The CRC Energy Efficiency Scheme Order 2010

• Citation: S.I. 2010/768
• Sections: 270

Section 1 Citation and commencement

This Order may be cited as the CRC Energy Efficiency Scheme Order 2010 and comes into force on the fifth day after it is made.

Section 2 The trading scheme: phases and application

(1) This Order establishes a trading scheme in relation to scheme activities for a trading period of seven phases which comprise—

(a) a first phase of three years commencing on 1st April 2010;

(b) a second phase of seven years commencing on 1st April 2011;

(c) subsequent phases of seven years commencing as shown in the following table—

Third to seventh phases: commencement dates

(2) This Order does not apply to an organisation which enjoys an exemption or relief from taxes under Schedule 1 to the International Organisations Act 1968 .

Section 3 Interpretation

In this Order—

“the 2000 Act” means the Freedom of Information Act 2000 ;

“ account holder ” means the public body, undertaking or other person in whose name an account in the Registry is held;

“ achievement table ” has the meaning given by article 75(3);

“the Act” means the Climate Change Act 2008;

“ the administrator ” has the meaning given by article 9;

“ allowance ” means a tradeable allowance issued under regulations made by the Treasury under section 21 of the Finance Act 2008 ;

“ annual report ” means the report described in article 49;

“ annual reporting year ” means—

in respect of the first phase, each year of that phase;

in respect of the second and subsequent phases, the second and subsequent years of that phase;

“ applicant ” means—

a public body or group of public bodies; or

an undertaking or group of undertakings,

required to submit an application for registration as a participant under Part 2 or Schedule 6;

“ authorised supplier ” means—

in respect of electricity, a person who is licensed to supply electricity (or is exempt from requiring a licence to do so) as defined by—

section 64(1) of the Electricity Act 1989 ; or

Article 8(1)(c) of the Electricity (Northern Ireland) Order 1992 ;

in respect of gas, a person who is licensed to supply gas (or is exempt from requiring a licence to do so) as defined by—

section 48(1) of the Gas Act 1986 ; or

Article 6(1)(c) of the Gas (Northern Ireland) Order 1996 ;

“ blocking ” has the meaning given by article 105(3);

“ cancellation account ” means the account provided by the administrator into which allowances must be surrendered by a participant in compliance with article 53;

“CCA” means a climate change agreement within the meaning given in paragraph 46 of Schedule 6 to the Finance Act 2000 ;

“CCA emissions” has the meanings given by paragraph 12(3) of Schedule 5;

“CCA facility” means a facility which is subject to a CCA target;

“CCA target” means a target in respect of energy use or carbon emissions under a CCA;

“CCA target period” means a period referred to as a target period in a CCA or in any rules applicable to a CCA in which a CCA target is to be achieved;

“ charitable purpose ” has the meaning given by—

section 2 of the Charities Act 2006 in relation to England and Wales;

section 7(2) of the Charities and Trustee Investment (Scotland) Act 2005 in relation to Scotland;

section 2 of the Charities Act (Northern Ireland) 2008 in relation to Northern Ireland;

“charge” and “charging” have the meanings given in Part 11;

“ Chief inspector ” means the Chief inspector constituted under regulation 8(3) of the Pollution Prevention and Control Regulations (Northern Ireland) 2003 ;

“ civil penalty ” means a penalty which may be imposed under Part 14;

“ Community tradeable emissions allowances ” has the meaning given by Article 3a of the EU ETS Directive;

“ compliance account ” means the account of a participant from which allowances must be surrendered to the cancellation account in compliance with article 53;

“ core emissions ” has the meaning given by article 42(3);

“ core supply ” means a supply of electricity or gas described in Schedule 2;

“CRC” means carbon reduction commitment;

“CRC emissions” has the meaning given by article 50(1);

“CRC supplies” has the meaning given by article 50(2);

“ day ” means a working day unless provided to the contrary;

“daily meter” applies in relation to a supply of gas and has the meaning given by paragraph 7 of Schedule 2;

“ domestic accommodation ” has the meaning given by paragraph 16(3) of Schedule 1;

“ dynamic supply ” means a supply of electricity described in paragraph 5 of Schedule 2;

“ early action ” has the meaning given by paragraph 5(2) of Schedule 8;

