete all testing and initialisation procedures required of registries.’;
2.
in Article 10, paragraph 2 is replaced with the following paragraphs 2 to 2e:
‘2. The following entities may obtain data stored in the registries and the CITL:
(a)
the law enforcement and tax authorities of a Member State;
(b)
the European Anti-fraud Office of the European Commission;
(c)
Europol;
(d)
registry administrators of Member States.
2a. Transaction data may be provided to the entities listed under paragraph 2. upon their request to the Central Administrator or to a registry administrator if such requests are justified and necessary for the purposes of investigation, detection and prosecution of fraud, tax administration or enforcement, money laundering, terrorism financing or serious crime.
2b. An entity receiving data in accordance with paragraph 2a shall ensure that the data received is only used for the purposes stated in the request in accordance with paragraph 2a and is not made available deliberately or accidentally to persons not involved in the intended purpose of the data use. This provision shall not preclude these entities to make the data available to other entities listed in paragraph 2, if this is necessary for the purposes stated in the request made in accordance with paragraph 2a.
2c. Upon their request, the Central administrator may provide access to anonymised transaction data to the entities listed in paragraph 2. for the purpose of looking for suspicious transaction patterns. Entities with such access may notify suspicious transaction patterns to other entities listed in paragraph 2.
2d. Registry administrators shall make available through secure means to all other registry administrators the names and identities of persons whom they refused to open an account for, or whom refused to nominate as an authorised representative or additional authorised representative.
2e. Registry administrators may decide to notify to national law enforcement authorities all transactions that involve a number of units above the amount determined by the registry administrator and to notify any account that is involved in a number of transactions within a 24-hour period that is above an amount determined by the registry administrator.’;
3.
in Article 11, the following paragraph 6 is added:
‘6. The account holder of a person holding account, a verifier account or an aircraft operator holding account may not sell or divest of the ownership of its account to another person. The account holder of an operator holding account may only sell or divest of its operator holding account together with the installation linked to the operator holding account.’;
4.
in Article 19, paragraph 2 is replaced with the following:
‘2. Within 10 days of the receipt of an application in accordance with paragraph 1 the registry administrator shall create a person holding account in its registry in accordance with the account creation process set out in Annex VIII or inform the person requesting the account opening that it refuses to open the account.’;
5.
in Article 19, paragraph 3 is replaced with the following:
‘3. The applicant shall notify the registry administrator within 10 days of any changes in the information provided to the registry administrator pursuant to paragraph 1. Within 10 days of the receipt of such a notification the registry administrator shall update the person’s details in accordance with the account update process set out in Annex VIII or refuse updating and inform the account holder thereof.’;
6.
in Article 19, the following paragraphs 5 and 6 are added:
‘5. If the registry administrator refused opening the account or refused updating information related to the account, the person requesting the account opening may object to this refusal with the competent authority, who shall either instruct the registry administrator to open the account or uphold the refusal in a reasoned decision. Reasons for refusing the opening an account may be that the person requesting the account opening is under investigation for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.
6. The registry administrator may require that EU persons requesting the account opening have their permanent residence or registration in the Member State of the registry.’;
7.
the following Article 21a is inserted:
‘Article 21a
Closure of accounts and removal of authorised representative on the administrator's initiative
1. If the situation giving rise to the suspension of access to accounts pursuant to Article 67 is not resolved within a reasonable period despite repeated notifications, the competent authority may instruct the registry administrator to close those person holding accounts where access is suspended.
2. The account holder may object to the closure of its account in accordance with paragraph 1 with the competent authority within 30 calendar days, who shall either instruct the registry administrator to reinstate the account or uphold the closure in a reasoned decision.
3. If there is a positive balance of allowances or Kyoto units on an account which the registry administrator is to close after suspension in accordance with Article 67(1), the registry administrator shall first request the account holder to specify another account administered by the same administrator to which such allowances or Kyoto units shall then be transferred. If the account holder has not responded to the administrator’s request within 40 working days, the administrator may transfer the allowances or Kyoto units to its national allowance holding account.
