The Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2010

• (1) Before determining an appeal, the appeal body may afford the appellant, the regulator and any affected party an opportunity of appearing before and being heard by a person appointed by it (the “person holding the hearing”) and it must do so in any case where a request is made by the appellant, the regulator or any affected party.

• (2) A hearing held under sub-paragraph (1) may, if the person holding the hearing so decides, be held wholly or partly, in private.

• (3) Where the appeal body causes a hearing to be held under sub-paragraph (1) it must give the appellant, the regulator and any affected party at least 24 days notice (or such shorter period of notice as they may agree) of the date, time and place fixed for the holding of the hearing.

• (4) In the case of a hearing which is to be held wholly or partly in public, the appeal body must, at least 24 days before the date fixed for the holding of the hearing—

• (a) publish a copy of the notice referred to in sub-paragraph (3) in an appropriate international aviation publication; and

• (b) serve a copy of that notice on every interested party who has made representations in writing to the appeal body.

• (5) The appeal body may vary the date fixed for the holding of any hearing and sub-paragraphs (3) and (4) apply to the variation of a date as they applied to the date originally fixed.

• (6) The appeal body may vary the time or place for the holding of a hearing and must give such notice of any such variation as appears to the appeal body to be reasonable.

• (7) The persons entitled to be heard at a hearing are the appellant, the regulator and any affected party.

• (8) Nothing in sub-paragraph (7) prevents the person holding the hearing from permitting any other persons to be heard at the hearing and such permission must not be unreasonably withheld.

• (9) After the conclusion of a hearing, the person holding the hearing must make a report in writing to the appeal body which must include that person’s conclusions and recommendations, or decision not to make any recommendation and in all cases the reasons supporting the report.

• (10) Paragraph 4(5) and (6) of Schedule 4 applies to hearings held under this paragraph as if references to the appointed person in those paragraphs were references to the person holding the hearing under this paragraph.

5

• (1) Where an appeal under regulation 52 is to be disposed of on the basis of written representations, the regulator must submit any written representations to the appeal body not later than 24 days after receiving a copy of the documents mentioned in paragraph 1(2)(a) and (e).

• (2) The appellant must make any further representations by way of reply to any representations from the regulator not later than 16 days after the date of submission of those representations by the regulator.

• (3) Any representations made by the appellant or the regulator must bear the date on which they are submitted to the appeal body.

• (4) When the regulator or the appellant submits any representations to the appeal body they must at the same time send a copy of them to the other party.

• (5) The appeal body must send to the appellant and the regulator a copy of any representations made to it by any interested party and must allow the appellant and the regulator a period of not fewer than 16 days in which to make representations on them.

• (6) The appeal body may in a particular case—

• (a) set earlier or later time limits than those mentioned in this Schedule;

• (b) require or permit exchanges of representations between the parties in addition to those mentioned in sub-paragraphs (1) and (2).

6

• (1) The appeal body must give notice to the appellant of its determination of the appeal and must provide the appellant with a copy of any report mentioned in paragraph 4(9).

• (2) The appeal body must at the same time send—

• (a) a copy of the documents mentioned in sub-paragraph (1) to the regulator; and

• (b) a copy of its determination of the appeal to any interested party who made representations to the appeal body and, if a hearing was held, to any other person who made representations at the hearing.

7

Where an appeal is made under regulation 52(1)(a) or (b) or regulation 52(2), the appeal body must, where practicable, determine the appeal before the deadline in regulation 13(5) or 17(4), as appropriate.

8

Where a determination of the appeal body on an appeal is quashed in proceedings before any court, the appeal body—

• (a) must send to the persons notified of its determination under paragraph 6 a statement of the matters with respect to which further representations are invited for the purposes of its further consideration of the appeal;

• (b) must afford to those persons the opportunity of making, within 31 days of the date of the statement, written representations in respect of those matters; and

• (c) may, as it thinks fit, cause a hearing to be held or reopened and, if it does so, paragraphs 4(2) to (10) apply to the hearing or the reopened hearing as they apply to a hearing held under paragraph 4(1),

and paragraph 6 applies to the re-determination of the appeal as it applies to the determination of an appeal.

9

In this Schedule—

• (a) “affected party” means an interested party—

• (i) that has stated in representations under paragraph 3(4) that its civil rights will be determined in an appeal; and

• (ii) whom the appeal body is satisfied that its civil rights will be so determined;

• (b) “interested party” means a person notified under paragraph 3(1).

SCHEDULE 4 — Delegation of Appellate Functions

1

In this Schedule—

• “appointed person” means a person appointed under regulation 53(2)(a);

• “appointment”, in the case of any appointed person, means appointment under regulation 53(2)(a).

