Regulation 45 Protection of confidential information

(1)

The following information is to be treated as confidential information—

(a)

the contents of a bid;

(b)

the contents of any instructions to bid even when no bid is submitted;

(c)

information which discloses, or from which can be deduced, the identity of the bidder in question and either of the following—

(i)

the number of allowances which a bidder wishes to acquire in an auction;

(ii)

the price which a bidder is willing to pay for those allowances;

(d)

information about, or derived from, one or more bids or instructions to bid which either separately or collectively would be likely to—

(i)

give an indication as to the demand for allowances prior to any auction;

(ii)

give an indication as to the auction clearing price prior to any auction;

(e)

information provided by persons in the context of the establishment or maintenance of the relationship with bidders or in the context of the monitoring of that relationship under regulations 17, 18, 19 and 37;

(f)

business secrets provided by persons participating in a competitive procurement process to appoint an auction platform;

(g)

information on the algorithm used for the random selection of tied bids, referred to in regulation 6(3).

(2)

Confidential information may not be disclosed by any person who obtained that information, whether directly or indirectly, otherwise than in accordance with paragraph (3).

(3)

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

(a)

has already lawfully been made available to the public;

(b)

is made public with the written consent of a bidder, person admitted to bid, or person applying for admission to bid;

(c)

is required to be disclosed or to be publicly available by an obligation under the law of the United Kingdom or of any part of the United Kingdom;

(d)

is made public pursuant to a court order;

(e)

is disclosed or made public for the purposes of any criminal, administrative, or judicial investigations or proceedings carried out in the United Kingdom;

(f)

is aggregated or redacted prior to its disclosure, so that it is unlikely that information relating to the following is discernible—

(i)

individual bids or instructions to bid;

(ii)

individual auctions;

(iii)

individual bidders, prospective bidders or persons applying for admission to bid;

(iv)

individual applications for admission to bid;

(v)

individual relationships with bidders;

(g)

is referred to in paragraph (1)(f) provided that it is disclosed to persons working for the FCA or other persons involved in the competitive procurement process referred to in paragraph (1)(f), who are themselves bound by an obligation of professional secrecy under their terms of employment;

(h)

is made public after the end of a period of 30 months starting from any of the following dates, subject to any subsisting professional secrecy obligations under the law of the United Kingdom or any part of the United Kingdom—

(i)

the date of the opening of the bidding window of the auction in which the confidential information is first disclosed with respect to confidential information in paragraph (1)(a) to (d);

(ii)

the date of the termination of the relationship with a bidder with respect to confidential information in paragraph (1)(e);

(iii)

the date of submission of the information in the competitive procurement process with respect to confidential information in paragraph (1)(f).

(4)

The measures required to ensure that confidential information is not wrongfully disclosed and the consequences of any such wrongful disclosure by an auction platform, including any persons contracted to work for it, must be set out in the contract appointing it.

(5)

Confidential information obtained by an auction platform, including any persons contracted to work for it, may be used solely for the purpose of the performance of its obligations or the exercise of its functions with respect to the auctions.

(6)

Paragraphs (1) to (5) do not preclude the exchange of confidential information between an auction platform and—

(a)

the FCA;

(b)

any body which is a supervisory authority for the purposes of the Money Laundering Regulations; or

(c)

the police and competent national authorities responsible for investigating and prosecuting money laundering, terrorist financing, other criminal activity or market abuse.

(7)

Confidential information exchanged under paragraph (6) may not be disclosed to any person other than those referred to in paragraph (6)(a), (b) and (c) contrary to paragraph (2).

(8)

Any person who works, or has worked for, an auction platform involved in the auctions, must be bound by the obligation of professional secrecy and must ensure that confidential information is protected pursuant to this regulation.