Commission Regulation (EU) No 1031/2010Show full title

CHAPTER XVI TRANSPARENCY AND CONFIDENTIALITY

Article 60 Publication

1. All legislation, guidance, instructions, forms, documents, announcements, including the auction calendar, any other non-confidential information pertinent to the auctions on a given auction platform, any decision, including any decision pursuant to Article 57, to impose a maximum bid-size and any other remedial measures necessary to mitigate an actual or potential discernible risk of money-laundering, terrorist financing, criminal activity or market abuse on that auction platform, shall be published on a dedicated up-to-date auctioning web-site maintained by the auction platform concerned.

Information which is no longer relevant shall be archived. Such archives shall be accessible through the same auctioning web-site.

2. Non-confidential versions of the auction monitor’s reports to the Member States and the Commission pursuant to Article 25(1) and (2) shall be published on the Commission’s website.

Reports which are no longer relevant shall be archived. Such archives shall be accessible through the Commission’s web-site.

3. A list of the names, addresses, telephone and facsimile numbers, electronic mail addresses and websites of all persons admitted to bid on behalf of others in auctions conducted by any auction platform auctioning two-day spot or five-day futures shall be published on the website maintained by the auction platform concerned.

Article 61 Announcement and notification of the auction results

1. An auction platform shall announce the results of each auction it conducts as soon as is reasonably practicable and no later than 15 minutes after the close of the bidding window.

2. The announcement made pursuant to paragraph 1 shall at least include the following:

(a) the volume of the allowances auctioned;

(b) the auction clearing price in euros;

(c) the total volume of bids submitted;

(d) the total number of bidders and the number of successful bidders;

(e) in case of cancellation of an auction, the auctions to which the volume of allowances will be carried over;

(f) the total revenue earned from the auction;

(g) the distribution of the revenue between the Member States, in the case of auction platforms appointed pursuant to Article 26(1) or (2).

3. At the same time as the announcement pursuant to paragraph 1, the auction platform shall notify each successful bidder bidding through its systems:

(a) the total number of allowances to be allocated to that bidder;

(b) which of its tied bids, if any, were randomly selected;

(c) the payment due either in euros or in the currency of a Member State not member of the euro-zone, chosen by the bidder provided that the clearing system or settlement system is capable of handling the national currency in question;

(d) the date by which the payment due must be paid in cleared funds into the auctioneer’s nominated bank account.

4. Where the currency chosen by the bidder is not euros an auction platform shall notify a successful bidder bidding in auctions conducted by it of the exchange rate it has used to calculate the amount due in the currency chosen by the successful bidder.

The exchange rate shall be the rate published on a recognised financial newswire service specified in the contract appointing the auction platform concerned, immediately following the close of the bidding window.

5. An auction platform shall notify the relevant clearing system and settlement system connected to it of the information notified to each successful bidder, pursuant to paragraph 3.

Article 62 Protection of confidential information

1. The following shall constitute confidential information:

(a) the contents of a bid;

(b) the contents of any instructions to bid even when no bid is submitted;

(c) information which discloses, or from which can be deduced, the identity of the bidder in question and either of the following:

(i)

the number of allowances which a bidder wishes to acquire in an auction;

(ii)

the price which a bidder is willing to pay for those allowances;

(d) information about, or derived from, one or more bids or instructions to bid which either separately or collectively would be likely to:

(i)

give an indication as to the demand for allowances prior to any auction;

(ii)

give an indication as to the auction clearing price prior to any auction;

(e) information provided by persons in the framework of the establishment or maintenance of the relationship with bidders or in the framework of the monitoring of that relationship pursuant to Articles 19, 20, 21 and 54;

(f) the auction monitor reports and opinions made pursuant to Article 25(1) to (6) except for the parts contained in any non-confidential versions of the auction monitor’s reports published by the Commission pursuant to Article 60(2);

(g) business secrets provided by persons participating in a competitive procurement process to appoint an auction platform or the auction monitor;

(h) information on the algorithm used for the random selection of tied bids, referred to in Article 7(2);

(i) information on the methodology to define what constitutes an auction clearing price significantly under the prevailing secondary market price before and during an auction, referred to in Article 7(6).

2. Confidential information shall not be disclosed by any person who obtained that information, whether directly or indirectly, other than in accordance with paragraph 3.

