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Document 02010R1031-20191128
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 of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Union (Text with EEA relevance)Text with EEA relevance
Consolidated text: 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 of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Union (Text with EEA relevance)Text with EEA relevance
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 of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Union (Text with EEA relevance)Text with EEA relevance
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02010R1031 — EN — 28.11.2019 — 008.001
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►M8 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 of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Union ◄ (OJ L 302 18.11.2010, p. 1) |
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L 308 |
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L 310 |
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L 303 |
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L 56 |
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26.2.2014 |
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L 269 |
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COMMISSION DELEGATED REGULATION (EU) 2019/7 of 30 October 2018 |
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4.1.2019 |
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COMMISSION DELEGATED REGULATION (EU) 2019/1868 of 28 August 2019 |
L 289 |
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8.11.2019 |
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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 of the European Parliament and of the Council establishing a system for greenhouse gas emission allowances trading within the Union
(Text with EEA relevance)
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Regulation provides for rules on the timing, administration and other aspects of the auctioning of allowances under Directive 2003/87/EC.
Article 2
Scope
This Regulation shall apply to the allocation through auctions of allowances under Chapter II (aviation) of Directive 2003/87/EC and to the allocation through auctions of allowances under Chapter III (stationary installations) of that Directive valid for surrendering in trading periods from 1 January 2013.
Article 3
Definitions
For the purposes of this Regulation, the following definitions shall apply:
▼M8 —————
‘two-day spot’ means allowances auctioned for delivery at an agreed date no later than the second trading day from the day of the auction;
‘five-day futures’ means allowances auctioned for delivery at an agreed date no later than the fifth trading day from the day of the auction;
‘bid’ means an offer in an auction to acquire a given volume of allowances at a specified price;
‘bidding window’ means the time period during which bids may be submitted;
‘trading day’ means any day during which an auction platform and the clearing system or settlement system connected to it are open for trading;
‘investment firm’ means the same as in point (1) of Article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council ( 1 );
‘credit institution’ means the same as in Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council ( 2 );
‘financial instrument’ means the same as in point (15) of Article 4(1) of Directive 2014/65/EU;
‘secondary market’ means the market in which persons buy or sell allowances either before or after they are allocated either free of charge or through auctioning;
‘parent undertaking’ means the same as in Article 2(9) of Directive 2013/34/EU of the European Parliament and of the Council ( 3 );
‘subsidiary undertaking’ means the same as in Article 2(10) of Directive 2013/34/EU;
‘affiliate undertaking’ means the same as in Article 2(12) of Directive 2013/34/EU;
‘control’ means the same as in Article 3(2) and (3) of Council Regulation No 139/2004 ( 4 ) as applied in the Commission’s Consolidated Jurisdictional Notice ( 5 ). Recital (22) of that Regulation and paragraphs 52 and 53 of that Notice shall apply for determining the notion of control for state-owned undertakings;
‘auction process’ means the process encompassing the setting of the auction calendar, the procedures for admission to bid, the procedures for submission of bids, the conduct of the auction, the calculation and announcement of the auction results, the arrangements for payment of the price due, delivery of the allowances and management of the collateral needed to cover any transaction risks, as well as the surveillance and monitoring of the proper conduct of the auctions by an auction platform;
‘money laundering’ means the same as in Article 1(3) of Directive (EU) 2015/849 of the European Parliament and of the Council ( 6 ) having regard to Article 1(4) and (6) of that Directive;
‘terrorist financing’ means the same as in Article 1(5) of Directive (EU) 2015/849 having regard to Article 1(6) of that Directive;
‘criminal activity’ means the same as in Article 3(4) of Directive (EU) 2015/849;
‘auctioneer’ means any public or private entity appointed by a Member State, to auction allowances on its behalf;
‘nominated holding account’ means one or more type of holding account provided for in the applicable delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC for the purposes of participating in or conducting the auction process including the holding of allowances in escrow, pending their delivery under this Regulation;
‘nominated bank account’ means a bank account designated by an auctioneer, a bidder or its successor in title for the receipt of payments due under this Regulation;
‘customer due diligence measures’ means the same as the customer due diligence measures in Article 13 of Directive (EU) 2015/849 and the enhanced customer due diligence measures in Article 18, Article 18a and Article 20 having regard to Articles 22 and 23 of that Directive;
‘beneficial owner’ means the same as in Article 3(6) of Directive (EU) 2015/849;
‘duly certified copy’ means an authentic copy of an original document that is certified as being a true copy of the original by a qualified lawyer, accountant, notary public or similar professional who is recognised under the national law of the Member State concerned to attest officially as to whether a copy is in fact a true copy of its original;
‘politically exposed persons’ means the same as in Article 3(9) of Directive (EU) 2015/849;
‘market abuse’ means the same as in Article 1 of Regulation (EU) No 596/2014 of the European Parliament and of the Council ( 7 );
‘insider dealing’ means the same as in Article 8 of Regulation (EU) No 596/2014 and as prohibited by points (a) and (b) of Article 14 of that Regulation;
‘unlawful disclosure of inside information’ means the same as in Article 10 of Regulation (EU) No 596/2014 and as prohibited by point (c) of Article 14 of that Regulation;
‘inside information’ means the same as in Article 7 of Regulation (EU) No 596/2014;
‘market manipulation’ means the same as in Article 12 of Regulation (EU) No 596/2014 and as prohibited by Article 15 of that Regulation;
‘clearing system’ means one or more infrastructure connected to the auction platform that can provide clearing, margining, netting, management of collateral, settlement and delivery, and any other services, carried out by a central counterparty, accessed either directly or indirectly through members of the central counterparty who act as intermediaries between their clients and the central counterparty;
‘clearing’ means all processes preceding the opening of the bidding window, during the bidding window and following the closing of the bidding window until settlement, involving the management of any risks arising during that interval, including margining, netting, or novation, or any other services, carried out possibly by a clearing or settlement system;
‘margining’ means the process by which collateral is to be pledged by an auctioneer or a bidder, or one or more intermediaries acting on their behalf, to cover a given financial position, encompassing the entire process of measuring, calculating and administering the collateral put up to cover such financial positions, intended to ensure that all payment commitments of a bidder and all delivery commitments of an auctioneer or one or more intermediaries acting on their behalf can be met within a very short period of time;
‘settlement’ means payment by a successful bidder, or its successor in title, or a central counterparty, or a settlement agent of the sum due for allowances to be delivered to that bidder or its successor in title, or a central counterparty, or a settlement agent, and delivery of the allowances to the successful bidder or its successor in title, or a central counterparty or a settlement agent;
‘central counterparty’ means an entity which interposes either directly between an auctioneer and a bidder or its successor in title, or between intermediaries representing them, that acts as the exclusive counterparty to each of them guaranteeing the payment of the auction proceeds to the auctioneer or an intermediary representing it or the delivery of the auctioned allowances to the bidder or an intermediary representing it, subject to Article 48;
‘settlement system’ means any infrastructure whether or not connected to the auction platform that can provide settlement services, which may include clearing, netting, management of collateral, or any other services, which ultimately enable the delivery of allowances on behalf of an auctioneer to a successful bidder or its successor in title, and the payment of the sum due by a successful bidder or its successor in title to an auctioneer, carried out through either of the following:
the banking system and the Union registry;
one or more settlement agents acting on behalf of an auctioneer and a bidder or its successor in title, accessing the settlement agent either directly or indirectly through members of the settlement agent who act as intermediaries between their clients and the settlement agent;
‘settlement agent’ means an entity acting as an agent providing accounts to the auction platform, through which accounts instructions for the transfer of the auctioned allowances given by the auctioneer or an intermediary representing it and the payment of the auction clearing price by a successful bidder, its successor in title, or an intermediary representing them are safely executed either simultaneously or nearly simultaneously in a guaranteed manner;
‘collateral’ means the forms of collateral security referred to in Article 2(m) of Directive 98/26/EC of the European Parliament and of the Council ( 8 ), including any allowances accepted as security by the clearing system or settlement system;
‘regulated market’ means the same as in point (21) of Article 4(1) of Directive 2014/65/EU;
‘SMEs’ means operators or aircraft operators that are small and medium-sized enterprises within the meaning of Commission Recommendation 2003/361/EC ( 9 );
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‘market operator’ means the same as in point (18) of Article 4(1) of Directive 2014/65/EU;
‘establishment’ means any of the following:
place of residence or permanent address within the Union for the purposes of the third subparagraph of Article 6(3);
the same as in point (55)(a) of Article 4(1) of Directive 2014/65/EU taking into account the requirements of Article 5(4) of that Directive for the purposes of Article 18(2) of this Regulation;
the same as in point (55)(a) of Article 4(1) of Directive 2014/65/EU taking into account the requirements of Article 5(4) of that Directive for the purposes of Article 19(2) of this Regulation, in the case of persons referred to in point (b) of Article 18(1) of this Regulation;
the same as in point (43) of Article 4(1) of Regulation (EU) No 575/2013 for the purposes of Article 19(2) of this Regulation, in the case of persons referred to in point (c) of Article 18(1) of this Regulation;
the same as in point (55)(a) of Article 4(1) of Directive 2014/65/EU for the purposes of Article 19(2) of this Regulation in the case of business grouping referred to in point (d) of Article 18(1) of this Regulation;
the same as in point (55)(b) of Article 4(1) of Directive 2014/65/EU for the purposes of Article 35(4), (5) and (6) of this Regulation;
‘exit strategy’ means one or more documents determined in accordance with the contracts appointing the auction platform concerned, setting out detailed measures planned to ensure the following:
the transfer of all tangible and intangible assets necessary for the uninterrupted continuation of the auctions and the smooth operation of the auction process by an auction platform’s successor;
the provision of all information relating to the auction process, that is necessary for the procurement procedure for the appointment of the auction platform’s successor;
the provision of the technical assistance that enables the contracting authorities or the auction platform’s successor or any combination of these, to understand, access or use the relevant information provided pursuant to points (a) and (b).
