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The CRC Energy Efficiency Scheme Order 2010

Type Statutory-Instrument

Publication 2010-03-17

State In force

Department King's Printer of Acts of Parliament

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(b) where A has a residual measurement list (“list A”) which includes the residual supplies of B—

(i) list A must be amended to exclude the residual supplies of B;

(ii) B must compile a residual measurement list from B’s residual supplies in list A.

(4) Where A has a member CCA exemption in respect of B—

(a) sub-paragraph (2)(a) applies but otherwise sub-paragraphs (2) and (3) do not apply to B;

(b) where B is—

(i) a group of undertakings, B has a group CCA exemption;

(ii) not such a group, B has a general CCA exemption;

and

(c) subject to article 38, B is exempt from Parts 4 to 7 of this Order for the phase where the applicable exemption applies to B.

Joining of a participant or significant group undertaking with a non-participant

10

(1) Sub-paragraphs (2) and (3) apply where the following change occurs—

(a) a participant or significant group undertaking (“C”) of a participant becomes a member of a group (“D”); and

(b) D is not a participant.

(2) Subject to sub-paragraph (6), in respect of the change—

(a) D must apply for registration as a participant in accordance with article 11;

(b) where C is a participant, C must notify the administrator of the change and when it occurred;

(c) where C is a significant group undertaking as a member of a participant, that participant must notify the administrator of the change and when it occurred;

(d) where the change occurs in a footprint year, D must comply with Part 4 of this Order but only in respect of those supplies of electricity, gas or fuel which relate to C and as if C was part of D for the whole of the year in which the change occurs;

(e) C is a significant group undertaking as a member of D for the phase and as if C was a member of D for the whole of the year in which the change occurs;

(f) subject to the registration of D, and where C is a participant, the administrator must cancel the registration of C for the remainder of the phase.

(3) Subject to sub-paragraph (6), where the change occurs in an annual reporting year—

(a) D must provide an annual report in respect of the year but only in respect of those emissions which relate to C and as if C was a member of D for the whole of the year;

(b) where C is a participant and C had a residual measurement list before the change occurred, D must compile such a list from the residual supplies of C.

(4) Subject to sub-paragraph (6), sub-paragraph (5) applies where—

(a) the change occurs in an annual reporting year; and

(b) C is a significant group undertaking of a participant and that participant has a residual measurement list (“list A”) which includes residual supplies of C.

(5) Where this sub-paragraph applies—

(a) list A must be amended to exclude the residual supplies of C;

(b) D must compile a residual measurement list from the residual supplies of C in list A.

(6) Where C is a significant group undertaking of a participant and that participant has a member CCA exemption in respect of C—

(a) sub-paragraph (2) applies except paragraphs (b) and (d);

(b) sub-paragraphs (3) to (5) do not apply to D;

(i) a group of undertakings, D has a group CCA exemption;

(ii) not such a group, D has a general CCA exemption;

and

(d) subject to article 38, D is exempt from Parts 4 to 7 of this Order for the phase where the applicable exemption applies to D.

Joining of a participant as a member of another participant

11

(1) Sub-paragraphs (2) to (4) apply where the following change occurs—

(a) a participant (“E”) becomes a member of a group (“F”); and

(b) F is a participant.

(2) In respect of the change—

(a) E and F must notify the administrator of the change and when it occurred; and

(b) in the notification by F, F must inform the administrator whether or not F requests that E continues as a separate participant.

(3) Where—

(a) F requests that E continues as a separate participant; and

(b) the administrator agrees and so notifies E and F,

E and F continue as separate participants.

(4) Where E and F do not continue as separate participants—

(a) E is a significant group undertaking as a member of F for the phase and as if E was a member of F for the whole of the year in which the change occurs;

(b) subject to the administrator being satisfied that E and F are complying with this Order, the administrator must cancel the registration of E for the remainder of the phase.

(5) Subject to sub-paragraph (7), sub-paragraph (6) applies where the change occurs in an annual reporting year and E and F do not continue as separate participants.

(6) Where this sub-paragraph applies and—

(a) where—

(i) F did not have a residual measurement list; and

(ii) E did have a residual measurement list,

E’s residual measurement list becomes F’s list;

(b) where E and F each had a residual measurement list before the change occurred, F must amend its list to include the residual supplies from E’s list.

(7) Where E and F do not continue as separate participants and E had a general or group CCA exemption—

(a) F has a member CCA exemption in respect of E; and

(b) sub-paragraph (6) does not apply.

Significant group undertakings transferring to another participant

12

(1) Sub-paragraphs (2) to (5) apply where the following change occurs—

(a) a participant (“G”) consists of a group;

(b) a significant group undertaking (“H”) which was a member of G becomes a significant group undertaking as a member of another participant (“J”).

