Publication
The following shall be published on a dedicated up-to-date auctioning website maintained by the auction platform concerned:
(a)
all legislation, guidance, instructions, forms, documents and announcements, pertinent to the auctions on the auction platform, including the auction calendar;
(b)
any other non-confidential information pertinent to the auctions on the given auction platform, including the list of persons admitted to bid in the auctions;
(c)
any decision, including any decision pursuant to Article 48, to impose a maximum bid-size and any other remedial measures necessary to mitigate an actual or potential discernible risk of money-laundering, terrorist financing, criminal activity or market abuse on the auction platform;
(d)
a list of the names and business addresses, business telephone numbers, business electronic mail addresses and business websites of all persons admitted to bid on behalf of others in auctions conducted by the auction platform.
Information referred to in the first subparagraph which is no longer relevant shall be archived. Such archives shall be accessible through the auctioning website referred to in that subparagraph.
Announcement and notification of the auction results
1. An auction platform shall announce the results of each auction it conducts. The announcement shall contain at least the following information:
(a)
the volume of the allowances auctioned;
(b)
the auction clearing price in euros;
(c)
the total volume of bids submitted;
(d)
the total number of bidders and the number of successful bidders;
(e)
in case of cancellation of an auction, the auctions to which the volume of allowances will be carried over;
(f)
the total revenue earned from the auction;
(g)
the distribution of the revenue between the Member States and the Funds referred to in Article 24, in the case of the common auction platform.
2. The auction platform shall announce the results of each auction as soon as reasonably practicable. The information referred to in paragraph 1, points (a) and (b), shall be announced no later than 5 minutes after the close of the bidding window, whereas the information referred to in paragraph 1, points (c) to (g), shall be announced no later than 15 minutes after the close of the bidding window.
3. At the same time as the auction platform announces the information referred to in paragraph 1, points (a) and (b), it shall notify each successful bidder of the following:
(a)
the total number of allowances to be allocated to that bidder;
(b)
which of its tied bids, if any, were randomly selected;
(c)
the payment due either in euros or in the currency of a Member State not member of the euro-zone, chosen by the bidder provided that the clearing system or settlement system is capable of handling the national currency in question;
(d)
the date by which the payment due must be paid in cleared funds into the auctioneer’s nominated bank account.
4. Where the currency chosen by the bidder is not euros an auction platform shall notify a successful bidder of the exchange rate, as referred to in Article 35(4), it has used to calculate the amount due in the currency chosen by the successful bidder.
5. An auction platform shall inform the relevant clearing system and settlement system connected to it of the information notified pursuant to paragraph 3.
Protection of confidential information
1. The following shall constitute confidential information:
(a)
the contents of a bid;
(b)
the contents of any instructions to bid even when no bid is submitted;
(c)
information which discloses, or from which can be deduced, the identity of the bidder in question and either of the following:
(i)
the number of allowances which a bidder wishes to acquire in an auction;
(ii)
the price which a bidder is willing to pay for those allowances;
(d)
information about, or derived from, one or more bids or instructions to bid which either separately or collectively are likely to:
(i)
give an indication as to the demand for allowances prior to any auction;
(ii)
give an indication as to the auction clearing price prior to any auction;
(e)
information provided by persons in the framework of the establishment or maintenance of the relationship with bidders or in the framework of the monitoring of that relationship pursuant to Articles 19, 20, 21 and 45;
(f)
business secrets provided by persons participating in a competitive procurement process to appoint an auction platform;
(g)
information on the algorithm used for the random selection of tied bids, referred to in Article 7(1), second subparagraph;
(h)
information on the methodology to establish what constitutes an auction clearing price significantly under the prevailing secondary market price before and during an auction, referred to in Article 7(7).
2. Confidential information shall not be disclosed by any person who obtained that information, whether directly or indirectly, except as provided for in paragraph 3.
