Initiating transactions and processes in the Union emissions registry after the new draft regulation enters into force will require careful consideration because the reversal of potential errors, mistakes and irregularities will be, in principle, legally and technically impossible.

Article 36(5) of the Regulation provides literally that during the 24-hour delay ‘an account representative may propose to the national administrator the cancellation of the transfer on the grounds of a suspicion that the transfer was initiated fraudulently’. Such a wording may create some doubts as regards the issue whether an account representative may propose to the national administrator the cancellation of the transfer on the grounds of a erroneously or mistakenly initiated transfer.

In the period from 1 July 2012 to 1 July 2015 the new Australian emission market won’t really be a fully-fledged cap-and-trade.

As was reminded also in the accompanying documents to the MIFiD Directive recent review, the legal classification of emission allowances is not uniform in EU Member States. The said documents observed that some Member States consider emission allowances as property rights, whereas others consider them personal rights.

The nature and characteristics of these allowances (certificate giving the right  to emit 1 metric tonne of CO2) could lend themselves to be classified as an intangible asset or a physical commodity. Emission allowances themselves are not classified as financial instruments under MiFID. On the other hand, derivative contracts on these allowances (and other environmental credits) are financial instruments under MiFID under the same criteria as derivatives on commodities.

This interesting theoretical, but burdened also with multiple practical implications, discussion have moved recently into other continents with the spreading of cap-and-trades.

The possibility “for freezing allowances and accounts” is specified in more detail in Articles 70, 71 and 73 of the Commission’s proposal for the Registry Regulation amendment and amounts to three differing legal measures with distinct premises, effects and entities authorised to use them, i.e.:

- suspension of all access by authorised representatives,

- suspension of access to allowances or Kyoto units,

- suspension of processes.

What does it mean CA GHG Allowance? If somebody wish to invest in such an assets for strictly speculative purposes should apply to ARB to become VAE. Beneath an approximation of what could be expected from an investor taking into account purely formal aspects of the potential application. The issue may gain quite practical importance in 2012 already.

The Proposal for a Regulation of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories (commonly referred to as the European Market Infrastructure Regulation - EMIR) provides for some new obligations envisioned to be imposed on non-financial counterparties (among others commodity firms) acting also on the emission market. The impacts are far-reaching and may require mayor organisational changes among market participants. There are also ambiguities regarding the practical implementation of the new measure.