(2) In respect of the change—

(a) G and J must notify the administrator of the change and when it occurred;

(b) in the notification of J, J must inform the administrator whether or not J requests that H may apply for registration as a separate participant; and

(c) if such a request is made, H may make an application to be a participant and if it does, must do so in accordance with article 11.

(3) Where H is registered as a participant separate from J, H must comply with Part 4 as if H had been a participant for the whole of the year in which the change occurs.

(4) Where H is not registered as a separate participant, H is treated as if it was a significant group undertaking as a member of J for the whole of the year in which the change occurs.

(5) Where the change occurs in an annual reporting year and—

(a) G has a residual measurement list, G must amend its residual measurement list to exclude any residual supplies of H;

(b) subject to sub-paragraph (6), where H is not registered as a separate participant and—

(i) where—

(aa) J does not have a residual measurement list; and

(bb) G has a residual measurement list including residual supplies of H,

J must compile a residual measurement list from those residual supplies of H;

(ii) where J has a residual measurement list, J must amend its list to include the residual supplies of H.

(6) Sub-paragraph (5)(b) does not apply where—

(a) H is not registered as a separate participant; and

(b) G has a group CCA exemption or had a member CCA exemption in respect of H.

(7) Where G has a group CCA exemption or had a member CCA exemption in respect of H, J has a member CCA exemption in respect of H.

SCHEDULE 7 — The Registry

Setting up accounts

1

(1) The administrator must ensure the Registry allows the following accounts to be held—

(a) a compliance account for a participant; and

(b) as agreed by it—

(i) additional accounts for a participant; and

(ii) accounts for third parties.

(2) The administrator may—

(a) limit the number of accounts in respect of a participant or third party; and

(b) set up other accounts.

(3) The administrator must set up one compliance account for a participant where—

(a) it has registered an applicant as a participant; and

(b) it has completed to its satisfaction the identity checks required under article 70(2).

(4) The public body or undertaking in whose name an account is held is the account holder.

Account holders and information

2

The administrator must ensure that the Registry provides the following information—

(a) to an account holder—

(i) the number of allowances it holds; and

(ii) a summary of any transfer, surrender or cancellation of allowances relating to that account holder made during the previous five years;

(b) to a participant, its CRC emissions—

(i) where provided, from CRC supplies in its most recent annual report;

(ii) from CRC supplies determined under article 47(3); or

(iii) applied under article 97(4)(a);

(i) the number of allowances in its compliance account which are available to comply with Part 6; and

(ii) matters notified to the participant by the administrator.

Recording of transfers between accounts

3

The administrator must ensure that the Registry records the transfer of allowances between accounts made by account holders and to make that record—

(a) for a transfer made on a working day, if possible that working day or otherwise the following working day;

(b) for a transfer made on a non-working day, if possible the following working day or otherwise the next following working day.

Updating of accounts

4

The administrator must ensure that the cancellation and surrender of allowances is recorded in the relevant accounts and that record is made as soon as practicable.

Non-compliance accounts and third party accounts

5

(1) A participant may request the administrator to provide accounts for it in the Registry in addition to a compliance account, on terms agreed by the administrator.

(2) A person who is not a participant (“a third party”) may request the administrator to provide accounts for it in the Registry on terms agreed by the administrator.

(3) Such terms must require that the participant or third party complies with any administrative rules drawn up by the administrator under article 68(4).

SCHEDULE 8 — Achievement and performance tables

Absolute change in CRC emissions

1

The percentage change in the CRC emissions of a participant for an annual reporting year (“year A”) compared to—

(a) where it exists, the historic average of CRC emissions of that participant; or

(b) otherwise, the relevant CRC emissions of that participant for the annual reporting year (“year B”) before year A,

is the “absolute change” in CRC emissions for year A.

Relative change in CRC emissions

2

(1) The percentage change in the CRC emissions of a participant per unit of turnover for year A compared to—

(a) where it exists, the historic average of CRC emissions of that participant per unit of turnover; or

(b) otherwise, the relevant CRC emissions of that participant per unit of turnover in year B,

is the “relative change” in CRC emissions for year A.

(2) In sub-paragraph (1), “year A” and “year B” have the meaning given in paragraph 1.

Historic average of CRC emissions and reported or determined CRC emissions

3

(1) In paragraphs 1 and 2, an “historic average of CRC emissions” applies where during the previous five years before year A—

(a) there are at least two annual reports where the participant reported CRC supplies (“the historic sequence”); and

(b) those reports have not been found to be inaccurate by the administrator.

(2) The “historic average of CRC emissions” means the average of the CRC emissions in the historic sequence.

(3) In paragraphs 1, 2 and 4, “relevant CRC emissions” means the CRC emissions calculated from the CRC supplies in the annual report, as determined by the administrator under article 47(3) or applied under article 97(4)(a).

(4) In this paragraph—

(a) “year A” has the meaning given in paragraph 1; and

(b) an historic sequence exists even where one or more of the years in that sequence are in different phases.

