Breaches

REMIT lays down a number of obligations and prohibitions for market participants. Penalties for breaches of REMIT are, however, imposed at national level in line with Article 13 REMIT. In Austria, these penalties have been transposed into national legislation in the Elektrizitätswirtschafts- und -organisationsgesetz (Electricity Act) 2010 and the Gaswirtschaftsgesetz (Natural Gas Act) 2011. The penalties imposed by these Acts for breaches of the different provisions of REMIT are detailed below.

Market manipulation

According to Article 5 REMIT, any engagement in, or attempt to engage in, market manipulation on wholesale energy markets is prohibited. “Market manipulation” and “attempt to manipulate the market” are understood to mean the facts and circumstances set forth in Article 2 items (2) and (3) REMIT. Any breach of the prohibition of market manipulation pursuant to Article 5 REMIT in conjunction with Article 2 items (2) and (3) REMIT constitutes an administrative offence under the Electricity Act 2010 and/or the Natural Gas Act 2011 and is punishable by a fine of up to EUR 150,000.

Article 3 REMIT prohibits insider trading in wholesale energy products. Whoever uses inside information in the manner described in Article 3(1) REMIT, but without intending to generate a pecuniary advantage for themselves or a third party, thereby counteracting the insider trading prohibition if they know or ought to know pursuant to Article 3(2)(e) REMIT that it is inside information as defined in Article 2(1) REMIT is deemed to have committed an administrative offence under the Electricity Act 2010 and/or the Natural Gas Act 2011 and may be fined up to EUR 50,000.

Whoever uses inside information in the manner described in Article 3(1) REMIT, but while intending to generate a pecuniary advantage for themselves or a third party, thereby counteracting the insider trading prohibition if they know or ought to know pursuant to Article 3(2)(e) REMIT that it is inside information as defined in Article 2(1) REMIT is deemed to have committed an administrative offence under the Electricity Act 2010 and/or the Natural Gas Act 2011 and may be fined up to EUR 150,000.

Persons as defined in Article 3(2)(a) to (d) REMIT, i.e. members of the administrative, management or supervisory bodies of an undertaking, persons with holdings in the capital of an undertaking, persons with access to information through the exercise of their employment, profession or duties, and persons who have acquired such information through criminal activity, who use inside information as defined in Article 2(1) REMIT in relation to wholesale energy products as defined in Article 2(4) REMIT with the intent of generating a pecuniary advantage for themselves or a third party by

using that information by acquiring or disposing of, for their own account or for the account of a third party, either directly or indirectly, wholesale energy products to which that information relates;

1. disclosing that information to any other person unless such disclosure is made in the normal course of the exercise of their employment, profession or duties; or
2. recommending or inducing another person, on the basis of inside information, to acquire or dispose of wholesale energy products to which such information relates;
3. are deemed to have committed an offence punishable by court and can be punished by the court with imprisonment of up to three years.

Persons as defined in Article 3(2)(a) to (d) REMIT who possess inside information as defined in Article 2(1) REMIT in relation to wholesale energy products as defined in Article 2(4) REMIT and use such information, but without intending to generate a pecuniary advantage for themselves or a third party, by

1. using that information by acquiring or disposing of, for their own account or for the account of a third party, either directly or indirectly, wholesale energy products to which that information relates;
2. disclosing that information to any other person unless such disclosure is made in the normal course of the exercise of their employment, profession or duties; or
3. recommending or inducing another person, on the basis of inside information, to acquire or dispose of wholesale energy products to which such information relates;

are deemed to have committed an offence punishable by court and can be punished by the court with imprisonment of up to six months or payment of a fine of up to 360 daily rates.

Disclosure of inside information

Article 4 REMIT imposes an obligation for market participants to disclose inside information in accordance with the provisions of REMIT. Any breach of this disclosure obligation constitutes an administrative offence under the Electricity Act 2010 and/or the Natural Gas Act 2011 and is punishable by a fine of up to EUR 50,000. A breach is deemed to exist where a person or entity

• in contravention of Article 4(1) REMIT fails to publish inside information, to publish it correctly, to publish it in full, to publish it effectively or to publish it in a timely manner;
• in contravention of Article 4(2) REMIT fails to submit inside information, to submit it correctly, to submit it in full or to submit it without delay;
• in contravention of Article 4(3) REMIT fails to ensure simultaneous, complete and effective public disclosure of inside information.

According to section 10a Electricity Act 2010 and section 10a Natural Gas Act 2011, any market participant obliged to publish inside information pursuant to Article 4 REMIT is required to submit such information to E-Control at the same time as publishing it. Whoever fails to comply with their obligation to notify inside information pursuant to section 10a is deemed to have committed an administrative offence and may be fined up to EUR 10,000.

