Despite an extensive variety of provisions relating to the status of CER units in the post-2012 legal framework of the Directive 2009/29/EC (aiming generally at securing stability of the long-term green investments), at least one of these provisions should be of particular concern to the CER buyers and investors.

The relevant legal scheme for the CER’s use in the framework of the EU ETS in the third trading period is set out in the Article 11a of the Directive 2009/29/EC (Use of CERs and ERUs from project activities in the Community scheme before the entry into force of an international agreement on climate change). Those interested in particulars should refer to the body of the text of the Directive and now I would like to concentrate only on paragraph 9 of that Article, which states:

“9. From 1 January 2013, measures may be applied to restrict the use of specific credits from project types.

Those measures shall also set the date from which the use of credits under paragraphs 1 to 4 shall be in accordance with these measures. That date shall be, at the earliest, six months from the adoption of the measures or, at the latest, three years from their adoption.

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3). The Commission shall consider submitting to the Committee a draft of the measures to be taken where a Member State so requests."

It is apparent from the first subparagraph that as long as it is established, which of the projects are to be discriminated in the post-2012 EU ETS, there will be no stability in the long-term investment in the CDM. Taking into account that the said measure is to be adopted in the comitology procedure, these uncertainties could be resolved if the procedure was initiated early enough.

This problem is of course important, but, obviously, not the only one. IETA letter from 23 April 2010 to the CDM Executive Board at the UNFCCC Secretariat points at another issue of rather technical character, but potentially severe consequences.

“From practical work experience, it has emerged that there is no clarity at this point on how CERs from projects that generate reductions in the pre-2012 period would be identified if they are not issued until after December 2012. The current delays in issuance make this question all the more salient. It seems that many assume that they will carry the CP2 identifier, which has obvious implications given post-2012 CER restrictions in some countries.”