Adjustments to CRC emissions

4

(1) Where any of the following applies to a participant in an annual reporting year—

(a) a change in its eligibility criteria for a CCA; or

(b) a change in the application of EU ETS to it,

the participant must notify the change to the administrator within three months of that change.

(2) Sub-paragraph (3) applies where a notification is made under—

(a) sub-paragraph (1); or

(b) Parts 1 or 2 or section 2 of Part 3 of Schedule 6.

(3) Where this sub-paragraph applies, the administrator must calculate, in respect of the participants which may be affected by the change, the appropriate adjustments to—

(a) where it exists, the historic average of CRC emissions; or

(b) otherwise, the relevant CRC emissions in the relevant annual reporting years.

(4) The adjustments made under sub-paragraph (3) must be applied by the administrator when it calculates absolute change and relative change.

(5) The administrator may make adjustments equivalent to those in sub-paragraph (4) where a participant enters into a new CCA or an existing CCA is modified such that a CCA applies to emissions which would be CRC emissions of the participant.

Early action

5

(1) Sub-paragraphs (2) to (6) apply only to the first phase.

(2) “Early action” is the average of these percentages—

(a) the percentage which the amount during the first year of the phase of—

(i) electricity and gas supplied measured by automatic meters; and

(ii) electricity supplied which is a dynamic supply,

bears to the amount of all electricity and gas supplied during that year, excluding the supply of electricity measured by a settled half hourly meter required to be installed and the supply of gas measured by a daily meter required to be installed;

(b) the percentage which certified CRC emissions during a year of the phase bears to all CRC emissions in that year.

(3) Where under sub-paragraph (2)(a)—

(a) all of the electricity is measured by a settled half hourly meter required to be installed; and

(b) all of the gas supplied is measured by a daily meter required to be installed,

the percentage under sub-paragraph (2)(a) is 50%.

(4) In sub-paragraph (2)(a) “automatic meter” means—

(a) in respect of electricity—

(i) a settled half hourly meter not required to be installed; or

(ii) a non-settled half hourly meter;

(b) in respect of gas—

(i) a daily meter not required to be installed; or

(ii) an hourly meter.

(5) In sub-paragraph (2)(b), “certified CRC emissions” means—

(a) CRC emissions or emissions calculated in an equivalent way to the calculation of CRC emissions; and

(b) where a certification in respect of such emissions is valid on the last day of the relevant year of the phase.

(6) In sub-paragraph (5), “certification” means certification under—

(a) the Carbon Trust Standard Rules version 1.0 dated June 2008[^f00065]; or

(b) such other rules concerning the certification of emissions which the administrator and the participant agree.

SCHEDULE 9 — Powers of entry and inspection

SECTION 1

Powers of entry and inspection

1

The powers of the administrator and an authorised person acting on its behalf are—

(a) to enter at any reasonable time any premises which that person has reason to believe it is necessary to enter;

(b) on entering any premises by virtue of sub-paragraph (a), to—

(i) be accompanied by any other person duly authorised by the administrator and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of the authorised person’s duty, a constable;

(ii) take any equipment or materials required for any purpose for which the power of entry is being exercised;

(d) as regards any premises which the authorised person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c);

(e) to take such measurements and photographs and make such recordings as the authorised person considers necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f) to take samples, or cause samples to be taken, of any thing found in or on any premises which the authorised person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

(g) in the case of any thing found in or on any premises which the authorised person has power to enter and which appears to that person to be in contravention of a provision of this Order, to cause it to be dismantled or subjected to any process or test (but not so as to destroy or damage it, unless that is necessary);

(h) in the case of any thing mentioned in sub-paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

(i) to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which the authorised person has power to do under that sub-paragraph;

(ii) to ensure that it is not tampered with before examination of it is completed; and

(iii) to ensure that it is available for use in any proceedings for an offence under this Order;

(i) to require any person whom the authorised person has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of that person’s answers;

(j) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary for the authorised person to see for the purposes of an examination or investigation under sub-paragraph (c) and to inspect, and take copies of, or of any entry in, the records; and

(k) to require any person to afford the authorised person such facilities and assistance with respect to any matters or things within the other person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on the authorised person by this section.

2

In any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of paragraph 1 must only be effected—

(a) after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question; and

(b) either—

(i) with the consent of the person who is in occupation of those premises; or

(ii) under the authority of a warrant by virtue of section 2 of this Schedule.

3

Where an authorised person proposes to enter any premises and—

(a) entry has been refused and the authorised person apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b) the authorised person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,

any entry on to those premises by virtue of paragraph 1 must only be effected under the authority of a warrant by virtue of section 2 of this Schedule.

