Commissione per il controllo dei bilanci DOCUMENTO DI LAVORO

Transcript

1 Parlamento europeo Commissione per il controllo dei bilanci DOCUMENTO DI LAVORO sulla relazione speciale n. 6/2015 della Corte dei conti europea (discarico 2014) dal titolo "L'integrità e l'attuazione dell'ets dell'ue" Commissione per il controllo dei bilanci Relatore: Markus Pieper DT\ doc PE v01-00 Unita nella diversità

2 Introduction The European Union s Emissions Trading Scheme (EU ETS) is the EU s flagship policy to combat climate change. It is the world s largest cap-and-trade system for greenhouse gas (GHG) emissions, its objective being to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner. This scheme also belongs to the climate and energy package with its well-known ' targets' 1. The EU ETS is often quoted as the reference model for emerging climate change policy and emissions trading schemes elsewhere in the world. This innovative scheme introduced in 2005 was organised and progressively improved through three trading periods ( , and ). At European level, the environmental goal of the EU ETS is not just reducing emissions in line with the cap from high-emitting industry sectors, but also putting a price on carbon and giving a financial value to each tonne of CO2 saved. The price is determined by the market in allowances. Thus, the ETS is a market based instrument, which works to this purpose. For the participants it provides a legal system on which large investment decisions are taken. Therefore, it needs to be predictable and reliable. Constant changes in the system lead to legal uncertainty, bureaucratic burden and additional costs. For the EU ETS to work as intended, Member States are required to set-up the necessary systems and administrative arrangements to implement the EU ETS at national level whilst the Commission is responsible for ensuring a coordinated functioning of the system 2. However, as the scheme foresees the creation of a market for emissions allowances, both Member States and the Commission are responsible for ensuring the integrity of the system and its correct implementation in order to achieve its environmental objectives. Audit scope and objectives The Court focused on the fundamental issues of the system s integrity and implementation. The audit did not examine the overall effectiveness of the EU ETS. The objective of the audit was to answer the question Is the European Union Emissions Trading Scheme managed adequately by the Commission and the Member States? This was done by addressing the following sub-questions: a) Is there an appropriate framework for protecting the integrity of the EU ETS? In order to answer this question, the Court examined the appropriateness of market regulation and oversight rules that apply to emissions trading, the legal status and definition of allowances, and the Union Registry system for recording and disclosing EU ETS data. The audit scope did not include an assessment of national measures to address the risk of VAT carousel fraud; b) Is the EU ETS correctly implemented? To answer to this question, the Court examined the implementation of the EU ETS by the Member States and the Commission during phase II of the EU ETS. 1 The targets are the following: 20% reduction in EU greenhouse gas emissions from 1990 levels, raising the share of EU energy consumption produced from renewable resources to 20% and 20% improvement in the EU's energy efficiency. 2 These provisions are included in the directive 2003/87/EC establishing the EU ETS. PE v /6 DT\ doc

