Commission Delegated Regulation (EU) 2023/1642 of 14 June 2023 amending Delegated Regulation (EU) 2019/1122 as regards the modernisation of the functioning of the Union Registry (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC (1), and in particular Article 19(3) thereof,

Whereas:

(1) Article 19(1) of Directive 2003/87/EC, before its amendment by Directive 2009/29/EC of the European Parliament and of the Council (2), required Member States to provide for the establishment and maintenance of a registry to ensure the accurate accounting of the issue, holding, transfer and cancellation of greenhouse gas emission allowances. For that purpose, Article 19(3) of Directive 2003/87/EC and Article 3 of Commission Regulation (EC) No 2216/2004 (3) created a system for the trading of greenhouse gas emission allowances which became operational in January 2005. That system ensured the accurate accounting of all greenhouse gas emission allowances issued under the emissions trading system of the Union (‘EU ETS’) and kept track of the ownership of EU ETS allowances held in electronic accounts. It consisted of the registries of all Member States and a Central Administrator, designated by the Commission, that was to maintain an independent transaction log recording the issue, transfer and cancellation of allowances. That independent transaction log, the Community Independent Transaction Log (CITL), was created pursuant to Article 5 of Regulation (EC) No 2216/2004. That CITL checked, recorded, and authorised automatically all transactions that took place between accounts in the national registries. Where irregularities were identified through the automated checks, the CITL would terminate the transactions tainted by such irregularities and the central administrator had to inform the Member State or the Member States concerned thereof. In addition, that Member State or those Member States were held not to register the transactions or any other transaction relating to the allowances concerned until the irregularities had been solved.

(2) Article 19(1) of Directive 2003/87/EC was amended by Directive 2009/29/EC, which replaced the national registries with a Union Registry. Article 3 of Directive 2009/29/EC, however, contained a transitional provision, due to which the provisions of Directive 2003/87/EC were to continue to apply until 31 December 2012. The CITL was, in the meantime, replaced by the European Union Transaction Log (‘EUTL’), which was established by Article 4 of Commission Regulation (EU) No 920/2010 (4). That Commission Regulation was replaced by Commission Regulation (EU) No 389/2013 (5), which in its Article 4 established the Union Registry. That Commission Regulation was, in its turn and save for its Article 3, point (30), replaced by Commission Delegated Regulation (EU) 2019/1122 (6). Delegated Regulation (EU) 2019/1122 now thus contains the rules for the functioning of the Union Registry for phase 4 of the EU emissions trading system (EU ETS), which started on 1 January 2021, and all EU ETS allowances issued from 1 January 2012 onwards are to be held in the Union Registry. As a result of the centralisation of the registries, the EUTL has become part of the Union Registry, which should be reflected in Delegated Regulation (EU) 2019/1122. The Union Registry thus performs, since 1 January 2012, all the functions of the EUTL.

(3) As part of the modernisation of the IT infrastructure of the Union Registry, its role and possible evolution are periodically reassessed by the Commission as the central administrator in order to remove IT redundancies (i.e. reference to some IT components instead of functions or checks) and prepare the infrastructure for future evolutions of the IT framework, however without affecting its functionality or security. While such modernisation will affect the way the automated checks are performed, all the checks prescribed by Article 20(2) of Directive 2003/87/EC ensuring that there are no irregularities when issuing, transferring or cancelling allowances, should be maintained.

(4) Currently, users of the Union Registry can initiate transfers without any limitations depending on the thresholds (value) of the transfer. To improve the security of high value transactions, the use of trusted account lists for transactions above a particular threshold should be mandatory.

(5) In its Communication of 13 October 2021 on rising energy prices (7), the Commission asked the European Securities Market Authority to examine more closely patterns of trading behaviours and the potential need for targeted actions on the European carbon market. One of the important sources for that analysis by the European Securities Market Authority were the Union Registry data on the ownership and transfers of allowances in the Union Registry. The analysis showed that for market monitoring purposes, it would be beneficial to add to Delegated Regulation (EU) 2019/1122 a requirement to identify transactions of emission allowances between account holders that are part of the same group. At this moment, information on the group structure is required only for operator holding accounts. The requirement to provide this information should be introduced for trading accounts as well.