CHAPTER II
THE DESIGN OF THE AUCTIONS
Article 4
Auctioned products
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Article 5
Auction format
Auctions shall be carried out through an auction format whereby bidders shall submit their bids during one given bidding window without seeing bids submitted by other bidders. Each successful bidder shall pay the same auction clearing price as referred to in Article 7 for each allowance regardless of the price bid.
Article 6
Submission and withdrawal of bids
Each bid shall state the following:
the identity of the bidder and whether the bidder is bidding on its own account or on behalf of a client;
where the bidder is bidding on behalf of a client, the identity of the client;
the volume bid as a number of allowances in integral multiples of lots of 500 allowances;
the price bid in euros for each allowance specified to two decimal points.
Each bid may only be submitted, modified or withdrawn during a given bidding window.
Bids submitted may be modified or withdrawn by a given deadline before the close of the bidding window. Such deadline shall be set by the auction platform concerned and published on that auction platform’s website at least five trading days prior to the opening of the bidding window.
Only a natural person established in the Union appointed pursuant to Article 19(2)(d) and authorised to bind a bidder for all purposes relating to the auctions including the submission of a bid (the ‘bidder’s representative’) is entitled to submit, modify or withdraw a bid on behalf of a bidder.
Once submitted, each bid shall be binding, unless it is withdrawn or modified pursuant to this paragraph or withdrawn pursuant to paragraph 4.
Article 7
Auction clearing price and resolution of tied bids
An auction platform shall sort bids submitted to it in the order of the price bid. Where the price of several bids is the same, these bids shall be sorted through a random selection according to an algorithm determined by the auction platform before the auction.
The volumes bid shall be added up, starting with the highest bid price. The price of the bid at which the sum of the volumes bid matches or exceeds the volume of allowances auctioned shall be the auction clearing price.
In between two bidding windows on the same auction platform, the auction platform concerned may modify the methodology. It shall notify the relevant contracting authority pursuant to Article 26(1) or Article 30(5) and the competent national authorities referred to in Article 56 without delay.
The auction platform concerned shall take the utmost account of the opinion of the relevant contracting authority, where provided.
Where an auction of allowances covered by Chapter II of Directive 2003/87/EC is cancelled, its volume shall be distributed evenly over the next two auctions scheduled on the same auction platform. Where the Member State volume from cancelled auctions may not be distributed evenly in accordance with the previous sentence, the Member State concerned shall auction these allowances in the first following auction in volumes pursuant to Article 6(1) of this Regulation.
Where an auction that already includes volumes from a previously cancelled auction is cancelled, its volume shall be spread in accordance with the first and second subparagraphs starting from the first auction which is not subject to other adjustments due to previous cancellations.
CHAPTER III
AUCTION CALENDAR
Article 8
Timing and frequency
No other auction platform shall conduct an auction on any of a maximum of two days a week during which an auction platform appointed pursuant to Article 26(1) conducts an auction. Where the auction platform appointed pursuant to Article 26(1) conducts auctions on more than two days a week, it shall determine and publish on which two days no other auctions may take place. It shall do so no later than when it makes the determination and publication referred to in Article 11.
The volume of allowances covered by Chapter II of Directive 2003/87/EC to be auctioned on the auction platform appointed pursuant to Article 26(1) of this Regulation shall in principle be distributed evenly over the auctions held in a given year, except that volumes auctioned in August of each year shall be half of the volume auctioned in auctions held in other months of the year.
Where the annual auction volume of allowances of a Member State may not be distributed evenly over the auctions in a given year in lots of 500 allowances in accordance with Article 6(1), the relevant auction platform shall distribute that volume over fewer auction dates, ensuring that the volume is at least auctioned on a quarterly basis.
Article 9
Circumstances preventing the conduct of auctions
Without prejudice to the application of the rules referred in Article 58 where appropriate, an auction platform may cancel an auction where the proper conduct of that auction is disrupted or is likely to be disrupted. The volume of allowances of the cancelled auctions shall be distributed pursuant to Article 7(8).
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Article 10
Annual volumes of the auctioned allowances covered by Chapter III of Directive 2003/87/EC
In exceptional circumstances, in particular where the cumulative annual value of such changes does not exceed 50 000 allowances for a given Member State, these changes may be accounted for in the volume of allowances to be auctioned in subsequent calendar years, unless a Member State requests the Commission by 30 April 2020 that this threshold shall not apply to it for the period starting from 2021.
Any volume of allowances that may not be auctioned in a given calendar year due to the rounding required by Article 6(1) shall be accounted for in the volume of allowances to be auctioned in the subsequent calendar year.
Article 11
Calendar for individual auctions of allowances covered by Chapter III of Directive 2003/87/EC auctioned by auction platforms appointed pursuant to Article 26(1) of this Regulation
The auction platforms appointed pursuant to Article 26(1) of this Regulation shall determine the auction calendar, including the bidding windows, individual volumes, auction dates as well as the auctioned product, payment and delivery dates of the allowances covered by Chapter III of Directive 2003/87/EC to be auctioned in individual auctions each calendar year having previously consulted the Commission. The auction platforms concerned shall publish the auction calendar by 15 July of the previous year or as soon as practicable thereafter, provided that the Commission has instructed the central administrator of the European Union Transaction Log (‘EUTL’) to enter the auction table corresponding to the auction calendar into the EUTL in accordance with the delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC.
Article 12
Annual volumes of auctioned allowances covered by Chapter II of Directive 2003/87/EC
The volume of allowances covered by Chapter II of Directive 2003/87/EC to be auctioned each year shall be 15 % of the expected volume of those allowances in circulation for that year. Where the auctioned volume in a given year is more or less than 15 % of the volume actually put in circulation for that year, the volume to be auctioned in the subsequent year shall correct for the difference. Any allowances that remain to be auctioned after the last year of a trading period shall be auctioned in the first four months of the subsequent year. ►M8 Article 10(4) shall apply to any subsequent change to the volume of allowances to be auctioned. ◄
The volume of allowances to be auctioned in the final year of each trading period shall take account of allowances remaining in the special reserve referred to in Article 3f of Directive 2003/87/EC.
Article 13
Calendar for individual auctions of allowances covered by Chapter II of Directive 2003/87/EC auctioned by auction platforms appointed pursuant to Article 26(1) of this Regulation
The auction platforms appointed pursuant to Article 26(1) of this Regulation shall determine the auction calendars, including the bidding windows, individual volumes, auction dates as well as the auctioned product, payment and delivery dates of the allowances covered by Chapter II of Directive 2003/87/EC to be auctioned in individual auctions for each calendar year, having previously consulted the Commission. The auction platforms concerned shall publish the auction calendar by 30 September of the previous year, or as soon as practicable thereafter provided that the Commission has instructed the central administrator of the EUTL to enter the auction table corresponding to the auction calendar into the EUTL in accordance with the delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC. Without prejudice to the deadline for publication of the auction calendar for allowances covered by Chapter III of Directive 2003/87/EC under Article 11 of this Regulation, the auction platforms concerned may simultaneously determine the auction calendars for allowances covered by Chapter II and Chapter III of Directive 2003/87/EC.
The bidding windows, individual volumes, auction dates as well as the auctioned product, payment and delivery dates of the allowances covered by Chapter II of Directive 2003/87/EC to be auctioned in individual auctions for the final year of each trading period, may be adjusted by the auction platform concerned to take account of allowances remaining in the special reserve referred to in Article 3f of that Directive.