3. Paragraph 2 shall not prevent the disclosure of confidential information which:

(a) has already lawfully been made available to the public;

(b) is made public with the written consent of a bidder, person admitted to bid, or person applying for admission to bid;

(c) is required to be disclosed or to be publicly available by an obligation under Union law;

(d) is made public pursuant to a court order;

(e) is made public for the purposes of any criminal, administrative, or judicial investigations or proceedings carried out in the Union;

(f) is disclosed by an auction platform to the auction monitor for the purpose of enabling or assisting the auction monitor to carry out its functions or to fulfil its obligations in relation to the auctions;

(g) is aggregated or redacted prior to its disclosure, so that it is unlikely that information relating to the following is discernable:

(i)

individual bids or instructions to bid;

(ii)

individual auctions;

(iii)

individual bidders, prospective bidders or persons applying for admission to bid;

(iv)

individual applications for admission to bid;

(v)

individual relationships with bidders;

(h) is referred to in paragraph 1(f) provided that it is disclosed to the public in a non-discriminatory and orderly fashion by the competent national authorities of Member States for information covered by Article 25(2)(c) and by the Commission for other information covered by Article 25(2);

(i) is referred to in paragraph 1(g) provided that it is disclosed to persons working for Member States or the Commission involved in the competitive procurement process referred to in paragraph 1(g), who are themselves bound by an obligation of professional secrecy under their terms of employment;

(j) is made public after the end of a period of 30 months starting from either of the following dates, subject to any subsisting professional secrecy obligations under Union law:

(i)

the date of the opening of the bidding window of the auction in which the confidential information is first disclosed with respect to confidential information in paragraph 1(a) to (d);

(ii)

the date of the termination of the relationship with a bidder with respect to confidential information in paragraph 1(e);

(iii)

the date of the auction monitor’s report or opinion with respect to confidential information in paragraph 1(f);

(iv)

the date of submission of the information in the competitive procurement process with respect to confidential information in paragraph 1(g).

4. The measures required to ensure that confidential information is not wrongfully disclosed and the consequences of any such wrongful disclosure by an auction platform or the auction monitor, including any persons contracted to work for them, shall be set out in the contracts appointing them.

5. Confidential information obtained by an auction platform or the auction monitor, including any persons contracted to work for them, shall be used solely for the purpose of the performance of their obligations or the exercise of their functions with respect to the auctions.

6. Paragraphs 1 to 5 shall not preclude the exchange of confidential information between an auction platform and the auction monitor, nor between any one of them and:

(a) the competent national authorities supervising an auction platform;

(b) the competent national authorities responsible for investigating and prosecuting money laundering, terrorist financing, criminal activity or market abuse;

(c) the Commission.

Confidential information exchanged under this paragraph shall not be disclosed to other persons than those referred to in points (a), (b) and (c) contrary to paragraph 2.

7. Any person who works, or has worked for, an auction platform or the auction monitor involved in the auctions, shall be bound by the obligation of professional secrecy and shall ensure that confidential information is protected pursuant to this Article.

Article 63 Language regime

1. Written information provided by an auction platform pursuant to Article 60(1) and (3), or by the auction monitor pursuant to Article 60(2), or under the contract appointing them, which is not published in the Official Journal of the European Union, shall be in a language customary in the sphere of international finance.

2. Any Member State may provide, at its own cost, for the translation of all information covered by paragraph 1 of an auction platform, into the official language(s) of that Member State.

Where a Member State provides, at its own cost, for the translation of all information covered by paragraph 1 provided by the auction platform appointed pursuant to Article 26(1), any Member State having appointed an auction platform pursuant to Article 30(1) shall also provide, at its own cost, for the translation into the same language(s) of all information covered by paragraph 1 provided by the auction platform it has appointed pursuant to Article 30(1).

3. Applicants for admission to bid and persons admitted to bid may submit the following in the official language of the Union they have chosen under paragraph 4 provided that a Member State has decided to provide a translation in that language under paragraph 2:

(a) their applications for admission to bid, including any supporting documents;

(b) their bids, including any withdrawal or modifications thereof;

(c) any queries relating to points (a) or (b).

An auction platform may request a certified translation into a language customary in the sphere of international finance.

4. Applicants for admission to bid, persons admitted to bid and bidders participating in an auction, shall choose any official language of the Union in which they shall receive all notifications made pursuant to Articles 8(3), 20(10), 21(4) and 61(3).

All other oral or written communication by any auction platform to applicants for admission to bid, persons admitted to bid or bidders participating in an auction, shall be made in the language chosen under the first subparagraph at no additional cost to the applicants, persons and bidders in question, provided that a Member State has decided to provide a translation in that language under paragraph 2.

However, even where a Member State pursuant to paragraph 2 has decided to provide a translation in the language chosen under the first subparagraph of this paragraph, the applicant for admission to bid, the person admitted to bid or the bidder participating in an auction, may waive its right under the second subparagraph of this paragraph by giving prior written consent for the auction platform concerned to use only a language customary in the sphere of international finance.

5. Member States shall be responsible for the accuracy of any translation made pursuant to paragraph 2.

Persons submitting a translation of a document referred to in paragraph 3 and any auction platform notifying a translated document under paragraph 4 shall be responsible for ensuring that it is an accurate translation of the original.