4. If there is a positive balance of allowances or Kyoto units on an account which was suspended in accordance with Article 67(1b), the competent authority may require in its instruction in accordance with paragraph 1 that these allowances or Kyoto units are moved immediately to the relevant national allowance holding account and KP Party holding account.’;
8.
in Article 23, the following paragraphs 5 to 10 are added:
‘5. Authorised representatives must be natural persons over 18 years. All authorised representatives and additional authorised representatives of a single account must be different persons but the same person can be an authorised representative or an additional authorised representative on more than one account. The registry administrator may require that at least one of the authorised representatives of operator holding accounts or person holding accounts must be a permanent resident in the Member State of the registry.
6. When nominating an authorised representative or additional authorised representative, the account holder shall provide the information required by the registry administrator. That information shall include at least the documents and identification information on the nominee set out in Annex IVa.
7. The registry administrator shall evaluate the information received and if it finds it satisfactory, it shall approve the nominee within 20 working days of receiving the information or inform the person requesting the account opening that it refuses the approval. Where the evaluation of the nominee information requires more time, the registry administrator may once extend the evaluation process by up to 20 additional working days, and notify the extension to the account holder.
8. If the registry administrator refused to approve an authorised representative or additional authorised representative, the person requesting the account opening may object to this refusal with the competent authority, who shall either instruct the registry administrator to carry out the approval or uphold the refusal in a reasoned decision. Reasons for refusing the approval may be that the person nominated as authorised representative or additional authorised representative is under investigation for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.
9. An authorised representative or additional authorised representative may not transfer its status as such to another person.
10. The registry administrator may remove an authorised representative or an additional authorised representative if it considers that the approval of the authorised representative or an additional authorised representative should have been refused in accordance with paragraph 7. and in particular if it discovers that the documents and identification information provided in upon nomination were fraudulent or erroneous. The account holder may object to this removal with the competent authority who shall either instruct the registry administrator to re-approve the authorised representative or an additional authorised representative or uphold the removal in a reasoned decision. Reasons for removal of an authorised representative or an additional authorised representative may be that he or she is convicted for being involved in fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes to which the account may be an instrument, or any other reason set out in national law.’;
9.
in Article 34a, the following paragraph 2a is inserted:
‘2a. If a registry administrator unintentionally or erroneously initiated an allocation under Article 46 that resulted in allocating allowances to an installation that was not operating anymore at the time of the allocation transaction, the competent authority may notify its request to the Central Administrator to carry out a manual intervention in order to reverse the transaction within the deadlines set out in paragraph 2.’;
10.
Section 1 of Chapter V is deleted;
11.
Article 49(1)(b) is deleted;
12.
Article 53 is amended as follows:
(a)
the second paragraph is replaced by the following:
‘The registry administrator shall only accept requests to surrender CERs and ERUs up to the percentage of allocation to each installation specified by Member State legislation. The CITL shall reject any request to surrender CERs and ERUs that would surpass the maximum allowed amount of CERs and ERUs to be surrendered in the Member State, or that would result in surrendering CERs or ERUs that are barred from surrendering in accordance with Article 11a of Directive 2003/87/EC.’;
(b)
the following paragraphs are added:
‘A CER or ERU that was already surrendered may not be surrendered again nor transferred to an operator or person holding account in the EU ETS.
Surrendered CERs and ERUs shall only be transferred into a retirement account.’;
13.
Article 54 is deleted;
14.
Article 58 is deleted;
15.
Section 7 of Chapter V is deleted;
16.