Article 32 shall also apply with respect to the auctions conducted pursuant to the second subparagraph of Article 30(7) by the auction platform appointed pursuant to Article 26(1).
Article 14
Adjustments of the auction calendar
The determinations and publications of the annual volumes to be auctioned and of the bidding windows, volumes, dates, auctioned product, payment and delivery dates in connection with individual auctions pursuant to Articles 10 to 13 and Article 32(4) shall not be modified except for adjustments due to any of the following:
the cancellation of an auction pursuant to Article 7(5) and (6), Article 9 and Article 32(5);
any suspension of an auction platform other than the auction platforms appointed pursuant to Article 26(1) of this Regulation provided for in the delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC;
any decision by a Member State made pursuant to Article 30(8);
any settlement failure referred to in Article 45(5);
any allowances remaining in the special reserve referred to in Article 3f of Directive 2003/87/EC;
allowances remaining in the reserve for new entrants provided for in Article 10a(7) of Directive 2003/87/EC and allowances not allocated pursuant to Article 10c of that Directive;
any unilateral inclusion of additional activities and gases pursuant to Article 24 of Directive 2003/87/EC;
any measures adopted pursuant to Article 29a of Directive 2003/87/EC;
the entry into force of amendments to this Regulation or to Directive 2003/87/EC;
any withholding of allowances from the auctions pursuant to Article 22(5);
the necessity for an auction platform to avoid conducting an auction in breach of this Regulation or Directive 2003/87/EC;
adjustments necessary pursuant to Decision (EU) 2015/1814 which shall be determined and published by 15 July of the given year, or as soon as practicable thereafter;
cancellation of allowances pursuant to Article 12(4) of Directive 2003/87/EC.
CHAPTER IV
ACCESS TO THE AUCTIONS
Article 15
Persons who may submit bids directly in an auction
Only a person who is eligible to apply for admission to bid pursuant to Article 18 and is admitted to bid pursuant to Articles 19 and 20 may submit bids directly in an auction.
Article 16
Means of access
In addition, an auction platform appointed pursuant to Article 26(1) or 30(1) may offer bidders the option of accessing its auctions through dedicated connections to the electronic interface.
Article 17
Training and helpline
An auction platform appointed pursuant to Article 26(1) or 30(1) shall offer a practical web-based training module on the auction process it is conducting, including guidance on how to complete and submit any forms and a simulation of how to bid in an auction. It shall also make available a helpline service accessible by telephone, facsimile and electronic mail at least during the working hours of each trading day.
Article 18
Persons eligible to apply for admission to bid
The following persons shall be eligible to apply for admission to bid directly in auctions:
an operator or an aircraft operator having an operator holding account or an aircraft operator holding account, bidding on its own account, including any parent undertaking, subsidiary undertaking or affiliate undertaking forming part of the same group of undertakings as the operator or the aircraft operator;
investment firms authorised under Directive 2014/65/EU bidding on their own account or on behalf of their clients;
credit institutions authorised under Directive 2013/36/EU of the European Parliament and of the Council ( 12 ) bidding on their own account or on behalf of their clients;
business groupings of persons listed in point (a) bidding on their own account and acting as an agent on behalf of their members;
public bodies or state-owned entities of the Member States that control any of the persons listed in point (a).
▼M8 —————
Where the persons referred to in paragraph 1(b) and (c) and paragraph 2 bid on behalf of their clients, they shall ensure that those clients are themselves eligible to apply for admission to bid directly under paragraphs 1 or 2.
Where the clients of the persons referred to in the first subparagraph are themselves bidding on behalf of their own clients, they shall ensure that those clients are also eligible to apply for admission to bid directly under paragraphs 1 or 2. The same shall apply to all further clients down the chain bidding indirectly in the auctions.
The following persons shall not be eligible to apply for admission to bid directly in auctions nor may they participate in auctions through one or more persons admitted to bid pursuant to Articles 19 and 20, whether for their own account or on behalf of any other person, where they fulfil their role with respect to the auctions in question:
the auctioneer;
the auction platform including any clearing system and any settlement system connected to it;
persons who are in a position to exercise, directly or indirectly, significant influence over the management of the persons under points (a) and (b);
persons working for persons under points (a) and (b).
▼M8 —————
Article 19
Requirements for admission to bid
Members or participants of the secondary market organised by an auction platform appointed pursuant to Article 26(1) or 30(1) that are eligible persons pursuant to Article 18(1) or (2) shall be admitted to bid directly in the auctions conducted by that auction platform without any further admission requirements, provided that all of the following conditions are fulfilled:
the requirements for admission of the member or participant to trade allowances through the secondary market organised by the auction platform appointed pursuant to Article 26(1) or 30(1) are no less stringent than those listed under paragraph 2 of this Article;
the auction platform appointed pursuant to Article 26(1) or 30(1) receives any additional information necessary to verify the fulfilment of any requirements referred to in paragraph 2 of this Article that have not been previously verified.
Persons, who are not members or participants of the secondary market organised by an auction platform appointed pursuant to Article 26(1) or 30(1), and that are eligible persons pursuant to Article 18(1) or (2) shall be admitted to bid directly in the auctions conducted by that auction platform provided that they:
are established in the Union, an operator or an aircraft operator;
hold a nominated holding account;
hold a nominated bank account;
appoint at least one bidder’s representative as defined in the third subparagraph of Article 6(3);
satisfy the auction platform concerned in line with applicable customer due diligence measures as to their identity, the identity of their beneficial owners, integrity, business and trading profile having regard to the means of establishing the relationship with the bidder, the type of bidder, the nature of the auctioned product, the size of prospective bids, and the means of payment and delivery;
satisfy the auction platform concerned of their financial standing, in particular, that they are able to meet their financial commitments and current liabilities as they fall due;
have in place or are able to put in place when requested, the internal processes, procedures and contractual agreements necessary to give effect to a maximum bid-size imposed pursuant to Article 57;
fulfil the requirements of Article 49(1).
▼M6 —————
Persons falling under the scope of Article 18(1)(b) and (c) or Article 18(2) submitting bids on behalf of their clients shall be responsible for ensuring that all of the following conditions are fulfilled:
their clients are eligible persons pursuant to Article 18(1) or (2);
they have or will have in good time before the opening of the bidding window adequate internal processes, procedures and contractual agreements necessary to:
enable them to process bids from their clients including the submission of bids, collection of payment and transfer of allowances;
prevent the disclosure of confidential information from that part of their business responsible for receiving, preparing and submitting bids on behalf of their clients to that part of their business responsible for preparing and submitting bids on their own account;
ensure that their clients who themselves are acting on behalf of clients bidding in the auctions apply the requirements set out in paragraph 2 of this Article and in this paragraph and that they require the same of their clients and of the clients of their clients as provided for in Article 18(4).
The auction platform concerned may rely on reliable checks carried out by the persons referred to in the first subparagraph of this paragraph, their clients, or the clients of their clients as provided for in Article 18(4).
Persons referred to in the first subparagraph of this paragraph shall be responsible for ensuring that they are able to demonstrate to the auction platform whenever requested to do so by the auction platform pursuant to Article 20(5)(d) that the conditions in points (a) and (b) of the first subparagraph of this paragraph are fulfilled.
Article 20
Submission and processing of applications for admission to bid
Members of or participants in the secondary market organised by the auction platform concerned fulfilling the requirements of Article 19(1) shall be admitted to bid without applying under the first subparagraph of this paragraph.
An auction platform appointed pursuant to Article 26(1) or 30(1) may refuse admission to bid in its auctions if the applicant refuses any of the following:
to comply with requests made by the auction platform for additional information or clarification or substantiation of information provided;
to attend an invitation made by the auction platform to interview any officers of the applicant including at its business premises or elsewhere;
to allow investigations or verifications, requested by the auction platform including on-site visits or spot-checks at the applicant’s business premises;
to comply with requests made by the auction platform for any information required from an applicant, the clients of an applicant or the clients of their clients as provided for in Article 18(4) to check compliance with the requirements of Article 19(3);
to comply with requests made by the auction platform for any information required to check compliance with the requirements of Article 19(2).
▼M8 —————
The auction platform concerned may:
grant unconditional admission to the auctions for a period not exceeding the term of its appointment, including any extension or renewal of that appointment;
grant conditional admission to the auctions for a period not exceeding the term of its appointment, subject to fulfilment of the specified conditions, by a given date, which shall be duly verified by the auction platform concerned;
refuse to grant admission.
