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Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 (Text with EEA relevance)

Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 (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 regard to Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020(3), and in particular Article 11(3) thereof,

Having consulted the European Data Protection Supervisor,

Whereas:

  1. The registries system ensures the accurate accounting of transactions under the Union emissions trading scheme (ETS) set up by Directive 2003/87/EC, the Kyoto Protocol and Decision No 406/2009/EC. Registries are standardised and secured electronic databases containing common data elements to track the issue, holding, transfer and cancellation of the relevant units, to provide for public access and confidentiality as appropriate and to ensure that there are no transfers which are incompatible with the obligations resulting from Directive 2003/87/EC, the Protocol to the United Nations Framework Convention on Climate Change (the Kyoto Protocol) and Decision No 406/2009/EC.

  2. 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(4) provided for such a Union Registry.

  3. Directive 2003/87/EC has been substantially amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community(5), 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 in force that would apply to Member States after 2012. Aviation allowances were auctioned from 2012 on the basis of Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC(6), in the same way as general allowances. Therefore, 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(7) was adopted pursuant to Article 19 of Directive 2003/87/EC and applies to the trading period of the Union emissions trading scheme commencing on 1 January 2013 and to subsequent periods. It also applies to aviation allowances auctioned in 2012.

  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 (Decision 12/CMP.1).

  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. The Union Registry should contain the accounts in which the processes and operations needed to apply the provisions of Directive 2003/87/EC should be registered. 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.

  7. 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).

  8. 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 reversal of transactions entered in a registry, and the consequent disruption to the system and to the market that such reversal 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, such as 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.

  9. The central administrator's main responsibilities are to provide, operate and maintain the Union Registry and the EUTL, to manage central accounts and to perform operations which are carried out centrally. The national administrators' main responsibilities are to be the contact point with their respective account holders in the Union Registry and perform all operations involving direct contact with them, including the opening, suspension and closure of accounts.

  10. Where Member States allocate allowances free of charge on the basis of Article 10c of Directive 2003/87/EC, these allowances should be issued in accordance with Article 10c of that Directive and Commission Decisions adopted pursuant to it. To this end, the relevant national allocation tables should take into account the applications pursuant to Article 10c(5) of Directive 2003/87/EC of Member States concerned as well as the relevant Commission Decisions pursuant to Article 10c(6) of that Directive.

  11. Where a Member State, taking into account its application pursuant to Article 10c(5) of Directive 2003/87/EC and the relevant Commission Decision pursuant to Article 10c(6) of that Directive, delays the issuance of the allowances to be granted free of charge on the basis of Article 10c of Directive 2003/87/EC (ex-post issuance of allowances), that Member State should include in its national allocation table pursuant to Article 51(1) of this Regulation the allocation to be granted free of charge on the basis of investments already undertaken or financial transfers already made at the time of the notification of the table.

  12. Where a Member State, taking into account its application pursuant to Article 10c(5) of Directive 2003/87/EC and the relevant Commission Decision pursuant to Article 10c(6) of that Directive, issues the allowances to be granted free of charge on the basis of Article 10c of Directive 2003/87/EC irrespective of investments already undertaken (ex-ante issuance of allowances), the Member State should include in the national allocation table the allocation to be granted free of charge in accordance with Article 10c of Directive 2003/87/EC for the period 2013 to 2019, when notifying the national allocation table to the Commission pursuant to Article 51(1) of this Regulation.

  13. Based on the reports to be submitted to the Commission pursuant to Article 10c(1) of Directive 2003/87/EC, Member States should make changes to the national allocation tables to reflect the advancement of investments undertaken and the status of financial transfers made in accordance with Article 10c of Directive 2003/87/EC and corresponding Commission decisions respectively.

  14. Article 11 of Directive 2003/87/EC provides that competent authorities are to issue by 28 February of each year allowances that are to be allocated that year. Where an operator has submitted information pursuant to Article 24 of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council(8) that affects the number of allowances to be allocated to that operator, the allocation of the operator will need to be recalculated and notified pursuant to Article 24(2) of that Decision before a transfer of the allowances to the operator can occur pursuant to Article 53(2) of this Regulation.

  15. Nothing in this Regulation should prevent a competent authority from requiring an operator to transfer a number of allowances, received in excess of its adjusted allocation for the relevant year, to the EU Allocation Account in cases where there has been an over allocation of allowances, including as a result of an error in the original allocation or the operator having failed to correctly or completely submit to the competent authority information pursuant to Article 24 of Decision 2011/278/EU by the date set out in that Article, provided that the central administrator has made a change to the national allocation table of the Member State pursuant to Article 52(2) of this Regulation to adjust the allocation accordingly.

