CHAPTER VTRANSACTIONS
Article 35
Only transactions expressly provided for in this Regulation for each account type shall be initiated by that account type.
Article 36Execution 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 37Nature 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 38Creation 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.
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 39Transfer 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 40Transfer 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 41Transfer 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 42Transfer 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 43Transfer 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 44Transfer 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 45Transfer 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 46Transfer 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 47Deletion 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 48National 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 49Entry 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 50Changes 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 51Free 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 52National 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 53Entry 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 54Changes 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 55Free 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 56Auction 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 57Entry 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 58Changes 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 59Auctioning 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 60Transfers 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 61Transfers 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 62Surrender 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 63Deletion 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 64Reversal 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.