“ electricity generating credit ” has the meaning given by article 31(2) but where it applies other than in Part 3, reference to “applicant” in that expression is to be read as a reference to “participant”;

“ enforcement notice ” has the meaning given by article 91;

“EU ETS Directive” means Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC , as amended from time to time;

“EU ETS emissions” has the meanings given by paragraph 12(2) of Schedule 5;

“EU ETS installation” means—

an activity or installation within scope of the EU ETS Directive; and

any additional activity not included within Annex I of that Directive but approved in the United Kingdom under Article 24,

but not an installation approved as excluded in the United Kingdom under Article 27;

“exemption CCA target period” has the meaning given by article 29;

“ footprint emissions ” has the meaning given by article 41;

“ footprint report ” has the meaning given by article 39(1)(a);

“ footprint year ” means the first year of each phase;

“franchise” and the related expressions, “franchise agreement”, “ franchise premises ”, “ franchisee ” and “ franchisor ” have the meanings given in section 3 of Schedule 1;

“ fuel ” has the meaning given by paragraph 3(3) of Schedule 1;

“general CCA exemption” has the meaning given by article 33;

“ generated and supplied electricity ” has the meaning given by article 31(1)(d);

“ government decision ” has the meaning given by paragraph 14 of Schedule 3;

“ group ” has the meaning given by—

paragraph 6 of Schedule 3, in respect of public bodies;

paragraph 1 of Schedule 4, in respect of undertakings;

“group CCA exemption” has the meaning given by article 34;

“ group undertaking ” has the meaning given by paragraph 1 of Schedule 4;

“ highest parent undertaking ” has the meaning given by paragraph 1 of Schedule 4;

“hourly meter” applies in relation to a supply of gas and has the meaning given by paragraph 8(1) of Schedule 2;

“ independent college group ” has the meaning given by article 21(1)(b)(ii);

“kWh” means kilowatt hour or hours;

“ local authority decision ” has the meaning given by paragraph 16 of Schedule 3;

“member CCA exemption” has the meaning given by article 32;

“MWh” means megawatt hour or hours;

“non-settled half hourly meter” applies in relation to a supply of electricity and has the meaning given by paragraph 3(1) of Schedule 2;

“ participant ” means the following registered by the administrator as a participant—

a public body or group of public bodies; or

an undertaking or group of undertakings,

which carries out a scheme activity; and where a participant is a group, subject to Schedule 6, the participant constitutes the members from time to time of that group;

“ performance table ” has the meaning given by article 77(1);

“ phase ” means one of the seven phases of the scheme described in article 2(1);

“ post-qualification period ” has the meaning given by article 27;

“ premises ” means any—

land, vehicle or vessel; or

plant which is designed to move or be moved whether on roads or otherwise;

“ principal place of activity ” means the principal place in the United Kingdom—

where the applicant or participant carries on the scheme activity applicable to it; or

if an applicant or participant carries on more than one scheme activity, where it carries on the main scheme activity;

“ publication ” has the meaning given by article 105(3);

“ public function ” means any activity carried out by a public body;

“ public body ” has the meaning given in section 1 of Schedule 3;

“ qualification day ” means the last day of a qualification year;

“ qualification criteria ” means that—

an applicant is supplied with electricity by a settled half hourly meter;

qualifying electricity is supplied to it for the purposes of a scheme activity; and

the amount of that qualifying electricity satisfies the qualifying amount;

“ qualification year ” means—

in respect of the first phase, the 2008 calendar year;

in respect of the second and subsequent phases, the year immediately before the beginning of the phase;

“ qualifying amount ” means 6000 MWh or more;

“ qualifying electricity ” means electricity supplied to a public body or undertaking in accordance with sections 1 to 5 of Schedule 1—

measured by a meter described in paragraph 1 of Schedule 2 except a non-domestic meter; or

which is a dynamic supply;

“ the Registry ” has the meaning given by article 68;

“ relative change ” has the meaning given by paragraph 2 of Schedule 8;

“ renewables generation ” has the meaning given by paragraph 28 of Schedule 1;

“ residual measurement list ” has the meaning given by article 44(4);

“ residual supplies ” has the meaning given by article 44(5);

“ROC” means a renewables obligation certificate issued further to an order made under—

sections 32 to 32M of the Electricity Act 1989 ; or

Articles 52 to 55F of the Energy (Northern Ireland) Order 2003 ;

