Implementation of Articles 35, 36, 43, 55 and 64 of Commission Regulation (EU) No 1031/2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances (‘the Auctioning Regulation’) by the Member States and their relevance for the appointment of auction platforms pursuant to Article 26 of that Regulation

Transparency measures with regard to the documents relating to the call for tenders referred to in Article 92 of the Financial Regulation applicable to the general budget of the European Communities and Article 130(1) of its Implementing Rules exchanged between the Commission and the Member States in the appointment of the single auction monitor pursuant to Article 24 of the Auctioning Regulation and the appointment of the auction platforms pursuant to Article 26 of that Regulation

2011/C 220/02

1.   Introduction

The revision of the Emission Trading Scheme (‘ETS’) agreed as part of the climate and energy package in 2008 provides that the auctioning of allowances will be the rule rather than the exception as from the third trading period starting from 2013 (1). Moreover, 15 % of aviation allowances should be auctioned starting from 2012 (2). The Commission was charged with adopting a regulation on the timing, administration and other aspects of the auctioning of allowances (3). On 12 November 2010, the Commission adopted the said regulation (‘the Auctioning Regulation’) (4).

Articles 24 and 26 of the Auctioning Regulation provide for joint procurement procedures between the Commission and the Member Sates for the appointment of the single auction monitor (‘SAM’) and the common auction platforms (‘CAPs’).

The joint procurement procedures for the appointment of the SAM and CAPs will be conducted in a joint action pursuant to the third subparagraph of Article 91(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (the ‘Financial Regulation’) (5); and Article 125c of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (the ‘Implementing Rules’) (6)

Pursuant to the third subparagraph of Article 125c of the Implementing Rules, the Commission and the Member States must agree on the practical modalities for the conduct of the joint procurement. The Commission and the Member States will determine the practical modalities for the conduct of the joint procurements by means of a joint procurement agreement for the appointment of the SAM and another joint procurement agreement for the appointment of the CAPs.

2.   Procurement of a regulated market as an auction platform under the Auctioning Regulation

Under the Auctioning Regulation (7), auctions may only be conducted by a regulated market authorised under the Markets in Financial Instruments Directive (hereinafter ‘MiFID’) (8). Such a regulated market should be procured pursuant to a public procurement procedure compliant with Union law.

Where, in line with Article 26 of the Auctioning Regulation, Members States procure the regulated market in a joint action with the Commission pursuant to the third subparagraph of Article 91(1) of the Financial Regulation, the procedural provisions applicable to the Commission shall apply to the procurement process, pursuant to the first subparagraph of Article 125c of the Implementing Rules.

Where, in line with Article 30 of the Auctioning Regulation, Member States procure their own auction platform, they must do so by means of a selection procedure that is compatible with applicable Union and national public procurement laws. Germany, Poland and the United Kingdom have decided to appoint their own auction platforms.

Subject to individual Member States' transpositions of MiFID into national law, Member States may have to make changes to their national laws transposing MiFID to make it possible for regulated markets (and their market operators (9)) established in their territory to be authorised for the auctioning of the auctioned products provided for in Article 4(2) and (3) of the Auctioning Regulation. There is no obligation, under Article 35(4) of the Auctioning Regulation, on any Member State to change its national laws transposing MiFID to make it possible for regulated markets (and their market operators) established in their territory to be authorised for the auctioning of the auctioned products pursuant to the Auctioning Regulation.

For the joint procurements of auction platforms by the Member States and the Commission, under Article 26(1) and (2) of the Auctioning Regulation, Article 97(1) of the Financial Regulation provides that contracts shall be awarded under the award criteria after the capability of economic operators not excluded under the exclusion criteria has been checked in accordance with the selection criteria. Furthermore, under Article 135(3) of the Implementing Rules, any candidate or tenderer may be asked to prove it is authorised to perform the contract under national law as evidenced, inter alia, by a sworn declaration or certificate or express authorisation. This may include proof of authorisation as a regulated market for the auctioning of the auctioned products. The precise evidential requirements necessary to comply with Article 135(3) of the Implementing Rules and the timing for their submission will form part of the documents relating to the call for tenders referred to in Article 92 of the Financial Regulation published by the Commission in the Official Journal of the European Union, S Series on http://ted.europa.eu/TED/main/HomePage.do (10). However, it cannot be excluded that candidates or tenderers may be required to submit the requisite evidential proof at the submission deadline of tenders or requests to participate, as referred to in Article 140 of the Implementing Rules.

Candidates or tenderers need only be authorised as a regulated market in one Member State to be able to submit an offer in accordance with Article 135(3) of the Implementing Rules. It is incumbent upon candidates or tenderers to check with the Member States' authorities regarding the status of their implementation of Article 35(4) of the Auctioning Regulation.