Article 21
Refusal, revocation or suspension of admission
An auction platform appointed pursuant to Article 26(1) or 30(1) shall refuse to grant admission to bid in its auctions, revoke or suspend any admission to bid already granted to any person who:
is not or is no longer eligible to apply for admission to bid under Article 18(1) or (2);
does not or no longer meets the requirements of Articles 18, 19 and 20;
is wilfully or repeatedly in breach of this Regulation, the terms and conditions of its admission to bid in the auctions conducted by the auction platform concerned or any other related instructions or agreements.
In such a case, the auction platform concerned shall report to the financial intelligence unit referred to in Article 32 of Directive (EU) 2015/849 (‘FIU’) in accordance with Article 55(2) of this Regulation.
An auction platform appointed pursuant to Article 26(1) or 30(1) may refuse to grant admission to bid in its auctions, revoke or suspend any admission to bid already granted, to any person:
who is negligently in breach of this Regulation, the terms and conditions of its admission to bid in the auctions conducted by the auction platform concerned or any other related instructions or agreements;
who has otherwise behaved in a manner that is prejudicial to the orderly or efficient conduct of an auction;
who is referred to in Article 18(1)(b) or (c) or Article 18(2) and has not bid in any auction during the preceding 220 trading days.
Persons referred to in paragraph 3 shall be notified of the refusal to grant admission, or the revocation or suspension of admission, and be given a reasonable period, specified in the decision of refusal to admit, revocation or suspension of admission, to respond in writing.
After considering the person’s written response, the auction platform concerned shall if warranted:
grant or reinstate admission with effect from a given date;
grant conditional admission or conditional reinstatement of admission subject to fulfilment of the specified conditions by a given date, which shall be duly verified by the auction platform concerned;
confirm the refusal to grant admission, the revocation or suspension of admission with effect from a given date.
The auction platform shall notify the person in question of its decision.
Persons whose admission to bid is revoked or suspended pursuant to paragraphs 1, 2 or 3 shall take reasonable steps to ensure that their removal from the auctions:
is orderly;
does not prejudice the interests of their clients or interfere with the efficient functioning of the auctions;
does not affect their obligations to comply with any payment provisions, the terms and conditions of their admission to bid in the auctions or any other related instructions or agreements;
does not compromise their obligations regarding the protection of confidential information pursuant to Article 19(3)(b)(ii) which shall remain in force for 20 years following their removal from the auctions.
The refusal to grant admission, the revocation or suspension of admission, referred to in paragraphs 1, 2 and 3, shall specify any measures needed to comply with this paragraph and the auction platform shall verify compliance with such measures.
CHAPTER V
APPOINTMENT OF THE AUCTIONEER AND ITS FUNCTIONS
Article 22
Appointment of the auctioneer
Member States shall notify the identity of the auctioneer and its contact details to the Commission.
The auctioneer’s identity and contact details shall be published on the Commission’s website.
Article 23
The auctioneer's functions
The auctioneer shall carry out the following functions:
auction the volume of allowances to be auctioned by each Member State appointing it;
receive the auction proceeds due to each Member State appointing it;
disburse the auction proceeds due to each Member State appointing it.
CHAPTER VI
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Article 24
Auctioning of allowances for the Innovation Fund and the Modernisation Fund
The Commission shall review the distribution of allowances remaining to be auctioned after the award decision of each call for proposals carried out in accordance with the delegated acts adopted pursuant to the fourth subparagraph of Article 10a(8) of Directive 2003/87/EC. Such reviews shall take place every two years, with the first review taking place no later than 30 June 2022. Each review shall pay particular attention to the support available for future calls for proposals, the maximum amount of the Innovation Fund support available for project development assistance, the part of the total amount of the Innovation Fund support available for the call to small-scale projects reserved by the Commission, the support foreseen for the awarded projects as well as the disbursement and the recovery rate.
Article 25
Procedure for cancellation of allowances pursuant to Article 12(4) of Directive 2003/87/EC
CHAPTER VII
APPOINTMENT OF AN AUCTION PLATFORM BY MEMBER STATES PARTICIPATING IN A JOINT ACTION WITH THE COMMISSION AND ITS FUNCTIONS
Article 26
Appointment of an auction platform through joint action of the Member States with the Commission
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Any Member State that decides pursuant to Article 30(4) not to participate in the joint action as provided in paragraph 1 of this Article but to appoint its own auction platform may be given observer status upon terms and conditions agreed in the joint procurement agreement between the Member States participating in the joint action as provided in paragraph 1 and the Commission subject to any applicable public procurement rules.
Article 27
Functions of the auction platform appointed pursuant to Article 26(1)
The auction platform appointed pursuant to Article 26(1) shall provide the following services to the Member States as more particularly delineated in the contract appointing it:
providing access to the auctions, pursuant to Articles 15 to 21, including the provision and maintenance of the necessary internet-based electronic interfaces and website;
conducting the auctions in accordance with Articles 4 to 7;
managing the auction calendar in accordance with Articles 8 to 14;
announcing and notifying the results of an auction, pursuant to Article 61;
providing, or ensuring ►M1 through sub-contracting ◄ the provision of, the requisite clearing system or settlement system needed for:
the handling of payments made by successful bidders or their successors in title and distribution of the proceeds of the auctions to the auctioneer, pursuant to Articles 44 and 45;
delivering the auctioned allowances to successful bidders or their successors in title, pursuant to Articles 46, 47 and 48;
managing collateral including any margining, provided by the auctioneer or bidders, pursuant to Articles 49 and 50;
providing the Commission with any information relating to the conduct of the auctions pursuant to Article 53;
surveying the auctions, notifying suspicions of money laundering, terrorist financing, criminal activity or market abuse, administering any required remedial measures or sanctions including the provision of an extra-judicial dispute resolution mechanism, pursuant to Article 54 to 59 and Article 64(1);
reporting, pursuant to Article 36.
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Article 29
Services provided to the Commission by the auction platforms appointed pursuant to Article 26(1)
Auction platforms appointed pursuant to Article 26(1) shall provide the Commission with technical support services with respect to the Commission’s work relating to the following:
any coordination of the auction calendar for Annex III;
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the reports by the Commission pursuant to Articles 10(5) of Directive 2003/87/EC;
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any review of this Regulation, Directive 2003/87/EC or the delegated acts adopted pursuant to Article 19(3) of that Directive which has an impact on the functioning of the carbon market including the implementation of the auctions;
any other joint action relating to the functioning of the carbon market including the implementation of the auctions agreed between the Commission and the Member States participating in the joint action.
CHAPTER VIII
APPOINTMENT OF AUCTION PLATFORMS BY MEMBER STATES OPTING TO HAVE THEIR OWN AUCTION PLATFORM AND THEIR FUNCTIONS
Article 30
Appointment of any auction platform other than an auction platform appointed pursuant to Article 26(1)
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Any period of appointment of the auction platform referred to in paragraph 1 shall be no longer than 3 years renewable for no more than a further 2 years.
The appointment of the auction platforms referred to in paragraph 1 shall be subject to listing the auction platform concerned in Annex III pursuant to paragraph 7. It shall not be implemented before the entry into force of the listing of the auction platform concerned in Annex III as provided for in paragraph 7.
►M8 Each Member State not participating in the joint action as provided for in Article 26(1) but opting to appoint its own auction platform pursuant to paragraph 1 of this Article shall provide the Commission with a complete notification containing all of the following: ◄
the identity of the auction platform it proposes to appoint;
the detailed operative rules that would govern the auction process to be conducted by the auction platform(s) it proposes to appoint, including the contractual provisions concerning the appointment of the auction platform concerned including any clearing system(s) and settlement system(s) connected to the proposed auction platform stipulating the terms and conditions governing the structure and level of fees, collateral management, payment and delivery;
the auctioned product and any information necessary for the Commission to assess whether the envisaged auction calendar is compatible with any prevailing or envisaged auction calendar of the auction platforms appointed pursuant to Article 26(1) as well as other auction calendars proposed by other Member States not participating in the joint action provided for in Article 26 but opting to appoint their own auction platforms;
the detailed rules and conditions on surveying and supervising the auctions to which its proposed auction platform shall be subject pursuant to Article 35(4), (5) and (6) as well as the detailed rules protecting against money laundering, terrorist financing, criminal activity or market abuse, including any remedial measures or sanctions;
the detailed measures put in place to comply with Article 22(4) and Article 34 regarding the appointment of the auctioneer.
In case a Member State having appointed its own auction platform decides to appoint the same auction platform under the same conditions and obligations as per the listing provided for in the first subparagraph, this listing shall continue to be valid where that Member State and the Commission confirm that the requirements of this Regulation and the objectives of Article 10(4) of Directive 2003/87/EC are satisfied. To this end, the Member State shall, in particular, provide a notification containing the information referred to in paragraph 6 to the Commission and share any relevant information with the other Member States. The Commission shall inform the public about the extended validity of the listing.
