Chapter IV, Article 18 · Commission Delegated Regulation (EU) 2023/2830

Contents

Article 18Persons eligible to apply for admission to bid#

1.The following persons shall be eligible to apply for admission to bid directly in auctions:

(a)an operator, an aircraft operator, a shipping company or a regulated entity having an operator account in the Union Registry which is opened in accordance with Delegated Regulation (EU) 2019/1122, bidding on its own account, including any parent undertaking, subsidiary undertaking or affiliate undertaking forming part of the same group of undertakings as the operator, the aircraft operator, the shipping company or the regulated entity;

(b)investment firms authorised under Directive 2014/65/EU bidding on their own account or on behalf of their clients;

(c)credit institutions authorised under Directive 2013/36/EU of the European Parliament and of the Council^note bidding on their own account or on behalf of their clients;

(d)business groupings of persons listed in point (a) bidding on their own account and acting as an agent on behalf of their members;

(e)public bodies or state-owned entities of the Member States that control any of the persons listed in point (a).

Operators, aircraft operators and shipping companies may only participate in the auctions of allowances referred to in Article 10 and 11, whereas regulated entities may participate only in the auctions referred to in Article 13, including when they use the services of entities referred to in paragraph 1, points (b) to (e), to bid on their behalf.

2.By way of derogation from paragraph 1, persons covered by the exemption in Article 2(1), point (j), of Directive 2014/65/EU shall be eligible to apply for admission to bid directly in the auctions either on their own account or on behalf of clients of their main business.

3.Where the persons referred to in paragraph 1, points (b) and (c), and paragraph 2 bid on behalf of their clients, they shall ensure that all the following conditions are fulfilled:

(a)their clients are eligible persons to apply for admission to bid directly pursuant to paragraphs 1 or 2;

(b)they have, or will have in good time before the opening of the bidding window, adequate internal processes, procedures and contractual agreements necessary to:

(i)enable them to process bids from their clients including submission of bids, collection of payment and transfer of allowances;

(ii)prevent the disclosure of confidential information from the part of their business that is responsible for receiving, preparing and submitting bids on behalf of their clients to the part of their business that is responsible for preparing and submitting bids on their own account;

(iii)ensure that their clients who are themselves bidding on behalf of their own clients in the auctions comply with the requirements set out in Article 19(2) and in this paragraph and that they require the same of their clients. Where there are further clients down the chain that are themselves bidding on behalf of their own clients, the directly preceding client shall require compliance with these requirements from the following client down the chain.

The auction platform concerned shall be able to rely on checks carried out by the persons referred to in the first subparagraph of this paragraph, their clients, or the clients of their clients as provided for in this paragraph.Persons referred to in the first subparagraph of this paragraph shall be able to demonstrate to the auction platform, upon its request pursuant to Article 20(5), point (d), that the conditions set out in the first subparagraph of this paragraph, points (a) and (b), are fulfilled.

4.The following persons shall not be eligible to apply for admission to bid directly in auctions nor shall they participate in auctions through one or more persons admitted to bid pursuant to Articles 19 and 20, whether for their own account or on behalf of any other person, where they act with respect to the auctions in question as:

(a)the auctioneer;

(b)the auction platform including any clearing system and any settlement system connected to it;

(c)persons who are in a position to exercise, directly or indirectly, significant influence over the management of the persons referred to in points (a) and (b);

(d)persons working for persons referred to in points (a) and (b).

Defined terms · 43

Show every defined term

affiliate undertaking
means affiliate undertaking as defined in Article 2, point (12), of Directive 2013/34/EU;
auction platform
means any public or private entity appointed to carry out the tasks referred to in Articles 27, 28, 30 and 31;
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;
auctioneer
means any public or private entity appointed to carry out the tasks referred to in Article 23;
beneficial owner
means beneficial owner as defined in Article 3, point (6), of Directive (EU) 2015/849;
bid
means an offer in an auction to acquire a given volume of allowances at a specified price;
bidding window
means the time period during which bids may be submitted;
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;
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;
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;
collateral
means collateral security as defined in Article 2, point (m), of Directive 98/26/EC of the European Parliament and of the Council, including any allowances accepted as security by the clearing system or settlement system;
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)
control
means control as referred to in Article 3(2) and (3) of Council Regulation No 139/2004;
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;
criminal activity
means criminal activity as defined in Article 3, point (4), of Directive (EU) 2015/849;
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;
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;
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:
financial instrument
means financial instrument as defined in Article 4(1), point (15), of Directive 2014/65/EU;
inside information
means inside information as defined in Article 7 of Regulation (EU) No 596/2014;
insider dealing
means insider dealing as defined in Article 8 of Regulation (EU) No 596/2014;
investment firm
means investment firm as defined in Article 4(1), point (1), of Directive 2014/65/EU;
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;
market abuse
means market abuse as defined in Article 1 of Regulation (EU) No 596/2014;
market manipulation
means market manipulation as defined in Article 12 of Regulation (EU) No 596/2014;
market operator
means market operator as defined in Article 4(1), point (18), of Directive 2014/65/EU;
Member State of establishment
means any of the following:
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;
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;
nominated Union Registry account
means an account in the Union Registry established by Delegated Regulation (EU) 2019/1122;
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)
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;
politically exposed person
means politically exposed person as defined in Article 3, point (9), of Directive (EU) 2015/849;
regulated market
means regulated market as defined in Article 4(1), point (21), of Directive 2014/65/EU;
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;
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;
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;
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:
subsidiary undertaking
means subsidiary undertaking as defined in Article 2, point (10), of Directive 2013/34/EU;
terrorist financing
means terrorist financing as defined in Article 1(5) and (6) of Directive (EU) 2015/849;
trading day
means any day during which an auction platform and the clearing system or settlement system connected to it are open for trading;
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;
unlawful disclosure of inside information
means unlawful disclosure of inside information as defined in Article 10 of Regulation (EU) No 596/2014;