  16. Article 11b of Directive 2003/87/EC forbids the issuance of certified emissions reductions (CERs) and emission reduction units (ERUs) after 31 December 2012 that result in double counting of greenhouse gas emission reductions. However, Article 5(2) of Commission Decision 2006/780/EC of 13 November 2006 on avoiding double counting of greenhouse gas emission reductions under the Community emissions trading scheme for project activities under the Kyoto Protocol pursuant to Directive 2003/87/EC of the European Parliament and of the Council(9) allows allowances in the set-asides established pursuant to Article 3 of that Decision to be converted into assigned amount units (AAUs) or to be sold as 2008-2012 period allowances. Moreover, Member States should be able to issue until 30 April 2013 ERUs from projects involving activities only included in the scope of Directive 2003/87/EC from 1 January 2013 in respect of emission reductions which took place until 31 December 2012.

  17. The Union, the Member States and a number of third countries have taken economy-wide reduction commitments for emissions during the period 2008-2012. Member States have legally binding economy-wide emission reduction targets from 2013 to 2020, as established in Directive 2003/87/EC and Decision No 406/2009/EC. An amendment of the Kyoto Protocol should put in place internationally legally binding quantified emission targets from 2013 to 2020 for parties listed in its Annex B once it has entered into force for those parties. Decision 13/CMP.1 of the Conference of the Parties to the UNFCCC serving as the Meeting of the Parties to the Kyoto Protocol (Decision 13/CMP.1) requires that ERUs only be issued by converting AAUs or removal units (RMUs), which have a serial number comprising the commitment period for which they are issued. ERUs cannot be issued if the commitment period marked in the relevant serial number does not match the period during which the emissions reductions took place. Emission trading scheme (ETS) accounts in the Union Registry should not hold ERUs inconsistent with these rules. To this end, ERUs issued by third countries which do not have legally binding quantified emission targets from 2013 to 2020 as set out within an amendment to the Kyoto Protocol pursuant to its Article 3, paragraph 9, or that have not deposited an instrument of ratification relating to such an amendment to the Kyoto Protocol, should only be held in the Union Registry if they have been certified to relate to emission reductions verified as having taken place before 2013. Such ERUs transferred to the Union Registry after 1st May 2013 are expected to be issued pursuant to the verification procedure under the Joint Implementation Supervisory Committee set out in Decision 9/CMP.1 of the Conference of the Parties to the UNFCCC serving as the Meeting of the Parties to the Kyoto Protocol (Decision 9/CMP.1) (pursuant to the so-called ‘track 2 procedure’).

  18. Article 11a of Directive 2003/87/EC provides for the use of CERs and ERUs from project activities before the entry into force of an international agreement on climate change, by setting up the possibility for operators to exchange such units against allowances.

  19. Third countries or their sub-federal or regional entities should be able to open accounts in the Union Registry once modalities to link the ETS to another mandatory greenhouse gas emissions trading system with an absolute emission cap have been agreed with a third country.

  20. Article 11 of Decision No 406/2009/EC provides that the accurate accounting of transactions under that Decision be ensured in the registries system.

  21. Annual emission allocation units should be issued in the Effort Sharing Decision (ESD) Compliance Accounts in the Union Registry in the quantities determined pursuant to Article 3(2) and 10 of Decision No 406/2009/EC. Annual emission allocation units (AEAs) may only be held in in the ESD Compliance Accounts in the Union Registry.

  22. The Union Registry should enable the implementation of the annual compliance cycle under Decision No 406/2009/EC by providing the processes for the introduction in the ESD Compliance Accounts of the annual reviewed greenhouse gas emissions, for the determination of the compliance status figure for each Member State's ESD Compliance Account for each year and for the application of corrective action pursuant to Article 7 of Decision No 406/2009/EC if necessary.

  23. The Union Registry should ensure the accurate accounting of transactions provided by Article 3(3), (4), and (5) and Article 5 of Decision No 406/2009/EC.

  24. The EUTL should perform automated checks on all processes in the registries system concerning allowances, verified emissions, accounts, annual emission allocation units, the credit entitlement 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, Decision No 406/2009/EC and the requirements elaborated pursuant to the UNFCCC and the Kyoto Protocol.

  25. 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.

  26. 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.

  27. 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.

  28. 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(10) 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.

  29. National administrators, the central administrator and the Commission should comply with Union and national 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(11) and the national law implementing it, 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(12), where these are applicable to information held and processed pursuant to this Regulation for which they are the controllers.

