COMMISSION REGULATION (EU) No 1193/2011
of 18 November 2011
establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme 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 and amending Commission Regulations (EC) No 2216/2004 and (EU) No 920/2010
(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 19(1) of Directive 2003/87/EC requires that all allowances issued from 1 January 2012 onwards are held in a Union Registry on accounts managed by the Member States. 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 (3) provides for such a Union Registry.
(2)
Directive 2003/87/EC has been substantially amended by Directive 2009/29/EC of the European Parliament and of the Council (4), requiring major changes to the registries system. The amendments apply from the trading period starting in 2013. At present, there is no international agreement replacing the Kyoto Protocol that would apply to Member States after 2012. Aviation allowances will be auctioned from 2012 on the basis of Commission Regulation (EU) No 1031/2010 (5), in the same way as general allowances. Therefore, in the interest of clarity and urgency, a new regulation should be adopted pursuant to Article 19 of Directive 2003/87/EC that should apply to the trading period of the Union emissions trading scheme commencing on 1 January 2013 and to subsequent periods. It should also apply to aviation allowances to be auctioned in 2012.
(3)
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) and Regulation (EU) No 920/2010 should continue to apply in parallel to the trading period between 2008 and 2012 and to the obligations arising from the Kyoto Protocol. Regulations (EC) No 2216/2004 and (EU) No 920/2010 should be amended to implement urgent security provisions and other improvements, with immediate effect.
(4)
In order to ensure that Kyoto units and allowances can be held on the same Union Registry accounts, the Union Registry must conform to 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.
(5)
Article 20 of Directive 2003/87/EC requires that an independent transaction log, the European Union Transaction Log (EUTL) is established to record the issue, transfer and cancellation of allowances. 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.
(6)
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, for the establishment and operation of registries and the EUTL.
(7)
The Union Registry should contain the accounts required to implement the requirements of Directive 2003/87/EC. 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. Allowances should be issued in the Union Registry.
(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 United Nations Framework Convention on Climate Change (UNFCCC) International Transaction Log (ITL).
(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 opening of accounts, authentication and access rights should be applied to protect the security of information held in the integrated registries system and to avoid fraud. The review of these requirements should be considered in the future with a view to ensuring their effectiveness while taking into account proportionality. 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 to safeguard relevant information.
(12)
As allowances and Kyoto units exist only in dematerialised form and are fungible, the title to an allowance or Kyoto unit should be established by their existence in the account of the Union Registry in which they are held. Moreover, to reduce the risks associated with the undoing of transactions entered in a registry, and the consequent disruption to the system and to the market that such undoing may cause, it is necessary to ensure that allowances and Kyoto units are fully fungible. In particular, transactions cannot be reversed, revoked or unwound, other than as defined by the rules of the registry, after a moment set out by those rules. Nothing in this Regulation should prevent an account holder or a third party from exercising any right or claim resulting from the underlying transaction that they may have in law to recovery or restitution in respect of a transaction that has entered a system, e.g. in case of fraud or technical error, as long as this does not lead to the reversal, revocation or unwinding of the transaction. Furthermore, the acquisition of an allowance or Kyoto unit in good faith should be protected.
(13)
Since it may be desirable to provide for additional account types or other means that would facilitate the holding of allowances or Kyoto units on behalf of third parties, or the taking of a security interest in them, these issues should be examined in the context of a future review of this Regulation.
(14)
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.
(15)
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 (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.
(16)
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, SCOPE AND DEFINITIONS
Article 1
Subject matter
This Regulation lays down general as well as operational and maintenance requirements concerning the Union Registry for the trading period commencing 1 January 2013 and subsequent periods, and concerning the independent transaction log provided for in Article 20(1) of Directive 2003/87/EC.
It also provides for a communication system between the Union Registry and the ITL.
Article 2
Scope
This Regulation concerns allowances created for the trading period of the Union emissions trading scheme commencing on 1 January 2013 and subsequent periods.
It also concerns aviation allowances to be auctioned that were created for the trading period running from 1 January 2012 to 31 December 2012.
Article 3
Definitions
Unless otherwise indicated, terms used in this Regulation shall have the same meaning as under Directive 2003/87/EC. Moreover, the definitions set out in Article 3 of Regulation (EU) No 1031/2010 and in Article 3 of Commission Decision 2011/278/EU (11) shall apply. The following definitions shall also apply:
(1)
‘account holder’ means a natural or legal person that 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)
‘external platform’ is an external system securely connected to the Union Registry for the purposes of automating functions related to the Union Registry;
(5)
‘verifier’ means a verifier as defined in Annex I, section 2, point 5(m) of Commission Decision 2007/589/EC (12);
(6)
‘assigned amount units’ or ‘AAUs’ means units issued pursuant to Article 7(3) of Decision No 280/2004/EC;
(7)
‘aviation allowances’ or ‘aEUAs’ means allowances created pursuant to Article 3c(2) of Directive 2003/87/EC;
(8)
‘general allowances’ or ‘EUAs’ means all other allowances created pursuant to Directive 2003/87/EC;
(9)
‘long-term CERs’ or ‘lCERs’ means 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, expire at the end of the emission reduction crediting period of the afforestation or reforestation project activity under the CDM for which they were issued;
(10)
‘removal units’ or ‘RMUs’ means units issued pursuant to Article 3 of the Kyoto Protocol;
(11)
‘temporary CERs’ or ‘tCERs’ means units issued for an afforestation or reforestation project activity under the CDM which, subject to Decision 5/CMP.1, expire at the end of the Kyoto Protocol commitment period following the one during which they were issued;
(12)
‘Kyoto units’ means AAUs, ERUs, CERs, RMUs, lCERs and tCERs;
(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 in the Union Registry 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 its 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, point 5 of Directive 2005/60/EC;
(21)
‘terrorist financing’ means the same as defined in Article 1(4) of Directive 2005/60/EC;
(22)
‘national administrator’ means 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 7;
(23)
‘directors’ includes the persons effectively directing the day-to-day operations of a legal person
(24)
‘central European time’ means central European summer time during the summer-time period as defined in Articles 1, 2 and 3 of Directive 2000/84/EC of the European Parliament and of the Council (14).
CHAPTER II
THE REGISTRIES SYSTEM
Article 4
Union Registry
1. A Union Registry for the trading period of the Union emissions trading scheme commencing on 1 January 2013 and subsequent periods is hereby established.
2. The central administrator shall operate and maintain the Union Registry.
3. Member States shall use the Union Registry for the purposes of meeting their obligations under Article 19 of Directive 2003/87/EC and to ensure accurate accounting with respect to allowances within the scope of this Regulation. The Union Registry shall provide national administrators and account holders with the processes set out in this Regulation.
4. The Union 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, software and security requirements set out in the data exchange and technical specifications provided for in Article 79.
Article 5
European Union Transaction Log
1. An EUTL, to take the form of a standardised electronic database, is hereby established, pursuant to Article 20 of Directive 2003/87/EC, for transactions within the scope of this Regulation. 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 this Regulation, 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 79.
4. The EUTL shall be capable of recording all processes described in Chapters III to V.
Article 6
Communication links between registries, the ITL and the EUTL
1. The Union Registry shall maintain a communication link with the ITL for the purposes of communicating transactions that transfer Kyoto units.
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.
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 set out in Chapter III. All transactions involving allowances shall take place within the Union Registry, and shall be recorded and checked by the EUTL.
4. 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 7
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.
2. The Member States and the Commission shall ensure that there is no conflict of interest amongst national administrators, the central administrator and holders of accounts.
3. Each Member State shall notify the Commission of the identity and contact details of its national administrator, including an emergency telephone number to be used in the case of a security incident.
4. The Commission shall coordinate the implementation of this Regulation with the national 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. By 31 March 2012, the Administrators’ Working Group shall agree on the terms of cooperation between the central administrator and the national administrators, which shall include common operational procedures for the implementation of this Regulation and change and incident management procedures for the Union Registry and technical specifications for the functioning and reliability of the Union Registry and the EUTL. Rules of procedure for the Administrators’ Working Group shall be adopted by the Climate Change Committee.
5. The central administrator, the competent authorities and national administrators shall only perform processes necessary to carry out their respective functions.
CHAPTER III
ACCOUNTS
SECTION 1
Provisions applicable to all accounts
Article 8
Accounts
1. The Union Registry shall contain accounts as specified in Annex I.
2. The unit types that may be held in each account type are set out in Annex I.
Article 9
Account status
1. Accounts shall be in one of the following status: open, blocked, excluded 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 reopened, and may not acquire units.
4. Upon exclusion of an installation from the Union scheme pursuant to Article 27 of Directive 2003/87/EC, the national administrator shall set the corresponding operator holding account to excluded status for the duration of the exclusion.
5. Upon notification from the competent authority that an aircraft operator’s flights are no longer included in the Union scheme in accordance with Annex I to Directive 2003/87/EC, the national administrator shall set the corresponding aircraft operator holding account to excluded status until notification from the competent authority that an aircraft operator’s flights are again included in the Union scheme.
Article 10
The administering of accounts
1. Every account shall have an administrator who shall be 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 as set out in Annex I.
3. The administrator of an account shall be responsible for opening, suspending, limiting access to, or closing an account, approving authorised representatives, permitting changes to account details that require the approval of the administrator, and for initiating transactions as requested by the account holder in accordance with Article 21(5).
4. The administrator may require the account holders and its representatives to agree to comply with reasonable terms and conditions consistent with this Regulation.
5. 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 central administrator
The central administrator shall notify the account representatives and the administrator of the initiation and completion or termination of any process related to the account, and of the change of status of the account, through an automated mechanism described in the data exchange and technical specifications provided for in Article 79.
SECTION 2
Opening and updating accounts
Article 12
Opening management accounts
The central administrator shall open all management accounts in the Union Registry within 20 working days of the receipt of the information set out in Annex II.
Article 13
Opening an auction delivery account in the Union Registry
1. An auctioneer, an auction platform, a clearing system or a settlement system as defined in the Regulation (EU) No 1031/2010 may submit to a national administrator a request for an auction delivery account in the Union Registry. The person requesting the account shall provide the information set out in Annex III.
2. Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 and in accordance with Article 22, the national administrator shall open the auction delivery account in the Union Registry or inform the person requesting the account of the refusal to open the account, pursuant to Article 20.
Article 14
Opening operator holding accounts in the Union Registry
1. Within 20 working days of the entry into force of a greenhouse gas emissions permit, the relevant competent authority or the operator shall provide the relevant national administrator with the information set out in Annex V and shall request the national administrator to open an operator holding account in the Union Registry.
2. Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 and in accordance with Article 22, the national administrator shall open an operator holding account for each installation in the Union Registry or inform the prospective account holder of the refusal to open the account, pursuant to Article 20.
Article 15
Opening aircraft operator holding accounts in the Union Registry
1. Within 20 working days from the approval of the monitoring plan of an aircraft operator, the competent authority or aircraft operator shall provide the relevant national administrator with the information set out in Annex VI and shall request the national administrator to open an aircraft operator holding account in the Union Registry.
2. Each aircraft operator shall have one aircraft operator holding account.
3. Within 40 working days of the receipt of a complete set of information in accordance with paragraph 1 and in accordance with Article 22, the national administrator shall open an aircraft operator holding account for each aircraft operator in the Union Registry or inform the prospective account holder of the refusal to open the account, pursuant to Article 20.
4. The status of aircraft operator holding accounts shall be changed from blocked to open following the entry of verified emissions pursuant to Article 32(1) to (5) and a compliance status figure greater than or equal to 0 calculated pursuant to Article 34(1). The status of the account shall also be changed to open at an earlier date following receipt by the national administrator of a request by the account holder to activate its account for trading, provided that such a request contains, at a minimum, any required elements specified in the data exchange and technical specifications provided for in Article 79.
Article 16
Opening person holding and trading accounts in the Union Registry
1. A request for a person holding account or trading account in the Union Registry shall be submitted to the national administrator by the prospective account holder. The prospective account holder shall provide information as required by the national administrator, which shall include, at a minimum, the information set out in Annex III.
2. The Member State of the national administrator may require as a condition for opening a person holding or trading account that the prospective account holders have their permanent residence or registration in the Member State of the national administrator administering the account.
3. The Member State of the national administrator may require as a condition for opening a person holding or trading account that prospective account holders are registered for VAT in the Member State of the national administrator of the account.
4. Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 and in accordance with Article 22, the national administrator shall open a person holding account or trading account in the Union Registry or inform the prospective account holder of the refusal to open the account, pursuant to Article 20.
Article 17
Opening national holding accounts in the Union Registry
The competent authority of a Member State shall instruct the national administrator to open a national holding account in the Union Registry within 20 working days of the receipt of the information set out in Annex II.
Article 18
Opening external platform accounts in the Union Registry
1. External platforms may submit a request for an external platform account in the Union Registry. This request shall be submitted to the national administrator. The person requesting the account shall provide information as required by the national administrator. This information shall include, at a minimum, the information set out in Annex III and evidence that the external platform ensures a level of security equivalent or higher than the security ensured by the Union Registry in accordance with this Regulation.
2. National administrators shall ensure that external platforms conform to the technical and security requirements described in the data exchange and technical specifications provided for in Article 79.
3. Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 and in accordance with Article 22, the national administrator shall open an external platform account in the Union Registry or inform the central administrator or the person requesting the account of the refusal to open the account, pursuant to Article 20.
4. The approval of an additional authorised representative shall not be required pursuant to Article 21(3) to initiate a transaction for transactions initiated by exempted external platforms. An external platform may be exempted by the national administrator upon written request if the external platform provides evidence that it has security arrangements in place that offer at least a level of protection equivalent to that afforded by the requirement in Article 21(3). The minimum technical and security requirements shall be set out in the data exchange and technical specifications provided for in Article 79. The national administrator concerned shall notify the Commission of such requests without delay. Exemptions pursuant to this paragraph shall be made public by the Commission.
Article 19
Opening verifier accounts in the Union Registry
1. A request for a verifier account in the Union Registry shall be submitted to the national administrator. The person requesting the account shall provide information as required by the national administrator including the information set out in Annex II and Annex IV.
2. Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 of this Article and in accordance with Article 22, the national administrator shall open the verifier account in the Union Registry or inform the prospective account holder of the refusal to open the account, pursuant to Article 20.
Article 20
Refusal to open an account
1. The national administrator shall verify whether the information and documents provided for account opening are complete, up to date, accurate and true.
2. A national administrator may refuse to open an account:
(a)
if the information and documents provided are incomplete, out of date or otherwise inaccurate or false;
(b)
if the prospective account holder, or, if it is a legal person, any of the directors, is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;
(c)
if the national administrator has reasonable grounds to believe that the accounts may be used for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes;
(d)
for reasons set out in national law.
3. If the national administrator refuses to open an account, the person requesting the account opening may object to 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, subject to requirements of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
Article 21
Authorised representatives
1. Each account, with the exception of the verifier account, shall have at least two authorised representatives. A verifier account shall have at least one authorised representative. The authorised representatives shall initiate transactions and other processes on behalf of the account holder.
2. In addition to the authorised representatives specified in paragraph 1, accounts may also have authorised representatives with view only access to the account.
3. Accounts may have one or more additional authorised representatives. The approval of an additional authorised representative is required, in addition to the approval of an authorised representative, in order to initiate a transaction, except for:
(a)
transfers to an account on the trusted account list in the Union Registry of the account holder; and
(b)
transactions initiated by external platforms exempted pursuant to Article 18(4).
4. Account holders may enable their accounts to be accessed through an external platform. Such account holders shall nominate as authorised representatives a person who is already the authorised representative of an external platform account.
5. If an authorised representative cannot access the Union Registry for technical or other reasons, the national administrator may initiate transactions on behalf of the authorised representative upon request, provided that the national administrator allows such requests and that access was not suspended in accordance with this Regulation.
6. The data exchange and technical specifications may set a maximum number of authorised representatives and additional authorised representatives for each account type.
7. Authorised representatives and additional authorised representatives must be natural persons over 18 years of age. 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 an account must be a permanent resident in that Member State, except for verifier accounts.
Article 22
Nominating and approval of authorised representatives and additional authorised representatives
1. When requesting an account, the prospective account holder shall nominate a number of authorised representatives and additional authorised representatives in accordance with Article 21.
2. When nominating an authorised representative or additional authorised representative, the account holder shall provide information as required by the administrator. That information shall include, at a minimum, the information set out in Annex VII.
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 account holder of its refusal. Where evaluation of the nominee information requires more time, the administrator may extend the evaluation process by up to 20 additional working days, and notify the extension to the account holder.
4. The national administrator shall verify whether the information and documents provided for nominating an authorised representative or additional authorised representative are complete, up to date, accurate and true.
5. A national administrator may refuse to approve an authorised representative or additional authorised representative:
(a)
if the information and documents provided are incomplete, out of date or otherwise inaccurate or false;
(b)
if the prospective representative is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;
(c)
for reasons set out in national law.
6. If the national administrator refused to approve an authorised representative or additional authorised representative, the account holder may object through the relevant authority under national law, who shall either instruct the national administrator to approve the representative or uphold the refusal in a reasoned decision, subject to requirements of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
Article 23
Updating of account information and information on authorised representatives
1. All account holders shall notify the national administrator within 10 working days of changes to the information submitted for the opening of an account. In addition, account holders shall confirm to the national administrator by 31 December each year that the information for their account remains complete, up to date and true.
2. Aircraft operators shall notify the administrator of their account within 10 working days if they have undergone a merger involving two or more aircraft operators or if they have split into two or more aircraft operators.
3. The notification of change shall be supported by information as required by the national administrator in conformity with this Section. Within 15 working days of the receipt of such a notification and supporting information, the relevant national administrator shall approve the update of the information. The administrator may refuse to update the information in accordance with Article 22(4) and (5). The account holder shall be notified of any such refusal. Objections to such refusals may be raised with the competent authority or the relevant authority under national law in accordance with Article 20.
4. At least once every three years, the national administrator shall review whether the information submitted for the opening of an account remains complete, up to date, accurate and true, and shall request that the account holder notify any changes as appropriate.
5. 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.
6. Subject to paragraph 5, no account holder may sell or divest of the ownership of its account to another person.
7. An authorised representative or additional authorised representative may not transfer its status as such to another person.
8. An account holder may request the removal of an authorised representative from an account. Upon receipt of the request the national administrator shall suspend the access of the authorised representative or additional authorised representative. Within 10 working days of the receipt of the request, the relevant administrator shall remove the authorised representative.
9. An account holder may nominate new authorised representatives or additional authorised representatives in accordance with Article 22.
10. 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 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 that it requires in accordance with Article 15 and the information about authorised representatives that it requires in accordance with Article 21.
11. Subject to paragraph 10, the Member State responsible for managing an account shall not change.
Article 24
Trusted account list
1. Auction delivery accounts, holding accounts and trading accounts may have a trusted account list in the Union Registry.
2. Accounts held by the same account holder shall be automatically included on the trusted account list.
3. Changes to the trusted account list shall be initiated and completed through the procedure set out in Article 36 for transfers specified in Section 6 of Chapter V. The change shall be confirmed by an additional authorised representative, or, if no additional authorised representative has been nominated, by another authorised representative. The delay specified in Article 36(4) shall not apply for the deletion of accounts from the trusted account list; for all other changes to the trusted account list the delay shall be seven days.
SECTION 3
Closure of accounts
Article 25
Closure of accounts
Subject to Article 29(1), within 10 working days of the receipt of a request from the account holder of an account other than those specified in Articles 26, 27, 28 the administrator shall close the account.
Article 26
Closure of operator holding accounts
1. The competent authority shall notify the national administrator within 10 working days of the revocation or suspension of a greenhouse gas emissions permit or knowledge of installation closure. Within 10 working days of such a notification, the national administrator shall record the relevant date in the Union Registry.
