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Commission Regulation (EU) No 389/2013Show full title

Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 (Text with EEA relevance)

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TITLE IU.K.COMMON GENERAL PROVISIONS

CHAPTER 1U.K.Subject matter, scope and definitions

[F1Article 1U.K.Subject matter

This Regulation lays down requirements concerning the Registry.]

Textual Amendments

[F1Article 2U.K.Scope

This Regulation applies to Kyoto units.]

Textual Amendments

[F1Article 3U.K.Definitions

1.Unless otherwise indicated, terms used in this Regulation have the same meaning as under Directive 2003/87/EC and relevant international climate law.

2.In addition, in this Regulation—

(a)“account holder” means a person that holds an account in the Registry;

(b)“allowances” means allowances created pursuant to Directive 2003/87/EC;

(c)“assigned amount units” (“AAUs”) means—

(i)units issued before IP completion day pursuant to Article 7(3) of Decision No 280/2004/EC; or

(ii)units corresponding to the United Kingdom’s emission levels determined pursuant to the Kyoto Protocol and issued on or after IP completion day;

(d)“cancellation” means the definitive disposal of a Kyoto unit by its holder;

(e)“designated national authority” means an entity that gives approval of an Article 6 project activity required by Article 6(1)(a) of the Kyoto Protocol or of voluntary participation in an Article 12 project activity required by Article 12(5)(a) of the Kyoto Protocol;

(f)“directors” means the persons effectively directing the day-to-day operations of a legal person;

(g)“the Kyoto Protocol” means the protocol to the UNFCCC signed at Kyoto on 11th December 1997;

(h)“Kyoto units” means AAUs, emission reduction units (“ERUs”), certified emission reductions (“CERs”), RMUs, lCERs and tCERs;

(i)“long-term certified emission reductions” (“lCERs”) means units issued for an afforestation or reforestation project activity under the clean development mechanism (“CDM”) which, subject to Decision 5/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, expire at the end of the emission reduction crediting period of the afforestation or reforestation project activity under the CDM for which they were issued;

(j)“money laundering” has the meaning given by section 340(11) of the Proceeds of Crime Act 2002;

(k)“the national administrator” means the Environment Agency;

(l)“out of band confirmation” means a communication from the national administrator to an account holder or authorised representative for the purpose of ensuring compliance with UNFCCC security requirements;

(m)“process” means an automated technical means to carry out an action relating to an account or a unit in the Registry;

(n)“the Registry” means the registry administered on behalf of the United Kingdom for the purposes of its obligations as a party to the Kyoto Protocol;

(o)“relevant international climate law” means—

(i)the UNFCCC;

(ii)the Kyoto Protocol; and

(iii)the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol, as adopted and amended from time to time;

(p)“removal units” (“RMUs”) means units issued pursuant to the relevant provisions in the annex to Decision 13/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol;

(q)“second commitment period” means the period from 1st January 2013 to 31st December 2020 during which a party to the Kyoto Protocol shall limit their greenhouse gas emissions;

(r)“serious crime” means an offence listed in Part 1 (England & Wales), Part 1A (Scotland) or Part 2 (Northern Ireland) of Schedule 1 to the Serious Crime Act 2007;

(s)“temporary certified emission reductions” (“tCERs”) means units issued for an afforestation or reforestation project activity under the CDM which, subject to Decision 5/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, expire at the end of the Kyoto Protocol commitment period following the one during which they were issued;

(t)“terrorist financing” has the meaning given by regulation 3 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;

(u)“transaction” means a process in the Registry that includes the transfer of a Kyoto unit from one account to another account;

(v)“the UNFCCC” means the United Nations Framework Convention on Climate Change signed at New York on 9th May 1992;

(w)“working day” means any day other than—

(i)Saturday, Sunday, Good Friday, or Christmas Day; or

(ii)a day which is a bank holiday under the Banking and Financial Dealings Act

1971.]

Textual Amendments

CHAPTER 2U.K.The registries system

F2Article 4U.K.Union Registry

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Textual Amendments

F2Article 5U.K.National and Union KP registries

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Textual Amendments

F2Article 6U.K.European Union transaction log

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Textual Amendments

F2Article 7U.K.Communication links between registries, the ITL and the EUTL

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Textual Amendments

[F3Article 8U.K.National administrator

The national administrator must administer the Registry in accordance with this Regulation and relevant international climate law.]

