|The draft of the Commission Regulation establishing a Union Registry of emission allowances - practical consequences for jurisdictional decisions as regards an account’s location - Page 2|
|Monday, 16 May 2011 06:00|
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The scope for possible choices
At the beginning some preliminary remarks. According to Regulation each Member State is obliged to designate a national administrator. The Regulation further states that ‘The Member State shall access and manage its own accounts and the accounts in the Union Registry under its jurisdiction through its national administrator’ and ‘Every account shall have an administrator who shall be responsible for administering the account on behalf of a Member State or on behalf of the Union’.
The Regulation rules, furthermore, on decisive issue relating to the jurisdiction – pursuant to the Article 10(4) accounts will be governed by the laws and fall under the jurisdiction of the Member State of their administrator and the units held in them shall be considered to be situated in that Member State's territory. The said rule is even more important in the context of recital (12) in the preamble to the Regulation which confirms that allowances and Kyoto units exist only in dematerialised form, are fungible, and their ownership is established by their existence in the account of the Union Registry in which they are held.
It should also be noted that subject to an exception relating to the aircraft operators, the Member State responsible for managing an account mustn’t change.
The said freedom as regards jurisdictional matters isn’t however absolute and depends on the future decisions of the Member States. These decisions may relate in particular to the issues listed beneath.
1. Permanent residence or registration of the account holder
The Member State of the national administrator may require that the prospective account holder have their permanent residence or registration in the Member State of the national administrator administering the account (Article 16(2) of the Regulation). It is useful to note, however, that this requirement is – in the light of the Regulation – only optional for Member States. So, in theory is possible that in some Member States this requirement would not be binding and such a regulatory decision of the Member States will open the field for matters under consideration here.
2. Registration for VAT
The Member State of the national administrator may require that prospective account holders are registered for VAT in the Member State of the national administrator of the account (Article 16(3) of the Regulation). This requirement is also subject to optional decision of the Member State.
3. Permanent residence of the authorised representative
Authorised representatives and additional authorised representatives must be natural persons over 18 years of age. All authorised representatives and additional authorised representatives of a single account must be different persons but the same person can be an authorised representative or an additional authorised representative on more than one account. The Member State of the national administrator may require that at least one of the authorised representatives of an account must be a permanent resident in that Member State (Article 21(7)). As is apparent from the wording of this paragraph, requirement for permanent residence of at least one of the authorised representatives is also optional for Member States.
Specific requirements as regards information needed by national administrators to open an account are listed in the Annex III to the Regulation. They, generally are formulated in such a manner that they not influence on jurisdictional choices of holders of person holding accounts (for instance there is required a proof that the person requesting the account opening has an open bank account ‘in a Member State of the European Economic Area’, also as an evidence to support the identity of the natural person requesting the account opening, is mentioned a copy of an identity card ‘issued by a state that is a member of the European Economic Area or the Organisation for Economic Co-operation and Development’.