Reporting obligations

Article 8 REMIT provides for comprehensive data collection by ACER. Such data relate to wholesale energy market transactions, including orders to trade, as well as information related to the capacity and use of facilities for production, storage, consumption or transmission of electricity or natural gas or related to the capacity and use of LNG facilities, including planned or unplanned unavailability of these facilities, for the purpose of monitoring trading in wholesale energy markets. Any breach of this reporting obligation constitutes an administrative offence under the Electricity Act 2010 and/or the Natural Gas Act 2011 and is punishable with a fine of up to EUR 50,000. A breach is deemed to exist where a person or entity

• in contravention of Article 8(1) REMIT in conjunction with implementing legislation in accordance with Article 8(2) REMIT fails to submit a record mentioned therein, to submit it correctly, to submit it in due time or to submit it in full;
• in contravention of Article 8(5) REMIT in conjunction with implementing legislation in accordance with Article 8(6) REMIT fails to submit information mentioned therein, to submit it correctly, to submit it in due time or to submit it in full.

Article 15 REMIT requires any person professionally arranging transactions in wholesale energy products who reasonably suspects that a transaction might breach Article 3 or 5 REMIT to notify the national regulatory authority without further delay. Whoever, in contravention of Article 15 REMIT, fails to inform the regulatory authority, to inform it correctly, to inform it in full or to inform it in due time is deemed to have committed an administrative offence and may be fined up to EUR 50,000.

According to section 25a(2) E-Control-Gesetz (E-Control Act), E-Control requests and collects data and information it needs to fulfil the responsibilities it is charged with pursuant to REMIT and to monitor trading in wholesale energy products at national level and to monitor compliance with all obligations and prohibitions laid down by REMIT. For that purpose, section 25a(2) E-Control Act provides that E-Control must issue an ordinance to determine the parties to whom reporting obligations apply as well as the frequency, scope and format of the reporting obligations. That provision was implemented into law in the Energiegroßhandelsdaten-Verordnung (Ordinance on Energy Wholesale Data Collection). Whoever fails to submit data as ordered by an ordinance pursuant to section 25a(2) E-Control Act is deemed to have committed an administrative offence and may be fined up to EUR 10,000.

According to section 24(2) E-Control Act, the regulatory authority, in exercising its monitoring tasks set out in section 24(1) E-Control Act, may instruct by way of an official decision that compliance with the law be restored within an appropriate period of time. Whoever fails to comply with official decisions issued pursuant to section 24(2) E-Control Act for the scope of that Federal Act or any conditions, time limits and stipulations included therein is deemed to have committed an administrative offence and may be fined up to EUR 75,000.

According to section 25a(3) E-Control Act, exchanges and any other persons that professionally arrange transactions for the Austrian market must provide to E-Control all information it requires to fulfil its responsibilities and must support it in executing investigations. If there is suspicion that rules included in the exchange’s scope of duties, especially trade rules, as well as rules that lie in the jurisdiction of E-Control have been violated, both parties must cooperate and make relevant information available to each other. E-Control is authorised to order the exchange and any other persons that professionally arrange transactions for the Austrian market to cease to carry out investigations or any other measures if they complicate or obstruct the investigation of a case pursuant to Article 3 or 5 REMIT. Whoever fails to comply with its information and cooperation obligations pursuant to section 25a(3) E-Control Act is deemed to have committed an administrative offence and may be fined up to EUR 10,000.

Registration

Article 9(1) REMIT provides that market participants entering into transactions which are required to be reported to ACER in accordance with Article 8(1) must register with the national regulatory authority in the member state in which they are established or resident or, if they are not established or resident in the Union, in the member state in which they are active. Whoever, in contravention of Article 9(1) REMIT in conjunction with Article 9(4) REMIT, fails to register with the regulatory authority or fails to do so in due time is deemed to have committed an administrative offence and may be fined up to EUR 50,000.

Article 9(1)(2) REMIT provides that a market participant may register only with one national regulatory authority. Whoever, in contravention of Article 9(1)(2) REMIT, registers with more than one national regulatory authority is deemed to have committed an administrative offence and may be fined up to EUR 50,000.

Article 9(5) REMIT requires market participants referred to in Article 9(1) REMIT to communicate promptly to the national regulatory authority any change which has taken place as regards the information provided in the registration form. Whoever, in contravention of Article 9(5) REMIT, fails to notify a change in the information necessary for registration without delay is deemed to have committed an administrative offence and may be fined up to EUR 50,000.