“ scheme ” means the trading scheme established by this Order;

“ scheme activity ” means to carry on a business or a public function or an activity which has a charitable purpose;

“settled half hourly meter” applies in relation to a supply of electricity and has the meaning given by paragraph 2(1) of Schedule 2;

“ significant group undertaking ” has the meaning given by paragraphs 2 and 4 of Schedule 4;

“tCO 2 ” means tonne or tonnes of carbon dioxide;

“ third party ” means a person, other than a participant, for whom the administrator has opened an account in the Registry;

“ total emissions ” has the meaning given by article 30;

“ transport consumption ” has the meaning given by paragraph 19 of Schedule 1;

“ turnover ” means—

where a participant is an undertaking or group of undertakings, its turnover as defined in section 474(1) of the Companies Act 2006 as if that section—

applied to undertakings as defined in this Order; but

did not apply to turnover arising outside the United Kingdom;

or

where a participant is a public body or group of public bodies, the revenue expenditure of the participant;

“ undertaking ” has the meaning given in paragraph 1 of Schedule 4;

“ unit of turnover ” means turnover expressed in pounds sterling rounded up to the nearest pound;

“ vessel ” means, except under paragraph 22 of Schedule 1, any boat or ship;

“ working day ” means 9 am to 5 pm on Mondays to Fridays excluding—

bank holidays within the meaning of section 1 of the Banking and Financial Dealings Act 1971 , including those bank holidays in part only of the United Kingdom;

Good Friday; and

when it falls on a day that would otherwise be a working day, Christmas Day;

“ year ” means (except for the qualification year in respect of the first phase) 1st April to the following 31st March, inclusive of those dates.

Section 4 Supplies and emissions

As provided under this Order, Schedule 1 (supplies and emissions) has effect concerning—

(a) whether a supply is made of electricity, gas or fuel;

(b) the amount of such a supply; and

(c) the emissions from such a supply.

Section 5 Registration and requirements of participants and others

(1) Part 2 provides for registration as a participant for a phase of the scheme.

(2) Part 3 provides for exemptions from certain requirements of this Order.

(3) Subject to any exemption, in respect of a phase a participant must comply with—

(a) Part 4 to provide a footprint report and to compile a residual measurement list;

(b) Part 5 to provide annual reports on CRC supplies;

(c) Part 6 to surrender allowances equal to the participant’s CRC emissions;

(d) Part 7 to keep and audit records relating to the requirements of Parts 2 to 6.

(4) The following have effect in respect of Parts 2 to 7—

(a) Schedule 2 (core supplies);

(b) Schedule 3 (public bodies);

(c) Schedule 4 (undertakings and significant group undertakings);

(d) Schedule 5 (information);

(e) Schedule 6 (changes to participants).

(5) Part 8 provides for persons to provide information and assistance to participants and the administrator.

Section 6 Powers and duties of the administrator

The administrator has the powers and duties set out under the following Parts of this Order—

(a) Part 9 to administer the scheme;

(b) Part 10 to compile and publish achievement and performance tables;

(c) Part 11 to impose charges;

(d) Part 12 to monitor compliance;

(e) Part 13 to enforce failures to comply with this Order.

Section 7 Penalties, offences and appeals

(1) A participant which fails to comply with this Order may be liable under—

(a) Part 14 to a civil penalty;

(b) Part 15 to a criminal penalty.

(2) Part 16 provides for appeals.

Section 8 Groups: liability to comply with this Order

(1) Paragraph (2) applies where an applicant or a participant is—

(a) a group of undertakings; or

(b) an independent college group.

(2) Each member of a group described in paragraph (1)—

(a) is jointly and severally liable to comply with requirements placed on the group under Parts 2 to 14;

(b) may be liable to a criminal penalty under Part 15.

(3) For a group of public bodies (except an independent college group)—

(a) the body listed in article 73(4) which is a member of that group is liable to comply with Part 2 and not any other member of the group;

(b) the body in whose name the compliance account is set up is liable to comply with requirements placed on the group under Parts 4 to 14 and not any other member of the group;

(c) subject to article 110, any member of that group may be liable to a criminal penalty under Part 15.