Article 62(2) is deleted;
17.
in Article 67, the following paragraphs 1a, 1b and 1c are inserted:
‘1a. An administrator may suspend the access of authorised representatives and additional authorised representatives to a specific account where one of the following conditions is fulfilled:
(a)
the account holder died without a legal successor or ceased to exist as a legal person;
(b)
the account holder did not pay its fees; or
(c)
the account holder violated the terms and conditions applicable to the account; or
(d)
the account holder did not agree to the changes in the terms and conditions;
(e)
the account holder did not provide evidence concerning the changes to account information;
(f)
the account holder failed to maintain the required minimum number of authorised representatives for the account;
(g)
the account holder failed to maintain compliance with the Member State requirement to have an authorised representative with a permanent residence in the Member State of the administrator of the account;
(h)
the account holder failed to maintain compliance with the Member State requirement that the account holder have a permanent residence or registration in the Member State of the administrator of the account.
1b. The registry administrator may suspend access to a person holding account if it considers that its opening should have been refused on the basis of Article 19(2). The account holder may object to the suspension with the competent authority or the relevant authority under national law within 30 calendar days, who shall either instruct the registry administrator to reinstate access or uphold the suspension in a reasoned decision.
1c. The competent authority, or in the case of accounts in the Union registry, the Central administrator may also instruct the administrator to implement a suspension in accordance with paragraph 1a.’;
18.
Annex IV is replaced with the following:
‘ANNEX IV
Information concerning person holding accounts to be provided to the registry administrator
1.
The information set out in Table IV-I. (The account ID and the alphanumeric identifier shall be unique within the registry.)
Table IV-I
1
Account ID (given by registry)
2
Account type
3
Commitment period
4
Account holder ID (issued by registry)
5
Account holder Name
6
Account Identifier (given by account holder)
7
Account holder address - country
8
Account holder address - region or state
9
Account holder address - city
10
Account holder address - postcode
11
Account holder address - street
12
Account holder address - street No
13
Account holder address Company registration No or ID No
14
Account holder address Telephone 1
15
Account holder address Telephone 2
16
Account holder address email address
17
Date of Birth (for natural persons)
18
Place of Birth (for natural persons)
19
VAT registration number with country code
2.
Proof that the person requesting the account opening has an open bank account in a Member State of the European Economic Area.
3.
Evidence to support the identity of the person requesting the account opening, which may be a certified copy one of the following:
(a)
a passport or identity card issued by a state that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
any other passport, certified by an EU embassy as valid.
4.
Evidence to support the address of the permanent residence of the natural person account holder, which may be a certified copy of one of the following:
(a)
the identity document submitted under point 3, if it contains the address of the permanent residence;
(b)
any other government-issued identity document that contains the address of permanent residence;
(c)
if the country of permanent residence does not issue identity documents that contain the address of permanent residence, a statement from the local authorities confirming the nominee's permanent residence;
(d)
any other document that is customarily accepted in the Member State of the administrator of the account as evidence of the permanent residence of the nominee.
5.
Evidence to support the registered address of the legal person account holder, which may be a certified copy of one of the following:
(a)
the instrument establishing the legal entity;
(b)
proving the registration of the legal entity.
6.
Any document submitted as evidence under points 4 or 5 that was issued by a government outside the European Economic Area or the Organisation for Economic Cooperation and Development must be certified as authentic by a notary public.
7.
The registry administrator may require that the documents submitted are accompanied with a certified translation into a language specified by the registry administrator.’;
19.
the following Annex IVa is inserted:
‘ANNEX IVa
Information concerning authorised representatives and additional authorised representatives to be provided to the registry administrator
Table IVa-I: Authorised representative details
1
Person ID
2
Type of AR
3
First Name
4
Last Name
5
Title
6
Job title
7
Address - country
8
Address - region or state
9
Address - city
10
Address - postcode
11
Address - street
12
Address - street number
13
Telephone 1
14
Telephone 2
15
E-mail address
16
Date of Birth
17
Place of Birth
18
Preferred language
19
Confidentiality level
20
AARs rights
1.
The information set out in Table IVa-I.
2.
A signed statement from the account holder indicating that it wishes to nominate a particular person as authorised representative or additional authorised representative.
3.
Proof that the nominee has an open bank account in a Member State of the European Economic Area.
4.