Textual Amendments

CHAPTER 3U.K.Accounts

Section 1U.K.General provisions applicable to all accounts

[F4Article 9U.K.Accounts

1.The Secretary of State must ensure that the Registry contains accounts as required by relevant international climate law.

2.Each account type may hold the unit types permitted by relevant international climate law.]

Textual Amendments

Article 10U.K.Account status

1.Accounts shall be in one of the following status: open F5... or closed.

F62.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.No processes may be initiated from closed accounts. A closed account may not be re-opened, and may not acquire units.

F74.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F76.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Article 11U.K.The administering of accounts

[F81.The national administrator must administer every account on behalf of the Secretary of State]

F92.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.The [F10national administrator must] open, suspend, limit access to, or close an account F11..., approve authorised representatives, permit changes to account details that require the approval of the [F12national administrator] F13... in accordance with the provisions of this Regulation.

4.The [F14national administrator] may require the account holders and its representatives to agree to comply with reasonable terms and conditions consistent with this Regulation having regard to the issues set out in Annex II.

F155.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F16Article 12U.K.Notifications from the central administrator

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Textual Amendments

Section 2U.K.Opening and updating accounts

[F17Article 13U.K.Party holding accounts

1.At the request of the Secretary of State, the national administrator must open a party holding account for each year of the second commitment period within the period of 28 days beginning with the day after that on which the national administrator receives the information set out in Annex 3 from the Secretary of State

2.The national administrator must act as the authorised representative of the account, unless the Secretary of State nominates another person.

3.The Secretary of State must provide the national administrator with the information set out in Table 8-1 of Annex 8 for each authorised representative of a party holding account.]

Textual Amendments

F18Article 14U.K.Opening national administrative platform accounts in the Union Registry

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Textual Amendments

F18Article 15U.K.Opening an auction delivery account in the Union Registry

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Textual Amendments

F18Article 16U.K.Opening operator holding accounts in the Union Registry

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Textual Amendments

F18Article 17U.K.Opening aircraft operator holding accounts in the Union Registry

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Textual Amendments

Article 18U.K.Opening person holding F19... accounts F20...

1.A request for opening a person holding account F21... [F22must] be submitted to the national administrator by the prospective account holder. The prospective account holder [F22must] provide information as required by the national administrator, which [F22must] include, at a minimum, the information set out in Annex IV.

2.The [F23Secretary of State may] require as a condition for opening a person holding F24... account that the prospective account holders have their permanent residence or registration in the [F25United Kingdom].

3.The [F26Secretary of State may] require as a condition for opening a person holding F27... account that prospective account holders are registered for value added tax (VAT) in the [F28United Kingdom].

4.Within 20 working days of the receipt of a complete set of information in accordance with paragraph 1 of this Article and Article 24, the national administrator [F29must] open a person holding account F30... in the F31... Registry or inform the prospective account holder of the refusal to open the account, pursuant to Article 22.

Textual Amendments

F32Article 19U.K.Opening national holding accounts in the Union Registry

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Textual Amendments

F32Article 20U.K.Opening external trading platform accounts in the Union Registry

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Textual Amendments

F32Article 21U.K.Opening verifier accounts in the Union Registry

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Textual Amendments

Article 22U.K.Refusal to open an account

1.The national administrator [F33must] verify whether the information and documents provided for account opening are complete, up-to-date, accurate and true.

2.[F34The national] administrator may refuse to open an account:

(a)if the information and documents provided are incomplete, out-of-date or otherwise inaccurate or false;

(b)if the prospective account holder, or, if it is a legal person, any of the directors of the prospective account holder, is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;

(c)if the national administrator has reasonable grounds to believe that the accounts may be used for fraud involving F35... Kyoto units, money laundering, terrorist financing or other serious crimes;

[F36(d)if the national administrator is not satisfied that the proposed account holder is a fit and proper person to hold such an account.]

[F373.If the national administrator refuses to open an account, the person requesting the account opening may appeal against the decision in accordance with Article 110c.]

Textual Amendments

[F38Article 23U.K.Authorised representatives

1.Each account must have at least two authorised representatives. The authorised representatives may initiate transactions and other processes on behalf of the account holder.