Section 9 The administrator

(1) Reference to “the administrator” in the provisions which appear in—

(a) column 1 of the following table, means the Environment Agency;

(b) column 2 of the following table, subject to paragraphs (2) and (3), means—

(i) the Environment Agency, in respect of England and Wales;

(ii) the Scottish Environment Protection Agency, in respect of Scotland;

(iii) the Chief inspector, in respect of Northern Ireland.

Table of provisions

(2) Where the administrator is a participant, reference to “the administrator” in Parts 12 to 14 means, where the participant is—

(a) the Environment Agency, the Secretary of State;

(b) the Scottish Environment Protection Agency, the Scottish Ministers;

(c) the Chief inspector, the Department of the Environment.

(3) The administrator may exercise the powers in Parts 12 to 14 anywhere in the United Kingdom.

Section 10 Co-operation and provision of information

(1) The bodies constituting the administrator must—

(a) co-operate with each other; and

(b) provide each other with such of the information provided to or obtained by them under any of Parts 2 to 6, 8 to 10, 12 or 13 of this Order as they may require to enable them to carry out their duties as an administrator under this Order.

(2) The administrator must provide to a national authority such of the information described in paragraph (1)(b) as that authority may lawfully require in relation to compliance with and enforcement of this Order.

Section 11 Applications, information and charges

(1) A requirement to apply for registration as a participant means that an application for registration must—

(a) be made to the administrator and, unless otherwise agreed by the administrator, be made using the Registry; and

(b) include—

(i) the information in section 1 of Schedule 5; and

(ii) the charge for registration as a participant under article 81.

(2) When requested by the administrator, the applicant must provide such suitable and up to date evidence of identity as the administrator may require in respect of—

(a) the intended account holder of the compliance account; and

(b) the individuals who will access the compliance account.

(3) The administrator may require other information from applicants or any particular applicant in order to effect a registration.

(4) The requirements to apply for registration as a participant under this Part apply in respect of each phase.

Section 12 Time for applications

An application for registration as a participant under this Part must be made in respect of—

(a) the first phase, on or before 30th September 2010;

(b) the second and subsequent phases, within 6 months of the beginning of the phase.

Section 13 Registration and certificates

(1) Where the administrator is satisfied that an application has been duly made, it must—

(a) register the applicant as a participant;

(b) issue a certificate of registration to the participant, the certificate to be in such form as the administrator thinks fit.

(2) An applicant registered under paragraph (1) is a participant for the relevant phase, unless the administrator cancels that registration.

(3) The administrator must maintain an up to date list of participants.

Section 14 Government departments and the devolved administrations

(1) The following public bodies must apply for registration as a participant—

(a) a government department;

(b) the Scottish Ministers;

(c) the Welsh Assembly Government;

(d) a Northern Ireland Department;

(e) a public body in respect of which a local authority decision is made.

(2) Where a public body listed in paragraph (1) is a member of a group, paragraph (1) applies to that group.

(3) Paragraph (1) is not satisfied in respect of a body described in sub-paragraphs (a) to (d) where part only of that body is registered as a participant.

Section 15 Other public bodies

(1) Paragraph (2) applies to a public body except a public body to which article 14 or chapter 3 applies.

(2) Except where a government decision provides to the contrary, for the purposes of articles 16 and 17, whether—

(a) a group exists or not; and

(b) whether a public body is or is not a member of a group,

are matters determined on the qualification day of the qualification year, whatever applied earlier in that year.

Section 16 Public bodies: applications by groups

(1) Paragraph (2) applies to a group of public bodies except a group to which article 14(2) or chapter 3 applies.

(2) Where this paragraph applies, the group must apply for registration as a participant where during the qualification year for the phase or any part of that year, it meets the qualification criteria.

Section 17 Public bodies: applications other than by groups

(1) Paragraph (2) applies to a public body which is not a member of a group and is not a body to which article 14(1) or chapter 3 applies.

(2) Where this paragraph applies, the public body must apply for registration as a participant in respect of a phase where during the qualification year for that phase or any part of that year, it meets the qualification criteria.

Section 18 Determinations by the administrator

(1) Subject to paragraph (3), the administrator may determine whether or not a public body is a member of a group.