2

An appointment must be in writing and—

• (a) may relate to any particular appeal, matters or questions specified in the appointment or to appeals, matters or questions of a description so specified;

• (b) may provide for any function to which it relates to be exercisable by the appointed person either unconditionally or subject to the fulfilment of such conditions as may be specified in the appointment; and

• (c) may, by notice in writing to the appointed person, be revoked at any time by the appeal body in respect of any appeal, matter or question which has not been determined by the appointed person before that time.

3

Subject to the provisions of this Schedule, an appointed person, in relation to any appeal, matter or question to which the appointed person’s appointment relates, has the same powers and duties as the appeal body, other than any function of appointing a person for the purpose—

• (a) of enabling persons to appear before and be heard by the person so appointed; or

• (b) of referring any question or matter to that person.

4

• (1) If the appellant, the regulator or any person whose civil rights are to be determined in the appeal expresses a wish to appear before and be heard by the appointed person, the appointed person must give them an opportunity of appearing and being heard.

• (2) Whether or not a person under sub-paragraph (1) has asked for an opportunity to appear and be heard, the appointed person—

• (a) may hold a local inquiry or other hearing in connection with the appeal, matter or question; and

• (b) must if the appeal body so directs, hold a local inquiry in connection with an appeal, matter or question.

• (3) Where an appointed person holds a local inquiry or other hearing by virtue of this Schedule, an assessor may be appointed by the appeal body to sit with the appointed person at the inquiry or hearing and advise the appeal body on any matters arising, notwithstanding that the appointed person is to determine the appeal, matter or question.

• (4) Subject to sub-paragraphs (5) and (6), the costs of a local inquiry held under this Schedule must be defrayed by the appeal body.

• (5) Subject to sub-paragraph (6), subsections (2) to (5) of section 250 of the Local Government Act 1972¹⁹ (local inquiries: evidence and costs) apply to hearings held under this Schedule by an appointed person as they apply to inquiries caused to be held under that section by a Minister, but with the following modifications, that is to say—

• (a) with the substitution in subsection (2) (evidence) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

• (b) with the substitution in subsection (4) (recovery of costs of holding the inquiry) for the references to the Minister causing the inquiry to be held of references to the appeal body;

• (c) with the substitution for the reference in that subsection to a local authority of a reference to the regulator;

• (d) with the substitution in subsection (5) (orders as to the costs of the parties) for the reference to the Minister causing the inquiry to be held of a reference to the appeal body.

• (6) In the case of an appeal to the Scottish Ministers, subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973²⁰ (which relates to the costs of and holding of local inquiries) apply to hearings held under this Schedule by an appointed person as they apply to inquiries held under that section, but with the following modifications, that is to say—

• (a) with the substitution in subsection (3) (notice of inquiry) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

• (b) with the substitution in subsection (4) (evidence) for the reference to the person appointed to hold the inquiry and, in paragraph (b), the reference to the person holding the inquiry of references to the appointed person;

• (c) with the substitution in subsection (6) (expenses of witnesses etc) for the references to the Minister causing the inquiry to be held of a reference to the appointed person or the Scottish Ministers;

• (d) with the substitution in subsection (7) (expenses)—

• (i) for the first reference to the Minister of a reference to the Scottish Ministers; and

• (ii) for the second reference to the Minister of a reference to the appointed person or the Scottish Ministers;

• (e) with the substitution in subsection (7A) (recovery of entire administrative expense)—

• (i) for the first reference to the Minister of a reference to the appointed person or the Scottish Ministers;

• (ii) in paragraph (a), for the reference to the Minister of a reference to the Scottish Ministers; and

• (iii) in paragraph (b), for the reference to the Minister holding the inquiry of a reference to the Scottish Ministers;

• (f) with the substitution in subsection (7B) (power to prescribe daily amount)—

• (i) for the first reference to the Minister of a reference to the Scottish Ministers;

• (ii) in paragraphs (a) and (c), for the references to the person appointed to hold the inquiry of references to the appointed person; and

• (iii) in paragraph (d), for the reference to the Minister of a reference to the appointed person or the Scottish Ministers; and

• (g) with the substitution in subsection (8) (certification of expenses)—

• (i) for the words “the Minister has”, of the words “the Scottish Ministers have”;

• (ii) for the reference to him and the reference to the Crown of references to the appointed person or the Scottish Ministers.

5

• (1) Where under paragraph 2(c) the appointment of the appointed person is revoked in respect of any appeal, matter or question, the appeal body must, unless it proposes to determine the appeal, matter or question itself, appoint another person under regulation 53(2)(a) to determine the appeal, matter or question instead.

• (2) Where such a new appointment is made, the consideration of the appeal, matter or question, or any hearing in connection with it, must be begun afresh.

6

• (1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise of any function to which the appointment relates is for all purposes as done or omitted to be done by the appeal body in its capacity as such.

• (2) Sub-paragraph (1) does not apply—

• (a) for the purposes of so much of any contract made between the appeal body and the appointed person as relates to the exercise of the function; or

• (b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates.