  30. 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(13) should apply until all operations required in relation to the trading period between 2008 and 2012 are completed. It should be amended to provide for the replacement of aviation allowances held by users at the end of the trading period between 2008 and 2012 by aviation allowances valid for the trading period starting in 2013, with immediate effect. Regulation (EU) No 920/2010 should therefore be repealed with effect from 1 October 2013.

  31. Regulation (EU) No 1193/2011 should therefore be repealed and replaced by a Regulation including the provisions required by Directive 2003/87/EC, Decision No 280/2004/EC and Decision No 406/2009/EC with immediate effect.

  32. Regulation (EU) 1193/2011 provided deadlines for the terms of cooperation between the central administrator and national administrators to be agreed and for the notification of national allocation tables and national aviation allocation tables. While Regulation (EU) 1193/2011 is repealed, those obligations should be maintained.

  33. It is appropriate that this Regulation enters into force as a matter of urgency.

  34. The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee,

HAS ADOPTED THIS REGULATION:

TITLE I COMMON GENERAL PROVISIONS

CHAPTER 1 Subject matter, scope and definitions

Article 1 Subject matter

This Regulation lays down general, operational and maintenance requirements concerning the Union Registry for the trading period commencing on 1 January 2013 and subsequent periods, concerning the independent transaction log provided for in Article 20(1) of Directive 2003/87/EC, and concerning registries provided for in Article 6 of Decision No 280/2004/EC.

This Regulation also provides for a communication system between the Union Registry and the ITL.

Article 2 Scope

This Regulation applies to allowances created for the trading period of the Union emissions trading scheme commencing on 1 January 2013 and subsequent periods, annual emission allocation units and Kyoto units.

This Regulation also applies to aviation allowances to be auctioned that were created for the trading period from 1 January 2012 to 31 December 2012.

Article 3 Definitions

CHAPTER 2 The registries system

Article 4 Union Registry

Article 5 National and Union KP registries

Article 6 European Union transaction log

Article 7 Communication links between registries, the ITL and the EUTL

Article 8 National administrators and KP registry administrators

CHAPTER 3 Accounts

Section 1 General provisions applicable to all accounts

Article 9 Accounts
Article 10 Account status
Article 11 The administering of accounts
Article 12 Notifications from the central administrator

Section 2 Opening and updating accounts

Article 13 Opening accounts administered by the central administrator
Article 14 Opening national administrative platform accounts in the Union Registry
Article 15 Opening an auction delivery account in the Union Registry
Article 16 Opening operator holding accounts in the Union Registry
Article 17 Opening aircraft operator holding accounts in the Union Registry
Article 18 Opening person holding and trading accounts in the Union Registry
Article 19 Opening national holding accounts in the Union Registry
Article 20 Opening external trading platform accounts in the Union Registry
Article 21 Opening verifier accounts in the Union Registry
Article 22 Refusal to open an account
Article 23 Authorised representatives
Article 24 Nominating and approval of authorised representatives and additional authorised representatives
Article 25 Updating of account information and information on authorised representatives
Article 26 Trusted account list

Section 3 Closure of accounts

Article 27 Closure of accounts
Article 28 Closure of operator holding accounts
Article 29 Closure of aircraft operator holding accounts
Article 30 Closure of verifier accounts
Article 31 Closure of the ESD Compliance Account
Article 32 Positive balance on accounts under closure
Article 33 Closure of accounts and removal of authorised representative on the administrator's initiative

Section 4 Suspension of access to accounts

Article 34 Suspension of access to accounts

TITLE II SPECIFIC PROVISIONS FOR THE UNION REGISTRY FOR THE UNION EMISSIONS TRADING SCHEME

CHAPTER 1 Verified emissions and compliance

Article 35 Verified emissions data for an installation or aircraft operator

Article 36 Blocking of accounts due to a failure to submit verified emissions

Article 37 Calculation of compliance status figures

CHAPTER 2 Transactions

Section 1 General

Article 38
Article 39 Execution of transfers
Article 40 Nature of allowances and finality of transactions

Section 2 Creation of allowances

Article 41 Creation of allowances

Section 3 Account transfers before auctions and allocation

Article 42 Transfer of general allowances to be auctioned
Article 43 Transfer of general allowances to be allocated free of charge
Article 44 Transfer of general allowances for the new entrant reserve
Article 45 Transfer of aviation allowances to be auctioned
Article 46 Transfer of aviation allowances to be allocated free of charge
Article 47 Transfer of aviation allowances to the special reserve
Article 48 Transfer of general allowances to the EU Total Quantity-Account
Article 49 Transfer of aviation allowances to the EU Aviation Total Quantity Account
Article 50 Deletion of aviation allowances

