Questions & Answers

Disclaimer: The information in this section offers in no way a binding interpretation of Regulation (EU) 1227/2011 on wholesale energy market integrity and transparency (REMIT). The right to interpret all aspects of this regulation is without exception reserved by the European Court of Justice.

What is a wholesale energy product?

Pursuant to Article 2(4) REMIT, the following contracts and derivatives are wholesale energy products, irrespective of where and how they are traded:

• contracts for the supply of electricity or natural gas where delivery is in the Union
• derivatives relating to electricity or natural gas produced, traded or delivered in the Union
• contracts relating to the transportation of electricity or natural gas in the Union
• derivatives relating to the transportation of electricity or natural gas in the Union

Pursuant to Article 3(1)(a)(vii) of Implementing Regulation 1348/2014, contracts for the supply of electricity or natural gas to a single consumption unit with a technical capability to consume 600 GWh/year or more are also wholesale energy products and must thus be reported to ACER.

ACER views all contracts for the supply or transportation of electricity or natural gas that are traded intraday, within-day, day-ahead, two-day-ahead, weekend, long-term or for any other time period generally accepted in the market as contracts for the supply or transportation of electricity or natural gas. Derivatives are interpreted as financial instruments according to (4) to (10) of Section C of Annex I to Directive 2004/39/EC (MiFID), as implemented in Articles 38 and 39 of Regulation 1287/2006.

To simplify reporting, ACER keeps and regularly updates an (indicative) public list of standard contracts for the supply or transportation of electricity and natural gas. Click the following link to access the list: https://www.acer-remit.eu/portal/standardised-contract

 

What is a single consumption unit?

Pursuant to Article 3(1)(a)(vii) of Implementing Regulation 1348/2014, contracts for the supply of electricity or natural gas to a single consumption unit with a technical capability to consume 600 GWh/year or more must be reported to ACER.

The single consumption unit is a single demand facility which consumes electricity or gas and is connected to the network at one or more connection points. ACER also understands electricity and gas distribution networks to be consumption units with regard to electricity or gas that serves to cover grid losses. For this reason, distribution system operators with grid losses above a threshold of 600 GWh/year are considered final customers and market participants under REMIT.

What is understood by the “technical capability to consume” of a single consumption unit? What are the obligations of “large consumers”?

ACER understands the “technical capability to consume” to mean the maximum amount of energy that a final customer could consume annually if that customer were to run its facility fully at all times throughout the year. If a single consumption unit typically has an annual consumption of below 600 GWh, final customers should make an assessment of the unit’s technical capability to consume. To do this, consideration should be given to the consumption capability of the unit in the first instance, i.e. the amount of energy that would be consumed if the single consumption unit were to run at its maximum output over a year.
ACER also suggests caution when using historical consumption data in order to estimate the technical capability to consume as they do not represent the current actual capability of consumption and the installation could possibly consume more in one year. The assessment of the technical capability to consume based on historical consumption data should therefore only be used in exceptional cases.
If a single unit of consumption on this basis has a potential consumption capability of more than 600 GWh per year, final customers may also consider the maximum amount of energy that can flow from the network into the unit to determine if this import capacity constrains the unit’s technical capacity to a lower level.
In order to assess whether the limit value of 600 GWh per year is exceeded and thus whether there is a REMIT registration obligation, the consumption of electricity and gas must be considered separately. When assessing the theoretically possible consumption, at least all locations within a market area are taken into account, as their interaction can have an influence on wholesale prices. From ACER's view, in the context of the growing interdependence of the European wholesale markets, it is appropriate to consider all consumption units within the European Union. The decisive factor is not whether these are separate legal entities, but whether they behave on the market as a unit (participation, liability, common interests, etc.). 
The obligation of reporting is to be considered separately from the registration obligation. According to Art 3 (1) (a) (vii) of Regulation (EU) 1348/2014, contracts that supply a single consumption unit with a technically possible consumption of at least 600 GWh per year are obligatory to report to ACER. The actually agreed delivery quantity in a contract is not relevant here. If a contract supplies several consumption units, whereby only one unit reaches or exceeds the limit value of 600 GWh per year, this contract must also be reported to ACER.
End customers should be aware that each time the technical capability to consume in a single consumption unit is changed, a reassessment of whether this installation exceeds the 600 GWh per year limit should also be made.
According to Art. 3 (2) of Regulation (EU) 1348/2014, the ‘large consumer’ must inform the other party to a contract covered by Art. 3 (1) (a) (vii) of Regulation (EU) 1348/2014 about the technical capability to consume at least 600 GWh per year of the consumption unit in question.