2. The national administrator may close an operator holding account by 30 June of the year following the year of closure of the installation, revocation or suspension of the greenhouse gas emissions permit if the relevant installation has surrendered an amount of allowances equal to or greater than its verified emissions.
Article 27
Closure of aircraft operator holding accounts
Aircraft operator holding accounts shall only be closed by the national administrator if 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 28
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 has been withdrawn;
(b)
the verifier ceased operation.
Article 29
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 25, 26 and 27, the administrator shall first request the account holder to specify another account to which such allowances or Kyoto units shall be transferred. If the account holder has not responded to the administrator’s request within 40 working days, the administrator shall transfer the allowances and Kyoto units to its national holding account.
2. If there is a positive balance of allowances or Kyoto units on an account to which access was suspended in accordance with Article 31, the competent authority may require that the allowances and Kyoto units are transferred immediately to the relevant national account.
Article 30
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 31 is not resolved within a reasonable period despite repeated notifications, the competent authority may instruct the national administrator to close, or in the case of operator holding accounts or aircraft operator holding accounts to set to blocked status, those accounts for which access is suspended until the competent authority determines that the situation giving rise to the suspension no longer subsists.
2. If a person holding account or trading account has a zero balance and no transactions have been recorded for a period of one year, the national administrator may notify the account holder that the person holding account or trading account will be closed within 40 working days unless the national administrator receives a request that the 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 an operator holding account upon instruction from the competent authority on the basis that there is no reasonable prospect of further allowances being surrendered.
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 22(3), and in particular if it discovers that the documents and identification information provided upon nomination were incomplete, out of date or otherwise inaccurate or false.
5. The account holder may object to the change of account status of an account in accordance with paragraph 1 or the removal of an authorised representative or additional authorised representative in accordance with paragraph 4 with the authority competent under national law 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 change of account status or removal in a reasoned decision, subject to requirements of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
SECTION 4
Suspension of access to accounts
Article 31
Suspension of access to accounts
1. An administrator may suspend the access of an authorised representative or an additional authorised representative to any account in the registry or to processes to which that authorised representative would otherwise have access if the administrator has reasonable grounds to believe that the authorised representative has:
(a)
attempted to access accounts or processes for which he is not authorised;
(b)
repeatedly attempted to access an account or a process using an incorrect username and password; or
(c)
attempted to compromise the security, the availability, the integrity or the confidentiality of the Union Registry or the EUTL, or of the data handled or stored therein.
2. An administrator may suspend the access of all authorised representatives or additional authorised representatives of 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 fees;
(c)
the account holder violated the terms and conditions applicable to the account;
(d)
the account holder did not agree to changes in the terms and conditions set by the national administrator or the central administrator;
(e)
the account holder did not notify changes to account information or 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 national administrator;
(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. An administrator may suspend the access of all authorised representatives or additional authorised representatives to a specific account and the possibility to initiate processes from that account:
(a)
for a maximum period of two weeks if the administrator has reasonable grounds to believe that the account was used or will be used for fraud, money laundering, terrorist financing or other serious crimes; or
(b)
on the basis of and in accordance with national law provisions that pursue a legitimate objective.
4. The national administrator may suspend access to an account if it considers that the opening of the account should have been refused in accordance with Article 20 or that the account holder no longer meets the requirements for the opening of the account.
5. The administrator of the account shall reverse the suspension immediately once the situation giving rise to the suspension is resolved.
6. The account holder may object to the suspension of its access in accordance with paragraphs 1 and 3 to 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, subject to requirements of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
7. The competent authority or the Commission may also instruct the national administrator or central administrator to implement a suspension.
8. A national law enforcement authority of the Member State of the administrator may also request the administrator to implement a suspension on the basis of and in accordance with national law.
9. When access to an external platform account is suspended, the administrator shall also suspend access enabled for the external platform to user accounts in accordance with Article 21(4). When access of authorised representatives and additional authorised representatives of an external platform account is suspended, the administrator shall also suspend the access of those representatives enabled by an account holder for the external platform in accordance with Article 21(4).
10. 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 time-limit laid down in Article 12(2a) and (3) of Directive 2003/87/EC due to suspension in accordance with this Article, the national administrator shall, if so requested by the account holder, surrender the number of allowances specified by the account holder.
CHAPTER IV
VERIFIED EMISSIONS AND COMPLIANCE
Article 32
Verified emissions data for an installation or aircraft operator
1. Each operator and aircraft operator shall select a verifier from the list of verifiers registered with 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, the competent authority or, upon decision of the competent authority, the account holder or the verifier shall enter emissions data for the previous year by 31 March.
3. Annual emissions data shall be submitted using the format set out in Annex VIII.
4. Upon the satisfactory verification in accordance with Article 15, first paragraph 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 or the competent authority 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 or the competent authority. 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 Articles 14 and 15 of Directive 2003/87/EC, by entering the corrected verified or estimated emissions for that installation or an aircraft operator for a given year in 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 Articles 14 and 15 of Directive 2003/87/EC.
Article 33
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 a 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 34
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 or aircraft operator holding account by calculating the sum of all allowances 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.
CHAPTER V
TRANSACTIONS
Article 35
Only transactions expressly provided for in this Regulation for each account type shall be initiated by that account type.
Article 36
Execution of transfers
1. For all transactions specified in Chapter V that are not initiated by an external platform, an out-of-band confirmation shall be required by the Union Registry before the transaction can be initiated. A transaction shall only be initiated where an additional authorised representative, whose approval is required pursuant to Article 21(3), has confirmed the transaction out of band.
2. For all transfers specified in Article 59 and Section 6 of Chapter V, the transfer shall be initiated immediately if it is confirmed between 10:00 and 16:00 central European time between Monday and Friday inclusive, with the exception of public holidays in the Member States deciding to suspend the running of the delay pursuant to paragraph 3. A transfer confirmed at any other time shall be initiated on the next day, Monday to Friday, at 10:00 central European time.
3. For all transfers of allowances and Kyoto units specified in Articles 59 and 60, and for all transfers specified in Article 61 to accounts not on the trusted list of the trading account holder, a delay of 26 hours shall apply between initiation and the transfer being communicated for finalisation pursuant to Article 78. The running of this delay shall be suspended between 00:00 and 24:00 central European time on Saturdays and Sundays. Member States may decide to also suspend the running of this delay between 00:00 and 24:00 central European time on national public holidays for a given year, subject to publication of that decision by 1 December of the previous year.
4. If an account representative suspects that a transfer was initiated fraudulently, at the latest two hours before the end of the delay provided in paragraph 3 the account representative may request the national administrator to cancel the transfer on behalf of the account representative before the transfer is communicated for finalisation. The account holder shall report the suspected fraud to the competent national law enforcement authority immediately following the request. That report shall be forwarded to the national administrator within seven days.
5. Upon initiation pursuant to paragraphs 1 and 2, a notification shall be sent to all account representatives indicating the proposed initiation of the transfer.
Article 37
Nature of allowances and finality of transactions
1. An allowance or Kyoto unit shall be a fungible, dematerialised instrument that is tradable on the market.
2. The dematerialised nature of allowances and Kyoto units shall imply that the record of the Union Registry shall constitute prima facie and sufficient evidence of title over an allowance or Kyoto unit, and of any other matter which is by this Regulation directed or authorised to be recorded in the registry.
3. The fungibility of allowances and Kyoto units shall imply that any recovery or restitution obligations that may arise under national law in respect of an allowance or Kyoto unit shall only apply to the allowance or Kyoto unit in kind. In particular:
(a)
subject to Article 64 and the reconciliation process foreseen in Article 77 of this Regulation, a transaction shall become final and irrevocable upon its finalisation pursuant to Article 78. Without prejudice to any provision of or remedy under national law that may result in a requirement or order to execute a new transaction in the registry, no law, regulation, rule or practice on the setting aside of contracts or transactions shall lead to the unwinding in the registry of a transaction that has become final and irrevocable under this Regulation;
(b)
nothing within this Article shall prevent an account holder or a third party from exercising any right or claim resulting from the underlying transaction that they may have in law, including to recovery, restitution or damages, in respect of a transaction that has become final in the registry, for instance in case of fraud or technical error, as long as this does not lead to the reversal, revocation or unwinding of the transaction in the registry.
4. A purchaser and holder of an allowance or Kyoto unit acting in good faith shall acquire title to an allowance or Kyoto unit free of any defects in the title of the transferor.
SECTION 1
Creation of allowances
Article 38
Creation of allowances
1. The central administrator may create an EU Total Quantity Account, an EU Aviation Total Quantity Account, an EU Auction Account and/or an EU Aviation Auction Account as appropriate, and shall create or cancel accounts and allowances as made necessary by acts of Union law, including as may be required by Article 10a(8) of Directive 2003/87/EC, Article 10(1) of Regulation (EU) No 1031/2010, Article 41(1) of Regulation (EU) No 920/2010, or by acts adopted under Articles 3e(3), 9 and 9a of Directive 2003/87/EC.
2. The Commission shall, at an appropriate time or at appropriate times, instruct the central administrator to create a number of general allowances in total equivalent to the number determined in accordance with Article 2(1) of Commission Decision 2010/670/EU (15) on, or for transfer to, accounts established for the purposes of Article 10a(8) of Directive 2003/87/EC (NER300 Account).
3. The Union Registry shall assign each allowance a unique unit identification code upon its creation.
SECTION 2
Account transfers before auctions and allocation
Article 39
Transfer of general allowances to be auctioned
1. The central administrator shall, in a timely manner, transfer on behalf of the relevant auctioneer appointed in accordance with Regulation (EU) No 1031/2010, general allowances from the EU Total Quantity Account into the EU Auction Account in a quantity corresponding to the annual volumes determined pursuant to Article 10 of Regulation (EU) No 1031/2010.
2. In case of adjustments to the annual volumes in accordance with Article 14 of Regulation (EU) No 1031/2010, the central administrator shall transfer a corresponding quantity of general allowances from the EU Total Quantity Account to the EU Auction Account, or from the EU Auction Account to the EU Total Quantity Account, as the case may be.
