Citation, commencement and interpretation

1. These Regulations may be cited as the Community Emissions Trading Scheme (Allocation of Allowances for Payment) (Amendment) Regulations 2008 and come into force on 12th August 2008.

2. In these Regulations the “principal Regulations” means the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008( 2 ).

Amendment of the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008

3. The principal Regulations are amended as follows.

4. —(1) Regulation 2 (interpretation) of the principal Regulations is amended as follows.

(2) After the definition of “bid” insert:

“ “bid instruction” means information (in any form) comprising—

but which has not been submitted as a bid.

“confidential information” means—

and the identity of that account holder;

5. Regulation 7 (allocation following review) of the principal Regulations is amended as follows.

(1) For paragraph (1) substitute the following—

“ (1) Where following an auction an account holder requests a review—

(a) under regulation 13 and the decision of the Treasury in respect of that review is to allocate allowances to an account holder,

(b) of a specified decision under the Scheme and the decision of the person conducting an auction in respect of that review is to allocate allowances to an account holder,

the account holder must pay the auction clearing price for those allowances. ”

(2) At the end of paragraph (2) add “or by the person conducting the auction.”

(3) In paragraph (4)—

(a) after “the Environment Agency must transfer” omit “the number of allowances”,

(b) after “Party holding account to the”, omit “account holder’s”,

(c) after “nominated holding account” omit “as is specified by the Treasury in their decision under regulation 13” and add “the number of allowances allocated following the review”.

(4) In paragraphs (5) and (6) after “and the Treasury” insert “or the person conducting the auction”.

(5) After paragraph (6) add “(7) In paragraph (1) “specified decision” means such decision of the person conducting the auction as is specified in the Scheme”.

6. After regulation 9 (transfer of excess allowances) of the principal Regulations insert—

“ Wrongful disclosure

9A. —(1) Confidential information must not be disclosed by any person who obtained that information, whether directly or indirectly, from an account holder except in accordance with paragraph (2).

(2) Paragraph (1) does not prevent the disclosure of confidential information which—

(a) has already lawfully been made available to the public;

(b) is made with the written consent of the account holder;

(c) is required by a Community obligation;

(d) is made in pursuance of an order of the court;

(e) is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom);

(f) is disclosed to the Treasury or the person conducting the auction for the purpose of enabling or assisting the Treasury or the person conducting an auction to carry out their functions;

(g) is disclosed to the Environment Agency for the purpose of enabling or assisting the Environment Agency to carry out its functions under these Regulations and the Scheme;

(h) is required by an independent observer appointed by the Treasury for the purpose of enabling the independent observer to carry out the functions of the independent observer under these Regulations;

(i) is required by an independent person appointed by the Treasury as part of their determination of a review under these Regulations for the purpose of enabling that independent person to carry out his functions under these Regulations;

(j) is made after the end of a period of twenty years starting from the date of the opening of the bidding window of the auction in which the confidential information is first disclosed.

(3) In this regulation “bidding window” has the same meaning as in regulation 4.

Offence

9B. Any person who contravenes regulation 9A is guilty of an offence.

Defences

9C. —(1) It is a defence for a person charged with an offence under regulation 9B of disclosing confidential information to prove that the person—

(a) reasonably believed that the disclosure was lawful, or

(b) took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Penalties

9D. —(1) A person guilty of an offence under regulation 9B shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(2) Where a body corporate or a limited liability partnership is guilty of an offence under regulation 9B and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) any director, manager, secretary, or other similar officer of the body corporate, or

(b) any member of the limited liability partnership, or

(c) any person who was purporting to act in any such capacity as in (a) or (b),

that person, as well as the body corporate or limited liability partnership, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(3) For the purposes of paragraph (2) “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(4) Where an offence under regulation 9B is committed in Scotland by a Scottish partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership shall be guilty of the offence and be liable to be proceeded against and punished accordingly.

(5) Proceedings for an offence under regulation 9B—

(a) may not be instituted in England and Wales without the consent of the Director of Public Prosecutions,

(b) may not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland. ”