Evidence to support the identity of the nominee, which may be a certified copy of one of the following:
(a)
passport or identity card issued by a state that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
any other passport, certified by an EU embassy as valid.
5.
Evidence to support the address of the permanent residence of the nominee, which may be a certified copy of one of the following:
(a)
the identity document submitted under point 4, if it contains the address of the permanent residence;
(b)
any other government-issued identity document that contains the address of permanent residence;
(c)
if the country of permanent residence does not issue identity documents that contain the address of permanent residence, a statement from the local authorities confirming the nominee's permanent residence;
(d)
any other document that is customarily accepted in the Member State of the administrator of the account as evidence of the permanent residence of the nominee.
6.
Any document submitted as evidence under point 5 that was issued by a government outside the European Economic Area or the Organisation for Economic Cooperation and Development must be certified as authentic by a notary public.
7.
The registry administrator may require that the documents submitted are accompanied with a certified translation into a language specified by the registry administrator.’;
20.
Annex XIa is amended as follows:
(a)
in Table XIa-3, the sentence ‘The allowances allocated for the years before the current year will have a value of zero.’ is deleted;
(b)
in Table XIa-4, the sentence ‘The allowances allocated for the years before the current year won’t be modified.’ is deleted;
(c)
in Table XIa-7, the code ‘7215’ is deleted;
21.
in Annex XII, the description beside response code 7701 in Table XII-I shall be replaced with the following text:
‘Allocation must be provided for all the years.’;
22.
Annex XVI is amended as follows:
1.
point 1 is replaced with the following:
‘1.
The Central Administrator shall display and update the information in paragraphs 2 to 4c in respect of the registry system on the public area of the Community independent transaction log's website, in accordance with the specified timing, and each registry administrator shall display and update the information in paragraphs 2 to 4b information in respect of its registry on the public area of that registry's website, in accordance with the specified timing.’;
2.
point 2(a) is replaced with the following:
‘(a)
name, address, city, postcode, country, telephone number and email address of the account holder.’;
3.
point 2(c) is replaced with the following:
‘(c)
name, address, city, postcode, country, telephone number, facsimile number and email address of the primary and secondary authorised representatives of the account specified by the account holder for that account, provided that the account holder requested the registry administrator in writing to display all or some of this information.’;
4.
points 4(a) and (b) are replaced with the following:
‘(a)
verified emissions figure, along with its corrections for the installation related to the operator holding account for year X shall be displayed from 1 April onwards of year (X+1), or if 1 April falls on a weekend or on a holiday, then the verified emissions figure shall be displayed from the first working day following 1 April.;
(b)
units surrendered pursuant to Articles 52 and 53, by unit identification code (in the case of ERUs and CERs), for year X shall be displayed from 1 May onwards of year (X+1);’;
5.
point 4c is added:
‘4c.
A list shall be displayed and updated every 24 hours that displays the unit IDs of all allowances, CERs and ERUs that were surrendered. In the case of CERs and ERUs, project name, originating country and project ID shall also be displayed.’;
6.
point 12a is replaced by the following:
‘12a.
The CITL shall display on its public website the following general information, on 30 April of each year:
-
the percentage share of allowances surrendered in each Member State in the preceding calendar year that were surrendered from the account to which they were allocated to,
-
the sum of verified emissions by Member State entered for the preceding calendar year as a percentage of the sum of verified emissions of the year before that year,
-
the percentage share belonging to accounts administered by a particular Member State in the number and volume of all allowance and Kyoto unit transfer transactions in the preceding calendar year,
-
the percentage share belonging to accounts administered by a particular Member State in the number and volume of all allowance and Kyoto unit transfer transactions in the preceding calendar year between accounts administered by different Member States.’
Article 79
Repeal
Regulations (EC) No 2216/2004 and (EC) No 994/2008 are repealed with effect from 1 January 2012.
Article 80
Entry into force
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
Articles 2 to 76 and the Annexes shall apply from 1 January 2012.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 October 2010.