(2) Paragraph (1) does not apply to a public body or group to which any of the following apply—

(a) chapter 3;

(b) paragraph 7, 8 or 9 of section 2 of Schedule 3;

(c) a government decision or local authority decision.

Section 19 Universities and colleges: England

(1) This chapter applies to governing bodies of a college of a university and a university—

(a) described in Part IV of Schedule 1 to the 2000 Act; and

(b) where the university is wholly or mainly situated in England.

(2) For the purposes of this chapter, whether a college is a college of a university is determined on the qualification day of the qualification year, whatever applied earlier in that year.

Section 20 Qualifying electricity

(1) The governing bodies of colleges of a university and the university (“the university and colleges”) are a group for the purposes of paragraph (2) whether or not those bodies have a legal identity separate from each other.

(2) Articles 21 and 22 apply where the university and colleges meet the qualification criteria.

(3) Where the university and colleges do not meet the qualification criteria, none of them are required to apply for registration as a participant in respect of a phase.

Section 21 Universities and colleges: groups

(1) Where this article applies—

(a) the governing body of a college of the university which has a legal identity separate from the governing body of the university is “an independent college”;

(b) for the purposes of article 22—

(i) the university and colleges are a group but that group does not include an independent college unless the university and colleges and the independent college otherwise agree;

(ii) an independent college which is not part of the group under paragraph (i) may agree with another such independent college to form a group (“an independent college group”).

(2) Any agreement under sub-paragraph (1) must be made before the group makes an application for registration.

Section 22 Applications

(1) Where this article applies, the following which exist must apply for registration as separate participants in respect of a phase—

(a) the university and colleges;

(b) an independent college group;

(c) an independent college which is not a member of (a) or (b).

(2) The administrator must be notified with the application—

(a) by the university and colleges—

(i) whether or not an independent college is a member of the group; and

(ii) if not, the identity of the college;

(b) by an independent college or an independent college group, the identity of the university.

Section 23 Groups of undertakings

(1) This article applies to undertakings.

(2) For the purposes of articles 24 to 26—

(a) whether a group exists or not; and

(b) whether an undertaking is or is not a member of a group,

are matters determined on the qualification day of the qualification year, whatever applied earlier in that year.

(3) Subject to article 27, any change in the members of a group after the qualification day is to be ignored for the purposes of this Part.

Section 24 Undertakings: applications by groups

(1) This article applies to a group of undertakings but is subject to article 27.

(2) The group must apply for registration as a participant in respect of a phase where during the qualification year for the phase or any part of that year, it meets the qualification criteria.

Section 25 Undertakings: applications by significant group undertakings

(1) Paragraph (2) applies where a group (“ A ”) includes a significant group undertaking (“ B ”) and A—

(a) satisfies article 24(2) and would do so if it did not include B;

(b) is not subject to article 27; and

(c) complies with article 11 at least 3 months before the time required under article 12.

(2) Where this paragraph applies, A may in the application under article 11 request the administrator to register A and B as separate participants.

(3) Where such a request is made—

(a) the administrator must notify A and B as soon as possible whether or not it agrees to it; and

(b) if it does, B may make an application in accordance with article 11 if it does so by the time required under article 12.

(4) Where—

(a) the request is not agreed; or

(b) it is but B does not make an application or not in the time required,

the application by A under article 11 includes B as a member of A.

Section 26 Undertakings: applications other than by groups

Subject to article 27, an undertaking must apply for registration as a participant in respect of a phase where—

(a) it is not a member of a group; and

(b) during the qualification year for that phase or any part of that year, it meets the qualification criteria.

Section 27 Changes to undertakings and groups

(1) Paragraph (2) applies where—

(a) a requirement to register applies to a group or undertaking under article 24 or 26; and

(b) a change described in section 1 of Part 3 of Schedule 6 applies to that group or undertaking after the qualification day but before the group or undertaking makes an application for registration within the time provided under article 12 (“the post-qualification period”).

(2) Where this paragraph applies—

(a) a group or undertaking to which article 24 or 26 would otherwise apply must instead register as a participant as provided by section 1 of Part 3 of Schedule 6; and

(b) other undertakings affected by such change must comply with that section.

Section 28 Determinations by the administrator

The administrator may determine whether or not—

(a) an undertaking is a member of a group;

(b) article 27(2) applies to a group or an undertaking.