Article 40
Transfer of general allowances to be allocated free of charge
The central administrator shall, in a timely manner, transfer general allowances from the EU Total Quantity Account into the EU Allocation Account in a quantity corresponding to the sum of the allowances allocated free of charge according to the national allocation tables of each Member State.
Article 41
Transfer of general allowances for the new entrant reserve
1. The central administrator shall, in a timely manner, transfer general allowances from the EU Total Quantity Account to the EU New Entrant Reserve Account in a quantity corresponding to five percent of the Union-wide quantity of allowances determined by decisions adopted pursuant to Articles 9 and 9a of Directive 2003/87/EC, decreased by the number to be created pursuant to Article 38(2).
2. If the Union-wide quantity of allowances is increased by a decision adopted pursuant to Articles 9 and 9a of Directive 2003/87/EC, the central administrator shall transfer further general allowances from the EU Total Quantity Account to the EU New Entrant Reserve Account in a quantity corresponding to five percent of the increase of the Union-wide quantity of allowances.
3. If the Union-wide quantity of allowances is decreased by a decision adopted pursuant to Articles 9 and 9a of Directive 2003/87/EC, the central administrator shall delete general allowances on the EU New Entrant Reserve Account in a quantity corresponding to five percent of the decrease of the Union-wide quantity of allowances.
4. In the case of allocation to new entrants or allocation to new entrants following a significant capacity extension pursuant to Articles 19 and 20 of Decision 2011/278/EU, the resulting final amount of allowances allocated free of charge to the operator for the whole trading period, which is entered into the EUTL in accordance with Article 49(2), shall be transferred by the central administrator from the EU New Entrant Reserve Account to the EU Allocation Account.
Article 42
Transfer of aviation allowances to be auctioned
1. The central administrator shall, in a timely manner, transfer on behalf of the relevant auctioneer appointed in accordance with the Regulation (EU) No 1031/2010, aviation allowances from the EU Aviation Total Quantity Account to the EU Aviation Auction Account in a quantity corresponding to the annual volumes determined pursuant to Article 12(1) of Regulation (EU) No 1031/2010.
2. In case of adjustments to the annual volumes in accordance with Article 14 of Regulation (EU) No 1031/2010, the central administrator shall transfer a corresponding quantity of aviation allowances from the EU Aviation Total Quantity Account to the EU Aviation Auction Account, or from the EU Aviation Auction Account to the EU Aviation Total Quantity Account, as the case may be.
Article 43
Transfer of aviation allowances to be allocated free of charge
1. The central administrator shall, in a timely manner, transfer aviation allowances from the EU Aviation Total Quantity Account to the EU Aviation Allocation Account in a quantity corresponding to the number of aviation allowances to be allocated free of charge determined by the Commission’s decision adopted on the basis of Article 3e(3) of Directive 2003/87/EC.
2. If the number of aviation allowances to be allocated free of charge is increased by a decision pursuant to Article 3e(3) of Directive 2003/87/EC, the central administrator shall transfer further aviation allowances from the EU Aviation Total Quantity Account to the EU Aviation Allocation Account in a quantity corresponding to the increase of the number of aviation allowances to be allocated free of charge.
3. If the number of aviation allowances to be allocated free of charge is decreased by a decision pursuant to Article 3e(3) of Directive 2003/87/EC, the central administrator shall delete aviation allowances on the EU Aviation Allocation Account in a quantity corresponding to the decrease of the number of aviation allowances to be allocated free of charge.
Article 44
Transfer of aviation allowances to the special reserve
1. The central administrator shall, in a timely manner, transfer aviation allowances from the EU Aviation Total Quantity Account to the EU Special Reserve Account in a quantity corresponding to the number of aviation allowances in the special reserve determined by the decision adopted pursuant to Article 3e(3) of Directive 2003/87/EC.
2. If the number of aviation allowances in the special reserve is increased by a decision adopted pursuant to Article 3e(3) of Directive 2003/87/EC, the central administrator shall transfer further aviation allowances from the EU Aviation Total Quantity Account to the EU Special Reserve Account in a quantity corresponding to the increase of the number of aviation allowances in the special reserve.
3. If the number of aviation allowances in the special reserve is decreased by a decision adopted on the basis of Article 3e(3) of Directive 2003/87/EC, the central administrator shall delete aviation allowances on the EU Special Reserve Account in a quantity corresponding to the decrease of the number of allowances in the special reserve.
4. In the case of allocation from the special reserve pursuant to Article 3f of Directive 2003/87/EC, the resulting final amount of aviation allowances allocated free of charge to the aircraft operator for the whole trading period, entered into the EUTL in accordance with Article 53(2) of this Regulation, shall be automatically transferred from the EU Special Reserve Account to the EU Aviation Allocation Account.
Article 45
Transfer of general allowances to the EU Total Quantity Account
At the end of each trading period, all allowances on the EU Allocation Account and on the EU New Entrant Reserve Account shall be transferred to the EU Total Quantity Account.
Article 46
Transfer of aviation allowances to the EU Aviation Total Quantity Account
At the end of each trading period, all allowances remaining on the EU Special Reserve Account shall be transferred to the EU Aviation Total Quantity Account.
Article 47
Deletion of aviation allowances
The central administrator shall ensure that, at the end of each trading period, all allowances remaining on the EU Aviation Allocation Account shall be transferred to the Union allowance deletion account.
SECTION 3
Allocation to stationary installations
Article 48
National allocation tables
The EUTL shall contain one national allocation table for each Member State for each trading period. National allocation tables shall include the information set out in Annex IX.
Article 49
Entry of national allocation tables into the EUTL
1. By 30 September 2012, each Member State shall notify its national allocation table to the Commission.
2. The Commission shall instruct the central administrator to enter the national allocation table into the EUTL if it considers that the national allocation table is in conformity with Directive 2003/87/EC and the Decision 2011/278/EU. It shall otherwise reject the national allocation table within a reasonable period and inform the Member State without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted. A Member State shall submit a revised national allocation table to the Commission within three months.
Article 50
Changes to the national allocation tables
1. The national administrator shall carry out changes to the national allocation table in the EUTL where:
(a)
an installation’s permit has been revoked or has otherwise expired;
(b)
an installation ceases or partially ceases operation;
(c)
an installation has had a significant capacity reduction;
(d)
an installation was split into two or more installations;
(e)
two or more installations were merged into one installation.
2. A Member State shall notify the Commission of changes, other than those referred to in paragraph 1, to its national allocation table, including allocations to new entrants or allocations to a new entrant following significant capacity extensions. The Commission shall instruct the central administrator to make the corresponding changes to the national allocation table held in the EUTL if it considers that the changes to the national allocation table are in conformity with Directive 2003/87/EC and Decision 2011/278/EU. It shall otherwise reject the changes within a reasonable period and inform the Member State without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted.
Article 51
Free allocation of general allowances
1. The national administrator shall indicate in the national allocation table for each operator, for each year and for each legal basis set out in Annex IX, whether or not an installation should receive an allocation for that year.
2. From 1 February 2013, pursuant to paragraph 1, general allowances shall be transferred daily automatically from the EU Allocation Account in accordance with the relevant national allocation table to the relevant open or blocked operator holding account.
SECTION 4
Allocation to aircraft operators
Article 52
National aviation allocation tables
The EUTL shall contain one national aviation allocation table for each Member State for each trading period. National aviation allocation tables shall include the information set out in Annex X.
Article 53
Entry of national aviation allocation tables into the EUTL
1. By 30 September 2012, each Member State shall notify to the Commission its national aviation allocation table.
2. The Commission shall instruct the central administrator to enter the national aviation allocation table into the EUTL if it considers that the national aviation allocation table is in conformity with Directive 2003/87/EC, in particular with the allocations calculated and published by Member States under Article 3e(4) of Directive 2003/87/EC. It shall otherwise reject the national aviation allocation table within a reasonable period and inform the Member State without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted. A Member State shall submit a revised national aviation allocation table to the Commission within three months.
Article 54
Changes to the national aviation allocation tables
1. The national administrator shall carry out changes to the national aviation allocation table in the EUTL where:
(a)
an aircraft operator ceases operation;
(b)
an aircraft operator was split into two or more aircraft operators;
(c)
two or more aircraft operators have merged into a single aircraft operator.
2. A Member State shall notify the Commission of changes, other than those referred to in paragraph 1, to its national aviation allocation table, including any allocation from the special reserve pursuant to Article 3f of Directive 2003/87/EC.
3. The Commission shall instruct the central administrator to make the corresponding changes to the national aviation allocation table held in the EUTL if it considers that the change to the national aviation allocation table is in accordance with Directive 2003/87/EC, in particular with the allocations calculated and published pursuant to Article 3f(7) of Directive 2003/87/EC in case of allocations from the special reserve. It shall otherwise reject the changes within a reasonable period and inform the Member State without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted.
4. If a merger between aircraft operators involves aircraft operators that are administered by different Member States, the change under paragraph (1)(c) 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 change, consent shall be obtained from the national administrator administering the aircraft operator whose allocation will incorporate the allocation of the merged aircraft operator.
Article 55
Free allocation of aviation allowances
1. The national administrator shall indicate for each aircraft operator and for each year whether or not the aircraft operator should receive an allocation for that year in the national aviation allocation table.
2. From 1 February 2013, pursuant to paragraph 1, aviation allowances shall be transferred daily automatically from the EU Aviation Allocation Account to the relevant open or blocked aircraft operator holding account in accordance with the relevant allocation table.
SECTION 5
Auction
Article 56
Auction tables
The EUTL shall contain two auction tables for each auction platform for each calendar year from 2012, one for the auction of general allowances and one for the auction of aviation allowances. Auction tables shall include the information set out in Annex XI.
Article 57
Entry of auction tables into the EUTL
1. Within one month of the determination and publication of an auction calendar pursuant to Articles 11(1), 13(1), 13(2) or 32(4) of Regulation (EU) No 1031/2010, the relevant auction platform shall provide the Commission with the corresponding auction table pursuant to Article 56.
