European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2010
Source: Iris Oifigiúl 2010-04-23

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paragraphs: These Regulations may be cited as the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2010.
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paragraphs: The European Communities (Greenhouse Gas Emissions Trading) Regulations 2004 ( S.I. No. 437 of 2004 ) are amended—
(a) in Regulation 2(1) (as amended by Regulation 5(a) of the European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2005 ( S.I. No. 706 of 2005 ))—
(i) by substituting for the definition of “Directive” the following:
“‘Directive’ means Directive 2003/87/EC of 13 October 20031 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC 5 , as amended by Directive 2004/101/EC of 27 October 20042 in respect of the Kyoto Protocol’s project mechanisms, by Directive 2008/101/EC of 19 November 20083 so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, and by Directive 2009/29/EC of 23 April 20094 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community;”,
(ii) by inserting, at the appropriate point in alphabetical order, the following:
“‘direction’ means a direction issued by the Agency pursuant to Regulation 15A;”,
(b) by inserting after Regulation 15 the following:
“Issue of Direction
15A. (1) The Agency may issue a direction to an operator to comply with Regulation 7(1), 12(3) or 14.
(2) An operator who fails to comply with a direction issued to him or her is guilty of an offence.
Direction
15B. A direction issued by the Agency shall be—
(a) in writing,
(b) served in accordance with Regulation 15C,
(c) contain reasons for the direction, and
(d) advise the recipient of his or her right of appeal pursuant to Regulation 15D.
Service of Direction
15C. (1) Where a direction is required to be issued by the Agency, the direction shall be in writing and shall be addressed to the operator and shall be given to the operator in one of the following ways—
(a) by delivering it to the operator,
(b) by leaving it at the address at which the operator carries on business,
(c) by sending it by post in a pre-paid registered letter addressed to the operator at the address at which the operator carries on his or her business,
(d) if an address for the service of a direction has been furnished by the operator, by leaving it at, or sending it by pre-paid registered post addressed to the operator, to that address,
(e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the operator carries on business or, if an address for the service of a direction has been furnished by the operator, that address:
provided that—
(i) the sender’s—
(I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or
(II) facsimile machine generates a message confirming successful transmission of the total number of pages of the direction, and
(ii) the direction is also given in one of the other ways mentioned in any of the preceding paragraphs.
(2) For the purposes of paragraph (1)—
(a) a company registered under the Companies Acts is deemed to be ordinarily resident at its registered office, and
(b) every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.
(3) A copy of a direction, which has endorsed on it a certificate purporting to be signed by an officer of the Agency authorised in that behalf by the Agency stating that the copy is a true copy of the direction or reply may, without proof of signature of that person, be produced in every court and in all legal proceedings and is evidence, unless the contrary is shown, of the direction or reply.
Appeal from a Direction issued by the Agency
15D. (1) A direction issued by the Agency shall take effect—
(a) where it is received by the person on whom it is served, or
(b) where an appeal is brought against the direction, on the day immediately following—
(i) the day on which the direction is confirmed on appeal or the appeal is withdrawn, or
(ii) the day specified in the direction.
(2) The bringing of an appeal against a direction referred to in paragraph (1) shall not have the effect of suspending the operation of the direction, but the appellant may apply to the court to have the operation of the direction suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.
(3) A person on whom a direction referred to in paragraph (1) is served may, within 7 days beginning on the day on which the direction is served on him or her, appeal against the direction to a judge of the District Court in the district court district in which the direction was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.
(4) Where, on the hearing of an appeal under this Regulation, a direction is confirmed, notwithstanding paragraph (1), the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the direction for such period as in the circumstances of the case the judge considers appropriate.
(5) A person who—
(a) brings an appeal under paragraph (3), or
(b) applies for the suspension of the operation of a direction under paragraph (4) shall at the same time notify the Agency of the appeal or application, and the grounds for the appeal or application.
Injunctive Relief
15E. (1) Where, on application by the Agency to the High Court, the Court is satisfied that an operator has failed to comply with a direction or a requirement of these Regulations, the Court may by order—
(a) direct the person to comply with the direction or requirement, and
(b) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.
(2) An application for an order under this Regulation shall be by motion, and the High Court, when considering the matter, may make such interim or interlocutory order as it considers appropriate.
(3) An application for an order under this Regulation may be made whether or not there has been a prosecution for an offence under these Regulations in relation to the activity concerned, and shall not prejudice the initiation of a prosecution for an offence under these Regulations in relation to the activity concerned.
Authorised Officer
15F. (1) The Agency may appoint in writing one or more of its officers, as it considers appropriate, to be an authorised officer or authorised officers for the purposes of ensuring compliance with these Regulations.
(2) Every authorised officer appointed under this Regulation shall be furnished with a warrant of his or her appointment and shall if requested by any person thereby affected, produce such warrant of appointment to that person for inspection.
(3) An appointment under this Regulation shall cease—
(a) if the Agency revokes the appointment,
(b) in the case of an appointment that is for a fixed period, on the expiry of the period, or
(c) if the person appointed ceases to be an officer of the Agency.