2.In addition to the authorised representatives specified in paragraph 1, accounts may also have authorised representatives with “view only” access to the account.

3.The approval of an authorised representative is required in order to initiate a transaction.

4.The data exchange and technical specifications may set a maximum number of authorised representatives for each account type.

5.Authorised representatives must be natural persons over 18 years of age. All authorised representatives of a single account must be different persons but the same person can be an authorised representative on more than one account. The Secretary of State may require that at least one of the authorised representatives of an account is a permanent resident in the United Kingdom.]

Textual Amendments

Article 24U.K.Nominating and approval of authorised representatives F39...

1.When requesting the opening of an account, the prospective account holder [F40must] nominate a number of authorised representatives F41... in accordance with Article 23.

2.When nominating an authorised representative F42..., the account holder [F43must] provide information as required by the [F44national administrator]. That information [F43must] include, at a minimum, the information set out in Annex VIII.

3.Within 20 working days of the receipt of a complete set of information required in accordance with paragraph 2, the national administrator [F45must] approve an authorised representative F46..., or inform the account holder of its refusal. Where evaluation of the nominee information requires more time, the [F47national administrator may] extend the evaluation process by up to 20 additional working days, and notify the extension to the account holder.

4.The national administrator [F48must] verify whether the information and documents provided for nominating an authorised representative F49... are complete, up-to-date, accurate and true.

5.A national administrator may refuse to approve an authorised representative F50...:

(a)if the information and documents provided are incomplete, out-of-date or otherwise inaccurate or false;

(b)if the prospective representative is under investigation or has been convicted in the preceding five years for fraud involving allowances or Kyoto units, money laundering, terrorist financing or other serious crimes for which the account may be an instrument;

[F51(c)if the national administrator is not satisfied that the proposed authorised representative is a fit and proper person to act as an authorised representative.]

[F526.If the national administrator refuses to approve an authorised representative, the account holder may appeal against the decision in accordance with Article 110c.]

Textual Amendments

Article 25U.K.Updating of account information and information on authorised representatives

1.All account holders [F53must] notify the national administrator within 10 working days of changes to the information submitted for the opening of an account. In addition, account holders [F53must] confirm to the national administrator by 31 December each year that the information for their account remains complete, up-to-date, accurate and true.

F542.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.The notification of change [F55must] be supported by information as required by the national administrator in conformity with this Section. Within 15 working days of the receipt of such a notification and supporting information, the [F56national administrator] [F55must] [F57determine whether to] approve the update of the information. [F58The national administrator] may refuse to update the information in accordance with Article 24(4) and (5). The account holder [F55must] be notified of any such refusal. [F59If the national administrator refuses to update the information, the account holder may appeal against the decision in accordance with Article 110c.]

4.At least once every three years, the national administrator [F60must] review whether the information submitted for the opening of an account remains complete, up-to-date, accurate and true, and [F60must] request that the account holder notify any changes as appropriate.

F615.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6.[F62No] account holder may sell or divest of the ownership of its account to another person.

7.An authorised representative F63... may not transfer its status as such to another person.

8.An account holder may request the removal of an authorised representative from an account. Upon receipt of the request the national administrator [F64must] suspend the access of the authorised representative F65.... Within 10 working days of the receipt of the request, the [F66national administrator] [F64must] remove the authorised representative.

9.An account holder may nominate new authorised representatives F67... in accordance with Article 24.

F6810.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6911.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Article 26U.K.Trusted account list

[F701.Person holding accounts may have a trusted account list in the Registry]

2.Accounts held by the same account holder shall be automatically included on the trusted account list.

F713.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Section 3U.K.Closure of accounts

Article 27U.K.Closure of accounts

Subject to Article 32(1), within 10 working days of the receipt of a request from the account holder F72... the [F73national administrator must] close the account.

Textual Amendments

F74Article 28U.K.Closure of operator holding accounts

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Textual Amendments

F74Article 29U.K.Closure of aircraft operator holding accounts

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Textual Amendments

F74Article 30U.K.Closure of verifier accounts

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Textual Amendments

F74Article 31U.K.Closure of the ESD Compliance Account

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Textual Amendments

Article 32U.K.Positive balance on accounts under closure

1.If there is a positive balance of F75... Kyoto units on an account which [F76the national administrator] is to close in accordance with [F77Article 27], [F78the national administrator] [F79must] request the account holder to specify another account to which such F75... Kyoto units shall be transferred. If the account holder has not responded to [F80the national administrator’s] request within 40 working days, [F78the national administrator] [F79must] transfer the F81... Kyoto units to [F82a party holding account].