4

In relation to any premises belonging to or used for the purposes of the United Kingdom Atomic Energy Authority, the powers under paragraph 1 have effect subject to section 6(3) of the Atomic Energy Authority Act 1954[^f00066] (which restricts entry to such premises where they have been declared to be prohibited places for the purposes of the Official Secrets Act 1911[^f00067]).

5

Where an authorised person proposes to exercise the power conferred by paragraph 1(g), that person must, if so requested by a person who at the time is present on and has responsibilities in relation to the premises, cause anything which is to be done by virtue of that power to be done in the presence of that other person.

6

Before exercising the power conferred by paragraph 1(g), an authorised person must consult—

(a) such persons having duties on the premises where the thing is to be dismantled or subject to the process or test; and

(b) such other persons,

as appear to the authorised person to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which it is proposed to do or cause to be done under the power.

7

No answer given by a person in pursuance of a requirement imposed under paragraph 1(i) is admissible in evidence in England and Wales or Northern Ireland against that person in any proceedings, or in Scotland against that person in any criminal proceedings.

8

Nothing in paragraph 1 compels the production by any person of a document of which—

(a) in England and Wales or Northern Ireland, that person would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the County Court or High Court; or

(b) in Scotland, that person would on grounds of confidentiality of communications be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

SECTION 2 — Warrants, evidence and compensation

Entry and inspection under warrant

9

Subject to paragraph 11, if it is shown to the satisfaction, in England and Wales of a justice of the peace, in Scotland of the sheriff or a justice of the peace, or in Northern Ireland of a lay magistrate, on sworn information in writing—

(a) that there are relevant grounds for the exercise in relation to any premises of the powers under paragraph 1 (“the power”); and

(b) that one or more of the conditions specified in paragraph 10 is fulfilled in relation to those premises,

the justice, sheriff or lay magistrate may by warrant authorise the administrator to designate a person who is authorised to exercise the power in relation to those premises, in accordance with the warrant.

10

The conditions mentioned in paragraph 9 are—

(a) that the exercise of the power in relation to the premises has been refused;

(b) that such a refusal is reasonably apprehended;

(d) that the occupier is temporarily absent from the premises and the case is one of urgency; or

(e) that an application for admission to the premises would defeat the object of the proposed entry.

11

In a case where paragraph 2 applies, a justice of the peace, sheriff or lay magistrate must not issue a warrant under paragraph 9 by virtue only of being satisfied that the exercise of the power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless the justice of the peace, sheriff or lay magistrate is also satisfied that the notice required by paragraph 2 has been given and that the period of that notice has expired.

12

Every warrant under paragraph 9 continues in force until the purposes for which the warrant was issued have been fulfilled.

13

An authorised person must produce evidence of that person’s authorisation or designation and other authority before exercising the power.

14

A person who, in exercise of the power, enters on any premises which are unoccupied or whose occupier is temporarily absent must leave the premises as effectively secured against trespassers as that person found them.

Compensation in respect of entry and inspection

15

Where any person exercises any power conferred by paragraph 1(a) or (b), it is the duty of the administrator under whose authorisation that person acts to make full compensation to any person who has sustained loss or damage by reason of—

(a) the exercise of a power under paragraph 1 by the authorised person; or

(b) the performance of, or failure of the authorised person to perform, the duty imposed under paragraph 14.

16

Compensation is not payable by virtue of paragraph 15 in respect of any loss or damage if—

(a) it is attributable to the default of the person who sustained it; or

(b) it is loss or damage in respect of which compensation is payable by virtue of any other enactment.

17

Any dispute as to a person’s entitlement to compensation under paragraph 15, or as to the amount of any such compensation—

(a) in England and Wales, must be referred to the arbitration of a single arbitrator appointed by agreement between the administrator and the person who claims to have sustained the loss or damage or, in default of agreement, appointed by the Secretary of State;

(b) in Scotland, must be referred to the arbitration of an arbiter, appointed by agreement between the administrator and the person who claims to have sustained the loss or damage or, in default of agreement, appointed by the Scottish Ministers; or

18

An authorised person is not to be liable in any civil proceedings for anything done in the purported exercise of the powers under paragraph 1 if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

SCHEDULE 10 — Appeals

1

Except where paragraph 4, 5 or 6 applies, the appeal body means the body provided under paragraph 2 in respect of an appeal referred to in article 111.

2

Under paragraph 1, where the determination, notice or penalty is made or given by—

(a) the Environment Agency and the determination, notice or penalty relates—

(i) only to Wales, the appeal body is the Welsh Ministers;

(ii) other than only to Wales, the appeal body is the Secretary of State;

(b) the Scottish Environment Protection Agency, the appeal body is the Scottish Ministers;

3

Paragraph 4 applies where an appeal is made by an applicant or participant which is or includes—

(a) a government department;

(b) the Scottish Ministers;

4

Where this paragraph applies, the appeal body is an independent person which the following appoints in writing—

(a) the Secretary of State, in respect of an appeal by a government department;

(b) the Scottish Ministers, in respect of an appeal by those Ministers;

5

Where an appeal is made by an applicant or participant which is or includes a Northern Ireland department, the appeal body is an independent person which the Department of the Environment appoints in writing.