3 The audit was carried out at both the Commission and Member State level. The work at Commission level examined how the Commission guided the implementation of the EU ETS by the Member States and whether it fulfilled its own obligations under the applicable legal framework. Seven Member States were selected on their volumes and types of emissions. Visits were made to relevant authorities in Germany, France, Italy, Poland and the United Kingdom and documentary evidence was obtained from Greece and Spain. The audit at Member State level focused on the National Allocation Plans (NAPs) and surrendering of allowances, on systems for monitoring, reporting and verification of emissions and on sanctions applied in case of non-compliance. Auctioning was not covered as it is still only implemented at a very small scale and in a limited number of Member States. In addition, substantive testing of documentation available at national Competent Authorities was carried out relating to 150 installations selected from these seven Member States. Court's Findings and Observations I - The framework for protecting the integrity of the EU ETS The protection of the integrity of the scheme is a key condition to allow a stable and attractive market for investors. The Court observed that overall the management of the EU ETS by the Commission and Member States was not adequate in all respects. It was hindered by certain issues related to the robustness of the framework for protecting its integrity, and by significant weaknesses in the implementation of phase II of the EU ETS. There have been significant improvements to create a tailor-made regime for the carbon market and for protecting the integrity and security of the system, notably through the inclusion of most of the spot market for allowances under the markets in financial instruments directive (MIFID) and market abuse (MAD - market abuse directive / MAR - market abuse regulation) regimes by the qualification of emission allowances as financial instruments, the reinforcement of the Union registry of allowances against cyber-crimes, the possibility for Member States to apply a reverse charge mechanism to address the VAT fraud or the integration of anti-money laundering provisions. However the Court found a number of issues still to be addressed in order to make the framework sufficiently robust, to provide better regulation and supervision, and to encourage investor confidence for leveraging the EU ETS as a tool of environmental policy: a) There are remaining issues regarding the regulation and oversight of the emission market related to compliance traders who need MIFID authorisation, bilateral over the counter (OTC) spot trading acting on the markets with limited visibility for regulators and smaller market participants for which there is a lack of information on their identities and behaviours on the emissions markets; b) There is no EU level oversight of the emissions market with insufficient regulatory cooperation between (i) the Commission and national financial regulators next to a Union register that does not record price and financial information related to transactions and (ii) between the Directorates General of the Commission 1 ; 1 The cooperation between DG Climate Action and Energy responsible for the EU ETS and DG Internal Market, Industry, Entrepreneurship and SMEs dealing with financial markets regulation is only informal and does not DT\ doc 3/6 PE v01-00

4 c) The legal definition of emission allowances is not sufficiently clear in the EU ETS directive or inexistent in most of the Member States and there is also a lack of clarity regarding the creation and protection of security interests in allowances; d) The Union Registry processes fundamental EU ETS information and has a high risk profile due to the financial stakes and wide range of account holders. According to the Court, Member States procedures should include identification, targeted or crossborder tracking transactions as well as rigorous controls and identification of account holders (i.e. KYC checks) 1. Those measures are vital to enhance market integrity and to detect fraudulent or criminal activities. The Court identified persistent weaknesses in opening of accounts in Member States and a lack of sharing information on suspicious applications for accounts opening (an EU wide list of refused accounts openings does not exists). Besides these significant shortcomings in the cooperation with regulatory authorities, the Court audit work showed the Commission's limitations to adequately monitor at EU level transactions due to data protection considerations 2. Furthermore, the Court also found that the development and operation of the Union Registry at the Commission was hindered by internal coordination issues (the and business responsibilities were not sufficiently defined and segregated within DG Climate Action) and resource constraints leading to security threats for the Union Registry. II - The implementation The Court concluded that the Commission has had a limited role in ensuring the harmonisation of key controls in the implementation of the EU ETS by Member States. Moreover, the Court was not able to find evidence of that the Commission duly monitored and assessed risks such as the distortion of competition or potential impact of diverging implementation practices among Member States on the functioning and integrity of the EU ETS. In addition, the Court reported several significant weaknesses in Member States and in the Commission s guidance and monitoring of Member States' implementation of the EU ETS control framework in phase II ( ) that have to be addressed during phase III ( ) in order to reach sufficient assurance that the system is operating as intended: a) Shortcomings and delays were identified in the approval of monitoring plans by the Member States and in the verification of the correctness of their data that are subsequently used for issuing emissions reporting and were not sufficiently well implemented or harmonised; facilitate a coordinated approach to monitor the emissions market. 1 KYC checks or 'Know Your Customer' is a process use by financial institutions to conduct customer due diligence (i.e. carrying out identity checks, verification of the identity of the beneficial owner, understanding of the nature of the business relationship, especially in the context of anti-money laundering legislation or countering the financing of terrorism). 2 This situation was reflected in the repeated reservation by DG Climate Action in its 2012 and 2013 Annual activity Reports. PE v /6 DT\ doc