3. Paragraph 2 shall not prevent the disclosure of confidential information which:
(a)
has already lawfully been made available to the public;
(b)
is made public with the written consent of a bidder, a person admitted to bid, or a person applying for admission to bid;
(c)
is required to be disclosed or to be publicly available by Union law;
(d)
is made public pursuant to a court order;
(e)
is disclosed or made public for the purposes of any criminal, administrative, or judicial investigations or proceedings carried out in the Union;
(f)
is aggregated or redacted prior to its disclosure, so that it is unlikely that information relating to the following is discernible:
(i)
individual bids or instructions to bid;
(ii)
individual auctions;
(iii)
individual bidders, prospective bidders or persons applying for admission to bid;
(iv)
individual applications for admission to bid;
(v)
individual relationships with bidders;
(g)
is referred to in paragraph 1, point (f), provided that it is disclosed to persons working for Member States or the Commission involved in the competitive procurement process referred to in that point, who are themselves bound by an obligation of professional secrecy under their terms of employment;
(h)
is made public after the end of a period of 30 months starting from the following dates, subject to any subsisting professional secrecy obligations under Union law:
(i)
for information referred to in paragraph 1, points (a) to (d), the date of the opening of the bidding window of the auction in which the confidential information is first disclosed;
(ii)
for information referred to in paragraph 1, point (e), the date of the termination of the relationship with the bidder;
(iii)
for information referred to in paragraph 1, point (f), the date of submission of the information in the competitive procurement process.
4. The measures required to ensure that confidential information is not wrongfully disclosed and the consequences of any such wrongful disclosure by an auction platform, including any persons contracted to work for it, shall be set out in the contract appointing the auction platform.
5. Confidential information obtained by an auction platform, including any persons contracted to work for it, shall be used solely for the purpose of the performance of its obligations or the exercise of its tasks with respect to the auctions.
6. Paragraphs 1 to 5 shall not preclude the exchange of confidential information between an auction platform and any of the following:
(a)
the competent national authorities supervising an auction platform;
(b)
the competent national authorities responsible for investigating and prosecuting money laundering, terrorist financing, criminal activity or market abuse;
(c)
the Commission.
Confidential information exchanged under this paragraph shall not be disclosed to other persons than those referred to in the first subparagraph, points (a), (b) and (c).
7. Any person who works, or has worked for, an auction platform involved in the auctions, shall be bound by the obligation of professional secrecy and shall ensure that confidential information is protected pursuant to this Article.
Language regime
1. Written information provided by an auction platform pursuant to Article 51(1) or under the contract appointing it, which is not published in the Official Journal of the European Union , shall be in a language customary in the sphere of international finance.
2. Any Member State may provide, at its own cost, for the translation of the information referred to in paragraph 1 into the official language or languages of that Member State.
Where a Member State provides, at its own cost, for the translation of all information referred to in paragraph 1 provided by the common auction platform, any Member State having appointed an opt-out auction platform shall also provide, at its own cost, for the translation into the same languages of all information referred to in paragraph 1 provided by that opt-out auction platform.
3. Applicants for admission to bid and persons admitted to bid may submit the following in the language referred to in paragraph 4, provided that a Member State has decided to provide for a translation into that language in accordance with paragraph 2:
(a)
their applications for admission to bid, including any supporting documents;
(b)
their bids, including any withdrawal or modifications thereof;
(c)
any queries relating to point (a) or (b).
An auction platform may request a certified translation of the information referred to in the first subparagraph into a language customary in the sphere of international finance.
4. Applicants for admission to bid, persons admitted to bid and bidders participating in an auction shall choose any official language of the Union in which they shall receive all notifications made pursuant to Article 8(3), Article 20(8), Article 21(4) and Article 52(3).
Where a Member State has decided to provide for a translation in accordance with paragraph 2 in the language referred to in the first subparagraph, all other oral or written communication by an auction platform to applicants for admission to bid, persons admitted to bid or bidders participating in an auction shall also be made in that language at no additional cost to the applicants, persons and bidders in question.
However, even where a Member State has decided to provide for a translation into the language referred to in the first subparagraph in accordance with paragraph 2, the applicant for admission to bid, the person admitted to bid or the bidder participating in an auction may waive its right under the second subparagraph of this paragraph by giving prior written consent for the auction platform concerned to use only a language customary in the sphere of international finance for communication referred to in that subparagraph.
5. Member States shall be responsible for the accuracy of any translation made pursuant to paragraph 2.
Persons submitting a translation of a document referred to in paragraph 3 and any auction platform notifying a translated document under paragraph 4 shall ensure that it is an accurate translation of the original document.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
