Commission Delegated Regulation (EU) 2023/2830, CHAPTER I — GENERAL PROVISIONS (Article 1–Article 3) — Full Text

Subject Matter

Article 1

This Regulation provides for rules on the timing, administration and other aspects of the auctioning of allowances under Directive 2003/87/EC.

Scope

Article 2

This Regulation shall apply to the allocation through auctions of allowances under Directive 2003/87/EC.

Definitions

For the purposes of this Regulation, the following definitions shall apply: (1) ‘two-day spot contracts’ means contracts by which allowances are auctioned for delivery at an agreed date no later than the second trading day following the day of the auction; (2) ‘bid’ means an offer in an auction to acquire a given volume of allowances at a specified price; (3) ‘bidding window’ means the time period during which bids may be submitted; (4) ‘trading day’ means any day during which an auction platform and the clearing system or settlement system connected to it are open for trading; (5) ‘investment firm’ means investment firm as defined in Article 4(1), point (1), of Directive 2014/65/EU; (6) ‘credit institution’ means credit institution as defined in Article 4(1), point (1), of Regulation (EU) No 575/2013 of the European Parliament and of the Council ( 15 ) ; (7) ‘financial instrument’ means financial instrument as defined in Article 4(1), point (15), of Directive 2014/65/EU; (8) ‘secondary market’ means the market in which persons buy or sell allowances either before or after they are allocated either free of charge or through auctioning; (9) ‘parent undertaking’ means parent undertaking as defined in Article 2, point (9), of Directive 2013/34/EU of the European Parliament and of the Council ( 16 ) ; (10) ‘subsidiary undertaking’ means subsidiary undertaking as defined in Article 2, point (10), of Directive 2013/34/EU; (11) ‘affiliate undertaking’ means affiliate undertaking as defined in Article 2, point (12), of Directive 2013/34/EU; (12) ‘control’ means control as referred to in Article 3(2) and (3) of Council Regulation No 139/2004 ( 17 ) ; (13) ‘auction process’ means the process encompassing the setting of the auction calendar, the procedures for admission to bid, the procedures for submission of bids, the conduct of the auction, the calculation and announcement of the auction results, the arrangements for payment of the price due and transfer of auction proceeds, delivery of the allowances and management of the collateral needed to cover any transaction risks, as well as the surveillance and monitoring of the proper conduct of the auctions by an auction platform; (14) ‘money laundering’ means money laundering as defined in Article 1(3), (4) and (6) of Directive (EU) 2015/849 of the European Parliament and of the Council ( 18 ) ; (15) ‘terrorist financing’ means terrorist financing as defined in Article 1(5) and (6) of Directive (EU) 2015/849; (16) ‘criminal activity’ means criminal activity as defined in Article 3, point (4), of Directive (EU) 2015/849; (17) ‘auction platform’ means any public or private entity appointed to carry out the tasks referred to in Articles 27, 28, 30 and 31; (18) ‘common auction platform’ means the auction platform appointed following a joint procurement procedure between the Commission and the Member States, as contracting authorities, pursuant to Article 26(1) (19) ‘opt-out auction platform’ means the auction platform appointed by a Member State not participating in the joint action as provided in Article 26(1), as its own auction platform, pursuant to Article 29(1) (20) ‘auctioneer’ means any public or private entity appointed to carry out the tasks referred to in Article 23; (21) ‘nominated Union Registry account’ means an account in the Union Registry established by Delegated Regulation (EU) 2019/1122; (22) ‘nominated bank account’ means a bank account designated by an auctioneer, a bidder or bidder’s successor in title for the receipt of payments due under this Regulation; (23) ‘customer due diligence measures’ means the customer due diligence measures as referred to in Article 13 of Directive (EU) 2015/849 and the enhanced customer due diligence measures as set out in Articles 18, 18a and 20 of that Directive; (24) ‘beneficial owner’ means beneficial owner as defined in Article 3, point (6), of Directive (EU) 2015/849; (25) ‘duly certified copy’ means an authentic copy of an original document that is certified as being a true copy of the original by a qualified lawyer, accountant, notary public or similar professional who is recognised under the national law of the Member State concerned to attest officially as to whether a copy is in fact a true copy of its original; (26) ‘politically exposed person’ means politically exposed person as defined in Article 3, point (9), of Directive (EU) 2015/849; (27) ‘market abuse’ means market abuse as defined in Article 1 of Regulation (EU) No 596/2014; (28) ‘inside information’ means inside information as defined in Article 7 of Regulation (EU) No 596/2014; (29) ‘insider dealing’ means insider dealing as defined in Article 8 of Regulation (EU) No 596/2014; (30) ‘unlawful disclosure of inside information’ means unlawful disclosure of inside information as defined in Article 10 of Regulation (EU) No 596/2014; (31) ‘market manipulation’ means market manipulation as defined in Article 12 of Regulation (EU) No 596/2014; (32) ‘clearing system’ means an infrastructure connected to the auction platform that provides clearing, margining, netting, management of collateral, settlement and delivery, and any other services, carried out by a central counterparty that is accessed either directly or indirectly through members of the