In the absence of any listing provided for in the first subparagraph, a Member State not participating in the joint action as provided in Article 26(1) but opting to appoint its own auction platform pursuant to paragraph 1 of this Article shall use the auction platforms appointed pursuant to Article 26(1) to auction its share of allowances that would have otherwise been auctioned on the auction platform to be appointed pursuant to paragraph 1 of this Article in the period until the expiry of 3 months after the entry into force of the listing provided for in the first subparagraph.
Without prejudice to paragraph 8, a Member State not participating in the joint action as provided in Article 26(1) but opting to appoint its own auction platform pursuant to paragraph 1 of this Article may nevertheless participate in the joint action for the sole purpose of being able to make use of the auction platforms appointed pursuant to Article 26(1) as provided in the third subparagraph. Such participation shall take place in accordance with the provisions of the second subparagraph of Article 26(6) and subject to the terms and conditions of the joint procurement agreement.
The volume of allowances that were scheduled to be auctioned on an auction platform other than the auction platforms appointed pursuant to Article 26(1) shall be spread evenly over the auctions conducted by the relevant auction platform appointed pursuant to Article 26(1).
Article 31
Functions of auction platforms other than the auction platforms appointed pursuant to Article 26(1)
However, an auction platform appointed pursuant to Article 30(1) shall be exempted from the provisions of Article 27(1)(c) and it shall submit the exit strategy referred to in Article 27(3) to the appointing Member State.
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►M8Article 32
Auction calendar for any auction platform other than the auction platforms appointed pursuant to Article 26(1)
The auction platforms concerned shall publish the auction calendar for the allowances covered by Chapter II of Directive 2003/87/EC, by 31 October of the previous year or as soon as practicable thereafter, and for those covered by Chapter III of that Directive, by 15 July of the previous year or as soon as practicable thereafter, provided that the Commission has instructed the central administrator of the EUTL to enter the respective auction table into the EUTL in accordance with the delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC. The auction platforms concerned shall make their determination and publication of the auction calendars only after the determination and publication pursuant to Articles 11 and 13(2) of this Regulation by the auction platforms appointed pursuant to Article 26(1) of this Regulation, unless such an auction platform has not yet been appointed. Without prejudice to the deadline for publication of the auction calendar for allowances covered by Chapter III of Directive 2003/87/EC, the auction platforms concerned may simultaneously determine the auction calendars for allowances covered by Chapter II and Chapter III of Directive 2003/87/EC.
Published calendars shall be consistent with any relevant conditions or obligations listed in Annex III.
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CHAPTER IX
APPOINTMENT REQUIREMENTS APPLICABLE TO THE AUCTIONEER AND ANY AUCTION PLATFORM
Article 34
Appointment requirements applicable to the auctioneer
►M8 When appointing auctioneers, the Member States shall take into account the extent to which candidates: ◄
exhibit the least risk of conflict of interest or market abuse having regard to the following:
any activities on the secondary market;
any internal processes and procedures to mitigate the risk of conflict of interest or market abuse;
are able to fulfil the auctioneer’s functions, in a timely manner, in accordance with the highest professional and quality standards.
Article 35
Appointment requirements applicable to any auction platform
Without prejudice to the first subparagraph, where it is foreseen in the procurement documents for the joint procurement procedure pursuant to Article 26(1), a regulated market whose operator organises a wholesale energy market as defined in Article 2(6) of Regulation (EU) No 1227/2011 of the European Parliament and of the Council ( 15 ), but does not organise a secondary market in allowances or allowances derivatives, may participate in the procurement procedure pursuant to Article 26(1) of this Regulation. In that case, where such regulated market is appointed as auction platform pursuant to Article 26(1) and its operator does not organise a secondary market in allowances or allowances derivatives by the time of publication of the procurement procedure pursuant to Article 26(1), that operator shall acquire an authorisation and shall organise a secondary market in allowances or allowances derivatives at least 60 trading days prior to the opening of the first bidding window run by the auction platform concerned.
When appointing any auction platform, the Member States shall take into account the extent to which candidates demonstrate fulfilment of all of the following:
ensuring respect of the principle of non-discrimination both de facto and de jure;
full, fair and equitable access to bid in the auctions for SMEs covered by the Union scheme and access to bid in the auctions for small emitters, as defined in Articles 27(1), 27a(1) and 28a(6) of Directive 2003/87/EC;
ensuring cost-efficiency and avoiding undue administrative burden;
robust auction supervision, notification of suspicions of money laundering, terrorist financing, criminal activity or market abuse, administration of any required remedial measures or sanctions, including the provision of an extra-judicial dispute resolution mechanism;
avoiding distortions of competition in the internal market including the carbon market;
ensuring the proper functioning of the carbon market including the implementation of the auctions;
connecting to one or more clearing system or settlement system;
the provision of adequate measures requiring an auction platform to hand over all tangible and intangible assets necessary for the conduct of the auctions by an auction platform’s successor.
An auction platform may only be appointed pursuant to Article 26(1) or 30(1) of this Regulation where the Member State where the candidate regulated market and its market operator are established has ensured that the national measures transposing Title III of Directive 2014/65/EU apply to the auctioning of two-day spot or five-day futures to the extent relevant.
An auction platform shall only be appointed pursuant to Articles 26(1) and 30(1) of this Regulation after the Member State, where the candidate regulated market and its market operator are established, has ensured that the competent authorities of that Member State are able to authorise and supervise them in accordance with the national measures transposing Title VI of Directive 2014/65/EU to the extent relevant.
Where the candidate regulated market and its market operator are not established in the same Member State, the first and second subparagraphs shall apply to both the Member State where the candidate regulated market is established and the Member State where its market operator is established.
The Member State of each competent national authority referred in paragraph 5 of this Article shall ensure that the national measures transposing Articles 70, 71 and 74 of Directive 2014/65/EU apply in relation to the persons responsible for failure to comply with their obligations under Title III of Directive 2014/65/EU as transposed into the national legal order of the Member State of their establishment pursuant to paragraph 4 of this Article.
For the purposes of this paragraph, national measures transposing Articles 79 to 87 of Directive 2014/65/EU shall apply to cooperation between competent national authorities of different Member States and with European Securities and Markets Authority established pursuant to Regulation (EU) No 1095/2010 of the European Parliament and of the Council ( 16 ).
CHAPTER X
REPORTING ON TRANSACTIONS
Article 36
Obligation to report transactions
Where there are errors or omissions in the transaction reports, the auction platform reporting the transaction shall correct the information and submit a corrected report to the competent national authority.
The report shall be drawn up using data standards and formats established in the Commission Delegated Regulation (EU) 2017/590 and shall include all the relevant details referred to in Annex I of Commission Delegated Regulation (EU) 2017/590.
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CHAPTER XI
PAYMENT AND TRANSFER OF THE AUCTION PROCEEDS
Article 44
Payment by successful bidders and transfer of proceeds to the Member States
Payments to the auctioneers shall be made in euros or in the currency of the appointing Member State where that Member State is not member of the euro-zone, at the option of the Member State concerned, regardless of what currency payments are made by the bidders, provided that the clearing system or settlement system concerned is capable of handling the national currency in question.
The exchange rate shall be the rate published on a recognised financial newswire service specified in the contract appointing the auction platform concerned, immediately following the close of the bidding window.
Article 45
Consequences of late or non-payment
A bidder in default of payment may be charged either or both of the following:
interest for each day beginning with the date on which payment was due pursuant to Article 61(3)(d) and ending on the date on which payment is made at an interest rate set out in the contract appointing the auction platform concerned, calculated on a daily basis;
a penalty, which shall accrue to the auctioneer less any costs deducted by the clearing system or settlement system.
Without prejudice to paragraphs 1, 2 and 3, where a successful bidder is in default of payment one of the following shall occur:
the central counterparty shall interpose to take delivery of the allowances and effect payment of the sum due to the auctioneer;
the settlement agent shall apply collateral taken from the bidder to effect payment of the sum due to the auctioneer.
CHAPTER XII
DELIVERY OF THE AUCTIONED ALLOWANCES
Article 46
Transfer of the auctioned allowances
Allowances auctioned by any auction platform shall be transferred by the Union registry prior to the opening of a bidding window, into a nominated holding account, to be held in escrow by the clearing system or settlement system acting as custodian, until delivery of the allowances to successful bidders or their successors in title, pursuant to the results of the auction, as provided for in the applicable delegated acts adopted pursuant to Article 19(3) of Directive 2003/87/EC.
Article 47
Delivering the auctioned allowances
The clearing system or settlement system shall allocate each allowance auctioned by a Member State to a successful bidder, until the total volume allocated matches the volume of allowances notified to the bidder pursuant to Article 61(3)(a).