2.If there is a positive balance of F83... Kyoto units on an account to which access was suspended in accordance with Article 34, the [F84Secretary of State] may require that the F85... Kyoto units are transferred immediately to [F86a party holding account].

Textual Amendments

Article 33U.K.Closure of accounts and removal of authorised representative on the [F87national administrator’s] initiative

1.If the situation giving rise to the suspension of access to accounts pursuant to Article 34 is not resolved within a reasonable period despite repeated notifications, the [F88Secretary of State] may instruct the national administrator to close F89... those accounts for which access is suspended until the [F88Secretary of State] determines that the situation giving rise to the suspension no longer subsists.

2.If a person holding account F90... has a zero balance and no transactions have been recorded for a period of one year, the national administrator may notify the account holder that the person holding account F90... will be closed within 40 working days unless the national administrator receives a request that the account be maintained. If the national administrator does not receive any such request from the account holder, the national administrator may close the account.

F913.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.The national administrator may remove an authorised representative F92... if it considers that the approval of the authorised representative F92... should have been refused in accordance with Article 24(3), and in particular if it discovers that the documents and identification information provided upon nomination were incomplete, out-of-date or otherwise inaccurate or false.

[F935.In accordance with Article 110c, the account holder may appeal against—

(a)a decision to close an account under paragraph 1 within the period of 30 days beginning with the day on which the account is closed; or

(b)a decision to remove an authorised representative under paragraph 4 within the period of 30 days beginning with the day on which the authorised representative is removed.]

Textual Amendments

Section 4U.K.Suspension of access to accounts

Article 34U.K.Suspension of access to accounts

1.[F94The national administrator] may suspend the access of an authorised representative F95... to any account in the [F96Registry] or to processes to which that authorised representative would otherwise have access if [F97the national administrator] has reasonable grounds to believe that the authorised representative has:

(a)attempted to access accounts or processes for which he is not authorised;

(b)repeatedly attempted to access an account or a process using an incorrect username and password; or

(c)attempted to compromise the security, the availability, the integrity or the confidentiality of [F98the Registry], or of the data handled or stored therein.

2.[F99The national administrator] may suspend the access of all authorised representatives F100... of a specific account where one of the following conditions is fulfilled:

(a)the account holder died without a legal successor or ceased to exist as a legal person;

(b)the account holder did not pay fees;

(c)the account holder violated the terms and conditions applicable to the account;

(d)the account holder did not agree to changes in the terms and conditions set by the national administrator F101...;

(e)the account holder did not notify changes to account information or provide evidence concerning the changes to account information, or evidence concerning new account information requirements;

(f)the account holder failed to maintain the required minimum number of authorised representatives for the account;

(g)the account holder failed to maintain compliance with the F102... requirement to have an authorised representative with a permanent residence in the [F103United Kingdom];

(h)the account holder failed to maintain compliance with the F104... requirement that the account holder have a permanent residence or registration in the [F105United Kingdom].

3.[F106The national administrator] may suspend the access of all authorised representatives F107... to a specific account and the possibility to initiate processes from that account:

(a)for a maximum period of four weeks if the [F108national administrator] has reasonable grounds to believe that the account was used or will be used for fraud, money laundering, terrorist financing, corruption or other serious [F109crimes.]

F110(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.The national administrator may suspend access to an account if it considers that the opening of the account should have been refused in accordance with Article 22 or that the account holder no longer meets the requirements for the opening of the account.

5.The [F111national administrator must] reverse the suspension immediately once the situation giving rise to the suspension is resolved.

[F1126.In accordance with Article 110c, the account holder may appeal against a decision to suspend access under paragraph 1 or 3 within the period of 30 days beginning with the day on which access is suspended]

7.The [F113Secretary of State] may also instruct the national administrator F114... to implement a suspension for one of the grounds set in paragraphs 1, 2, 3 and 4.

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F11510.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

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