Section 29 CCA emissions and target periods

(1) In this Part—

(a) an applicant or, where an applicant is a group, a member of that applicant has CCA emissions where it operates a CCA facility;

(b) subject to article 36, “exemption CCA target period” means the CCA target period which ends in the qualification year for the phase.

(2) Where, in respect of the first phase, the exemption CCA target period ends at the end of 31st December 2008, that target period is deemed to end within the qualification year.

(3) This Part does not apply to a public body to which article 14 applies.

Section 30 Total emissions

(1) “ Total emissions ” means—

(a) the sum of—

(i) EU ETS emissions and CCA emissions as defined by one of the ways given in paragraph 12 of Schedule 5 as chosen by the applicant; and

(ii) emissions calculated in accordance with paragraph 29 of Schedule 1 in respect of the amount of electricity, gas and fuel supplied to the applicant calculated in accordance with sections 1 to 5 of Schedule 1 but excluding any supplies in respect of which emissions are included under paragraph (i);

and

(b) deducting any electricity generating credit of the applicant.

(2) In this Part, total emissions are calculated in respect of the exemption CCA target period.

Section 31 Electricity generating credit

(1) In article 30, “electricity generating credit” applies where—

(a) an applicant generates electricity;

(b) the applicant is not issued with a ROC and is not in receipt of a financial incentive made by virtue of section 41 of the Energy Act 2008 in respect of that generation;

(c) the generation does not occur at a place described in paragraph (3); and

(d) the electricity generated is supplied to a public body or undertaking and that supply is a supply of electricity under paragraph 1 or 6 of Schedule 1, such electricity being “the generated and supplied electricity”.

(2) Electricity generating credit is the amount of emissions calculated in accordance with paragraph 29 of Schedule 1 in respect of the generated and supplied electricity.

(3) The places referred to in paragraph (1) are—

(a) an EU ETS installation where electricity is generated;

(b) a nuclear power station;

(c) a hydro-generating station which was ineligible for a ROC.

(4) In paragraph (3), “ hydro-generating station ” has the meaning given by article 2(1) of the Renewables Obligation Order 2009 and as if that article applied to Scotland and Northern Ireland.

Section 32 Member CCA exemptions

(1) Paragraph (2) applies where an applicant—

(a) consists of a group; and

(b) during the exemption CCA target period, a member of the group has CCA emissions which are more than 25% of the total emissions of that member.

(2) Where this paragraph applies and where the applicant complies with article 35 or 36, as a participant it has a member CCA exemption in respect of such a member.

Section 33 General CCA exemptions

(1) Paragraph (2) applies where an applicant—

(a) does not consist of a group; and

(b) during the CCA target period, has CCA emissions which are more than 25% of its total emissions.

(2) Where this paragraph applies and where the applicant complies with article 35 or 36, as a participant it has a general CCA exemption.

Section 34 Group CCA exemptions

(1) Paragraph (3) applies where—

(a) an applicant consists of a group; and

(b) X minus Y is less than 1000 MWh.

(2) In paragraph (1)—

“ X ” means the amount of qualifying electricity supplied to the applicant;

“ Y ” means—

where a member of the group satisfies article 32(1)(b), the amount of X which is supplied to each member of the group which satisfies that article; or

where no member of the group satisfies article 32(1)(b), zero.

(3) Where this paragraph applies and where the applicant complies with article 35 or 36, as a participant it has a group CCA exemption.

Section 35 Requirements for exemptions to apply: general

Where an applicant intends that an exemption applies to it, the applicant must provide the following information with the application for registration under article 11—

(a) which exemption applies; and

(b) the information required under paragraph 7 of Schedule 5, as applicable to the exemption.

Section 36 Requirements for exemption to apply: exception

(1) Paragraph (2) applies where—

(a) a participant does not comply with article 35; and

(b) an exemption applies to the participant under articles 32 to 34 if the exemption CCA target period means the CCA target period which ends in the footprint year.

(2) Where this paragraph applies and a participant intends that an exemption applies to it, the participant must provide the information in article 35(a) and (b) when it complies with article 39.

Section 37 Effect of exemptions and records

(1) Subject to article 38—

(a) except where sub-paragraph (b) applies, as a participant, an applicant is exempt from Parts 4 to 7 of this Order for the phase where a general CCA exemption or a group CCA exemption applies to it;

(b) where a participant complies with article 36, the participant is exempt from Parts 5 to 7 of this Order for that phase where a general CCA exemption or a group CCA exemption applies to it.

