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The second criterion: different principles and the scope for disclosure for account holders and for the general public
When it is established that the relevant data does not fall under the scope of Article 17 of the Directive (see above), the second determination is to be made as regards the categories of persons regarding the disclosure of information. This criterion might be obvious to some readers but I believe, it shouldn’t be omitted for the sake of completeness. The scope of the information available to the account holders (see box nearby) is laid down precisely by the Registry Regulation (point 13 and 14 of the Annex XVI thereto) and that field didn’t raise ambiguities so far (to my knowledge, at least).
According to the Annex XVI to the Registry Regulation the following elements for each account shall be displayed on the account holder's request to that account holder only:
1) current holdings of allowances or Kyoto units;
2) list of proposed transactions initiated by that account holder, detailing for each proposed transaction the elements in paragraph 12(a) to (f) (that is: account identification code of the acquiring account: the code assigned to the account comprising the elements set out in Annex VI to the Regulation; account holder name of the transferring account: the holder of the account (person, operator, Commission, Member State); account holder name of the acquiring account: the holder of the account (person, operator, Commission, Member State); allowances or Kyoto units involved in the transaction by unit identification code comprising the elements set out in Annex VI; transaction identification code: the code assigned to the transaction comprising the elements set out in Annex VI to the Regulation), the current status of that proposed transaction and any response codes returned consequent to the checks made pursuant to Annex IX to the Regulation;
3) list of allowances or Kyoto units acquired by that account as a result of completed transactions, detailing for each transaction the elements in paragraph 12(a) to (g) of the Annex XVI to the Regulation (that is those mentioned in the point 2 above and additionally date and time at which the transaction was completed (in Greenwich Mean Time));
4) list of allowances or Kyoto units transferred out of that account as a result of completed transactions, detailing for each transaction the elements as mentioned above under the point 3.
The ambiguities occurred, however, as regards requests for accessing, by the members of the public, to the data falling under the scope of the Registry Regulation - not the account holders. In that regard the further distinctions deserve to be drawn.
The third criterion: trading data available to the public immediately (1), with a certain delay (2) and not available at all (3)
In order to draw a detailed distinction between points (1) and (2) of the above mentioned categories it is necessary to refer the reader to the extensive provisions of the Annex XVI to the Registry Regulation. It provides for a detailed timelines and schedules for publication of data on the public area of the registry's web site - in accordance with the specified timing for each particular type of information.
What seems to me to be important as a general rule is that the Registry Regulation categorises the data in question into three classes, where:
- the first one imposes no restrictions on access to the data,
- the second – on a contrary - provides for the complete ban on disclosure of information (for instance: transactional prices - see Article 9(5) of the Registry Regulation: ‘Neither the Community independent transaction log nor registries shall require account holders to submit price information concerning allowances or Kyoto units’),
- the third - relates to the information that were the subject matter of the dispute before the Court in the case mentioned at the beginning i.e. the volumes of the allowances sold in the certain period of time by the specified operators and the dates of the transactions and their recipients. Such trading data in the absence of the prior consent of the relevant account holders, may be freely consulted by the general public only in the public area of the Community independent transaction log’s website from 15 January onwards of the fifth year (X+5) following the year (X) of completion of the transactions relating to transfers of emission allowances.
The account holders, must therefore agree to making publicly available their trading data as the ones mentioned above. The Community legislature apparently judged in this situation that the trading interest of the participants of the emission trading scheme are safeguarded by a considerable delay between a transaction in question and the making of the data publicly available (5 years).