2. The Commission shall instruct the central administrator to enter the auction table into the EUTL if it considers that the auction table is in conformity with Regulation (EU) No 1031/2010. It shall otherwise reject the auction table within a reasonable period and inform the auction platform without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted. The auction platform shall submit a revised auction table to the Commission within three months.
Article 58
Changes to the auction tables
1. The relevant auction platform shall immediately notify the Commission of any necessary amendment to the auction table.
2. The Commission shall instruct the central administrator to enter the revised auction table into the EUTL if it considers that the revised auction table is in conformity with Regulation (EU) No 1031/2010. It shall otherwise reject the changes within a reasonable period and inform the auction platform without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent notification to be accepted.
3. The Commission may instruct the central administrator to suspend the transfer of allowances as specified in an auction table if it becomes aware of a necessary amendment to the auction table that the auction platform has failed to notify.
Article 59
Auctioning of allowances
1. The Commission shall instruct the central administrator, in a timely manner, to transfer on request of the relevant auctioneer, appointed in accordance with Regulation (EU) No 1031/2010, general allowances from the EU Auction Account, and/or aviation allowances from the EU Aviation Auction Account to the relevant auction delivery account in accordance with the auction tables. For allowances created in view of auctions pursuant to Article 10(1) of Regulation (EU) No 1031/2010, the Commission shall instruct the central administrator, in a timely manner, to transfer allowances, on request of the relevant auctioneer, from the account in which the allowances were created to the account established for auction delivery as indicated in the relevant auction table. The provision of the auction table in accordance with Article 57 shall constitute the request.
2. The account holder of the relevant auction delivery account shall ensure the transfer of the auctioned allowances to the successful bidders or their successors in title in accordance with Regulation (EU) No 1031/2010.
3. In accordance with Regulation (EU) No 1031/2010, the authorised representative of an auction delivery account may be required to transfer any allowances that were not delivered from the auction delivery account to the EU Auction Account.
SECTION 6
Trading
Article 60
Transfers of allowances or Kyoto units initiated by a holding account
Upon request of an account holder of a holding account, the Union Registry shall carry out a transfer of allowances or Kyoto units to an account on the trusted account list of the account holder unless such a transfer is prevented by the status of the initiating or receiving account.
Article 61
Transfers of allowances or Kyoto units initiated by a trading account
Upon request of an account holder of a trading account, the Union Registry shall carry out a transfer of allowances or Kyoto units to a holding or trading account in the Union Registry unless such a transfer is prevented by the status of the initiating account.
SECTION 7
Surrender of allowances
Article 62
Surrender of allowances
1. An operator or aircraft operator shall surrender allowances by proposing to the Union Registry to:
(a)
transfer a specified number of allowances created for compliance in the same trading period 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. Aviation allowances may only be surrendered by aircraft operators.
3. An allowance that was already surrendered may not be surrendered again.
SECTION 8
Deletion of allowances
Article 63
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.
SECTION 9
Transaction reversal
Article 64
Reversal of finalised processes initiated in error
1. If an account holder or a national 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 five 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)
surrender of allowances;
(b)
deletion of allowances.
3. If the administrator of the account establishes that the request fulfils the conditions under paragraph 1 and agrees with the request, it may propose the reversal of the transaction in the Union Registry.
4. If a national administrator unintentionally or erroneously initiated one of the transactions listed in paragraph 5, it may propose to the central administrator to carry out a reversal of the completed transaction in a written request. The request shall contain a statement indicating that the transaction was initiated erroneously or unintentionally.
5. National administrators may propose the reversal of the following transactions:
(a)
allocation of general allowances;
(b)
allocation of aviation allowances.
6. The central administrator shall ensure that the Union Registry accepts the proposal for reversal made pursuant to paragraphs 1 and 4, blocks the units that are to be transferred by the reversal and forwards the proposal to the central administrator provided that all of the following conditions are met:
(a)
a transaction surrendering or deleting allowance 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 allocation of general allowances to be reversed was carried out after the expiry date of the installation’s permit.
7. The central administrator shall ensure that the Union Registry completes the reversal with different units of the same unit type on the destination account of the transaction that is being reversed.
CHAPTER VI
TECHNICAL REQUIREMENTS OF THE REGISTRIES SYSTEM
SECTION 1
Availability
Article 65
Availability and reliability of the Union Registry and the EUTL
1. The central administrator shall take all reasonable steps to ensure that:
(a)
the Union Registry is available for access by account representatives and national administrators 24 hours a day, seven days a week;
(b)
the communication links referred to in Article 6 between the Union Registry, the EUTL and the ITL are maintained 24 hours a day, seven 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 representatives.
2. The central administrator shall ensure that the Union Registry and EUTL incorporate robust systems and procedures to safeguard all relevant data and facilitate the prompt recovery of data and operations in the event of failure or disaster.
3. The central administrator shall keep interruptions to the operation of the Union Registry and EUTL to a minimum.
Article 66
Helpdesks
1. National administrators shall provide assistance and support to holders of accounts and account representatives 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 67
Authentication of the Union Registry
The identity of the Union Registry shall be authenticated by the EUTL as indicated in the data exchange and technical specifications provided for in Article 79.
Article 68
Accessing accounts in the Union Registry
1. Account representatives 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 official languages of the Union.
2. The central administrator shall ensure that accounts in the Union Registry, where access through external platforms in accordance with Article 21(4) is enabled and one authorised representative is also the authorised representative of an external platform account, are accessible to the external platform operated by the holder of that external platform account.
3. Communications between authorised representatives or external 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 79.
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 suspend access to the relevant account, inform the administrator of the account thereof and request a replacement.
Article 69
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 accounts in the Union Registry for which he is authorised and shall only be able to request the initiation of processes for which he is authorised pursuant to Article 21. 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, secondary authentication for the purpose of accessing the Union Registry shall be provided. 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 79.
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 of his credentials.
5. The authorised representative shall take all necessary measures to prevent the loss, theft or compromise of its credentials. The authorised representative shall immediately report to the national administrator the loss, theft or compromise of its credentials.
Article 70
Suspension of all access due to a security breach or a security risk
1. The Commission may instruct the central administrator to suspend access to the Union Registry or the EUTL or any part thereof where it has a reasonable suspicion that there is a breach of security of the Union Registry or the EUTL or that there exists a serious security risk to the Union Registry or the EUTL that threatens the integrity of the system, which includes the back-up facilities referred to in Article 65.
2. In the event of a breach of security or a security risk that may lead to suspension of access, an administrator who becomes aware of the breach or risk shall promptly inform the central administrator of any risks posed to other parts of the Union Registry. The central administrator shall inform all other administrators.
3. If an administrator becomes aware of a situation that requires the suspension of all access to the accounts that it manages in accordance with this Regulation, it shall inform the central administrator and account holders with such prior notice of the suspension as is practicable. The central administrator shall inform all other administrators as soon as possible.
4. 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 the EUTL’s website.
Article 71
Suspension of access to allowances or Kyoto units in the case of a suspected fraudulent transaction
1. An administrator or an administrator acting on request of the competent authority may suspend access to allowances or Kyoto units in the part of the Union Registry it administers:
(a)
for a maximum period of two weeks if it suspects that the allowances or Kyoto units have been the subject of a transaction constituting fraud, money laundering, terrorist financing or other serious crime; or
(b)
on the basis of and in accordance with national law provisions that pursue a legitimate objective.
2. The Commission may instruct the central administrator to suspend access to allowances or Kyoto units in the Union Registry or the EUTL for a maximum period of two weeks if it suspects that the allowances or Kyoto units have been the subject of a transaction constituting fraud, money laundering, terrorist financing or other serious crime.
3. The administrator or the Commission shall immediately inform the competent law enforcement authority of the suspension.
4. A national law enforcement authority of the Member State of the national administrator may also instruct the administrator to implement a suspension on the basis of and in accordance with national law.
Article 72
Cooperation with competent authorities and notification of money laundering, terrorist financing or criminal activity
1. The national administrator, its directors and its employees shall cooperate fully with the relevant competent authorities to establish adequate and appropriate procedures to forestall and prevent operations related to money laundering or terrorist financing.
2. The national administrator, its directors and its employees, shall cooperate fully with the FIU referred to in Article 21 of Directive 2005/60/EC by promptly:
(a)
informing the FIU, on their own initiative, where they know, suspect or have reasonable grounds to suspect that money laundering, terrorist financing or criminal activity is being or has been committed or attempted;
(b)
providing the FIU, at its request, with all necessary information, in accordance with the procedures established by the applicable legislation.
3. The information referred to in paragraph 2 shall be forwarded to the FIU of the Member State of the national administrator. The national measures transposing the compliance management and communication policies and procedures, referred to in Article 34(1) of Directive 2005/60/EC, shall designate the person or persons responsible for forwarding information pursuant to this Article.
4. The Member State of the national administrator shall ensure that the national measures transposing Articles 26 to 29, 32, and Article 35 of Directive 2005/60/EC apply to the national administrator.
Article 73
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 the Union Registry if it is not operated and maintained in accordance with the provisions of this Regulation. It shall immediately notify national administrators concerned.
2. 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 or emergency maintenance on the Union Registry.
3. A national administrator may request the Commission to reinstate processes suspended in accordance with paragraph 1 if it considers that the outstanding issues that caused the suspension have been resolved. If this is the case, the Commission shall instruct the central administrator to reinstate those processes. It shall otherwise reject the request within a reasonable period and inform the national administrator without delay, stating its reasons and setting out criteria to be fulfilled for a subsequent request to be accepted.
SECTION 3
Automated checking, recording and completing of processes
Article 74
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 this Regulation.
2. The EUTL shall conduct automated checks set out in the data exchange and technical specifications provided for in Article 79 for all processes to identify irregularities and discrepancies, whereby a proposed process does not conform to the requirements of Directive 2003/87/EC and of this Regulation.
