Under Regional Greenhouse Gas Initiative Model Rules the Regulatory Agency of the RGGI (or its agent) records a CO2 allowance transfer by moving each CO2 allowance from the transferor account to the transferee account within 5 business days of receiving a CO2 allowance transfer.


Is this a right remedy for the EUETS recent weaknesses?

 

It should be considered that the responsibility for the timely surrendering of emission allowances be accounted for at a level of a group of affiliated companies.

 

 

In the European cap-and-trade the cap is established on the volume of allowances and, unfortunately, not on the price. But as the experience shows there are interesting concepts, how to mitigate not only the impact of climate change, but also the price risks inherent in the scheme. Direct quarterly sales of allowances from the Allowance Price Containment Reserve and the fixed Auction Reserve Price cause (providing that the Reserve won’t be prematurely exhausted) that in the California cap-and-trade the regulatory-fixed price range from 10$ to 75$ per metric ton of CO2 can be specified in the perspective 2012 – 2020 (with appropriate modifications in each year of the period).

 


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.

 


Imagine hypothetically that the stolen allowances were entered into circulation and were subject to the transactions for the sale (or other disposal) of allowances between the parties in different Member States.

 


Recently announced „Proposal for a Regulation of the European Parliament and of the Council on energy market integrity and transparency {SEC(2010) 1510} {SEC(2010) 1511}” subjects wholesale energy products traded on the spot market to the safeguards currently present mainly on the financial market. The issue obviously regards inter alia the prohibitions on insider dealing and market manipulation.

 

 

The draft of the Law on the system of balancing and settlement of  sulphur dioxides’ (SO2) and nitrous oxides (NOx) emissions from a large combustion plants scheduled to enter into force as from 1 January 2011 introduces in Poland a trading scheme that can be classified as cap-and-trade system rather than baseline-and-credit.

 


Article 11a(9) of the Directive 2003/87/EC is these days “hot topic” among emission traders and compliance buyers of CERs.

 

The issue is really worth considering - the very wording of the said provision sounds mysterious, may potentially be capacious and constitute a legal basis for many interesting structures. But nobody likes to be surprised – especially when big money is at stake.

 


EUA’s and CER’s Daily Futures Contracts traded on ECX are physically deliverable within two trading days - are they spot contracts or financial instruments triggering regulatory framework of MIFID?

 

 


There are very few decisions of the IASB and FASB on the accounting standards for emissions allowances so far and even those already adopted are tentative only.


Despite an extensive variety of provisions relating to the status of CER units in the post-2012 legal framework of the Directive 2009/29/EC (aiming generally at securing stability of the long-term green investments), at least one of these provisions should be of particular concern to the CER buyers and investors.

 


It seems rather improbable that parties to the IETA agreement don’t make choice as regards the jurisdiction applicable to the contract in respect of the sale of emission greenhouse gas allowances. This is because the IETA Master Agreement (ETMA v. 3.0) is governed by and is to be construed in accordance with English law unless otherwise expressly provided for in the Part 1 of the Schedule 2 (Elections) to the Master Agreement (clause 14.7).

 

But there are also trades where other contract documentation is applied, and this documentation sometimes is restricted to, for instance, two pages only (without any master agreement). It is also theoretically possible (and sometimes occurs in practice) that there is no documentation at all – only transfer in the registry (the agreement is concluded orally and not confirmed in writing).

 

The question may arise in the said situations as to the law applicable to the contract.

 

The Regulation No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) is helpful in these ambiguities and the findings on jurisdiction are the first problems, which are to be resolved in any legal analysis relating to such contract.