|Legal nature of emission allowances|
|European Union Carbon Market Glossary|
The definition of allowances is stipulated in Article 3(a) of the ETS Directive where it represents the right to emit one tonne of carbon dioxide (CO2) equivalent during a specified period, which shall be valid only for the purposes of meeting the requirements of the ETS Directive and shall be transferable in accordance with the provisions of the ETS Directive.
The EU Member States notifications referred to in the Report on the functioning of the European carbon market, accompanying the document Report from the Commission to the European Parliament and to the Council, Climate action progress report, including the report on the functioning of the European carbon market and the report on the review of Directive 2009/31/EC on the geological storage of carbon dioxide of 18 November 2015 (COM(2015) 576 final), p. 25, describe emission allowances variably as:
- intangible assets,
- property rights,
- state property, and
The study of the Financial Markets Law Committee (Issue 116 – Emission Allowances: Creating legal Certainty, October 2009, p. 5) observes "emission allowances have aspects of both administrative grants or licences and of private property".
The said study is further concerned over the far-reaching potential ramifications of the above alternate legal classifications.
Most significantly, the legal nature of an emission allowance will be relevant for the following legal issues:
- the determination of the law, which governs the creation, transfer and cancellation of emission allowances,
- whether (and how) security rights can be created over emission allowances,
- how emission allowances should be treated for tax and accounting purposes,
- how emission allowances should be dealt with in the insolvency of a registered holder,
- whether and to what extent emission allowances, or derivative interests in emission allowances, should be treated as subject to regulation as an investment, and
- whether emission allowances are capable of being stolen, or otherwise being the subject of property-based criminal activity.
The aforementioned study of the Financial Markets Law Committee of October 2009 observes that English, Dutch and German lawyers are tending to recognise emission allowances as proprietary rights (p. 13).
However, given the said non-harmonisation, pursuant to the aforementioned Report of November 2015, the European Commission plans to analyse the benefits of clarifying legal status of the emission allowances in the EU ETS following the recommendation of the European Court of Auditors.
The European Court of Auditors in the Special Report No 6 "The integrity and implementation of the EU ETS" (Publications Office of the European Union, 2015) in July 2015 recommended the European Commission to analyse the benefits of treating allowances as property rights across the EU (para 92 of the Report).
Although the allowances have certain typical characteristics of property rights, they are not explicitly categorised by the EU laws as such, since in accordance with Article 345 of the Treaty on the Functioning of the European Union, the Treaties in no way prejudice the rules in the EU Member States governing the system of property ownership.
Report of 23 November 2017 from the Commission to the European Parliament and to the Council, Report on the functioning of the European carbon market (COM(2017) 693 final (p. 30)) refers, moreover, to the preliminary ruling the Court of Justice of 8 March 2017 where the Court refrained from defining the nature of allowances (Judgment of the Court of Justice of 8 March 2017 in Case C-321/15 ArcelorMittal Rodange et Schifflange SA v État du Grand-duché de Luxembourg, EU:C:2017:179).
Certain characteristics of the nature of allowances are, however, defined in Article 40 of the EU ETS Registry Regulation states that an allowance shall be a fungible, dematerialised instrument that is tradable on the market.
In the Registry Regulation some elements of the finality of transactions were also stipulated, in particular the rule that:
- the record of the Union Registry constitutes prima facie and sufficient evidence of title over an allowance,
As a result of that, spot transactions in allowances will be fully subject to financial market rules.
The Paris-based EU financial market watchdog (ESMA) concluded anyway, emission allowances and derivatives of emission allowances are not commodity derivatives under the MiFID II/MiFIR legal framework.
This is due to the fact emission allowances and derivatives of emission allowances are included in points 4 and 11 in Section C of the Annex I to MiFID II Directive, while the respective points for commodity derivatives are (5), (6), (7) and (10).
"The definition of commodity derivatives does not include derivatives of emission allowances, as point (4) of Section C of Annex I of MiFID II is not cross-referred to in the definition of commodity derivatives" (Consultation Paper ESMA's guidelines on information expected or required to be disclosed on commodity derivatives markets or related spot markets under MAR, 30 March 2016, ESMA/2016/444, p. 13).
Report on the functioning of the European carbon market, accompanying the document Report from the Commission to the European Parliament and to the Council, Climate action progress report, including the report on the functioning of the European carbon market and the report on the review of Directive 2009/31/EC on the geological storage of carbon dioxide of 18 November 2015 (COM(2015) 576 final), p. 25
K. Anttonen, M. Mehling and K Upston-Hooper (2007), 'Breathing Life into the Carbon Market: Legal Framework of Emission Trading in Europe'
|Last Updated on Tuesday, 19 December 2017 00:52|