The Community guidelines on State aid for environmental protection, which were adopted in 2008 (OJ C 82, 1.4.2008, p.1. – hereafter the Environmental State Aid Guidelines) are not yet adapted to a climate-energy legislative package, in particular to the Directive 2003/87/EC (as amended by the Directive 2009/29/EC).

Some of the State aid measures foreseen by the Directive 2009/29/EC are not covered by the existing Guidelines and thus the interpretation of these measures on the basis of State aid rules can raise several questions.


Someone wishing to bank emission allowances from second to third trading period can be surprised by the relevant provisions of some national laws of the Member States.


Take for instance the Articles 28 and 29 of the Polish bill on the GHG and other substances emission allowances trading.


Despite unambiguous Community law and the European Commission’s guidance, the Polish law provides for additional legal preconditions for banking of emission allowances. Some authorizations are also required.



The MIFID Directive does not regulate, in general, the legal requirements for spot markets in  CO2 emissions allowances. The legal base for such a view is the Article 38 of the Commission Regulation No 1287/2006 of 10 August 2006 (subject to conditions described in detail in the said provision).

 

On the other hand, taking into account the economic side of the issue, it is often pointed out, that spot trading of EUA, CER and ERU serves, in principle, commercial purposes (and not the speculative ones).

 

So, in general, in most cases, the commodities spot markets have different, in relation to markets in financial instruments, national legal schemes.

 

It applies also to Poland, where the Commodity Exchanges Act of 24 October 2000 sets particular requirements as regards CO2 brokers wishing to trade in spot CO2 markets on the Polish Power Exchange.

 


Poland is preparing a new system of emission trading of sulphur dioxides (SO2) and nitrous oxides (NOx).


According to the draft of the new statute, financial institutions won’t be admitted to the market (as well as traders and brokers).


But why the new law restricts the emissions market also as regards the range of possible types of civil contracts?

 


Both of the above possibilities are admissible in the EU and US schemes.

Additionally, Boxer Kerry provides for an interesting solution: “borrowing with interest”.

 

According to the circular of the ICE Clear Europe published in September 2009, the clearing house extended the list of permitted cover and included  Emissions Allowances issued under the EU Emissions Trading Scheme (EUAs) and the Kyoto Protocol (CERs).

 

Clearing Members may now use Allowances or CERs to satisfy original margin requirements. In order to bring a margin, EUAs or CERs should be deposited with a special account of ICE Clear Europe.


So, this proposition and concept presented by the clearing house bases on fiduciary assignment of allowances. It is probably because the other forms of a hypothecation in relation to CO2 allowances are still questionable.

 

There is a threat, that new investments of Polish power generators can’t benefit from derogation provided for in Article 10c of the Directive 2003/87/WE – contrary to intentions, which were expressed by politicians and negotiators during December 2008 negotiations of climate - energy package.

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Polish national implementation measure – the bill of 22 December 2004 of a greenhouse gas and other substances emission trading addresses contract of sale as an only one, that can be applied in relation to a disposal of emission allowances.


It is a classical mistake of legislators.

 


On the 19 of June 2009 the lower house of the Polish Parliament (Sejm) has adopted the bill on the management system of GHG emissions and other substances.

The bill provides inter alia for legal framework for national and sectoral plans of emissions reduction.

During the course of the legislatory proceedings the main controversy was the position of forests as a sinks of a carbon.

But, paradoxically, the legal basis for national and sectoral plans of emissions reduction evoke no questions or discussions. This is surprising, because these plans are actually real threat for Polish companies and entrepreneurs.


The method for accruing interest under the Emissions Trading Master Agreement for the EU Scheme Version 3.0 2008 can evoke some problems and be a little embarrassing for a companies operating on a Polish market. We point at some possible solutions.



In the Polish translation of the Official Journal of the European Union publishing Decision No 406/2009/EC of the European Parliament And of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020 (OJ L 140, 5.6.2009, p. 136.) we found an error in Article 5 paragraph 5.