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9.11.2012 Official
Journal
of
the
European
Union L
310/19
COMMISSION REGULATION (EU) No 1042/2012
of 7 November 2012
amending Regulation (EU) No 1031/2010 to list an auction platform to be appointed by the United
Kingdom
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
menting the Kyoto Protocol ( 3 ). In addition, the United
Kingdom has provided further information and clarifi
cation to the Commission, supplementing the notifi
Having regard to the Treaty on the Functioning of the European
cation accordingly.
Union,
(5) In
order
to
ensure
that
the
proposed
appointment
of
ICE
as an auction platform referred to in Article 30(1) of
Having regard to Directive 2003/87/EC of the European
Regulation (EU) No 1031/2010 is compatible with the
Parliament and of the Council of 13 October 2003 establishing
requirements of that Regulation and is in conformity
a scheme for greenhouse gas emission allowance trading within
with the objectives set out in Article 10(4) of Directive
the Community and amending Council Directive 96/61/EC ( 1 ),
2003/87/EC, it is necessary to impose a number of
and in particular Articles 3d(3) and 10(4) thereof,
conditions and obligations on ICE.
Whereas:
(6) In
accordance
with
Articles
18
to
21
of
Regulation
(EU)
No 1031/2010, an auction platform is charged with a
series of tasks concerning the admission of persons to
(1) Members
States
not
participating
in
the
joint
action
as
bid in the auctions which include applying customer due
provided in Article 26(1) and (2) of Commission Regu
diligence measures to ensure that only eligible persons
lation (EU) No 1031/2010 of 12 November 2010 on the
apply for admission to bid directly in the auctions. Its
timing, administration and other aspects of auctioning of
responsibilities also arise in the context of examining
greenhouse gas emission allowances pursuant to
applicants’ compliance with certain minimum
Directive 2003/87/EC of the European Parliament and
requirements for admission to bid, in the submission
of the Council establishing a scheme for greenhouse
and processing of applications for admission to bid and
gas emission allowances trading within the Commu
with regard to decisions to grant or refuse to grant
nity (
admission to bid, to revoke or to suspend admissions

2 ), may appoint their own auction platform for
the auctioning of their share of the volume of allowances
to bid already granted. Under the cooperation model
covered by Chapters II and III of Directive 2003/87/EC.
between ICE and its exchange members and their
Pursuant to the third subparagraph of Article 30(5) of
clients, ICE’s exchange members and some of their
Regulation (EU) No 1031/2010 the appointment of such
clients will perform such admission functions with
auction platforms is subject to listing of the auction
respect to their existing or prospective clients. Such
platform concerned in Annex III to that Regulation.
cooperation model can be compatible with the
provisions of Regulation (EU) No 1031/2010, provided
that ICE ensures that compliance with the obligations
incumbent upon the auction platform under Regulation
(2) In
accordance
with
Article
30(4)
of
Regulation
(EU)
No
1031/2010, the United Kingdom informed the
(EU) No 1031/2010.
Commisssion of its decision not to participate in the
joint action as provided in Article 26(1) and (2) of that
(7) Furthermore,
in
accordance
with
point
(b)
of
Article
35(3)
Regulation, and to appoint its own auction platform.
of Regulation (EU) No 1031/2010, an appointed auction
platform is required to provide full, fair and equitable
access to bid in the auctions for small and medium enter
(3) On
30
April
2012,
the
United
Kingdom
notified
the
prises (SMEs) and access to bid in the auctions for small
Commission of its intention to appoint ICE Futures
emitters. To ensure this, ICE should provide such SMEs
Europe (‘ICE’) as an auction platform referred to in
and small emitters with transparent, comprehensive and
Article 30(1) of Regulation (EU) No 1031/2010.
up-to-date information, on access possibilities to auctions
conducted by ICE for the United Kingdom including all
necessary practical guidance on how to make the most of
(4)
On 25 April 2012, the United Kingdom presented the
such possibilities. Such information should be publicly
notification to the Climate Change Committee established
available on ICE’s webpage. In addition, ICE should
under Article 9 of Decision No 280/2004/EC of the
report to the auction monitor appointed as provided
European Parliament and of the Council of 11 February
for in Article 24(2) of Regulation (EU) No 1031/2010
2004 concerning a mechanism for monitoring
on the coverage obtained under its cooperation model
Community greenhouse gas emissions and for imple
with exchange members and their clients, including on
the level of geographic coverage obtained and take the
( 1 ) OJ L 275, 25.10.2003, p. 32.
( 2 ) OJ L 302, 18.11.2010, p. 1.
( 3 ) OJ L 49, 19.2.2004, p. 1.