5 b) Some Member States did not provide all the required annual reports on the operation and results of the EU ETS, and the Commission did not publish during the period the consolidated annual implementation report required under the EU ETS directive; c) Finally, the Court could not assess the effectiveness of the Member States diverse sanction systems 1 due to a lack of consolidated information at Member States and European level. The Court's recommendations The Court recommends that remaining issues in emission market regulation and oversight should be addressed by the Commission in order to further improve market integrity and to make possible that the Parliament and the Council accurately supervising the whole system; The Commission should analyse the benefits of treating emission allowances as property rights across the EU and consider how to provide an express registration mechanism. The Commission also should consider how effective cross border transaction monitoring can be developed and coordinated at EU level to mitigate risks of abuse and fraudulent activities; In addition, during phase III, the Commission should improve the level of guidance and information about the implementation of the EU ETS by Member States in order to identify areas where more harmonisation is imperative and publish regularly the required report on the implementation of the EU ETS, specifically addressing issues of non-harmonisation and resulting risks; Member States should improve cooperation and ensure better coordination between competent authorities and accreditation bodies. They should also implement coherent, effective control frameworks for monitoring, reporting and verification activities, and provide on time to the Commission the annual reports foreseen by the directive; Finally the implementation of sanctions in relation to the EU ETS should be made more transparent. Up to date and accurate information should be available at Member State and EU level on the implementation and results of penalty procedures, and the Commission should better monitor enforcement practises across the EU as well as the consistent application of national penalties. 1 According to the EU ETS directive, Member States establish and implement national rules on penalties applicable to infringements of the EU ETS legislation. The EU ETS directive foresees a specific EU-wide penalty for excess emissions amounting to 100 euro for each tonne of CO2 for which the operation has surrendered allowances. DT\ doc 5/6 PE v01-00

6 Raccomandazioni del relatore da includere eventualmente nella relazione annuale sul discarico alla Commissione 1. esprime disappunto per il fatto che non sia stato possibile ottenere un'analisi completa dell'efficienza dei vari metodi di assegnazione applicati, che sarebbe stata fondamentale per formulare raccomandazioni politiche sulla base delle risultanze di audit della Corte dei conti europea; 2. si rammarica della scarsa trasparenza dei metodi applicati e delle possibilità di frode createsi di conseguenza; 3. ritiene che la Commissione, quale custode dei trattati, dovrebbe monitorare da vicino l'attuazione negli Stati membri e fornire un'assistenza più completa durante l'intero processo; evidenzia che la Commissione deve garantire la prevedibilità delle decisioni giuridiche e la certezza giuridica, in particolare per i previsti adeguamenti del sistema ETS, come la costituzione della riserva stabilizzatrice del mercato; 4. sottolinea che, nell'ambito dell'analisi dell'efficienza del sistema ETS, la relazione della Corte dei conti dovrebbe includere un esame del conseguimento degli obiettivi del sistema, mettendo in luce l'efficienza della gestione dell'ets nei diversi Stati membri, soprattutto per quanto concerne le interferenze e le sovrapposizioni tra la normativa europea e nazionale, come nel caso dello sviluppo delle energie rinnovabili e delle misure di efficienza energetica, che hanno un effetto importante sulle emissioni di CO2 e quindi sul mercato del carbonio; 5. chiede che la Corte dei conti includa nella sua analisi i settori industriali colpiti, soprattutto per quanto concerne la certezza e la prevedibilità giuridiche, e nota che, in riferimento alla misura in cui è garantito un quadro giuridico affidabile, ci si sarebbe potuti attendere un'osservazione critica sulle costanti modifiche del quadro giuridico dell'ets, sull'interferenza con il mercato del carbonio e sull'accumulo dei costi associati alle modifiche; 6. si sorprende che la Corte dei conti non si sia espressa sul rischio di frodi transfrontaliere concernenti l'iva, che risulta significativo, come mostrato dal caso della Deutsche Bank; 7. ritiene sia fondamentale adottare tutte le misure necessarie per evitare la rilocalizzazione delle emissioni di CO2 e garantire una concorrenza internazionale equa grazie alle attuali misure per l'assegnazione gratuita di quote di emissioni; chiede alla Commissione una valutazione relativa alle imprese e ai settori industriali esposti al rischio di rilocalizzazione delle emissioni, al fine di individuare le aree in cui l'industria europea ha registrato perdite di attività a beneficio di paesi dove non vigono norme severe sul clima. PE v /6 DT\ doc