A bidder may be allocated allowances from more than one Member State auctioning in the same auction if necessary to make up the volume of allowances notified to the bidder pursuant to Article 61(3)(a).
Article 48
Late delivery of the auctioned allowances
CHAPTER XIII
MANAGEMENT OF COLLATERAL
Article 49
Collateral given by the bidder
Article 50
Collateral given by the auctioneer
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CHAPTER XIV
FEES AND COSTS
Article 51
Structure and level of fees
Without prejudice to the first subparagraph, where it is foreseen in the procurement documents for the procurement procedures pursuant to Article 26(1) or Article 30(5), the operator of the auction platform may increase the fees paid by the successful bidders pursuant to Article 52(1) of this Regulation to a maximum of 120 % of the comparable standard fees paid by the successful buyers of allowances on the secondary market during the years when the auction volumes are reduced by more than 200 million allowances pursuant to Decision (EU) 2015/1814.
Article 52
Costs of the auction process
The costs referred to in the first subparagraph shall be deducted from the auction proceeds payable to the auctioneers, pursuant to Article 44(2) and (3).
Without prejudice to the third subparagraph, the terms and conditions of the joint procurement agreement, referred to in the first subparagraph of Article 26(6) or the contract appointing an auction platform pursuant to Article 26(1) may derogate from paragraph 1 of this Article by requiring Member States that have notified the Commission pursuant to Article 30(4) of their decision not to participate in the joint action as provided in Article 26(1), but subsequently make use of the auction platform appointed pursuant to Article 26(1), to pay to the auction platform concerned, including the clearing system(s) or settlement system(s) connected to it, the costs of the services provided for in Article 27(1) related to the volume of allowances which that Member State auctions from the date when that Member State commences auctioning through the auction platform appointed pursuant to Article 26(1) until the termination or expiry of the term of appointment of that auction platform.
The foregoing shall also apply to Member States that have not joined the joint action as provided in Article 26(1) within 6 months of the entry into force of the joint procurement agreement referred to in the first subparagraph of Article 26(6).
The first subparagraph shall not apply where a Member State joins the joint action as provided in Article 26(1) following the expiry of the appointment period referred to in the second subparagraph of Article 30(5), or where it uses the auction platform appointed pursuant to Article 26(1) to auction its share of allowances in the absence of a listing, pursuant to Article 30(7), of an auction platform that has been notified pursuant to Article 30(6).
The costs borne by bidders under paragraph 1 shall be reduced by the amount of the costs borne by a Member State under this paragraph.
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CHAPTER XV
AUCTION SURVEILLANCE, REMEDIAL MEASURES AND SANCTIONS
Article 53
Monitoring of auctions
By the end of each month, the auction platform appointed pursuant to Article 26(1) or Article 30(1) shall report on the implementation of the auctions it conducted in the preceding month in particular with respect to:
fair and open access;
transparency;
price formation;
technical and operational aspects of the implementation of the contract appointing the auction platform concerned;
the relationship between the auction processes and the secondary market in respect of the information under points (a) to (d);
any evidence of anti-competitive behaviour, market abuse, money laundering, terrorist financing or criminal activity that the auction platform has been made aware while carrying out its functions pursuant to Article 27 or Article 31(1);
any breach of this Regulation or non-conformity with the objectives of Article 10(4) of Directive 2003/87/EC that the auction platform has been made aware while carrying out its functions pursuant to Article 27 or Article 31(1) of this Regulation;
follow-up to any information reported under points (a) to (g).
In addition, by 31 January of each year, the auction platform shall also provide a summary and an analysis of these monthly reports of the previous year.
Article 54
Monitoring the relationship with bidders
An auction platform appointed pursuant to Article 26(1) or 30(1) shall monitor the relationship with bidders admitted to bid in its auctions throughout its subsistence, by doing the following:
scrutinising bids made throughout the course of that relationship to ensure that the bidding behaviour of bidders is consistent with the auction platform’s knowledge of the customer, its business and risk profile, including, where necessary, the source of funds;
maintaining effective arrangements and procedures for the regular monitoring of the compliance by persons admitted to bid pursuant to Article 19(1), (2) and (3) with its market conduct rules;
monitoring transactions undertaken by persons admitted to bid pursuant to Articles 19(1), (2) and (3) and by persons as defined in Article 3(26) using its systems in order to identify breaches of the rules referred to in point (b) of this subparagraph, unfair or disorderly auctioning conditions or conduct that may invoke market abuse.
Where scrutinising bids in accordance with point (a) of the first subparagraph, the auction platform concerned shall pay particular attention to any activity which it regards as particularly likely, by its nature, to be related to money laundering, terrorist financing or criminal activity.
An auction platform appointed pursuant to Article 26(1) or 30(1) shall ensure that the documents, data or information it holds on a bidder are kept up-to-date. For this purpose, such an auction platform may:
request any information of the bidder, pursuant to Article 19(2) and (3) and Article 20(5) and (7), for the purposes of monitoring the relationship with that bidder following its admission to bid in the auctions, throughout the subsistence of that relationship and for a period of 5 years following its termination;
require any person admitted to bid to re-submit an application for admission to bid at regular intervals;
require any person admitted to bid to promptly notify the auction platform concerned of any changes to the information submitted to it pursuant to Article 19(2) and (3) and Article 20(5) and (7).
An auction platform appointed pursuant to Article 26(1) or 30(1) shall keep records of:
the application for admission to bid submitted by an applicant, pursuant to Article 19(2) and (3), including any amendments thereto;
the checks carried out in:
processing the application for admission to bid submitted, pursuant to Articles 19, 20 and 21;
scrutinising and monitoring the relationship, pursuant to points (a) and (c) of paragraph 1, following an applicant’s admission to bid;
all information relating to a given bid submitted by a given bidder in an auction, including any withdrawal or modification of such bids, pursuant to the second subparagraph of Article 6(3) and Article 6(4);
all information relating to the conduct of each auction in which a bidder has submitted a bid.
Article 55
Notification of money laundering, terrorist financing or criminal activity
The competent national authorities referred to in the first subparagraph shall have the powers provided for in the national measures transposing Article 48(2) and (3) of Directive (EU) 2015/849.
An auction platform appointed pursuant to Article 26(1) or 30(1) may be held liable for infringements of Article 20(7) and (10), Article 21(1) and (2), and Article 54 of this Regulation and paragraphs 2 and 3 of this Article. The national measures transposing Articles 58 to 62 of Directive (EU) 2015/849 shall apply in this regard.
An auction platform appointed pursuant to Article 26(1) or 30(1), its directors and employees, shall cooperate fully with the FIU by promptly:
informing the FIU, including by filing a report, on their own initiative, where they know, suspect or have reasonable grounds to suspect that funds in relation to the auctions, regardless of the amount involved, are the proceeds of criminal activity or are related to terrorist financing, and by promptly responding to requests by the FIU for additional information in such cases;
providing the FIU directly, at its request, with all necessary information.
All suspicious transactions, including attempted transactions, shall be reported.
The national measures transposing the compliance management and communication policies and procedures, referred to in Article 33(2) of Directive (EU) 2015/849, shall designate the person or persons responsible for forwarding information pursuant to this Article.
Article 56
Notification of market abuse
Article 57
Maximum bid-size and other remedial measures
For the purposes of this Article, maximum bid-size means the maximum number of allowances that may be bid for, directly or indirectly, by any group of persons listed in Article 18(1) or (2), which belong to any of the following categories:
the same group of undertakings including any parent undertakings, its subsidiary undertakings and affiliate undertakings;
the same business grouping;
a separate economic unit having an independent power of decision where they are controlled, directly or indirectly, by public bodies or state-owned entities.
Article 58
Market conduct rules or any other contractual arrangements
Articles 53 to 57 shall be without prejudice to any other action that an auction platform appointed pursuant to Article 26(1) or 30(1) is entitled to take under its market conduct rules or any other contractual arrangements in place, directly or indirectly, with any bidders admitted to bid in the auctions, provided that such action does not conflict with or undermine the provisions of Articles 53 to 57.