Article 75
Detection of discrepancies
1. In the case of processes completed through the direct communication link between the Union Registry and the EUTL referred to in Article 6(3), the EUTL shall terminate any processes where it identifies discrepancies upon conducting the automated checks referred to in Article 76(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 6(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 76(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 76
Detection of discrepancies within the Union Registry
1. The Union 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 79.
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 77
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. If during the data reconciliation process referred to in paragraph 1, an inconsistency is identified by the 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 78
Finalisation of processes
1. All transactions communicated to the ITL in accordance with Article 6(1) shall be final when the ITL notifies the EUTL that it has completed the process.
2. All transactions and other processes communicated to the EUTL in accordance with Article 6(3) shall be final when the EUTL notifies the Union Registry that it has completed the processes. The EUTL shall automatically abort the completion of a transaction or process if it could not be completed within 24 hours of its communication.
3. The data reconciliation process referred to in Article 77(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 79
Data exchange and technical specifications
1. The Commission shall make available to national administrators 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.
2. The data exchange and technical specifications shall be drawn up in consultation with the Administrators’ Working Group of the Climate Change Committee and 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 80
Change and release management
If a new version or release of the Union Registry software is required, the central administrator shall ensure that the testing procedures set out in the data exchange and technical specifications provided for in Article 79 are completed before a communication link is established and activated between the new version or release of that software and the EUTL or ITL.
CHAPTER VII
RECORDS, REPORTS, CONFIDENTIALITY AND FEES
Article 81
Records
1. The Union Registry and every other KP registry shall store records concerning all processes, log data 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 or were 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 79.
Article 82
Reporting
1. The central administrator shall make available the information listed in Annex XII at the frequencies and to the recipients set out in Annex XII 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 83.
2. National administrators may also make available the part of the information listed in Annex XII that they have access to in accordance with Article 83 at the frequencies and to the recipients set out in Annex XII 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 83.
Article 83
Confidentiality
1. Information, including the holdings of all accounts, all transactions made, the unique unit identification code of the allowances and the unique numeric value of the unit serial number of the Kyoto units held or affected by a transaction, held in the EUTL and the Union Registry shall be considered confidential except as otherwise required by Union law, or by provisions of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
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)
the European Court of Auditors;
(d)
Eurojust;
(e)
the competent authorities referred to in Article 11 of Directive 2003/6/EC of the European Parliament and of the Council (16) and in Article 37(1) of Directive 2005/60/EC;
(f)
competent national supervisory authorities;
(g)
the national administrators of Member States and the competent authorities referred to in Article 18 of Directive 2003/87/EC.
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 necessary for the performance of their tasks.
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 anonymous 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. Europol shall obtain permanent read-only access to data stored in the Union Registry and the EUTL for the purpose of the performance of its tasks in accordance with Council Decision 2009/371/JHA (17). Europol shall keep the Commission informed of the use it makes of the data.
7. National administrators shall make available through secure means to all other national administrators and the central administrator the names and identities of persons for whom they refused to open an account in accordance with Article 20(2)(a) to (c), or whom they refused to nominate as an authorised representative or additional authorised representative in accordance with Article 22(5)(a) and (b), and the names and identities of the account holder, authorised representative or additional authorised representative of accounts to which access has been suspended in accordance with Article 31 or of accounts that have been closed in accordance with Article 30.
8. National administrators may decide to notify to national law enforcement and tax authorities all transactions that involve a number of units above the number determined by the national administrator and to notify any account that is involved in a number of transactions within a period that is above a number determined by the national administrator.
9. Account holders may request in writing from the national administrator that the public website of the Union Registry should not display some or all of the data items in Table V-II of Annex V.
10. Account holders may request in writing from the national administrator that the public website of the Union Registry display some or all of the data items in rows 3 to 14 of Table VII-I of Annex VII.
11. The EUTL and the Union Registry shall not require account holders to submit price information concerning allowances or Kyoto units.
12. The auction monitor appointed pursuant to Article 24 of Regulation (EU) No 1031/2010 shall have access to all information concerning the auction delivery account held in the Union Registry.
Article 84
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. National administrators shall notify the central administrator of the fees charged and of any changes in the fees within 10 working days. The central administrator shall display fees on a public website.
Article 85
Interruption of operation
The central administrator shall ensure that interruptions to the operation of the Union Registry are kept to a minimum by taking all reasonable steps to ensure the availability and security of the Union Registry and the EUTL and by providing for robust systems and procedures to safeguard all information.
CHAPTER VIII
TRANSITIONAL AND FINAL PROVISIONS
Article 86
Implementation
Member States shall bring into force the laws, regulations and administrative provisions necessary to implement this Regulation, and in particular for national administrators to comply with their obligations to verify and review information submitted pursuant to Articles 20(1), 22(4) and 23(4).
Article 87
Further use of accounts
Accounts, as specified in Chapter III herein, opened or used pursuant to Regulation (EU) No 920/2010 shall remain in use for the purposes of this Regulation. Trading platform accounts opened pursuant to Regulation (EU) No 920/2010 shall remain in use as external platform accounts for the purposes of this Regulation.
Article 88
Amendments to Regulation (EC) No 2216/2004
Regulation (EC) No 2216/2004 is amended as follows:
(1)
in Article 10, paragraphs 1 to 2 are replaced by the following:
‘1. Information, including the holdings of all accounts, all transactions made, the unique unit identification code of the allowances and the unique numeric value of the unit serial number of the Kyoto units held or affected by the transaction, held in the registries and the Community independent transaction log shall be considered confidential except as otherwise required by Union law, or by provisions of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
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)
the European Court of Auditors;
(d)
Eurojust;
(e)
the competent authorities referred to in Article 11 of Directive 2003/6/EC and in Article 37(1) of Directive 2005/60/EC;
(f)
the competent national supervisory authorities;
(g)
registry administrators of Member States and the competent authorities referred to in Article 18 of Directive 2003/87/EC.’;
(2)
in Article 10, the following paragraph 2f shall be inserted:
‘2f. Europol shall obtain permanent read-only access to data stored in the Union Registry and the CITL for the purpose of the performance of its tasks in accordance with Council Decision 2009/371/JHA. Europol shall keep the Commission informed of the use it makes of the data.’;
(3)
in Article 21a, paragraph 3 shall be replaced by the following:
‘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, 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)
Article 69 is replaced by the following:
‘Article 69
The Commission may instruct the central administrator to suspend access to the Community independent transaction log and a registry administrator may suspend access to his registry where it has a reasonable suspicion that there is a breach of security of or that there exists a serious security risk to the Community independent transaction log or to a registry that threatens the integrity of the Community independent transaction log or of a registry or the integrity of the registries system, which includes the back-up facilities under Article 68.’;
(5)
in Article 70, paragraphs 1 and 2 are replaced by the following:
‘1. In the event of a breach of security of or a security risk to the Community independent transaction log that may lead to suspension of access, the central administrator shall promptly inform registry administrators of any risks posed to registries.
2. In the event of a breach of security of or a security risk to a registry that may lead to suspension of access, the relevant registry administrator shall promptly inform the central administrator who shall, in turn, promptly inform other registry administrators of any risks posed to registries.’;
(6)
the following Article 70a is inserted:
‘Article 70a
Suspension of access to allowances or Kyoto units in case of a suspected fraudulent transaction
1. An administrator or an administrator acting on request of the competent authority may suspend access to allowances or Kyoto units in the registry it administers:
(a)
for a maximum period of two weeks if it suspects that the allowances or Kyoto units have been the subject of a transaction constituting fraud, money laundering, terrorist financing or other serious crime; or
(b)
on the basis of and in accordance with national law provisions that pursue a legitimate objective.
2. The administrator shall immediately inform the competent law enforcement authority of the suspension.
3. A national law enforcement authority of the Member State of the administrator may also instruct the administrator to implement a suspension on the basis of and in accordance with national law.’;
(7)
points 3 to 7 of Annex IV are replaced by the following:
‘3.
Evidence to support the identity of the natural person requesting the account opening, which may be a copy of one of the following:
(a)
an identity card issued by a State that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
a passport.
4.
Evidence to support the address of the permanent residence of the natural person account holder, which may be a 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.
The following documents in case of a legal person requesting the account opening:
(a)
a copy of the instruments establishing the legal entity and a copy of a document proving the registration of the legal entity;
(b)
bank account details;
(c)
a confirmation of VAT registration;
(d)
information on the legal entity’s beneficial owner as defined in Directive 2005/60/EC;
(e)
list of directors;
(f)
a copy of the annual report or of the latest audited financial statements, or if no audited financial statements available, a copy of the financial statements stamped by the tax office or the financial director.
6.
Evidence to support the registered address of the legal person account holder, if this is not clear from the document submitted in accordance with point 5.
7.
The criminal record of the natural person requesting the account opening or if it is a legal person, of its directors.
8.
Any copy of a document submitted as evidence under this Annex must be certified as a true copy by a notary public or other similar person specified by the national administrator. Regarding documents issued outside the Member State requesting a copy, the copy must be legalised. The date of the certification or legalisation must not be more than three months prior to the date of application.
9.
The administrator of the account may require that the documents submitted are accompanied with a certified translation into a language specified by the administrator. Instead of obtaining paper documents, the administrator of the account may use electronic mechanisms to check the evidence to be submitted in accordance with this Annex.’;
(8)
points 3 to 7 of Annex IVa are replaced by the following:
‘3.
Evidence to support the identity of the nominee, which may be a copy of one of the following:
(a)
an identity card issued by a State that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
a passport.
4.
Evidence to support the address of the permanent residence of the nominee, which may be a 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.
Any copy of a document submitted as evidence under this Annex must be certified as a true copy by a notary public or other similar person specified by the national administrator. Regarding documents issued outside the Member State requesting a copy, the copy must be legalised. The date of the certification or legalisation must not be more than three months prior to the date of application.
6.
The administrator of the account may require that the documents submitted are accompanied with a certified translation into a language specified by the administrator.
7.
Instead of obtaining paper documents, the administrator of the account may use electronic mechanisms to check the evidence to be submitted in accordance with this Annex.’.