6

Where a determination, notice or penalty is made or given by—

(a) the Secretary of State;

(b) the Scottish Ministers; or

the appeal body is an independent person which that body appoints in writing.

7

An appellant must give written notice of the appeal together with a statement of the grounds of appeal to the appeal body and the appeal body must as soon as is reasonably practicable send to the administrator a copy of that notice together with the statement of the grounds of appeal.

8

An appeal must be received by the appeal body no later than 40 days after the date of—

(a) the determination referred to in article 74(1);

(b) service of an enforcement notice;

9

The appeal body may decide an appeal received late.

10

An appellant may withdraw an appeal by notifying the appeal body, and as soon as is reasonably practicable the appeal body must notify the administrator.

11

The bringing of an appeal—

(a) except where the appeal body has given the appellant notice under paragraph 15, suspends an enforcement notice, financial penalty or publication taking effect;

(b) does not suspend a determination referred to in article 74(1) or a civil penalty not described in sub-paragraph (a) taking effect.

12

The appeal body may—

(a) in respect of a determination, enforcement notice or civil penalty—

(i) cancel or affirm it; and

(ii) if it affirms it, may do so either in its original form or with such modifications as the appeal body sees fit;

(b) instruct the administrator to do or not to do any thing which is within the power of the administrator.

13

The appeal body may publicise the appeal where it considers it appropriate to do so.

14

The appeal body may—

(a) adopt such procedures as it sees fit to determine an appeal, taking into account any requests of the parties to the appeal;

(b) appoint a person to hear an appeal on behalf of that body;

15

On request by the administrator, the appeal body may award the administrator its reasonable costs of an appeal where the appeal body has given the appellant written notice that in its opinion—

(a) the appeal is frivolous or vexatious or otherwise has no reasonable prospects of success; or

(b) the appeal is conducted in an unreasonable or vexatious manner.

16

The costs under paragraph 15—

(a) are those agreed by the parties to the appeal or in default of agreement, as found by the appeal body;

(b) if unpaid, are recoverable as a civil debt by the administrator.

17

In this Schedule, “independent person” means a person who has no individual interest in the matter subject to the appeal and is independent of the parties to the appeal.

SCHEDULE 11 — Service of documents

1

The provisions of this Schedule apply to the service of a document except where a contrary provision applies under Schedule 9.

2

A document must be in writing.

3

Subject to paragraph 5, a document may be served on or given to a person (which includes a member of an unincorporated association) by—

(a) delivering it to that person in person;

(b) leaving it at that person’s proper address; or

4

For the purposes of paragraph 3, a document is served on or given to a person under paragraph 3 in the case of—

(a) a body corporate, where it is served on or given to the director, secretary or clerk of that body;

(b) a partnership, where it is served on or given to a partner or a person having control or management of the partnership business;

(c) an unincorporated association, where it is served on or given to a person having management responsibilities in respect of the association.

5

A document may be served on an applicant or participant by sending it to the email address provided under paragraph 2, 3(a)(ii), 3(b) or 4 of section 1 of Schedule 5, as applicable to the applicant or participant.

6

Except where paragraph 5 applies, if a person to be served with or given a document 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 documents of that description, that address must instead be treated as that person’s proper address.

7

In paragraphs 3 and 6, “proper address” means in the case of—

(a) a body corporate or their director, secretary or clerk—

(i) the registered or principal office of that body; or

(ii) the email address of the director, secretary or clerk;

(b) 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 of a partner or a person having that control or management;

8

For the purposes of paragraph 7, the principal office of a company registered outside the United Kingdom or of a partnership established outside the United Kingdom is its principal office in the United Kingdom.

9

Where—

(a) a participant is a group; and

(b) the administrator gives any communication to the public body or undertaking in whose name the compliance account is set up under article 73,

that communication is made to each member of the group.

Signed

Judith Simpson — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order establishes in the United Kingdom an emissions trading scheme in respect of greenhouse gases under sections 44 and 46(3) of and Schedule 2 and paragraph 9 of Schedule 3 to the Climate Change Act 2008 (c. 27). It applies to direct and indirect emissions from supplies of electricity, gas and fuel by public bodies and undertakings.