Article 59
Conduct rules for other persons authorised to bid on behalf of others pursuant to Article 18(1)(b) and (c) and Article 18(2)
Persons referred to in paragraph 1 shall apply the following conduct rules in their relationship with their clients:
they shall accept instructions from their clients on comparable terms;
they shall refuse to bid on behalf of a client if they have reasonable grounds to suspect money laundering, terrorist financing, criminal activity or market abuse, subject to national legislation transposing Articles 35 and 39 of Directive (EU) 2015/849;
they may refuse to bid on behalf of a client if they have reasonable grounds to suspect that the client is unable to pay for the allowances for which it is seeking to bid;
they shall enter into a written agreement with their clients. Agreements entered into shall not impose any unfair conditions or restrictions on the client concerned. They shall provide for all the terms and conditions relating to the services offered including in particular payment and delivery of the allowances;
they may require their clients to make a deposit by way of advance payment for allowances;
they may not unduly limit the number of bids that a client might submit;
they may not prevent or restrict their clients from engaging the services of other entities eligible pursuant to Article 18(1)(b) to (e) and Article 18(2) to bid on their behalf in the auctions;
they shall pay due regard to the interests of their clients who request them to submit bids on their behalf in the auctions;
they shall treat clients fairly and without discrimination;
they shall maintain adequate internal systems and procedures to process requests from clients to act as agent in an auction and to be able to participate effectively in an auction in particular with regard to the submission of bids on behalf of their clients, collect payment and collateral from and transfer allowances to clients for whom they act;
they shall prevent the disclosure of confidential information from that part of their business responsible for receiving, preparing and submitting bids on behalf of their clients to that part of their business responsible for preparing and submitting bids on their own account or to that part of their business responsible for dealing on their own account on the secondary market;
they shall keep records of information obtained or created in their role as intermediaries handling bids on behalf of their clients in the auctions, for five years from the date of obtaining or creating the information concerned.
The amount of the deposit referred to in point (e) shall be calculated on a just and reasonable basis.
The method of calculating the deposit referred to in point (e) shall be set out in the agreements entered into pursuant to point (d).
Any part of the deposit referred to in point (e) not used to satisfy payment for allowances shall be refunded to the payee within a reasonable period after the auction as stated in the agreements entered into pursuant to point (d).
Persons referred to in paragraph 1 shall apply the following conduct rules when bidding on their own account or on behalf of their clients:
they shall provide any information requested by any auction platform where they are admitted to bid to fulfil its functions under this Regulation;
they shall act with integrity, reasonable skill, care and diligence.
The competent national authorities referred to in paragraph 4 shall only grant an authorisation to the persons referred to in paragraph 1 where the persons fulfil all of the following conditions:
they are of sufficiently good repute and sufficiently experienced as to ensure proper respect of the conduct rules provided for in paragraphs 2 and 3;
they have put in place the necessary processes and checks to manage conflicts of interest and serve the best interests of their clients;
they comply with the requirements of national legislation transposing Directive (EU) 2015/849;
they comply with any other measures deemed necessary having regard to the nature of the bidding services being offered and the level of sophistication of the clients in question in terms of their investor or trading profile as well as any risk-based assessment of the likelihood of money laundering, terrorist financing or criminal activity.
The competent national authorities of the Member State where the persons referred to in paragraph 1 are authorised shall monitor and enforce the conditions listed in paragraph 5. The Member State shall ensure that:
its competent national authorities have at their disposal the necessary investigative powers and sanctions that are effective, proportionate and dissuasive;
a mechanism is established for the handling of complaints and the withdrawal of authorisations where the authorised persons are in breach of their obligations pursuant to such authorisation;
its competent national authorities may withdraw the authorisation granted under paragraph 5 where a person referred to in paragraph 1 has seriously and systematically infringed the provisions of paragraphs 2 and 3.
CHAPTER XVI
TRANSPARENCY AND CONFIDENTIALITY
Article 60
Publication
All legislation, guidance, instructions, forms, documents, announcements, including the auction calendar, any other non-confidential information pertinent to the auctions on a given auction platform, including the list of persons admitted to bid in the auctions, any decision, including any decision pursuant to Article 57, to impose a maximum bid-size and any other remedial measures necessary to mitigate an actual or potential discernible risk of money- laundering, terrorist financing, criminal activity or market abuse on that auction platform, shall be published on a dedicated up-to-date auctioning web-site maintained by the auction platform concerned.
Information which is no longer relevant shall be archived. Such archives shall be accessible through the same auctioning web-site.
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Article 61
Announcement and notification of the auction results
An auction platform shall announce the results of each auction it conducts including at least the following information:
the volume of the allowances auctioned;
the auction clearing price in euros;
the total volume of bids submitted;
the total number of bidders and the number of successful bidders;
in case of cancellation of an auction, the auctions to which the volume of allowances will be carried over;
the total revenue earned from the auction;
the distribution of the revenue between the Member States, in the case of auction platforms appointed pursuant to Article 26(1).
►M8 At the same time as the auction platform announces pursuant to paragraph 2 the information listed in points (a) and (b) of paragraph 1, the auction platform shall notify each successful bidder bidding through its systems: ◄
the total number of allowances to be allocated to that bidder;
which of its tied bids, if any, were randomly selected;
the payment due either in euros or in the currency of a Member State not member of the euro-zone, chosen by the bidder provided that the clearing system or settlement system is capable of handling the national currency in question;
the date by which the payment due must be paid in cleared funds into the auctioneer's nominated bank account.
Where the currency chosen by the bidder is not euros an auction platform shall notify a successful bidder bidding in auctions conducted by it of the exchange rate it has used to calculate the amount due in the currency chosen by the successful bidder.
The exchange rate shall be the rate published on a recognised financial newswire service specified in the contract appointing the auction platform concerned, immediately following the close of the bidding window.
Article 62
Protection of confidential information
The following shall constitute confidential information:
the contents of a bid;
the contents of any instructions to bid even when no bid is submitted;
information which discloses, or from which can be deduced, the identity of the bidder in question and either of the following:
the number of allowances which a bidder wishes to acquire in an auction;
the price which a bidder is willing to pay for those allowances;
information about, or derived from, one or more bids or instructions to bid which either separately or collectively would be likely to:
give an indication as to the demand for allowances prior to any auction;
give an indication as to the auction clearing price prior to any auction;
information provided by persons in the framework of the establishment or maintenance of the relationship with bidders or in the framework of the monitoring of that relationship pursuant to Articles 19, 20, 21 and 54;
▼M8 —————
business secrets provided by persons participating in a competitive procurement process to appoint an auction platform;
information on the algorithm used for the random selection of tied bids, referred to in Article 7(2);
information on the methodology to define what constitutes an auction clearing price significantly under the prevailing secondary market price before and during an auction, referred to in Article 7(6).
Paragraph 2 shall not prevent the disclosure of confidential information which:
has already lawfully been made available to the public;
is made public with the written consent of a bidder, person admitted to bid, or person applying for admission to bid;
is required to be disclosed or to be publicly available by an obligation under Union law;
is made public pursuant to a court order;
►M1 is disclosed or made public ◄ for the purposes of any criminal, administrative, or judicial investigations or proceedings carried out in the Union;
▼M8 —————
is aggregated or redacted prior to its disclosure, so that it is unlikely that information relating to the following is discernable:
individual bids or instructions to bid;
individual auctions;
individual bidders, prospective bidders or persons applying for admission to bid;
individual applications for admission to bid;
individual relationships with bidders;
▼M8 —————
is referred to in paragraph 1(g) provided that it is disclosed to persons working for Member States or the Commission involved in the competitive procurement process referred to in paragraph 1(g), who are themselves bound by an obligation of professional secrecy under their terms of employment;
is made public after the end of a period of 30 months starting from either of the following dates, subject to any subsisting professional secrecy obligations under Union law:
the date of the opening of the bidding window of the auction in which the confidential information is first disclosed with respect to confidential information in paragraph 1(a) to (d);
the date of the termination of the relationship with a bidder with respect to confidential information in paragraph 1(e);
▼M8 —————
the date of submission of the information in the competitive procurement process with respect to confidential information in paragraph 1(g).
►M8 Paragraphs 1 to 5 shall not preclude the exchange of confidential information between an auction platform and: ◄
the competent national authorities supervising an auction platform;
the competent national authorities responsible for investigating and prosecuting money laundering, terrorist financing, criminal activity or market abuse;
the Commission.
Confidential information exchanged under this paragraph shall not be disclosed to other persons than those referred to in points (a), (b) and (c) contrary to paragraph 2.
Article 63
Language regime
Any Member State may provide, at its own cost, for the translation of all information covered by paragraph 1 of an auction platform, into the official language(s) of that Member State.
Where a Member State provides, at its own cost, for the translation of all information covered by paragraph 1 provided by the auction platform appointed pursuant to Article 26(1), any Member State having appointed an auction platform pursuant to Article 30(1) shall also provide, at its own cost, for the translation into the same language(s) of all information covered by paragraph 1 provided by the auction platform it has appointed pursuant to Article 30(1).
Applicants for admission to bid and persons admitted to bid may submit the following in the official language of the Union they have chosen under paragraph 4 provided that a Member State has decided to provide a translation in that language under paragraph 2:
their applications for admission to bid, including any supporting documents;
their bids, including any withdrawal or modifications thereof;
any queries relating to points (a) or (b).