(2) In respect of each year of the phase where the participant is exempt under paragraph (1), it must keep records of the information in paragraph 7 of Schedule 5.

Section 38 Loss of exemptions and further exemptions

(1) Where—

(a) a participant has a member CCA exemption; and

(b) the member to which the exemption applies ceases to be a member of the participant,

the member CCA exemption does not apply for the subsequent years of the phase after the year in which sub-paragraph (b) applies.

(2) Where in a year of a phase, the member of a participant to which a member CCA exemption applies does not have energy use or carbon emissions subject to a CCA target, the member CCA exemption does not apply—

(a) in the next year of the phase; and

(b) any subsequent year where the member does not have energy use or carbon emissions subject to a CCA target.

(3) Where in a year of a phase, a participant which has a general CCA exemption does not have energy use or carbon emissions subject to a CCA target, the general CCA exemption does not apply—

(a) in the next year of the phase; and

(b) any subsequent year where the participant does not have energy use or carbon emissions subject to a CCA target.

(4) Where in a year of a phase, a participant has a group CCA exemption and—

(a) paragraph (1) or (2) applies;

(b) the calculation in article 34(1) is made excluding the members to which a member CCA exemption is not to apply by reason of those paragraphs; and

(c) by that calculation, a group CCA exemption would not apply,

the group CCA exemption does not apply in the next year of the phase and any subsequent year where by such a calculation, a group CCA exemption would not apply.

(5) Where an exemption does not apply as provided under this article, the participant must notify the administrator of that fact when it provides, as applicable, the footprint report or the annual report.

(6) Where article 46 or 51 applies, further exemptions apply under section 2 of Part 3 of Schedule 6.

Section 39 Provision of footprint reports

(1) Subject to articles 37 and 40, a participant must—

(a) provide to the administrator the information in section 2 of Schedule 5 (“a footprint report”); and

(b) unless otherwise agreed by the administrator, provide the footprint report using the Registry.

(2) A participant must comply with paragraph (1) by no later than the last working day of July after the end of the footprint year.

(3) Where by 40 days after the due date, a participant has failed to provide a footprint report, the administrator may determine the footprint report.

Section 40 Member CCA exemptions

Where a participant has a member CCA exemption—

(a) the provision of information on supplies and emissions in the footprint report; and

(b) reference to supplies or emissions of the participant under the following articles in this Part,

excludes any supplies or emissions of a member of the group to which a member CCA exemption applies.

Section 41 Footprint emissions

(1) “ Footprint emissions ” means the emissions listed in paragraph (2) during the footprint year but deducting any electricity generating credit of the participant during that year.

(2) The emissions referred to in paragraph (1) are—

(a) EU ETS emissions;

(b) CCA emissions;

(c) emissions calculated in accordance with paragraph 29 of Schedule 1 from footprint supplies.

(3) The lowest value of footprint emissions is zero.

(4) In paragraph (2), EU ETS emissions and CCA emissions are such emissions as defined by one of the ways given in paragraph 12 of Schedule 5 as chosen by the participant.

(5) In paragraph (2)(c), “ footprint supplies ” means—

(a) the amount of electricity, gas and fuel supplied to the participant calculated in accordance with sections 1 to 6 of Schedule 1; but

(b) excluding—

(i) supplies of gas and fuel made to an EU ETS installation; or

(ii) supplies of electricity, gas and fuel made to a CCA facility to which a member CCA exemption does not apply.

Section 42 Requirement for residual measurement lists

(1) Subject to article 37, a participant must compile a residual measurement list where the percentage which its emissions described in paragraph (2) bear to footprint emissions is less than the residual percentage.

(2) The emissions referred to in paragraph (1) are—

(a) core emissions;

(b) EU ETS emissions; and

(c) CCA emissions.

(3) In paragraph (2), “ core emissions ” means—

(a) emissions calculated in accordance with paragraph 29 of Schedule 1 in respect of core supplies less the deductions from those supplies under sections 4 and 5 of Schedule 1; but

(b) excluding—

(i) core supplies of gas made to an EU ETS installation; or

(ii) core supplies of electricity and gas made to a CCA facility to which a member CCA exemption does not apply.