(6) Article 80(3) of Delegated Regulation (EU) 2019/1122 lists entities that can obtain data from the Union Registry. Council Regulation (EU) 2017/1939 (8) established the European Public Prosecutor’s Office (EPPO), which is responsible for investigating, prosecuting and bringing to judgment crimes against the financial interests of the Union since 1 June 2021. Those crimes include several types of fraud, VAT fraud with damages above 10 million euro, money laundering, corruption, etc. It is therefore appropriate to add the EPPO to the entities listed in Article 80(3) of Delegated Regulation (EU) 2019/1122.

(7) Delegated Regulation (EU) 2019/1122 should therefore be amended accordingly.

(8) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 of the European Parliament and of the Council (9) and delivered an opinion on 20 April 2023,

HAS ADOPTED THIS REGULATION:

Article 1

Delegated Regulation (EU) 2019/1122 is amended as follows:

(3) in Article 7(4), third sentence, the words ‘and the EUTL’ are deleted;

(5) in Article 30(1), point (c), the words ‘or the EUTL’ are deleted;

(6) in Article 52 and Article 53(2) the acronym ‘EUTL’ is replaced by ‘Union Registry’;

(7) in Article 55, the following paragraph 5 is added: ‘5.   Upon initiation of a transfer, the authorised representative shall indicate whether the transfer has been executed between account holders that belong to the same group.’

(8) in Title III, Common technical provisions, the title of Chapter 1 is replaced by the following: ‘CHAPTER 1 TECHNICAL REQUIREMENTS OF THE UNION REGISTRY ’;

(10) in Article 62, the words ‘by the EUTL’ are deleted;

(11) in Article 65, the words ‘or the EUTL’ and ‘or of the EUTL’ are deleted;

(12) in Article 66(2), the words ‘or the EUTL’ are deleted;

(14) in Article 70, the acronym ‘EUTL’ is replaced by ‘Union Registry’;

(15) Article 71 is replaced by the following: ‘Article 71 Detection of discrepancies In the case of processes completed through the direct communication link referred to in Article 6(2), the central administrator shall ensure that the Union Registry terminates any processes where it identifies discrepancies upon conducting the automated checks referred to in Article 72(2), and informs the administrator of the accounts involved in the terminated transaction thereof. The central administrator shall ensure that the Union Registry immediately informs the relevant account holders that the process has been terminated by returning an automated check response code.’

(16) in Article 72(2), the acronym ‘EUTL’ is replaced by ‘Union Registry’.

(17) Article 73 is replaced by the following: ‘Article 73 Reconciliation – detection of inconsistencies by the Union Registry

(18) Article 74 is replaced by the following: ‘Article 74 Finalisation of processes

(19) in Article 76, the words ‘before a communication link is established and activated between the new version or release of that software and the EUTL’ are deleted;

(21) in Article 79(1), the words ‘in the EUTL or’ are deleted;

(23) in Article 82, the words ‘and of the EUTL’ are deleted;

(24) Annexes III, IV, VI, VII, VIII and XIII are amended in accordance with Annex I;

(25) the text set out in Annex II is added as Annex XIV.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 14 June 2023.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 275, 25.10.2003, p. 32.

(2) Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ L 140, 5.6.2009, p. 63).

(3) Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 386, 29.12.2004, p. 1).

(4) Commission Regulation (EU) No 920/2010 of 7 October 2010 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 270, 14.10.2010, p. 1).

(5) Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and (EU) No 1193/2011 (OJ L 122, 3.5.2013, p. 1).

(6) Commission Delegated Regulation (EU) 2019/1122 of 12 March 2019 supplementing Directive 2003/87/EC of the European Parliament and of the Council as regards the functioning of the Union Registry (OJ L 177, 2.7.2019, p. 3).

(7) Communication from the Commission of 13 October 2021 to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Tackling rising energy prices: a toolbox for action and support’, COM(2021) 660 final.

(8) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

(9) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).