PART 1 By article 2, the trading scheme is established for seven phases, the first phase is of three years and commences 1st April 2010. Subsequent phases are of seven years, the second phase commences on 1st April 2011 and subsequent phases commence on each fifth anniversary of 1st April 2011. Article 3 lists definitions used in the Order, including that participants required to comply with this Order means public bodies defined in Schedule 3 and undertakings defined in Schedule 4, where such bodies or undertakings carry on a business, a charitable activity or a public function (“a scheme activity”). Articles 4 to 7 set out obligations on participants and powers and duties of the administrator under this Order and provide that supplies of electricity, gas and fuel are defined under Schedule 1. Article 8 provides for liability to comply with this Order for groups of public bodies and undertakings. Article 9 sets out in respect of the provisions of this Order when the Environment Agency, the Scottish Environment Protection Agency and the Chief inspector are the administrator. Article 10 provides for co-operation between those bodies and national authorities.

PART 2 Article 11 provides how an application for registration as a participant must be made and article 12 by when that application must be made. Under article 13, a certificate of registration is provided to a participant whose application for registration is duly made and a list of participants must be maintained by the administrator. Article 14 provides for applications for registration to be made by government departments, the devolved administrations and certain local authorities and groups including those bodies. Article 15 sets out when a group of other public bodies exists for the purposes of articles 16 and 17 and those articles provide for registration by public bodies and groups of those bodies not subject to article 14. Under article 18, the administrator may determine whether or not a public body is a member of a group. Under articles 19 to 22, separate provision is made for the registration of colleges of a university and universities in England. Article 23 sets out when a group of undertakings exists for the purposes of articles 24 to 26. Articles 24 and 26 provide for applications for registration by groups of undertakings and undertakings not part of a group. Article 25 provides for applications for registration by those undertakings which would have been required to register on their own were they not part of a group (“significant group undertakings”). Article 27 provides for different provisions for applications for registration by undertakings where the organisational changes described in section 1 of Part 3 of Schedule 6 take place. Under article 28, the administrator may determine whether or not an undertaking is a member of a group and whether or not article 27 applies.

PART 4 Article 39 requires a participant to provide a footprint report concerning supplies during a footprint year and provides for the administrator to determine such a report if the participant fails to do so. Article 40 sets out the effect of a member CCA exemption in relation to calculating footprint emissions defined in article 41. Article 42 provides where a residual measurement list is required and article 43 for the definition of the residual percentage. Article 44 defines a residual measurement list. Article 45 provides by when such a list must be compiled. Under article 46, where organisational changes described in Part 1 or 2 or section 2 of Part 3 of Schedule 6 occur, the requirements in that Schedule must be complied with.

PART 5 Article 47 requires a participant to provide an annual report concerning supplies during an annual reporting year and provides for the administrator to determine such a report if the participant fails to do so. Article 48 sets out the effect of a member CCA exemption in relation to calculating CRC supplies defined in article 50. Article 49 provides for the content of an annual report. The administrator must calculate CRC emissions using the information on supplies in the annual report or as it determines. Under article 51, where organisational changes described in Part 1 or 2 or section 2 of Part 3 of Schedule 6 occur, the requirements in that Schedule must be complied with.

PART 6 Article 52 provides for the validity of allowances for the purposes of compliance with the provisions of article 53 which require allowances to be surrendered by a participant equal to its CRC emissions in an annual reporting year. Article 54 provides for the cancellation of allowances surrendered and for surplus surrendered allowances. Under article 55 the administrator must maintain records in relation to allowances. Article 56 defines Community tradeable emissions allowances.

PART 7 Articles 57 to 60 provide for the maintenance and audit of records.

PART 8 Article 61 defines supplies in relation to Part 8. Article 62 requires public bodies and undertakings which are not participants to provide details in relation to electricity supplies. Under article 63, a participant may request information on electricity and gas supplied to it. The administrator may require information from electricity suppliers under article 64. Occupiers of premises must give assistance to participants under article 65 and franchisees must give information and assistance to franchisors under article 66. Members of public bodies must give information and assistance to participants under article 67.

PART 9 Article 68 provides for the Registry to be established, article 69 provides for security of the Registry, article 70 contains provisions about access to the Registry and article 71 provides for preventing or suspending a person using the Registry. Article 72 sets out how a registration as a participant may be cancelled where the participant ceases to carry on a scheme activity. Article 73 defines account holders. Article 74 provides how a determination by the administrator under the provisions listed in that article must be carried out.

PART 10 The administrator must compile achievement tables in accordance with articles 75 and 76 and compile performance tables under article 77. Publication of tables and verification of a participant’s position in a table are provided under articles 78 to 80.

PART 11 Article 81 allows the administrator to charge for certain activities set out in article 82 and sets out when a charge must be paid and how it must be calculated. Articles 83 and 84 provide for the amounts of charges and revisions to those amounts. Article 85 provides for the collection and remittance of charges.

PART 12 The administrator may request information concerning compliance with this Order under article 86 and may do so by way of a compliance notice set out in that article. The administrator may inspect premises in relation to monitoring compliance under article 87.

PART 13 Articles 88 to 91 provide powers to the administrator to enforce this Order where a failure of compliance arises.