Article 89
Amendments to Regulation (EU) No 920/2010
Regulation (EU) No 920/2010 is amended as follows:
(1)
Regulation (EU) No 920/2010 shall be renamed as follows:
(2)
in Article 1, the first sentence shall be replaced by the following:
‘This Regulation lays down general as well as operational and maintenance requirements for the periods ending 31 December 2012 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.’;
(3)
the following Article 1a shall be inserted:
‘Article 1a
Scope
This Regulation concerns allowances created in the Union emissions trading scheme for the periods ending 31 December 2012 and Kyoto units.’;
(4)
in Article 2, the following points 25 and 26 shall be added:
‘25.
“directors” includes the persons effectively directing the day-to-day operations of a legal person;
26.
“central European time” means central European summer time during the summer-time period as defined in Articles 1, 2 and 3 of Directive 2000/84/EC of the European Parliament and of the Council (18).
(5)
Article 3(2) shall be replaced by the following:
‘2. A Union Registry for the periods ending 31 December 2012 of the Union emissions trading scheme is hereby established. 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 function 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.’;
(6)
in Article 4, paragraph 1 shall be replaced by the following:
‘1. A European Union Transaction Log (EUTL), to take the form of a standardised electronic database, is hereby established, pursuant to Article 20 of Directive 2003/87/EC, for transactions within the scope of this Regulation. The EUTL shall also serve to record all information relating to the holdings and transfers of Kyoto units in accordance with Article 6(2) of Decision No 280/2004/EC.’;
(7)
in Article 13, paragraph 4 is deleted;
(8)
the following Article 13a is added:
‘Article 13a
Opening of trading accounts in the Union Registry
From 30 June 2012, the opening of trading accounts in the Union Registry may be requested. Subject to Articles 43 and 44, the rules set out in this Regulation for person holding accounts shall apply mutatis mutandis.’;
(9)
in Article 14, paragraphs 1 and 2 are replaced by the following:
‘1. Trading platforms may submit a request for a trading platform holding account in the Union Registry. This request shall be submitted to the national administrator. The person requesting the account shall provide information as required by the national administrator. This information shall include, at a minimum, the information set out in Annex III and evidence that the trading platform ensures a level of security equivalent or higher than the security ensured by the Union Registry in accordance with this Regulation.
2. National administrators shall ensure that external platforms conform to the technical and security requirements described in the data exchange and technical specifications provided for in Article 71.’;
(10)
in Article 14, paragraph 4 is replaced by the following:
‘4. The approval of an additional authorised representative pursuant to Article 19(2) shall not be required for transactions initiated by exempted trading platforms. A trading platform may be exempted by the national administrator upon written request if the external trading platform provides evidence that it has security arrangements in place that offer at least a level of protection afforded by the requirement in Article 19(2). The minimum technical and security requirements shall be set out in the data exchange and technical specifications provided for in Article 71. The national administrator concerned shall notify the Commission of such requests without delay. Exemptions pursuant to this paragraph shall be made public by the Commission.’;
(11)
in Article 16, the following paragraph 4 is added:
‘4. The status of aircraft operator holding accounts shall be changed from blocked to open following the entry of verified emissions pursuant to Article 29 and a compliance status figure greater than or equal to 0 calculated pursuant to Article 31 paragraph 1. The status of the account shall also be changed to open at an earlier date following receipt by the national administrator of a request by the account holder to activate its account for trading, provided that such a request contains, at a minimum, any required elements specified in the data exchange and technical specifications provided for in Article 71.’;
(12)
Article 18 is replaced by the following:
‘Article 18
Refusal to open an account
1. The national administrator shall verify whether the information and documents provided for account opening are complete, up to date, accurate and true.
2. A national administrator may refuse to open an account:
(a)
if the information and documents provided are incomplete, out of date or otherwise inaccurate or false;
(b)
if the prospective account holder, or, if it is a legal person, any of the directors, is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;
(c)
if the national administrator has reasonable grounds to believe that the accounts may be used for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes;
(d)
for reasons set out in national law.
3. If the national administrator refuses to open an account, the person requesting the account opening may object to 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, subject to requirements of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.’;
(13)
in Article 19, paragraphs 1 and 2 are replaced by the following:
‘1. Each account, with the exception of the verifier account, shall have at least two authorised representatives. A verifier account shall have at least one authorised representative. The authorised representatives shall initiate transactions and other processes on behalf of the account holder.
2. Accounts may have one or more additional authorised representatives. The approval of an additional authorised representative is required in addition to the approval of an authorised representative, in order to initiate a transaction, except for:
(a)
transfers to an account on the trusted account list in the Union Registry of the account holder;
(b)
transactions initiated by trading platforms exempted pursuant to Article 14(4); and
(c)
surrender of allowances, ERUs and CERs pursuant to Chapter VI, Section 3.’;
(14)
in Article 19, paragraph 2a is inserted:
‘2a. In addition to the authorised representatives specified in paragraph 1, accounts may have authorised representatives with view only access to the account.’;
(15)
in Article 20, the following paragraphs 3a and 3b are inserted:
‘3a. The national administrator shall verify whether the information and documents provided for nominating an authorised representative or additional authorised representative are complete, up to date, accurate and true.
3b. A national administrator may refuse to approve an authorised representative or additional authorised representative:
(a)
if the information and documents provided are incomplete, out of date or otherwise inaccurate or false;
(b)
if the prospective representative is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;
(c)
for reasons set out in national law.’;
(16)
the following Article 21a is inserted:
‘Article 21a
Trusted account list
1. From 30 June 2012, operator holding accounts, aircraft operator holding accounts, person holding accounts and trading accounts may have a trusted account list in the Union Registry.
2. Accounts held by the same account holder shall be automatically included on the trusted account list.
3. Changes to the trusted account list shall be initiated and completed through the procedure set out in Article 32a for transactions specified in Chapter VI. The change shall be confirmed by an additional authorised representative, or, if no additional authorised representative has been nominated, by another authorised representative. The delay specified in Article 32a(4) shall not apply for the deletion of accounts from the trusted account list; for all other changes to the trusted account list the delay shall be seven days.’;
(17)
in Article 27, paragraph 2a is inserted:
‘2a. An administrator may suspend the access of all authorised representatives or additional authorised representatives to a specific account and the possibility to initiate processes from that account:
(a)
for a maximum period of two weeks if the administrator has reasonable grounds to believe that the account was used or will be used for fraud, money laundering, terrorist financing or other serious crimes; or
(b)
on the basis of and in accordance with national law provisions that pursue a legitimate objective.’;
(18)
in Article 29, paragraphs 4 and 5 are replaced by the following:
‘4. Upon the satisfactory verification in accordance with Article 15, first paragraph 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 or the competent authority 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 or the competent authority. 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.’;
(19)
the following Articles 32a and 32b are inserted under ‘Chapter VI TRANSACTIONS’:
‘Article 32a
Execution of transfers
1. For all transactions specified in Chapter VI that are not initiated by a trading platform, an out-of-band confirmation shall be required by the Union Registry before the transaction can be initiated. A transaction shall only be initiated where an additional authorised representative whose approval is required pursuant to Article 19(2), has confirmed the transaction out of band.
2. For all transfers of allowances and Kyoto units specified in Articles 43 and 44, the transfer shall be initiated immediately if it is confirmed between 10:00 and 16:00 central European time between Monday and Friday inclusive, with the exception of public holidays in the Member States deciding to suspend the running of the delay pursuant to paragraph 3. A transfer confirmed at any other time shall be initiated on the next day, Monday to Friday, at 10:00 central European time.
3. For all transfers of allowances and Kyoto units specified in Articles 43 and 44, except for transfers from a trading account to an account on the trusted account list of that account, a delay of 26 hours shall apply between the initiation and the transfer being communicated for finalisation pursuant to Article 70. The running of this delay shall be suspended between 00:00 and 24:00 central European time on Saturdays and Sundays. Member States may decide to also suspend the running of this delay between 00:00 and 24:00 central European time on national public holidays for a given year, subject to publication of that decision by 1 December of the previous year.
4. If an account representative suspects that a transfer was initiated fraudulently, at the latest two hours before the end of the delay provided in paragraph 3 they may request the national administrator to cancel the transfer on their behalf before the transfer is communicated for finalisation. The account holder shall report the suspected fraud to the competent national law enforcement authority immediately following the request. That report shall be forwarded to the national administrator within seven days.
5. Upon initiation pursuant to paragraphs 1 and 2, a notification shall be sent to all account representatives indicating the proposed initiation of the transfer.
Article 32b
Nature of allowances and finality of transactions
1. An allowance or Kyoto unit shall be a fungible, dematerialised instrument that is tradable on the market.
2. The dematerialised nature of allowances and Kyoto units shall imply that the record of the Union Registry shall constitute prima facie and sufficient evidence of title over an allowance or Kyoto unit, and of any other matter which is by this Regulation directed or authorised to be recorded in the registry.
3. The fungibility of allowances and Kyoto units shall imply that any recovery or restitution obligations that may arise under national law in respect of an allowance or Kyoto unit shall only apply to the allowance or Kyoto unit in kind. In particular:
(a)
subject to Article 51 and the reconciliation process foreseen in Article 69 of this Regulation, a transaction shall become final and irrevocable upon its finalisation pursuant to Article 70. Without prejudice to any provision of or remedy under national law that may result in a requirement or order to execute a new transaction in the registry, no law, regulation, rule or practice on the setting aside of contracts or transactions shall lead to the unwinding in the registry of a transaction that has become final and irrevocable under this Regulation;
(b)
nothing within this Article shall prevent an account holder or a third party from exercising any right or claim resulting from the underlying transaction that they may have in law, including to recovery, restitution, or damages, in respect of a transaction that has become final in the registry, for instance in case of fraud or technical error, as long as this does not lead to the reversal, revocation or unwinding of the transaction in the registry.
4. A purchaser and holder of an allowance or Kyoto unit acting in good faith shall acquire title to an allowance or Kyoto unit free of any defects in the title of the transferor.’;
(20)
in Article 34, paragraph 1 point (d) is replaced by the following:
‘(d)
the identity of the receivers of the allocation (in the case of allowances allocated through auction, the receiver shall be the account set up for that purpose by Commission Regulation (EU) No 1193/2011 (19)).