An auction platform may request a certified translation into a language customary in the sphere of international finance.
Applicants for admission to bid, persons admitted to bid and bidders participating in an auction, shall choose any official language of the Union in which they shall receive all notifications made pursuant to Articles 8(3), 20(10), 21(4) and 61(3).
All other oral or written communication by any auction platform to applicants for admission to bid, persons admitted to bid or bidders participating in an auction, shall be made in the language chosen under the first subparagraph at no additional cost to the applicants, persons and bidders in question, provided that a Member State has decided to provide a translation in that language under paragraph 2.
However, even where a Member State pursuant to paragraph 2 has decided to provide a translation in the language chosen under the first subparagraph of this paragraph, the applicant for admission to bid, the person admitted to bid or the bidder participating in an auction, may waive its right under the second subparagraph of this paragraph by giving prior written consent for the auction platform concerned to use only a language customary in the sphere of international finance.
Member States shall be responsible for the accuracy of any translation made pursuant to paragraph 2.
Persons submitting a translation of a document referred to in paragraph 3 and any auction platform notifying a translated document under paragraph 4 shall be responsible for ensuring that it is an accurate translation of the original.
CHAPTER XVII
FINAL PROVISIONS
Article 64
Right of appeal
Article 65
Correction of errors
Article 66
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.
ANNEX I
Template for the notification of voluntary cancellation by a Member State under Article 12(4) of Directive 2003/87/EC
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Notification pursuant to Article 12(4) of Directive 2003/87/EC |
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1. |
Member State and public authority submitting the notification: |
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2. |
Date of the notification: |
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3. |
Identification of the closed electricity generation installation (‘installation’) on the territory of the Member State in accordance with the data recorded in EUTL, established by the delegated act adopted pursuant to Article 19(3) of Directive 2003/87/EC, including: |
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a) |
The name of the installation: |
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b) |
The installation identifier from the EUTL: |
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c) |
The name of the installation operator: |
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4. |
The date of closure of the installation and revocation of the greenhouse gas permit: |
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5. |
Description and reference of the additional national measures that triggered the closure of the installation: |
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6. |
The verified emission reports of the installation for the five years preceding the year of the closure: |
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7. |
The total volume of allowances to be cancelled: |
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8. |
The years over which the allowances are to be cancelled: |
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9. |
The exact volume of allowances to be cancelled in each of the years referred to in point 8: |
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ANNEX II
List of the elements referred to in Article 20(3)
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1. |
Proof of eligibility pursuant to Article 18(1) or (2). |
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2. |
The applicant’s name, address, telephone and facsimile numbers. |
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3. |
The account identifier of the applicant’s nominated holding account. |
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4. |
Full details of the applicant’s nominated bank account. |
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5. |
The name, address, telephone and facsimile numbers, as well as the electronic mail address of one or more representatives of the bidder as defined in the third subparagraph of Article 6(3). |
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6. |
For legal persons, proof of:
(a)
their incorporation stating: the legal form of the applicant; the law by which it is governed; whether or not the applicant is a publicly listed company of one or more recognised stock exchange(s);
(b)
if applicable, the registration number of the applicant in the relevant register where the applicant is registered, failing which the applicant shall provide the memorandum, statutes or other document attesting to its incorporation. |
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7. |
For legal persons and/or legal arrangements, such information as is required to identify the beneficial owner and understand the ownership and control structure of such legal person or arrangement. |
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8. |
For natural persons, proof of their identity, by means of an identity card, driving licence, passport or similar government issued document containing the full name, photograph, date of birth and permanent residential address in the Union of the applicant concerned, which may be supported by other appropriate corroborating documents wherever necessary. |
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9. |
For operators, the permit referred to in Article 4 of Directive 2003/87/EC. |
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10. |
For aircraft operators, proof of their being listed pursuant to Article 18a(3) of Directive 2003/87/EC or the monitoring plan submitted and approved pursuant to Article 3g of that Directive. |
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11. |
Such information as is required to carry out the customer due diligence measures referred to in Article 19(2)(e). |
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12. |
The applicant’s latest audited annual report and accounts including the profit and loss account and balance sheet, if any; if none, a VAT return, or such further information as required to be satisfied as to the applicant’s solvency and creditworthiness. |
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13. |
The VAT registration number, if any, and, where the applicant is not registered for VAT, any other means of identifying the applicant by the tax authorities of the Member State of establishment or where it is tax resident, or such further information as required to be satisfied as to the applicant’s fiscal status within the Union. |
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14. |
A statement that, to the best of the applicant’s knowledge, the applicant satisfies the requirements of Article 19(2)(f). |
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15. |
Proof of compliance with the requirements of Article 19(2)(g). |
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16. |
Proof that the applicant satisfies the requirements of Article 19(3). |
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17. |
A statement that the applicant has the necessary legal capacity and authority to bid on its own account or on behalf of others in an auction. |
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18. |
A statement that to the best of the applicant’s knowledge there is no legal, regulatory, contractual or any other impediment preventing it from performing its obligations under this Regulation. |
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19. |
A statement of whether the applicant proposes to pay in euros or in a currency of a Member State that is not part of the euro-zone, with an indication of the currency chosen. |
ANNEX III
Auction platforms other than those appointed pursuant to Article 26(1), their appointing Member States and any applicable conditions or obligations referred to in Article 30(7)
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▼M8 ————— |
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Auction platforms appointed by the United Kingdom |
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4 |
Auction platform |
ICE Futures Europe (ICE) |
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Legal Basis |
Article 30(1) |
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Term of appointment |
From 10 November 2017 at the earliest until 9 November 2022 at the latest without prejudice to the second subparagraph of Article 30(5). |
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Definitions |
For the purposes of the condition and obligations applying to ICE the following definitions shall apply: (a)‘ICE exchange rules’ — means ICE Regulations, including in particular contract rules and procedures relating to the ICE FUTURES EUA AUCTION CONTRACT and the ICE FUTURES EUAA AUCTION CONTRACT; (b)‘exchange member’ — means a member as defined in Section A.1 of ICE exchange rules; (c)‘client’ — means a client of an exchange member, as well as clients of their clients down the chain, who facilitate the admission of persons to bid and act on behalf of bidders. |
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Conditions |
Admission to the auctions shall not be dependent on becoming an exchange member of or a participant in the secondary market organised by ICE or of any other trading place operated by ICE or by any third party. |
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Obligations |
1. ICE shall require that any decisions that have been taken by ICE's exchange members or their clients with respect to granting admission to bid in the auctions, revoking or suspending such admission, regardless of whether the decision is taken with regard to an admission to bid in the auction only or to an admission to bid in the auctions and also become a member of or participant in the secondary market, be communicated to ICE by the exchange members or their clients taking such decisions in the following way: |
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Auction platforms appointed by Germany |
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5 |
Auction platform |
European Energy Exchange AG (EEX) |
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Legal Basis |
Article 30(1) |
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Term of appointment |
From 5 January 2019 at the earliest for a maximum period of five years until 4 January 2024, without prejudice to the second subparagraph of Article 30(5). |
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Conditions |
Admission to the auctions shall not be dependent on becoming a member of or a participant in the secondary market organised by EEX or of any other trading place operated by EEX or by any third party. |
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Obligations |
1. Within two months from 5 January 2019, EEX shall submit its exit strategy to Germany. The exit strategy shall be without prejudice to the obligations of EEX laid down in the contract with the Commission and the Member States concluded pursuant to Article 26 and the rights of the Commission and those Member States under that contract. 2. Germany shall notify the Commission of any substantive changes in the relevant contractual relations with EEX notified to the Commission on 12 April 2018. |
▼M8 —————
( 1 ) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
( 2 ) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).
( 3 ) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
( 4 ) OJ L 24, 29.1.2004, p. 1.
( 5 ) OJ C 95, 16.4.2008, p. 1.
( 6 ) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
( 7 ) Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1).
( 8 ) OJ L 166, 11.6.1998, p. 45.
( 9 ) OJ L 124, 20.5.2003, p. 36.
( 10 ) Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC (OJ L 264, 9.10.2015, p. 1).
( 11 ) Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ L 156, 19.6.2018, p. 26).
( 12 ) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
( 13 ) Commission Delegated Regulation (EU) 2019/856 of 26 February 2019 supplementing Directive 2003/87/EC of the European Parliament and of the Council with regard to the operation of the Innovation Fund (OJ L 140, 28.5.2019, p. 6).
( 14 ) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).
( 15 ) Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).
( 16 ) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
( 17 ) Commission Delegated Regulation (EU) 2017/590 of 28 July 2016 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council with regard to regulatory technical standards for the reporting of transactions to competent authorities. (OJ L 87, 31.3.2017, p. 449).