SCHEDULE 5 — Appeals (Northern Ireland)

1

• (1) A person that wishes to appeal to the Planning Appeals Commission (“the appeals commission”) under regulation 52 must give to the appeals commission written notice of the appeal together with a statement of the grounds of appeal and the appeals commission must as soon as is reasonably practicable send to the regulator a copy of that notice together with the statement of the grounds of appeal.

• (2) An appellant may withdraw an appeal by notifying the appeals commission and the appeals commission must as soon as is reasonably practicable notify the regulator.

2

Notice of appeal in accordance with paragraph 1 is to be given before the expiry of the period of 47 days beginning with the date of the decision, deemed decision or the notice takes effect.

3

• (1) The appeals commission must determine the appeal and paragraphs (1), (3), (4) and (5) of Article 111 of the Planning (Northern Ireland) Order 1991²¹ apply in relation to the determination of the appeal as they apply in relation to the determination of an appeal under that Order.

• (2) The appeals commission must determine the process for determining appeals taking into account any requests of either party to the appeal.

4

An appeal under this Schedule must be accompanied by a fee of £126.

SCHEDULE 6 — Service of notices

1

The provisions of this Schedule apply to the giving or service of a notice under these Regulations, except where a contrary provision applies under Schedule 2.

2

A notice must be in writing.

3

A notice may be served on or given to a person by—

• (a) delivering it to that person in person;

• (b) sending it to a postal address or address for service using electronic communication provided in an application—

• (i) for a benchmarking plan under regulation 9; or

• (ii) for an emissions plan under regulation 18;

• (c) leaving it at that person’s proper address, or

• (d) sending it by post or electronic means to that person’s proper address.

4

In the case of a body corporate, a notice may be served on or given to the secretary or clerk of that body.

5

In the case of a partnership, a notice may be served on or given to a partner or a person having control or management of the partnership business.

6

If a person to be served with or given a notice has specified an address in the United Kingdom (other than that person’s proper address) at which that person or someone on that person’s behalf will accept notices of that description, that address must instead be treated as that person’s proper address.

7

For the purposes of this Schedule, “proper address” means—

• (a) in the case of a body corporate or its secretary or clerk—

• (i) the registered or principal office of that body, or

• (ii) the email address of the secretary or clerk;

• (b) in the case of a partnership or a partner or person having control or management of the partnership business—

• (i) the principal office of the partnership, or

• (ii) the email address (or, in the case of a partnership established outside the United Kingdom, the last known address) of a partner or a person having that control or management;

• (c) in any other case, a person’s last known address, which includes an email address.

8

For the purposes of paragraph 7, where a body corporate registered outside the United Kingdom or a partnership established outside the United Kingdom has an office in the United Kingdom, the principal office of that body corporate or partnership is its principal office in the United Kingdom.

9

• (1) Where for the purposes of paragraph 7 the person giving or serving notice is not able to ascertain a proper address in relation to a UK operator, a relevant address may instead be treated as the proper address.

• (2) For that purpose, “relevant address” means an address derived from information supplied to the regulator by Eurocontrol (or any other organisation) at the request of the European Commission²².

10

Where an electronic address for submission of a notice is provided under these Regulations, it may be submitted electronically to that address.

Signed

Greg Barker — Minister of State — Department of Energy and Climate Change — 3rd August 2010

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

Directive 2003/87/EC of the European Parliament and of the Council²³ (“the EU ETS Directive”) established a scheme for greenhouse gas emission trading within the European Union, and was transposed in the United Kingdom by the Greenhouse Gas Emissions Trading Scheme Regulations 2005²⁴. The EU ETS Directive was amended so as to include aviation activities in the scheme, by Directive 2008/101/EC of the European Parliament and of the Council²⁵ (“the Aviation ETS Directive”). Commission Decision 2007/589/EC²⁶ (“the Monitoring and Reporting Decision”) established guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to the EU ETS Directive, and was amended to include guidelines in relation to aviation activities. These Regulations transpose the Aviation ETS Directive, and the Monitoring and Reporting Decision so far as it relates to aviation. They extend to the United Kingdom.

The Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2009²⁷ (“the 2009 Regulations”) transposed parts of the Aviation ETS Directive, to establish a procedure enabling UK operators to apply for a free allocation of allowances for their participation in the emissions trading scheme. (A “UK operator” is a person identified in a list drawn up by the European Commission as an operator to be administered by the United Kingdom.) The 2009 Regulations also imposed obligations on an aircraft operator to apply for an emissions plan; monitor emissions in each year from 2010; and verify and report those emissions by 31st March in the following year. These Regulations revoke the 2009 Regulations, but with certain savings, in particular in respect of the provisions allowing UK operators to apply for a free allocation for their participation in the scheme before the end of 2020.

