CHAPTER VIAPPOINTMENT OF THE AUCTION MONITOR AND ITS FUNCTIONS
Article 24The auction monitor
1
All auction processes shall be monitored by the same auction monitor.
F3Without prejudice to the third subparagraph, the allowances to be auctioned on behalf of a Member State shall be withheld from the auctions whenever that Member State does not have in place a duly appointed auction monitor or whenever the contractual arrangements with the auction monitor are not concluded or in force.
Where reasons of force majeure prevent the auction monitor from performing its tasks in respect of a given auction, in full or in part, the auction platform concerned may decide to conduct that auction provided that it takes appropriate measures to ensure adequate monitoring of the auction itself. The foregoing shall also apply where the appointment of the auction monitor has been delayed until no later than 1 January 2013, or until no later than 1 July 2013 where the first procurement procedure does not result in an appointment of the auction monitor and the conduct of a second procurement procedure is necessary.
2
All Member States shall appoint an auction monitor following a joint procurement procedure between the Commission and the Member States conducted pursuant to the third subparagraph of Article 91(1) of Regulation (EC, Euratom) No 1605/2002 and Article 125c of Regulation (EC, Euratom) No 2342/2002.
3
The period for which the auction monitor is appointed shall be no longer than 5 years.
At least three months prior to the expiry of the term of appointment or termination of the appointment of the auction monitor, a successor shall be appointed, pursuant to paragraph 2.
4
The identity and contact details of the auction monitor shall be published on the Commission’s website.
F35
Any Member State that joins the joint action referred to in paragraph 2 after the entry into force of the joint procurement agreement entered into between the Member States and the Commission shall accept the terms and conditions agreed by the Member States and the Commission in the joint procurement agreement as well as any decisions already adopted under that agreement.
After the entry into force of the joint procurement agreement and until a Member State joins the joint action referred to in paragraph 2, it may be given observer status upon terms and conditions agreed in the joint procurement agreement between the Member States and the Commission subject to any applicable public procurement rules.
Article 25The auction monitor’s functions
1
The auction monitor shall monitor each auction and report on the proper implementation of the auctions conducted in the preceding month to the Commission on behalf of the Member States and to the Member States concerned, within the deadline provided for in the fourth subparagraph of Article 10(4) of Directive 2003/87/EC, pursuant to that subparagraph in particular with respect to:
a
fair and open access;
b
transparency;
c
price formation;
d
technical and operational aspects.
2
The auction monitor shall provide to the Member States and the Commission an annual consolidated report which shall comprise:
a
the matters referred to in paragraph 1 both in relation to each individual auction and in aggregate for each auction platform;
b
any failure to comply with the contract appointing an auction platform;
F4c
any evidence of anti-competitive behaviour, market abuse, money laundering, terrorist financing or criminal activity;
d
the impact of the auctions on the market position of the auction platforms on the secondary market, if any;
e
the relationship between the auction processes covered in the consolidated report and between them and the functioning of the secondary market, pursuant to Article 10(5) of Directive 2003/87/EC;
F4f
information about the number, nature and status of any complaints made pursuant to Articles 59(4) or 64(1) as well as any complaints made against an auction platform to the national competetent authorities supervising that auction platform, the courts or competent administrative bodies provided for in the national measures transposing Article 52(2) of Directive 2004/39/EC;
g
information about any follow-up given to any reports of the auction monitor made under paragraphs 3, 4 and 5;
h
any recommendations deemed appropriate to improve any of the auction processes or for any review of the following:
- (i)
this Regulation including the review referred to in Article 33;
- (ii)
the Commission regulation adopted pursuant to Article 19(3) of Directive 2003/87/EC;
- (iii)
Directive 2003/87/EC including the review of the functioning of the carbon market provided for in Articles 10(5) and 12(1a) of that Directive.
3
The auction monitor may, upon request by the Commission and one or more Member State(s), or as required in paragraph 5, report from time to time on any specific issue related to any of the auction processes, whenever it is necessary to raise the issue in question prior to the submission of the reports covered in paragraphs 1 or 2. Otherwise the auction monitor may report thereon in the reports provided for in paragraphs 1 or 2.
F14
A Member State not participating in the joint action as provided in Article 26(1) and (2) of this Regulation but opting to appoint its own auction platform pursuant to Article 30(1) and (2) of this Regulation may request the auction monitor to provide the Member States, the Commission and the auction platform concerned with a technical report on the ability of the auction platform it proposes or intends to propose, to carry out the auction process in accordance with the requirements of this Regulation and in conformity with the objectives set out in Article 10(4) of Directive 2003/87/EC.
In such reports, the auction monitor shall clearly state where the auction process meets the requirements of the first subparagraph and where it does not. It shall make precise recommendations for further development or improvement to the auction process wherever appropriate, proposing a specific timeline for their implementation.
5
In the event of any breach of this Regulation or non-conformity with the objectives of Article 10(4) of Directive 2003/87/EC of the auction process carried out by an auction platform, or upon request by the Commission in case it suspects such a breach, the auction monitor shall report forthwith to the Member States, the Commission and the auction platform concerned.
The report shall clearly state the nature of the breach or non-conformity. It shall make precise recommendations to remedy the situation, proposing a specific timeline for their implementation. Where appropriate, it may recommend the suspension of the auction platform concerned. The auction monitor shall keep its report pursuant to this paragraph under constant review and provide quarterly up-dates thereon to the Member States, the Commission and the auction platform concerned.
F26
The auction monitor shall provide opinions pursuant to Articles 7(7) and 8(3), and as provided in Annex III. Opinions shall be delivered within a reasonable time.
7
The reports and opinions provided for pursuant to this Article shall be drawn up in a comprehensible, standardised easily accessible format to be determined as set out in the contract appointing the auction monitor.