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L 310/20
EN
Official Journal of the European Union
9.11.2012
utmost account of the auction monitor’s recommen
(12) In addition to the changes to ICE’s own exchange rules
dations in this regard so as to ensure fulfilment of its
required to ensure full compliance with the condition
obligations under Article 35(3)(a) and (b) of that Regu
and obligations set out in the Annex to this Regulation,
lation.
ICE should also take any further steps as necessary to
ensure that full compliance, which may involve adap
tations to contractual arrangements between ICE and
(8)
In accordance with point (e) of Article 35(3) of Regu
its exchange members, between exchange members and
lation (EU) No 1031/2010, when appointing an auction
the clients, and between the clients down the chain.
platform, Member States must take into account the
extent to which a candidate aution platform is able to
avoid distortions of competition in the internal market
(13) Moreover,
certain
references
in
Article
25(2)
of
Regu
including the carbon market. In particular, an auction
lation (EU) No 1031/2010 should be amended to
platform should not be able to use the contract
eliminate gaps in the monitoring of the auction
appointing it to leverage the competitiveness of its
processes by the auction monitor and for reasons of
other activities, notably the secondary market it orga
consistency with other provisions of that Regulation.
nises. In addition, the listing of ICE as an auction
platform should be conditional upon ICE, including any
exchange members or clearing members admitted by ICE,
(14) Regulation
(EU) No 1031/2010 should therefore be
providing the option to candidate bidders to be admitted
amended accordingly.
to bid in the auctions without being required to become
an exchange member or a participant in the secondary
market organised by ICE or of any other trading place
(15) In
order
to
ensure
predictable
and
timely
auctions
by
the
operated by ICE or by any third party.
auction platform to be appointed by the United
Kingdom, this Regulation should enter into force as a
matter of urgency.
(9) In
accordance
with
point
(h)
of
Article
35(3)
of
Regu
lation (EU) No 1031/2010, when appointing an auction
platform, the Member States have to take into account
(16) The
measures
provided
for
in
this
Regulation
are
in
the extent to which adequate measures are provided to
accordance with the opinion of the Climate Change
require an auction platform to hand over all tangible and
Committee,
intangible assets necessary for the conduct of the
auctions by an auction platform’s successor. Such
measures have been laid down in an exit strategy that
HAS ADOPTED THIS REGULATION:
should be reviewed by the auction monitor. ICE should
develop its exit strategy in a clear and timely manner
taking into utmost account the auction monitor’s
Article 1
opinion.
Regulation (EU) No 1031/2010 is amended as follows:
(10) In
accordance
with
Article
51(3) of
Regulation
(EU)
(1) Article 25, paragraph 2 is amended as follows:
No 1031/2010, all fees and conditions applied by an
auction platform as well as those of the clearing
system or settlement system must be clearly stated,
(a) point (c) is replaced by the following:
easily understandable and publicly available. In view of
the cooperation model foreseen by ICE, any additional
fees and conditions applied by exchange members and
‘(c) any evidence of anti-competitive behaviour, market
clients thereof in relation to the admission functions they
abuse, money laundering, terrorist financing or
perform should be also clearly stated, easily under
criminal activity;’;
standable and publicly available on the webpages of
those offering the services with direct references to
those webpages available on ICE’s webpage.
(b) point (f) is replaced by the following:
(11) In
accordance
with
Article
64(1) of
Regulation
(EU)
‘(f) information about the number, nature and status of
No 1031/2010, a definitive auction platform has to
any complaints made pursuant to Articles 59(4) or
ensure that it has an extra-judicial mechanism to deal
64(1) as well as any complaints made against an
with complaints from applicants for admission to bid,
auction platform to the national competetent auth
bidders admitted to bid, or whose admission to bid has
orities supervising that auction platform, the courts
been refused, revoked or suspended. Applicants for
or competent administrative bodies provided for in
admission to bid, bidders admitted to bid or whose
the national measures transposing Article 52(2) of
admission to bid has been refused, revoked or
Directive 2004/39/EC.’;
suspended should be able to avail themselves of
their right to appeal under Article 64 of Regulation
(EU) No 1031/2010, even when such decisions are
(2) Annex III is amended in accordance with the Annex to this
taken by ICE’s exchange members and their clients.
Regulation.