PART 14 By articles 92 to 105, the administrator may impose civil penalties for failures to comply with provisions of this Order. A penalty may be financial, require additional allowances to be acquired and surrendered or increase what must be regarded as the amount of a participant’s emissions. Use of accounts in the Registry may be blocked and failure of compliance may be publicised. Under article 94, the administrator has a discretion to waive penalties.

PART 15 Criminal offences are imposed under article 106 and penalties for those offences are set out in article 107. Article 108 deals with offences by corporate bodies and article 109 with offences by Scottish partnerships. Article 110 provides for application of this Order to the Crown.

PART 16 Article 111 sets out where an appeal arises, article 112 provides for service of documents and article 113 for national security.

SCHEDULES Schedule 1 defines supplies and emissions. Schedule 2 defines core supplies. Schedule 3 defines public bodies and Schedule 4 undertakings and significant group undertakings. Schedule 5 provides for information required on an application for registration as a participant and in the footprint report. Schedule 6 sets out organisational changes before and after a phase of the scheme and requirements in relation to those changes. Schedule 7 provides for requirements of the Registry in relation to Part 9 of this Order. Schedule 8 sets out requirements in relation to achievement and performance tables under Part 10 of this Order. Schedule 9 sets out powers of the administrator and authorised persons acting on behalf of the administrator under Part 13 of this Order. Schedule 10 sets out appeal bodies and procedures and Schedule 11 provides for the service of documents under Part 16 of this Order. A full regulatory impact assessment of the effect that this Order will have on the costs of business and the voluntary sector is available from the Climate Change Team, Department of Energy and Climate Change, 3 Whitehall Place, London SW1A 2HH and is annexed to the Explanatory Memorandum which is available alongside this Order on the OPSI website.

Footnotes

[^f00001]: 2008 c. 27.

[^f00002]: 1968 c. 48. Schedule 1 to the Act was amended by section 55(5) and (7) of the Finance Act 1972 (c. 41) and section 177(1) and paragraph 12 of Schedule 4 to the Customs and Excise Management Act 1979 (c. 2).

[^f00003]: 2000 c. 36.

[^f00004]: 2008 c. 9.

[^f00005]: 1989 c. 29.

[^f00006]: S.I. 1992/231 (N.I. 1).

[^f00007]: 1986 c. 44. Section 48(1) is subject to various amendments.

[^f00008]: S.I. 1996/275 (N.I. 2).

[^f00009]: 2000 c. 17.

[^f00010]: 2006 c. 50.

[^f00011]: 2005 asp 10.

[^f00012]: 2008 c. 12.

[^f00013]: S.R. (NI) 2003 No 46, amended by S.I. 2003/496 and 2003/3311; there is another amending instrument which is not relevant.

[^f00014]: OJ No L 275, 25.10.03, p. 32. The Directive was amended by: Directive 2004/101/EC (OJ No L 338, 13.11.2004, p. 18); Directive 2008/101/EC (OJ No L 8, 13.1.2009, p. 3); Regulation (EC) No 219/2009 (OJ No L 87, 31.3.2009, p. 109); Directive 2009/29/EC (OJ No L 140, 5.6.2009, p. 63).

[^f00015]: 1989 c. 29. Section 32 was substituted by, and sections 32A to 32M added by, section 37 of the Energy Act 2008 (c. 32).

[^f00016]: S.I. 2003/419 (N.I. 6); Articles 52 to 55F were substituted by the Energy (Amendment) Order (Northern Ireland) 2009 (S.R. (NI) 2009 No 35).

[^f00017]: 2006 c. 46.

[^f00018]: 1971 c. 80.

[^f00019]: Such a determination must be made in accordance with article 74(2).

[^f00020]: Such a determination must be made in accordance with article 74(2).

[^f00021]: 2008 c. 32.

[^f00022]: S.I. 2009/785.

[^f00023]: Such a determination must be made in accordance with article 74(2).

[^f00024]: Such a determination must be made in accordance with article 74(2).

[^f00025]: 2008 c. 9.

[^f00026]: 2007 c. 11. Section 16 has been amended by section 164(1), (2) and (3) of the Finance Act 2008 (c. 9).

[^f00027]: Such a determination must be made in accordance with article 74(2).

[^f00028]: The document is available on behalf of all the administrators from the Environment Agency at, National Customer Contact Centre, PO Box 544, Rotherham S60 1BY or from www.environment-agency.gov.uk/business/regulation/31857.aspx.

[^f00029]: Such a determination must be made in accordance with article 74(2).

[^f00030]: 1911 c. 28.

[^f00031]: 1990 c. 43. Section 75(2) was amended by section 120(1) of and paragraph 88(1) and (2) of Schedule 22 to the Environment Act 1995 (c. 25) under which the definition of “waste” was inserted. There are other amendments to that section which are not relevant.

