Designing the legal mechanism to account for the relevant transfers of funds is an ultimate ambush.
What would be the legal form (what kind of agreement, sale, donation, other) of the purported transfers between companies taking part in the operations for the transfer of funds, how these operations would be accounted for, what form of taxation to apply (as regards VAT, CIT), and what would be the effects of these processes on the profits of the company – all these matters require analysis.
1. Matching the values of investments with free allowances
Continuing the remarks regarding legal consequences of the Communication from the Commission, Guidance document on the optional application of Article 10c of Directive 2003/87/EC (2011/C 99/03, OJ C 99, 31.3.2011, p. 9) it is worth to focus on the element of the most practical importance i.e. the balancing mechanism between amount of investments and free emission allowances.
The provisions of the Directive 2003/87 were ambiguous on the point whether the value of investments listed in the national plan should be exactly matched with the value of emission allowances allocated free of charge, at the level of the Member State as a whole or at the level of each particular operator. The settlement of these two parameters within the entire Member State would undoubtedly be much easier than adjusting the said values for each economic operator. The second approach also entails further complications.
In the guidelines, the Commission determined the required content of the national plan for investments. Pursuant to the point 30 of the said guidelines, in their national plans, Member States should set out four categories of information:
1) the list of installations undertaking investments identified in the national plan,
2) the list of investments scheduled to result from free allocation of emission allowances,
3) the specification to which extent the said investments will be funded by gains from emission allowances allocated free of charge,
4) the determination in which year of the investment cycle this would occur.
The Commission further argues that where companies receive emission allowances for free without undertaking such an investment or where they receive more emission allowances for free than necessary to undertake the relevant investment(s) identified in the national plan, they must be required to provide the value of the excess allowances to the relevant entity undertaking the investment.
It follows that a national plan should, according to the Commission view, be matched at both levels – the national and that of operator’s. It needs also to be detailed as regards the time-schedule. Taking into account the amounts that are at issue it looks like a huge organisational effort and challenge - within very limited deadlines.