Regulations 3 to 7 define “aircraft operator”, “regulator” and “authority” for the purposes of these Regulations. An aircraft operator is a UK operator that performs, or is deemed to perform, an aviation activity. The regulator is either the Environment Agency, the Scottish Environment Protection Agency, or the chief inspector in Northern Ireland; and the corresponding authority is either the Secretary of State or Welsh Ministers, the Scottish Ministers, or the Department of the Environment in Northern Ireland.

Regulations 8 to 13 apply where a UK operator wishes to apply for a free allocation of allowances after 2020. Provision is made for the regulator to issue a benchmarking plan to a UK operator; the UK operator must then monitor its tonne-kilometre data in accordance with that plan in the relevant benchmarking year, and submit a verified report of that data to the regulator.

Regulations 14 to 17 apply where an eligible UK operator wishes to apply for a free allocation of allowances from the special reserve provided by Article 3f of the EU ETS Directive. An operator that is new to the scheme, or increases its tonne-kilometre data by a specified amount over a certain time period, is eligible to apply for such an allocation.

Regulations 18 to 21 require aircraft operators to submit an application to the regulator for an emissions plan; to monitor emissions in accordance with a plan approved by the regulator in each calendar year from 1st January 2010; and to submit a verified report to the regulator of the monitored emissions by 31st March in the following year.

Regulation 22 requires the regulator to determine the emissions of an aircraft operator where the aircraft operator has failed to comply with its obligations to submit a report containing its verified emissions to the regulator.

Regulation 23 requires a regulator to ensure that emissions plans include conditions obliging aircraft operators to comply with requirements of the Monitoring and Reporting Decision (so far as not already covered by other provisions of these Regulations). For that purpose, the regulator must draw up a list of the conditions that it will include. A regulator must consult on its proposed list, and regulators may do so jointly. The list may be amended from time to time, and emissions plans may be amended to bring them into conformity with the list (including the list as amended). Under regulation 24, operators must comply with those conditions included in their emission plans. Regulation 25 gives the regulator further powers to vary the emissions plan of an aircraft operator and to charge a fee for doing so.

Regulation 26requires aircraft operators to surrender allowances or project credits equal to their emissions (and regulation 27defines what is meant by “project credits”).

Regulation 28 gives effect to Schedule 1, which provides for charges for functions carried out by the regulator.

Regulation 29 gives the regulator the power to serve a notice on UK operators requiring the operator to provide information to the regulator.

Regulations 30 to 41 make provision for the imposition of a civil penalty where a person does not comply with their obligations under regulations 18 to 21, 24, 26, 29, 47 or 51(4), or makes a false or misleading statement in a report under regulation 12 or 21 or in an application under regulation 16.

Regulations 42 to 48 make provision for the detention and sale of aircraft by the regulator where a UK operator has not paid a civil penalty imposed on it, or where the European Commission has imposed an operating ban on an operator (including operators that are not UK operators). Schedule 2 sets out the steps that the regulator must take before applying to the court for leave to sell an aircraft.

Regulation 49 makes provision for the regulator to publish the names of aircraft operators that do not comply with the obligation to surrender allowances.

Regulation 50makes provision for the Secretary of State to request the European Commission to impose an operating ban on an aircraft operator; and regulation 51gives the regulator powers to enforce an operating ban imposed by the European Commission on any operator.

Regulations 52 and 53 make provision for appeals against various notices, decisions or deemed refusals of the regulator. Schedules 3, 4 and 5 contain provisions relating to the procedure for appeals and for delegating appellate functions under these Regulations.

Regulation 54gives the authority the power to issue guidance to the regulator relating to the discharge of the regulator’s functions under these Regulations or under the 2009 Regulations.

Regulation 55 makes provision for keeping information under these Regulations confidential.

Regulation 56 gives effect to Schedule 6, which contains provisions on the giving or service of notices.

Regulation 57 makes provision relating to the submission of reports and plan applications.

Regulation 58 makes provision for the functions of the regulator in Northern Ireland, the chief inspector, to be delegated.

Regulation 59 requires the Civil Aviation Authority to provide assistance and advice to the regulator where requested.

Regulation 60 revokes the 2009 Regulations, with savings, in particular for provisions that apply in relation to applications for a free allocation of allowances in the trading periods 2012, and 2013 to 2020. It also contains transitional and transitory provisions.

A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Department of Energy and Climate Change’s Climate and Energy: Europe Division (telephone 0300 060 4000), and is published alongside the instrument and its Explanatory Memorandum on the legislation website of The National Archive (http://www.legislation.gov.uk). A transposition note setting out how these Regulations, and the 2009 Regulations, implement the relevant provisions of the Aviation ETS Directive and the Monitoring and Reporting Decision is annexed to that Explanatory Memorandum.

Footnotes

Editorial notes