[^f00032]: S.I. 2009/785.

[^f00033]: 1989 c. 29. Section 6 has been amended by: section 30 of the Utilities Act 2000 (c. 27); sections 89(3), 136, 143, 145, 146, and 197(9) of the Energy Act 2004 (c. 20) and Schedules 3 and 19 to that Act; section 79 of, and Schedule 8 to, the Climate Change Act 2008 (c. 27).

[^f00034]: S.I. 1992/231 (N.I. 1).

[^f00035]: 1960 c. 62.

[^f00036]: 1936 c. 49. Section 269 was amended by sections 30(1) and 48(1) of and Schedule 4 to the Caravan Sites and Control of Development Act 1960 (c. 62). There are other amendments to section 269 which are not relevant.

[^f00037]: 1963 c. 17.

[^f00038]: Section 21 was amended by S.R. (NI) 1973 No 285.

[^f00039]: S.I. 1981/156 (N.I. 3). Article 28A was inserted by S.I. 2003/412 (N.I. 2).

[^f00040]: 1996 c. 52. Part VII is subject to various amendments under Schedule 1 to the Homelessness Act 2002 (c. 7).

[^f00041]: 1987 c. 26. Part II is subject to various amendments under section 3 of and Schedule 10 to the Housing (Scotland) Act 2001 (asp. 10) and section 25 is amended by section 1 of the Homelessness etc (Scotland) Act 2003 (asp. 10).

[^f00042]: S.I. 1988/1990 (N.I. 23). Part II is subject to various amendments under chapter IV of the Housing (Northern Ireland) Order 2003 (S.I. 2003/412 (N.I. 2)).

[^f00043]: 1993 c. 43.

[^f00044]: 1994 c. 22.

[^f00045]: S.I. 2002/2742.

[^f00046]: Public lighting as described in this paragraph is the responsibility of Northern Ireland Roads Service, an executive agency of the Department for Regional Development.

[^f00047]: 2008 c. 32.

[^f00048]: 1989 c. 29. Section 6(1) has been amended by section 30 of the Utilities Act 2000 (c. 27) and sections 136(1), 145(1) and (5) and 197(9) of and Part 1 of Schedule 3 to the Energy Act 2004 (c. 20).

[^f00049]: S.I. 1992/231 (N.I. 1).

[^f00050]: 1986 c. 44. Section 48(1) was amended by section 108 of and paragraphs 1 and 19(a) of Schedule 6 to the Utilities Act 2000 (c. 27) under which the definitions of “authorised supplier” and “authorised transporter” were inserted. There are other amendments to this section which are not relevant.

[^f00051]: S.I. 1996/275 (N.I. 2).

[^f00052]: 2000 c. 36.

[^f00053]: 2002 asp 13.

[^f00054]: The Commission was established under section 27 of the Government of Wales Act 2006 (c. 32).

[^f00055]: 1996 c. 56. Section 482 was amended by section 65(1) of the Education Act 2002 (c. 32).

[^f00056]: The definitions of “maintained nursery school” and “maintained school” in the Freedom of Information Act 2000 (c. 36) derive from the School Standards and Framework Act 1998 (c. 31).

[^f00057]: S.I. 1986/594 (N.I. 3). The definition of “grant-aided” under Article 2(2) was amended by the Education Reform (Northern Ireland) Order 1989 (S.I. 1989/2406 (N.I. 20)).

[^f00058]: Boards are established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986.

[^f00059]: The Northern Ireland Assembly Education Bill 3/08 makes provision for the establishment of the Education and Skills Authority.

[^f00060]: 2006 c. 46.

[^f00061]: A participant may become a significant group undertaking as a member of a group during a phase. See paragraphs 10(2)(e) and 11(4)(a) of section 2 of Part 3 of Schedule 6.

[^f00062]: This section applies to an undertaking or a group of undertakings further to article 27(2).

[^f00063]: This section applies to an undertaking or a group of undertakings in respect of changes which occur in a footprint year (article 46) or in an annual reporting year (article 51).

[^f00064]: Such a determination must be made in accordance with article 74(2).

[^f00065]: These rules are made by the Carbon Trust Standard Company and are available at: http://www.carbontruststandard.com/LinkClick.aspx?fileticket=k3Ji2d698p4%3d&tabid=159&mid=561&language=en-GB. The Carbon Trust Standard Company Limited may be contacted at: 6th Floor, 5 New Street Square, London EC4A 3BF or at CTS@carbontrust.co.uk.

[^f00066]: 1954 c. 32. Section 6(3) was amended by section 2(3)(a) of the Nuclear Safeguards and Electricity (Finance) Act 1978 (c. 25); section 11(1) of the Nuclear Safeguards Act 2000 (c. 5) and article 4 of and paragraph 29 of Schedule 2 to S.I. 1999/1820.

[^f00067]: 1911 c. 28.

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