Section 43 Residual percentage

(1) Subject to paragraph (3), “the residual percentage” referred to in article 42(1) is 90%.

(2) Paragraph (3) applies—

(a) to the second and subsequent phases; and

(b) where a participant compiled a residual measurement list for the immediately previous phase.

(3) Where this paragraph applies, “the residual percentage” referred to in paragraph (1) is the higher of—

(a) 90%; or

(b) where it applies, the percentage which the sum of emissions described in paragraph (4) bears to footprint emissions.

(4) The emissions referred to in paragraph (3) are—

(a) the emissions from residual supplies in the residual measurement list in the penultimate year of the previous phase; and

(b) the emissions described in article 42(2) in the footprint year.

Section 44 Content of residual measurement lists

(1) Paragraph (2) applies where a participant is required to compile a residual measurement list under article 42.

(2) Where this paragraph applies, a participant must compile a list of residual supplies such that the percentage which—

(a) the emissions from those supplies; and

(b) the emissions described in article 42(2),

bear to footprint emissions is at least equal to the residual percentage referred to in article 43.

(3) A participant may—

(a) include in its list of residual supplies more residual supplies than required under paragraph (2);

(b) compile a list of residual supplies although it is not required to do so under article 42.

(4) The list of residual supplies compiled under—

(a) paragraph (2) including any additional residual supplies under paragraph (3)(a); or

(b) paragraph (3)(b),

is the participant’s residual measurement list.

(5) “ Residual supplies ” means supplies which the participant expects to be made to it during the annual reporting years of a phase which if made in the footprint year would be the participant’s footprint supplies other than core supplies.

Section 45 Compilation of residual measurement lists

The residual measurement list must be compiled by the last working day of July after the end of the footprint year.

Section 46 Changes affecting participants

Subject to article 37, where changes affecting a participant take place in a footprint year as described in Part 1 or 2 or section 2 of Part 3 of Schedule 6—

(a) the participant; and

(b) in respect of section 2 of Part 3 of Schedule 6, undertakings which are not participants,

must comply with such of those provisions as are applicable to them.

Section 47 Provision of annual reports

(1) Subject to articles 37 and 48, a participant must provide to the administrator a report which complies with article 49 on its CRC supplies during an annual reporting year (“an annual report”).

(2) A participant must provide the annual report—

(a) unless otherwise agreed by the administrator, using the Registry; and

(b) by no later than the last working day of July after the end of the annual reporting year.

(3) Where by 40 days after the due date a participant has failed to provide the annual report, the administrator may determine the report.

Section 48 Member CCA exemptions

Where a participant has a member CCA exemption, core supplies and residual supplies under article 50 excludes any supplies or emissions of a member of the group to which a member CCA exemption applies.

Section 49 Annual report

(1) A participant must provide in the annual report—

(a) the amount of the supplies under article 50(3);

(b) whether or not the following apply to the participant—

(i) an estimation adjustment; or

(ii) renewables generation,

and, if so, the amount of each supply to which the adjustment applies and the amount of the renewables generation;

(c) whether or not electricity generating credit applies to the participant and, if so, the amount of the generated and supplied electricity; and

(d) where the participant wishes to be included in the early action or relative change tables, the information required to determine early action or relative change in relation to the participant.

(2) Where the administrator receives the annual report in accordance with article 47, it must calculate the participant’s CRC emissions.

Section 50 CRC emissions

(1) “CRC emissions” means the emissions calculated in accordance with paragraph 29 of Schedule 1 from CRC supplies.

(2) “CRC supplies” means—

(a) the supplies listed in paragraph (3) during an annual reporting year; and

(b) in respect of those supplies during that year—

(i) applying the additions under section 6 of Schedule 1; and

(ii) deducting any electricity generating credit.

(3) The supplies referred to in paragraph (2)(a) are—

(a) the participant’s core supplies less the deductions from those supplies under sections 4 and 5 of Schedule 1 but excluding—

(i) core supplies of gas made to an EU ETS installation; and

(ii) core supplies of electricity and gas made to a CCA facility to which a member CCA exemption does not apply;

(b) residual supplies included in the participant’s residual measurement list, where such a list is required under article 42.