(21)
Articles 43 and 44 shall be replaced by the following:
‘Article 43
Transfers of allowances by account holders
1. Subject to paragraph 2, 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).
2. From 30 June 2012, the operator holding accounts, aircraft operator holding accounts, person holding accounts and trading platforms may only transfer allowances to an account on the trusted account list set up pursuant to Article 21a.
Article 44
Transfers of Kyoto units by account holders
1. Subject to paragraph 2, 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).
2. From 30 June 2012, the operator holding accounts, aircraft operator holding accounts, person holding accounts and trading platforms may only transfer Kyoto units to an account on the trusted account list set up pursuant to Article 21a.’;
(22)
Article 50 is replaced by the following:
‘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 or the cancellation account of the Union Registry.’;
(23)
Article 51, paragraph 4, point (a) shall be replaced by the following:
‘(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, except for allocation of Chapter III allowances and allocation of Chapter II allowances;’;
(24)
in Article 63, paragraph 4a is inserted:
‘4a. The authorised representative shall take all necessary measures to prevent the loss, theft or compromise of its credentials. The authorised representative shall immediately report to the national administrator the loss, theft or compromise of its credentials.’;
(25)
Article 64 is replaced by the following:
‘Article 64
Suspension of all access due to a security breach or a security risk
1. The Commission may instruct the central administrator to suspend access to the Union Registry or the EUTL or any parts thereof where it has a reasonable suspicion that there is a breach of security of the Union Registry or the EUTL or that there exists a serious security risk to the Union Registry or the EUTL that threatens the integrity of the system, which includes the back-up facilities referred to in Article 59.
2. In the event of a breach of security or a security risk that may lead to suspension of access, an administrator who becomes aware of the breach or risk 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.
3. 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.
4. 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 the EUTL’s website.’;
(26)
the following Article 64a is inserted:
‘Article 64a
Suspension of access to allowances or Kyoto units in case of a suspected fraudulent transaction
1. An administrator or an administrator acting on request of the competent authority may suspend access to allowances or Kyoto units in the registry it administers:
(a)
for a maximum period of two weeks if it suspects that the allowances or Kyoto units have been the subject of a transaction constituting fraud, money laundering, terrorist financing or other serious crime; or
(b)
on the basis of and in accordance with national law provisions that pursue a legitimate objective.
2. The Commission may instruct the central administrator to suspend access to allowances or Kyoto units in the Union Registry or the EUTL for a maximum period of two weeks if it suspects that the allowances or Kyoto units have been the subject of a transaction constituting fraud, money laundering, terrorist financing or other serious crime.
3. The administrator or the Commission shall immediately inform the competent law enforcement authority of the suspension.
4. A national law enforcement authority of the Member State of the administrator may also instruct the administrator to implement a suspension on the basis of and in accordance with national law.’;
(27)
Article 71 is replaced by the following:
‘Article 71
Data exchange and technical specifications
1. The Commission shall make available to administrators 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.
2. The data exchange and technical specifications shall be drawn up in consultation with the Administrators’ Working Group of the Climate Change Committee and 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.’;
(28)
Article 75 is amended as follows:
(a)
paragraphs 1 to 3 are replaced by the following:
‘1. Information, including the holdings of all accounts, all transactions made, the unique unit identification code of the allowances and the unique numeric value of the unit serial number of the Kyoto units held or affected by the transaction, held in the EUTL, the Union Registry and every other KP registry shall be considered confidential except as otherwise required by Union law, or by provisions of national law that pursue a legitimate objective compatible with this Regulation and are proportionate.
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)
the European Court of Auditors;
(d)
Eurojust;
(e)
the competent authorities referred to in Article 11 of Directive 2003/6/EC and in Article 37(1) of Directive 2005/60/EC;
(f)
competent national supervisory authorities;
(g)
the national administrators of Member States and the competent authorities referred to in Article 18 of Directive 2003/87/EC.
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 necessary for the performance of their tasks.’;
(b)
the following paragraph 5a shall be inserted:
‘5a. Europol shall obtain permanent read-only access to data stored in the Union Registry and the EUTL for the purpose of the performance of its tasks in accordance with Council Decision 2009/371/JHA. Europol shall keep the Commission informed of the use it makes of the data.’;
(c)
paragraph 6 is replaced by the following:
‘6. National administrators shall make available through secure means to all other national administrators and the central administrator the names and identities of persons for whom they refused to open an account for in accordance with Article 13(3) or 14(3), or whom they refused to nominate as an authorised representative or additional authorised representative in accordance with Article 20(3) and the names and identities of the account holder, authorised representative or additional authorised representative of accounts to which access has been suspended in accordance with Articles 64 and 64a or of accounts that have been closed in accordance with Article 28.’;
(29)
in Article 77, paragraph 2a is inserted:
‘2a. Before migration, person holding accounts shall be checked by national administrators to ensure that the information submitted for account opening are complete, up to date, accurate and true.’;
(30)
Annex IV shall be replaced by the following:
‘ANNEX IV
Information concerning person holding accounts and trading platform holding accounts to be provided to the national administrator
1.
The information set out in Table III-I. (The account ID and the alphanumeric identifier are to be unique within the registry system.)
2.
With the exception of aircraft operators, 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 natural person requesting the account opening, which may be a copy of one of the following:
(a)
an identity card issued by a State that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
a passport.
4.
Evidence to support the address of the permanent residence of the natural person account holder, which may be a 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.
The following documents in case of a legal person requesting the account opening:
(a)
a copy of the instruments establishing the legal entity and a copy of a document proving the registration of the legal entity;
(b)
bank account details;
(c)
a confirmation of VAT registration;
(d)
information on the legal entity’s beneficial owner as defined in Directive 2005/60/EC;
(e)
list of directors;
(f)
a copy of the annual report or of the latest audited financial statements, or if no audited financial statements available, a copy of the financial statements stamped by the tax office or the financial director.
6.
Evidence to support the registered address of the legal person account holder, if this is not clear from the document submitted in accordance with point 5.
7.
The criminal record of the natural person requesting the account opening or if it is a legal person, of its directors.
8.
Any copy of a document submitted as evidence under this Annex must be certified as a true copy by a notary public or other similar person specified by the national administrator. Regarding documents issued outside the Member State requesting a copy, the copy must be legalised. The date of the certification or legalisation must not be more than three months prior to the date of application.
9.
The administrator of the account may require that the documents submitted are accompanied with a certified translation into a language specified by the administrator.
10.
Instead of obtaining paper documents, the administrator of the account may use electronic mechanisms to check the evidence to be submitted in accordance with this Annex.’;
(31)
Annex IX is replaced by the following:
‘ANNEX IX
Information concerning authorised representatives and additional authorised representatives to be provided to the administrator of the account
1.
The information set out in Table IX-I.
Table IX-I: Authorised representative details
A
B
C
D
E
F
Item No
Account detail item
Mandatory or optional?
Type
Can be updated?
Is approval from NA needed for update?
Displayed on UR public website?
1
Person ID
M
Free
No
n.a.
No
2
Type of AR
M
Choice
Yes
No
Yes
3
First name
M
Free
Yes
Yes
No (20)
4
Last name
M
Free
Yes
Yes
No (20)
5
Title
O
Free
Yes
No
No (20)
6
Job title
O
Free
Yes
No
No (20)
Company name
O
Free
Yes
No
No (20)
Company department
O
Free
Yes
No
No (20)
7
Country
M
Preset
No
n.a.
No (20)
8
Region or State
O
Free
Yes
Yes
No (20)
9
City
M
Free
Yes
Yes
No (20)
10
Postcode
M
Free
Yes
Yes
No (20)
11
Address - line 1
M
Free
Yes
Yes
No (20)
12
Address - line 2
O
Free
Yes
Yes
No (20)
13
Telephone 1
M
Free
Yes
No
No (20)
14
Mobile phone
M
Free
Yes
Yes
No (20)
15
E-mail address
M
Free
Yes
Yes
No
16
Date of birth
M
Free
No
n.a.
No
17
Place of birth - city
M
Free
No
n.a.
No
18
Place of birth - country
M
18
Preferred language
O
Choice
Yes
No
No
19
Confidentiality level
O
Choice
Yes
No
No
20
AARs rights
M
Multiple choice
Yes
No
No
2.
A signed statement from the account holder indicating that it wishes to nominate a particular person as authorised representative or additional authorised representative, confirming that the authorised representative has the right to initiate, or that additional authorised representative has the right to approve, transactions on behalf of the account holder and indicating any limitations to that right.
3.
Evidence to support the identity of the nominee, which may be a copy of one of the following:
(a)
an identity card issued by a State that is a member of the European Economic Area or the Organisation for Economic Cooperation and Development;
(b)
a passport.
4.
Evidence to support the address of the permanent residence of the nominee, which may be a 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.
Criminal record of the nominee.
6.
Any copy of a document submitted as evidence under this Annex must be certified as a true copy by a notary public or other similar person specified by the national administrator. Regarding documents issued outside the Member State requesting a copy, the copy must be legalised. The date of the certification or legalisation must not be more than three months prior to the date of application.
7.
The administrator of the account may require that the documents submitted are accompanied with a certified translation into a language specified by the national administrator.
8.
Instead of obtaining paper documents, the administrator of the account may use electronic mechanisms to check the evidence to be submitted in accordance with this Annex.’;
(32)
Annex XIII is amended as follows:
(a)
point 4(c) is replaced by the following:
‘(c)
the amount of allowances or Kyoto units involved in the transaction, without the unique unit identification code of the allowances and the unique numeric value of the unit serial number of the Kyoto units;’;
(b)
point 5(a) is replaced by the following:
‘(a)
current holdings of allowances and Kyoto units, without unique unit identification code of the allowances and the unique numeric value of the unit serial number of the Kyoto units;’.
Article 90
Entry into force
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 November 2011.