Armstrong DLW GmbH v Winnington Networks Ltd. País/Territorio Reino Unido Tipo de la corte Nacional - corte superior Fecha Ene 11, 2012 Fuente UNEP, InforMEA Nombre del tribunal High Court Sede de la corte London Juez Morris, S. Número de referencia [2012] EWHC 10 (Ch) Idioma Inglés Materia Aire y atmósfera, Medio ambiente gen. Palabra clave Calidad del aire/contaminación del aire Normas sobre la calidad del aire Comercio de emisiones Cambio climático Emisiones Resumen Under the EU Emissions Trading Scheme, all operators within the European Union that own an installation that emits a certain level of carbon dioxide, must participate in the EU ETS. Each participating operator is given an annual allocation of European Union Allowances (EUAs), credited into the companys account. All operators must have enough EUAs to meet their compliance obligations, with each EUA representing the right to emit one metric tonne of carbon dioxide into the atmosphere. Operators are fined €100 for each tonne of carbon dioxide for which it has not surrendered an allowance. Any surplus EUAs may be carried forward by the operator, retired by arrangement with the relevant national administration entity, or traded with other operators or registered EUA traders. EUAs are entirely electronic and, unlike shares for example, they are not evidenced by a title document. Each EUA has a unique identifier number and when it is bought and sold it is moved from one registry account to another registry account. The trading of EUAs may take place very quickly several times a day. In this case one of the matters considered by the Court was the legal status of EUAs. This needed to be determined as it affected the cause of action that was available to Armstrong following the theft of its EUAs. Armstrong is an operator of two installations in Germany and held an EUA account with the German registry for each of the installations. Winnington, a trader of futures and spot trader EUAs and other commodities, had a registered EUA account in the United Kingdom. As a result of a fraudulent phishing e-mail received by Armstrong, Armstrongs EUA account was hacked. Zen Holdings Limited, a company based in Dubai, contacted Winnington, offering them EUAs from Armstrongs account. Winnington bought and immediately sold on the 21,000 EUAs that it bought from Zen, not knowing that the EUAs had been taken illegally from Armstrongs account. After considering the nature of property that can be recognised under English law, the Court had to consider whether EUAs could be properly considered to be “property”. The Court referred to a threefold test identified by Morritt LJ in Re Celtic Extraction (which considered the legal nature of waste management licences): First, there must be a statutory framework conferring an entitlement on the holder of the property in question to an exemption from a fine, property in question must be transferable under a statutory framework, property in question must have value. In applying this test, it was held that an EUA could be classed as intangible property at common law. The statutory framework governing EUAsDirective 2003/87/EC which established the EU ETSconfers an entitlement on the holder of the EUA to exemption from a fine. Second, the exemption is transferable, pursuant to the statutory framework. Third, the EUA is an exemption that has value, as it can be used to avoid paying a fine and there is an active market for the trading of EUAs. Having ascertained the legal status of EUAs, the Court went on to consider the remaining legal issues that arose from the case and concluded that Armstrong was entitled to a money judgment, on the basis that EUAs were a type of property that could be the subject of a proprietary restitutionary claim. Texto completo COU-158079.pdf