|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 3|
|Monday, 16 May 2011 06:00|
Page 3 of 3
1. The most important, and the most influential one, effect of the choices made by the prospective holders of the person holding account as regards the location of the account will be that all issues relating to the ownership of the allowances held in the account will be subject to the law of the Member State of the national administrator that has opened the account. This consideration will have a crucial importance deciding issues, for instance, like an ability to acquire by the buyer in good faith of ownership of allowances stolen from an account. The said issue will also have an effect on legal requirements for contracts encompassing transfers or encumbrances in relation to emission allowances – and many other (this is generally point for a separate threads).
2. The jurisdiction covering the national administrator will – on the ground of the Regulation – have an effect also on the procedure for deciding on appeals relating to manifold actions of the account holders. It considers, in particular, the procedure for appealing against refusal by the national administrator to open an account in the registry. Competent for reviewing such an appeal will be the authority relevant under national law. The same issue applies, pursuant to the Article 22(6) to the refusal to approve an authorised representative or additional authorised representative and to some other points like for instance the suspension of access to the account (Article 31(6)) or closures of an account.
3. The location of the account will also be important when nominating an authorised representative or additional authorised representative. In such a case the account holder shall provide information ‘as required by the administrator’. That information includes, at a minimum, the information set out in Annex VII to the Regulation, but it follows that only minimal level is established by the Regulation and the scope of the information needed may differ according to varying requirements of particular national administrators. Some of them may have a more strict politics as regards the issue.
4. If an authorised representative cannot access the Union Registry for technical or other reasons, the national administrator may initiate transactions on behalf of the authorised representative upon request, ‘provided that the national administrator allows such requests’ (and that access was not suspended). Here is identified another competence for a national administrator, which may vary according to the jurisdiction.
5. Finally, the Regulation also stipulates that national administrators shall provide assistance and support to holders of accounts in the Union Registry that are administered by them through national helpdesks. The Central Administrator shall provide support to national administrators through a Central Helpdesk. This feature, last but not least, may occur of great importance for account holders. An efficient helpdesk may be a an incentive to open an account under particular jurisdiction.
The above listing is obviously not exhaustive, but it points to certain questions identifiable by the explicit provisions of the very Regulation. Taking into account that the provisions under consideration here are only at the draft stage, there is time for further analysis and findings for most advantageous for the prospective account holders decisions (assuming that these provisions of the current draft version will not change). The another point is that the future will show whether the provisions referred to above will produce a some sort of competition between different Member States, and executing their powers, national administrators – competition intended to attract the maximum number of new person holding accounts by creating the most friendly and most efficient regulatory environment.