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EN
9.11.2012 Official
Journal
of
the
European
Union L
310/21
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 November 2012.
For the Commission
The President
José Manuel BARROSO

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L 310/22
EN
Official Journal of the European Union
9.11.2012
ANNEX
In the table set out in Annex III to Regulation (EU) No 1031/2010, the following is added:
‘Auction platforms appointed by the United Kingdom
2 Auction
platform ICE
Futures
Europe
(ICE)
Term of appointment From 10 November 2012 at the earliest until 9 November 2017 at the latest,
without prejudice to the second subparagraph of Article 30(5).
Definitions
For the purposes of the condition and obligations applying to ICE the following
definitions shall apply:
(a) “ICE exchange rules” — means ICE Regulations, including in particular
contract rules and procedures relating to the ICE FUTURES EUA AUCTION
CONTRACT and the ICE FUTURES EUAA AUCTION CONTRACT;
(b) “exchange member” — means a member as defined in Section A.1 of ICE
exchange rules;
(c) “client” — means a client of an exchange member, as well as clients of their
clients down the chain, who facilitate the admission of persons to bid and act
on behalf of bidders.
Conditions
Admission to the auctions shall not be dependent on becoming an exchange
member of or a participant in the secondary market organised by ICE or of
any other trading place operated by ICE or by any third party.
Obligations 1.
ICE
shall
require
that
any
decisions
that
have
been
taken
by
ICE’s
exchange
members or their clients with respect to granting admission to bid in the
auctions, revoking or suspending such admission be communicated to ICE
by the exchange members or their clients taking such decisions in the
following way:
(a) in case of decisions refusing to grant admission to bid and decisions
revoking or suspending access to auctions, on an individual basis
without delay;
(b) in case of other decisions, upon request.
ICE shall ensure that any such decisions may be subject to examination by ICE
with regard to their compliance with the obligations incumbent upon the
auction platform under this Regulation and that ICE’s exchange members or
their clients abide by the results of any such examination by ICE. This may
include, but not be limited to, recourse to any applicable ICE exchange rules,
including diciplinary procedures, or any other action as appropriate to
facilitate admission to bid in the auctions.
2. ICE shall draw up and maintain on its webpage a comprehensive and up-to-
date list of exchange members or their clients that are eligible to facilitate
access to SMEs and small emitters to the United Kingdom’s auctions on ICE
together with readily comprehensible practical guidance informing SMEs and
small emitters of the steps they need to take to access the auctions through
such exchange members or their clients.
3. Within six months after the start of the auctions or two months from the
appointment of the auction monitor whichever is the latest, ICE shall report to
the auction monitor, on the coverage obtained under its cooperation model
with exchange members and their clients, including the level of geographic
coverage obtained and take the utmost account of the auction monitor’s
recommendations in this regard so as to ensure fulfilment of its obligations
under Article 35(3)(a) and (b) of this Regulation.
4. All fees and conditions applied by ICE and its clearing system to persons
admitted to bid or bidders shall be clearly stated, easily understandable and
publicly available on ICE’s webpage, which shall be kept up-to-date.

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EN
9.11.2012 Official
Journal
of
the
European
Union L
310/23
ICE shall provide that where additional fees and conditions are applied by an
exchange member or its client, for admission to bid, such fees and conditions
shall also be clearly stated, easily understandable and publicly available on the
webpages of those offering the services with direct references to those
webpages available on ICE’s webpage.
5. Without prejudice to other legal remedies, ICE shall provide for the availability
of the ICE Complaints Resolution Procedures to decide on complaints which
may arise in connection with decisions on granting admission to bid in the
auctions, refusing to grant admission to bid in the auctions, revoking or
suspending admissions to bid in the auctions already granted as more
specifically referred to in point 1, taken by ICE’s exchange members or their
clients.
6. ICE shall amend its exchange rules to ensure full compliance with the
condition and obligations for its listing which are set out in this Annex. In
particular, the amended ICE exchange rules shall stipulate the obligations set
out in points 1, 2, 4 and 5.
7. Within two months from 10 November 2012, ICE shall submit its detailed
exit strategy to the United Kingdom for consultation of the auction monitor.
Within two months from receiving the auction monitor’s opinion, ICE shall
review its exit strategy, taking the utmost account of that opinion.
8. The United Kingdom shall notify the Commission of any substantive changes
in the contractual arrangements with ICE notified to the Commission on
30 April, 4 May and 14 June 2012 and communicated to the Climate
Change Committee on 15 May and 3 July 2012.’

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