Are the individual characteristics of transactions in emission allowances, which are entered into registries, publicly available? If yes, under what conditions and to what extent? What is the relation between the Registry Regulation and the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26)? Does the Registry Regulation provide for the specific rules in this field or the said Directive is nevertheless binding as regards requests for making publicly available trading data (dates, volumes, parties to the transactions, prices etc.)? All these, vital for young emission market, questions are decided in the recent judgment. But we go a little further and make some classifications as regards the subject-matter.
I think that there is no point in duplicating the legal considerations of the Court of the Justice if the European Union in the judgment of 22 December 2010 in Case C‑524/09 Ville de Lyon v Caisse des dépôts et consignations. Those interested in it will undoubtedly refer to original text – if they didn’t do it already.
If anybody wanted to get precise and supported by the prestige of the Court answers to the questions raised at the beginning, he should to get acquainted with the said judgment. It seems that issues which could earlier raise ambiguities are now clear. The answers to the above questions were, however, not obvious, taking into account that – as follows from the factual circumstances of the case – the French Commission d’accès aux documents administratifs (Committee on Access to Administrative Documents) issued an opinion in favour of the supply of the documents relating to the trading data.
It should be borne in mind that the subject matter in the aforementioned dispute before the Court was the granting by the registry administrator of access to the information on volumes of the greenhouse gas emission allowances sold in 2005 by the operators of 209 urban heating sites situated throughout France to which emission allowances were allocated, and also the dates of the transactions and their recipients. So – the issue at stake were the identities of the parties to the specific transactions, volumes and dates of transactions (let’s admit – data that might principally be considered sensitive since the access to them could influence future trading decisions of market participants). The determination, whether such kind of data is subject to be made available to the general public and when (under what conditions) such disclosure is made, seems to be of great importance to the market.
But let’s make a few next steps taking the findings of the Court expressed in the said judgment as a core assumptions for further considerations.
First criterion: Article 17 v Article 19 of the Directive 2003/87 and the Regulation No 2216/2004
It seems that it will be practical now to classify the information relating to emissions as regards their degree of publicness at several different levels. Consequently, the first criterion for a division is specified in the very Directive 2003/87 which in Article 17 lays down three categories of data which are made available to the public in accordance with Directive 2003/4. These three classes of information are as follows:
1) decisions relating to the allocation of allowances,
2) information on project activities in which a Member State participates or authorises private or public entities to participate, and
3) the reports of emissions required under the greenhouse gas emissions permit and held by the competent authority.
These categories of information are practically publicly available.
Decisions relating to the allocation of allowances, information on project activities in which a Member State participates or authorises private or public entities to participate, and the reports of emissions required under the greenhouse gas emissions permit and held by the competent authority, shall be made available to the public in accordance with Directive 2003/4/EC'.
But – as the Court in the said judgment clarified - these three categories of information being subject to disclosure under the conditions specified in the Directive 2003/4, are listed exhaustively. It means, in particular, that the said principle mustn’t be extended to the another kinds of information, namely the ones determined in the Article 19 of the Directive 2003/87 and in the Registry Regulation.
As the Court argued, since ‘Article 19 of Directive 2003/87 does not refer to Directive 2003/4 in the same way as in Article 17, it must be held that the EU legislature did not intend to make requests concerning trading data such as that at issue in the main proceedings subject to the general provisions of Directive 2003/4 but that, on the contrary, it sought to introduce, in respect of that data, a specific, exhaustive scheme for public reporting and confidentiality of that data’. The Court also determined that ‘... the reporting of trading data ... relating to the names of holders of the transferring accounts and acquiring accounts of the emission allowances, allowances or Kyoto units involved in those transactions and the date and time of those transactions, comes exclusively under the specific rules governing public reporting and confidentiality contained in Directive 2003/87 and in Regulation No 2216/2004’.
As follows consequently from all the above, the first criterion which should be established as regards the publicness of the emission data is whether the required data are covered by the scope of Article 17 of the Directive 2003/87 or not. In relation to the second class the disclosure of the trading data is subject to the rules on keeping, reporting and confidentiality of the information that are determined by the Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1 as amended - referred to as the ‘Registry Regulation” or ‘Regulation No 2216/2004’).
The second criterion: different principles and the scope for disclosure for account holders and for the general public
When it is established that the relevant data does not fall under the scope of Article 17 of the Directive (see above), the second determination is to be made as regards the categories of persons regarding the disclosure of information. This criterion might be obvious to some readers but I believe, it shouldn’t be omitted for the sake of completeness. The scope of the information available to the account holders (see box nearby) is laid down precisely by the Registry Regulation (point 13 and 14 of the Annex XVI thereto) and that field didn’t raise ambiguities so far (to my knowledge, at least).
1) current holdings of allowances or Kyoto units;
2) list of proposed transactions initiated by that account holder, detailing for each proposed transaction the elements in paragraph 12(a) to (f) (that is: account identification code of the acquiring account: the code assigned to the account comprising the elements set out in Annex VI to the Regulation; account holder name of the transferring account: the holder of the account (person, operator, Commission, Member State); account holder name of the acquiring account: the holder of the account (person, operator, Commission, Member State); allowances or Kyoto units involved in the transaction by unit identification code comprising the elements set out in Annex VI; transaction identification code: the code assigned to the transaction comprising the elements set out in Annex VI to the Regulation), the current status of that proposed transaction and any response codes returned consequent to the checks made pursuant to Annex IX to the Regulation;
3) list of allowances or Kyoto units acquired by that account as a result of completed transactions, detailing for each transaction the elements in paragraph 12(a) to (g) of the Annex XVI to the Regulation (that is those mentioned in the point 2 above and additionally date and time at which the transaction was completed (in Greenwich Mean Time));
4) list of allowances or Kyoto units transferred out of that account as a result of completed transactions, detailing for each transaction the elements as mentioned above under the point 3.
The ambiguities occurred, however, as regards requests for accessing, by the members of the public, to the data falling under the scope of the Registry Regulation - not the account holders. In that regard the further distinctions deserve to be drawn.
The third criterion: trading data available to the public immediately (1), with a certain delay (2) and not available at all (3)
In order to draw a detailed distinction between points (1) and (2) of the above mentioned categories it is necessary to refer the reader to the extensive provisions of the Annex XVI to the Registry Regulation. It provides for a detailed timelines and schedules for publication of data on the public area of the registry's web site - in accordance with the specified timing for each particular type of information.
What seems to me to be important as a general rule is that the Registry Regulation categorises the data in question into three classes, where:
- the first one imposes no restrictions on access to the data,
- the second – on a contrary - provides for the complete ban on disclosure of information (for instance: transactional prices - see Article 9(5) of the Registry Regulation: ‘Neither the Community independent transaction log nor registries shall require account holders to submit price information concerning allowances or Kyoto units’),
- the third - relates to the information that were the subject matter of the dispute before the Court in the case mentioned at the beginning i.e. the volumes of the allowances sold in the certain period of time by the specified operators and the dates of the transactions and their recipients. Such trading data in the absence of the prior consent of the relevant account holders, may be freely consulted by the general public only in the public area of the Community independent transaction log’s website from 15 January onwards of the fifth year (X+5) following the year (X) of completion of the transactions relating to transfers of emission allowances.
The account holders, must therefore agree to making publicly available their trading data as the ones mentioned above. The Community legislature apparently judged in this situation that the trading interest of the participants of the emission trading scheme are safeguarded by a considerable delay between a transaction in question and the making of the data publicly available (5 years).