Section 4 Allocation to stationary installations

Article 51 Entry of national allocation tables into the EUTL
Article 52 Changes to the national allocation tables
Article 53 Free allocation of general allowances

Section 5 Allocation to aircraft operators

Article 54 Entry of national aviation allocation tables into the EUTL
Article 55 Changes to the national aviation allocation tables
Article 56 Free allocation of aviation allowances
Article 57 Return of aviation allowances

Section 6 Use of CERs and ERUs

Article 58 International credit holdings in the Union Registry
Article 59 Entry of international credit entitlement tables into the EUTL
Article 60 Use of international credits through allowance exchange
Article 61 Calculation of remaining international credit entitlement

Section 7 Auction

Article 62 Entry of auction tables into the EUTL
Article 63 Changes to the auction tables
Article 64 Auctioning of allowances

Section 8 Trading

Article 65 Transfers of allowances or Kyoto units initiated by a holding account
Article 66 Transfers of allowances or Kyoto units initiated by a trading account

Section 9 Surrender of allowances

Article 67 Surrender of allowances

Section 10 Deletion of allowances and cancellation of Kyoto units

Article 68 Deletion of allowances
Article 69 Cancellation of Kyoto units

Section 11 Transaction reversal

Article 70 Reversal of finalised processes initiated in error

CHAPTER 3 Links with other geenhouse gas emission trading schemes

Article 71 Implementation of linking arrangements

TITLE 3 SPECIFIC PROVISIONS FOR KP REGISTRIES

Article 72 Opening of person holding accounts in KP registries

Article 73 Execution of transfers

TITLE 4 SPECIFIC PROVISIONS FOR ACCOUNTING TRANSACTIONS UNDER DECISION No 406/2009

Article 74 Creation of AEAs

Article 75 Annual emission allocation units

Article 76 Transfer of AEAs to each ESD Compliance Account

Article 77 Introduction of the relevant greenhouse gas emissions data

Article 78 Calculation of the balance of the ESD Compliance Account

Article 79 Determination of the compliance status figures

Article 80 Application of Article 7(1) (a) and (c) of Decision No 406/2009/EC

Article 81 Use of international credits, tCERs and lCERs

Article 82 Carry forward of AEAs

Article 83 Carry over of AEAs

Article 84 Carry over of the unused credit entitlement

Article 85 Transfers of up to 5 % of a Member State's annual emission allocation

Article 86 Transfers after the calculation of the balance of the ESD Compliance Account

Article 87 Transfer of up to 3 % of the credit entitlement

Article 88 Adjustments

Article 89 Replacement of tCERs and lCERs

Article 90 Execution and reversal of transfers

TITLE V COMMON TECHNICAL PROVISIONS

CHAPTER 1 Technical requirements of the registries system

Section 1 Availability

Article 91 Availability and reliability of the Union Registry and the EUTL
Article 92 Helpdesks

Section 2 Security and authentication

Article 93 Authentication of the Union Registry and national KP registries
Article 94 Accessing accounts in the Union Registry
Article 95 Authentication and authorisation of authorised representatives in the Union Registry
Article 96 Suspension of all access due to a security breach or a security risk
Article 97 Suspension of access to allowances or Kyoto units in the case of a suspected fraudulent transaction
Article 98 Cooperation with competent authorities and notification of money laundering, terrorist financing or criminal activity
Article 99 Suspension of processes

Section 3 Automated checking, recording and completing of processes

Article 100 Automated checking of processes
Article 101 Detection of discrepancies
Article 102 Detection of discrepancies within the Union Registry and national KP registries
Article 103 Reconciliation - detection of inconsistencies by the EUTL
Article 104 Finalisation of processes

Section 4 Specifications and change management

Article 105 Data exchange and technical specifications
Article 106 Change and release management

CHAPTER 2 Records, reports, confidentiality and fees

Article 107 Processing of information and personal data

Article 108 Records

Article 109 Reporting

Article 110 Confidentiality

Article 111 Fees

Article 112 Interruption of operation

TITLE IV TRANSITIONAL AND FINAL PROVISIONS

Article 113 Implementation

Article 114 Further use of accounts

Article 115 Entry into force of use restrictions

Article 116 Amendments to Regulation (EU) No 920/2010

‘Article 32 Excluded aircraft operator holding accounts

‘Article 57 Banking between periods

Article 117 Repeal

Article 118 Entry into force

ANNEX I

ANNEX II

ANNEX III

ANNEX IV

ANNEX V

ANNEX VI

ANNEX VII

ANNEX VIII

ANNEX IX

ANNEX X

ANNEX XI

ANNEX XII

ANNEX XIII

ANNEX XIV