central counterparty who act as intermediaries between their clients and the central counterparty; (33) ‘clearing’ means all processes taking place before the opening of the bidding window, during the bidding window and after the closing of the bidding window until settlement, and involving the management of any risks arising during that interval, including during margining, netting, or novation, or any other services, possibly carried out by a clearing or settlement system; (34) ‘margining’ means the process by which collateral is pledged by an auctioneer or a bidder, or one or more intermediaries acting on their behalf, to cover a given financial position, encompassing the entire process of measuring, calculating and administering the collateral put up to cover such financial positions, and which is intended to ensure that all payment commitments of a bidder and all delivery commitments of an auctioneer or one or more intermediaries acting on their behalf can be met within a very short period of time; (35) ‘settlement’ means payment by a successful bidder or its successor in title, or by a central counterparty or a settlement agent of the sum due for allowances to be delivered to that bidder or its successor in title or to a central counterparty or a settlement agent, and delivery of the allowances to the successful bidder or its successor in title, or to the central counterparty or the settlement agent; (36) ‘central counterparty’ means an entity that interposes either directly between an auctioneer and a bidder or its successor in title, or between intermediaries representing them, and acts as the exclusive counterparty to each of them guaranteeing the payment of the auction proceeds to the auctioneer or an intermediary representing it or the delivery of the auctioned allowances to the bidder or an intermediary representing it; (37) ‘settlement system’ means any infrastructure, whether or not connected to the auction platform, that provides settlement services, which include clearing, netting, management of collateral, or any other services and which ultimately enable the payment of the sum due by a successful bidder or its successor in title to an auctioneer, and the delivery of allowances on behalf of an auctioneer to a successful bidder or its successor in title, where those services are carried out through either of the following: (a) the banking system and the Union Registry; (b) one or more settlement agents acting on behalf of an auctioneer and a bidder or its successor in title, accessing the settlement agent either directly or indirectly through members of the settlement agent who act as intermediaries between their clients and the settlement agent; (38) ‘settlement agent’ means an entity acting as an agent providing accounts to the auction platform, through which accounts instructions for the transfer of the auctioned allowances given by the auctioneer or an intermediary representing it and for the payment of the auction clearing price by a successful bidder, its successor in title or an intermediary representing them are safely executed either simultaneously or nearly simultaneously in a guaranteed manner; (39) ‘collateral’ means collateral security as defined in Article 2, point (m), of Directive 98/26/EC of the European Parliament and of the Council ( 19 ) , including any allowances accepted as security by the clearing system or settlement system; (40) ‘regulated market’ means regulated market as defined in Article 4(1), point (21), of Directive 2014/65/EU; (41) ‘SMEs’ means operators, aircraft operators, shipping companies or regulated entities that are small and medium-sized enterprises within the meaning of Commission Recommendation 2003/361/EC ( 20 ) ; (42) ‘market operator’ means market operator as defined in Article 4(1), point (18), of Directive 2014/65/EU; (43) ‘Member State of establishment’ means any of the following: (a) in the case of persons referred to in Article 6(3), second subparagraph of this Regulation, the Member State where the person has its place of residence or permanent address; (b) in the case of persons referred to in Article 18(1), point (b), and Article 18(2), and of business groupings referred to in Article 18(1), point (d), of this Regulation, home Member State as defined in Article 4(1), point (55)(a), of Directive 2014/65/EU; (c) in the case of persons referred to in Article 18(1), point (c), of this Regulation, home Member State as defined in Article 4(1), point (43), of Regulation (EU) No 575/2013; (d) in the case of a regulated market referred to in Article 33(4), (5) and (6) of this Regulation, home Member State as defined in Article 4(1), point (55)(b), of Directive 2014/65/EU; (44) ‘exit strategy’ means one or more documents that are determined in accordance with the contracts appointing the auction platform concerned and that set out detailed measures planned to ensure the following: (a) the transfer of all tangible and intangible assets necessary for the uninterrupted continuation of the auctions and the smooth operation of the auction process by an auction platform’s successor; (b) the provision of all information relating to the auction process, that is necessary for the procurement procedure for the appointment of the auction platform’s successor; (c) the provision of the technical assistance that enables the contracting authorities or the auction platform’s successor or any combination of these to understand, access or use the relevant assets provided pursuant to points (a) and (b).

Commission Delegated Regulation (EU) 2023/2830 CHAPTER I — GENERAL PROVISIONS

Article 1

Article 2

Article 3

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