IETA, Registries Side Event Legal aspects of a registry

1. IETA, Registries Side EventLegal aspects of a registry SBSTA, Bonn 4th June 2003 AnthonyHobley Senior Associate Baker & McKenzie Global Climate Change and Clean Energy anthony.hobley@bakernet.com

2. Important Notice This presentation was prepared for the IETA Side Event solely in order to explain the content and timetable of the study referenced ENV.E.1/ETU/2002/0014 which is being carried out by CDC IXIS, PWC & Baker & McKenzie for the European Commission and to draw the attention of the Side Event to certain issues arising from this study. All views, opinions and statements in this presentation are only those of Baker & McKenzie. No inference should be drawn that any of the content of this presentation represents in any form or substance the opinion of the European Commission or of its officers nor that any of the proposed schemes herein have been or will be approved or validated by the European Commission or its officers in the context or otherwise of the above-mentioned study. Whilst every effort has been made by Baker & McKenzie to ensure the proposals and schemes shown in this presentation are well founded, no responsibility in any form is assumed by Baker & McKenzie for any actions that any parties may take with respect to any of the proposals and/or statements and content in this presentation. Each party should take its own precautionary measures and conduct its own verifications before basing any action or decision in whatever context on any subject contained in this document. 17941031758788

3. Objectives of the EU Study Objective 1 • to provide the Commission with input towards a draft of the Regulation for a standardised and secured system of registries as described in the Common Position adopted by the Council on 13 March 2003 -15792/02. Objective 2 • to produce a demonstration CD-ROM that enables the illustration of all the registries system’s functions, including those of the Central Administrator 1794103 - Courtesy of CDC Ixis1758788

4. The Legal Framework - International • The KP, Article 7, paragraph 4 • The Marrakech Accords: • Decision 18/CP.7 • Decision 19 CP.7 • The Delhi Decisions 17941031758788

5. The Legal Framework - Europe • Proposed European Directive – The Common Position • Article 19 Registries • Each MS shall establish registry • Accurate accounting • Holding, Transfer and Cancellation • Consolidated system • Any person may hold allowances • Public accessibility • Separate account • Standardised • Secure • Electronic Database • Transfers compatible with KP obligations 17941031758788

6. The Legal Framework - Europe • Proposed European Directive – The Common Position – Article 20 - Central Administrator • Central Administrator • European Transaction Log (“ETL”) • Automated Checks on All Transactions/Transfers • Irregularities = No registration of transfer 17941031758788

7. The Legal Framework – Domestic Level Within EU Member States • EU Regulation • Directly Binding • To be passed through delegated powers • Subsidiarity, how much flexibility will each Member State have? 17941031758788

8. Fundamental Legal Issues • A Single Registry? • Link between AAUs and EU Allowances • CERs, ERUs, RMUs and Non-Kyoto Units? • Legal Nature and title of EU Allowances • Subject matter of EU Allowances – Property? 17941031758788

9. Other Legal Issues • Point & Time of Transfers • Liability of Registries • Dispute Resolution • Access and Core Terms • Access to Information • Scope to amend technical specifications • Administrative Costs 17941031758788

10. Link between EU Allowances and AAUs • Exact link to be determined by Registries Regulation – what conversion/exchange process? • Relationship between the ETL & ITL • Are AAUs de facto converted into allowances through the allocation process under the ETD? • is every cross-border trade in allowances ‘shadowed’ by a trade in KP units? • (how) can allowances be converted back into KP units? • CERs, ERUs, RMUs & Non Kyoto Units 17941031758788 Courtesy of the Foundation for International Environmental Law and Development (FIELD)

11. Legal Nature & Title of EU Allowances • Policy derived instrument • Ownership rests with Operator of Installation (property rights protected under EU law, ECHR and domestic law) • EU Allowances can be sold among Persons within EU and countries with which an agreement is closed • Transfer of allowances to take place in accordance with Registries Regulation 17941031758788 Courtesy of the Foundation for International Environmental Law and Development (FIELD)

12. Subject Matter of Allowances • Property • Legal Status • Ability to Transfer • Seller Liability • Commoditisation • The Registry 17941031758788

13. Are Allowances Property “Property is not a term of art – depends on its circumstances” Celtic Extraction Ltd & Bluestone Chemicals v EA [1998] CA 3 TESTS: • There must be a statutory framework conferring an entitlement on one who satisfies certain conditions even though there are some elements of discretion exercisable with the framework • The permit must be transferable • The exemption or licence will have value Celtic Extraction Ltd & Bluestone Chemicals v EA [1998] CA 17941031758788

14. EU TRADING PRE 2008 – ONE POSSIBLE SCENARIO AAU and/or EUAs? (10) ETL AAU and/or EUAs? (10) REQUEST CONFIRMATION 110 100 90 100 Trade (Contract) (10) EMISSIONS (90) EMISSIONS (110) UK

15. EU TRADING POST 2008 – ONE POSSIBLE SCENARIO AAU and/or EUAs? (10) ETL AAU and/or EUAs? (10) REQUEST CONFIRMATION 110 100 ITL 90 100 Trade (Contract) (10) EMISSIONS (90) EMISSIONS (110) UK

16. Contacts CDC IXIS Heneage Legge Bourke E-mail: h.legge-bourke@cdcixis.com BAKER & McKENZIE Anthony Hobley E-mail: anthony.hobley@bakernet.com PRICEWATERHOUSE COOPERS Laurent Segalen E-mail: laurent.segalen@fr.pwc.com 17941031758788

17. IETA, Registries Side Event SBSTA, Bonn 4th June 2003 AnthonyHobley Senior Associate Baker & McKenzie Global Climate Change and Clean Energy anthony.hobley@bakernet.com