(4) An authorised officer may, for the purposes of these Regulations—
(a) subject to paragraph (7) enter on any premises at all reasonable times for any purpose connected with these Regulations,
(b) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection,
(c) remove such photographs, books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under these Regulations,
(d) require the operator or his or her agent or employee or any person at the premises or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under these Regulations,
(e) direct that any matter or thing not be moved from the premises without his or her consent, or
(f) secure for later inspection any premises or part of any premises for such period as he or she considers reasonably necessary for the purposes of his or her functions under these Regulations.
(5) When performing a function under these Regulations, an authorised officer may, subject to any warrant under paragraph (6), be accompanied by such number of authorised officers or members of the Garda SÃ­ochÃ¡na as he or she considers appropriate.
(6) An authorised officer shall not enter a dwelling other than—
(a) with the consent of the occupier, or
(b) in accordance with a warrant issued under paragraph (7).
(7) Upon the sworn information of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that books, records or other documents (including documents in non-legible form referred to in paragraph (4)(d)) are being kept or stored in any dwelling, issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda SÃ­ochÃ¡na as may be necessary, at any time or times, not later than one month from the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under subparagraphs (a) to (f) of paragraph (4).
(8) Any person who obstructs or interferes with an authorised officer or a member of the Garda SÃ­ochÃ¡na in the course of exercising a power conferred on him or her by these Regulations or a warrant under paragraph (7), or impedes the exercise by the officer or member, as the case may be, of such power, or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this Regulation, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, is guilty of an offence.
(9) Where an authorised officer believes, upon reasonable grounds, that a person has committed an offence under these Regulations he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.
(10) A person who falsely represents himself or herself to be an authorised officer is guilty of an offence.
(11) A statement or admission made by a person pursuant to a request or requirement or in answer to a question under this Regulation shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under paragraph 8).
(12) In this Regulation—
“premises” means as respects entry pursuant to paragraph (4), any place and shall include any building, ship or other vessel, aircraft, railway wagon and includes a lorry or container used to transport vehicles, or a lorry found on the lands,
“record” includes, in addition to a record in writing—
(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form,
(c) a photograph, and
any reference to a copy of a record includes—
(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein,
(ii) in the case of a record to which paragraph (b) applies, a still reproduction of the images embodied therein, and
(iii) in the case of a record to which paragraphs (a) and (b) apply, such a transcript together with such a still reproduction.”,
(c) by substituting for Regulation 16 the following:
“16. (1) A person who fails to comply with these Regulations is guilty of an offence.
(2) A person guilty of an offence under these Regulations shall be liable—
(a) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both, or
(b) on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years or both.
(3) The Agency shall publish the names of operators who are in breach of the requirements to surrender allowances as required by Regulation 12(3), and the details of such breach.
(4) An operator who fails to surrender allowances as required by Regulation 12(3) by 30 April of each year to cover its emissions during the preceding year shall be liable for payment to the Agency of an excess emissions penalty in the amount of—
(a) €40 for each tonne of carbon dioxide equivalent emitted by that installation during the pilot period for which the operator has not surrendered allowances, and
(b) €100 for each tonne of carbon dioxide equivalent emitted by that installation during the Kyoto period and each subsequent five year period for which the operator has not surrendered allowances.
(5) Payment of the excess emissions penalty specified in this Regulation shall not release the operator from the obligation to surrender an amount of allowances equal to those excess emissions in the following calendar year.
(6) An excess emissions penalty under this Regulation may be recovered by the Agency, as a simple contract debt in a court of competent jurisdiction.
(7) Where a person is convicted of an offence under these Regulations, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses measured by the court, that were incurred by the Agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees or persons engaged by the Agency.
(8) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under these Regulations, prosecuted by the Agency, it shall, on the application of the Agency (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the Agency and such payment may be enforced by the Agency, as if it were due to it on foot of a decree or order made by the court in civil proceedings.
(9) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.
(10) Summary proceedings for an offence under these Regulations may be brought and prosecuted by the Agency.
(11) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851 summary proceedings for an offence under these Regulations may be instituted not later than 2 years from the date of the offence.”.
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paragraphs: (1) In respect of an installation carrying out one or more activities listed in the Schedule to these Regulations, which is only included in the Community scheme from 2013 onwards, the operator of an installation shall, not later than 30 April 2010, submit to the Agency duly substantiated and independently verified emissions data, of such nature and in such form as shall be specified by the Agency for the purposes of the administration and implementation of the Directive with respect to the adjustment of the Community-wide quantity of allowances to be issued.
(2) The operator shall ensure that the data referred to in paragraph (1) is submitted in accordance with—
(a) the provisions adopted pursuant to Article 14(1) of the Directive, and
(b) any detailed provisions on verification adopted by the Commission pursuant to Article 15 of the Directive
(3) (a) The Agency shall, not later than 30 June 2010, notify the Commission of the data received under this Regulation, if the Agency is satisfied that the operator has complied with paragraphs (1) and (2).
(b) In the case of an installation emitting greenhouse gases other than CO2, the Agency may notify the Commission a lower amount of emissions according to the emission reduction potential of the installation.
(4) The Agency may issue a direction to an operator to comply with paragraph (1) or (2).
(5) An operator who fails to comply with paragraph (1) or (2), or a direction issued to him or her under this Regulation, is guilty of an offence.
(6) In this Regulation—