The new law of 28 April 2011 on the greenhouse gas emission allowance trading scheme definitively ends the legal existence of the outdated law of 22 December 2004 on the greenhouse gas and other substances emission allowances trading (O.J. No 281, item 2784, as amended). It will enter into force on 21 June 2011 r.
The new law introduces significant changes for the power sector. It means first of all that installations for electricity production for which the investment process was physically initiated by 31 December 2008 need to obtain the greenhouse gas emission permit by the 30 June 2011.
If they don’t be able to keep to this deadline, they will not qualify for the free allocation of emission allowances as from 2013 (as a consequence investors could give up their investment plans). The success of these efforts will, however, ultimately depend on the European Commission’s stance on the issue and its assessment of the investment plans submitted by the Member States pursuant to the Article 10c of the Directive 2003/87/EC (see art. 10c(6) of the Directive 2003/87/EC and entire set of detailed requirements flowing from the Communication from the Commission, Guidance document on the optional application of Article 10c of Directive 2003/87/EC (2011/C 99/03, OJ C 99, 31.3.2011, p. 9).
The new law will, in principle, regulate the functioning of the scheme in the current trading period - which in many important aspects differs from the rules that will be binding as from 2013. The implementation in a single legal act of separate sets of rules designed for substantially differing trading periods would cause significant difficulties, the law relates, therefore, only in certain provisions to the trading period 2013 – 2020.
The regulation of certain aspects relating to future eight – year periods was, however, necessary, due to the need for preparations, which must be undertaken by the operators of the installations and aircraft operators, for changes which follow as from 2013.
The material scope of the new law encompasses the emissions of the greenhouse gases from:
1) installations carrying out an activity causing emissions if the installations meet the capacity thresholds,
2) aircraft operations which begin or end on the territory of the EU Member State.
The law implements provisions, relating in particular t
1) qualification of the installation to be covered by the scheme;
2) inclusion into the scheme of aircraft operations performed by the aircraft operator;
3) rules for disposing of emission allowances;
4) rules for auctions (relating, however, to the second trading period);
5) the system for effective sanctions safeguarding the performance of the obligations imposed by the law.
The obligation is imposed on the operators of the installations to submit, within 60 days from the date of the entry into force of the new law, an application with the competent authority for a amendment to the greenhouse gas emission permit and approval of the monitoring plan, unless the permits conform to the requirements of the new law.
The new law was published in the Official Journal No 122, item 695 on 13 June 2011, so it will enter into force on the eight day as from its publication i.e. on 21 June 2011.