3.   National implementation of other provisions of the Auctioning Regulation relevant for the appointment of a regulated market as an auction platform

In addition, Member States are required to make changes to their national laws, if necessary, to implement Articles 36(1) and 43 of the Auctioning Regulation regarding the rules on market abuse; Article 55(1), (3) and (4) of the Auctioning Regulation regarding the rules on money laundering, terrorist financing or criminal activity and Article 64(2) of the Auctioning Regulation regarding the rules on the provision of an extra-judicial mechanism within the regulated market.

Implementation of these Articles by the Member State where the regulated market appointed as an auction platform (or its market operator) is established is not relevant for the decision to award the contract under the joint procurement procedure for the appointment of the auction platform, but it may be a relevant requirement for the implementation of the resulting contract. If the implementation of the contract is frustrated due to lack of implementation of the abovementioned provisions by the Member State where the regulated market appointed as an auction platform (or its market operator) is established, the contract may be terminated forthwith.

Nevertheless, where implementation of the aforementioned Articles by the Member States would impose obligations on an auction platform to put in place certain capacities, it cannot be excluded that an auction platform may be required to demonstrate the requisite capacities in its tender or request to participate regardless of whether or not the Member State where an auction platform is situated has completed its national implementation of the relevant Article of the Auctioning Regulation. For example, Article 55(4) of the Auctioning Regulation, inter alia, requires Member States to ensure that the national measures transposing Article 34(1) of Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (11) (hereinafter ‘AML Directive’) apply to an auction platform situated in its territory. The national measures transposing Article 34(1) of the AML Directive would require Member States to ensure that the auction platform concerned establishes adequate and appropriate policies and procedures in order to forestall and prevent operations related to money laundering or terrorist financing. An auction platform may be required to demonstrate its capacities to establish those policies and procedures in its tender or request to participate. It is incumbent upon candidates or tenderers to check with the Member States' authorities regarding the status of their implementation of Articles 36(1), 43, 55(1), 55(3), 55(4) and 64(2) of the Auctioning Regulation.

4.   List of Member States' implementation

A list of the Member States that have informed the Commission that either they already have made changes or are making changes to their national laws as outlined in Sections 2 and 3, including an indicative timeline for their national implementation will be published at http://ec.europa.eu/clima/policies/ets/auctioning_en.htm. The purpose of this list is to provide candidates or tenderers with information on the status of implementation of Articles 35, 36(1), 43, 55(1), 55(3), 55(4) and 64(2) of the Auctioning Regulation in the various Member State jurisdictions. The Commission bears no responsibility for the accuracy, completeness or timeliness of the aforementioned list.

5.   Transparency measures with regard to the documents relating to the call for tenders for the procurement of the SAM and CAPs

Under Article 90(1) of the Financial Regulation contract notices must be published in the Official Journal of the European Union (OJ). Tender documents are enumerated in Article 130(1) of the Implementing Rules. Article 121 of the Implementing Rules allows for other forms of advertising provided that they do not precede the publication of the notice in the OJ and refer to the notice published in the OJ which alone is authentic.

In the context of the joint procurements for the appointment of the SAM pursuant to Article 24 of the Auctioning Regulation and the CAPs pursuant to Article 26 of the Auctioning Regulation, the documents relating to the call for tenders referred to in Article 92 of the Financial Regulation and more particularly delineated in Article 130 of the Implementing Rules will contain market sensitive information. Under the joint procurement agreements the Commission is required to share that information with the Member States.

To ensure equal access to such information for all market participants, the Commission intends to disclose key draft documents relating to the call for tenders for the appointment of the SAM and CAPs at http://ec.europa.eu/clima/policies/ets/auctioning_en.htm at the same time as it distributes these to the Member States. Any published draft can be subject to changes, including substantial changes, until the publication in the OJ. Disclosure of draft documents relating to the call for tenders shall not constitute publication or advertising within the meaning of Article 90(1) of the Financial Regulation nor Articles 118, 119 and 120 of the Implementing Rules; nor will it be binding on the Commission or the Member States taking part in the joint procurements. Only the notices and associated documents relating to the call for tenders published in the OJ shall be authentic within the meaning of the first sub-paragraph of Article 121 of the Implementing Rules.

(1)  Article 10(1) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).

(2)  Article 3c(1) and Article 3d(2) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).

(3)  Articles 3d(3) and 10(4) of Directive 2003/87/EC as amended.

(4)  Commission Regulation (EU) No 1031/2010 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 scheme for greenhouse gas emission allowances trading within the Community (OJ L 302, 18.11.2010, p. 1).

(5)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p. 1).

(6)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357, 31.12.2002, p. 1).

(7)  See Article 35(1) of the Auctioning Regulation.

(8)  Point 14 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2010, p. 1).

(9)  Point 13 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2010, p. 1).

(10)  These may also be accessed at http://ec.europa.eu/clima/tenders/index_en.htm

(11)  OJ L 309, 25.11.2005, p. 15.