„Are guarantees of origin and emissions allowances wholesale energy products?

ACER does not consider guarantees of origin and emissions allowances wholesale energy products, as they do not meet the criteria outlined in Article 2(4) REMIT. ACER is aware that such contracts can have a significant effect on the prices of wholesale energy products. Pursuant to Article 10 REMIT, ACER and authorities responsible for overseeing trading in emissions allowances or derivatives relating to emissions allowances shall cooperate with each other and establish appropriate mechanisms to provide ACER with access to records of transactions in such allowances and derivatives where those authorities collect information on such transactions.

Are intra-group transactions considered wholesale energy products? What are the obligations of the contracting parties?

The definition of wholesale energy products applies to contracts and derivatives "regardless of where and how they are traded". Consequently, ACER considers intra-group transactions that are concluded outside organised marketplaces, e.g. over-the-counter (OTC), and that are entered into with a counterparty that is part of the same group, a wholesale energy product under REMIT. For this reason, also actors who exclusively conclude intra-group transactions have the obligation to register as market participants according to Art 9 (1) REMIT and subsequently receive an ACER code.

There is no obligation to register if the contract in question falls under the exemption under Art. 4 (1) (b) or (c) of Regulation (EU) 1348/2014 (capacity of a single generation unit not exceeding 10 MW electricity/ 20 MW gas). This exemption applies regardless of whether this contract was concluded within the group or not. 

When assessing whether a contract is considered "intra-group", it must be determined whether the two parties to the contract are fully consolidated (e.g. joint annual accounts). Otherwise, the contract in question does not fall under the definition of an intra-group contract. Further details can be found in Directive 2013/34 (EU) and the corresponding national implementing legislation.

According to Article 4 of the Implementing Regulation (EU) No. 1348/2014, these intra-group contracts shall only be submitted ad hoc to ACER upon justified request.

What is a wholesale energy market?

Article 2(6) REMIT defines a wholesale energy market as any market within the Union “on which wholesale energy products are traded”.

Pursuant to Recital 5 REMIT, wholesale energy markets encompass both commodity markets and derivative markets, which are of vital importance to the energy and financial markets, and price formation in both sectors is interlinked. They include, inter alia, regulated markets, multilateral trading facilities and over-the-counter (OTC) transactions and bilateral contracts, direct or through brokers.

ACER interprets this definition of wholesale energy markets as at least including the following markets:

• balancing markets for the trading of electricity and natural gas with delivery in the Union;
• intraday or within-day markets for the trading of electricity and natural gas with delivery in the Union;
• day-ahead or two-day-ahead markets for the trading of electricity and natural gas with delivery in the Union;
• physical markets for the trading of electricity and natural gas with delivery in the Union, including markets for physical forward contracts and non-standardised long-term contracts;
• markets for the transportation capacities of electricity or natural gas in the Union;
• derivatives markets relating to electricity or natural gas produced, traded or delivered in the Union, including financial OTC markets;
• derivatives markets relating to the transportation of electricity or natural gas in the Union.

In the future, also capacity mechanisms may be considered.

What is a market participant?

Pursuant to Article 2(7) REMIT, “market participant” means any person, including transmission system operators, who enters into transactions, including the placing of orders to trade, in one or more wholesale energy markets. The notion of a market participant is therefore closely linked with the understanding of the notions of “wholesale energy market” and “wholesale energy product”.

ACER currently considers at least the following persons to be market participants under REMIT if entering into transactions, including orders to trade, in one or more wholesale energy products, irrespective of where and how they are traded:

• energy trading companies in the meaning of “electricity undertaking” pursuant to Article 2(35) of Directive 2009/72/EC carrying out at least one of the following functions: transportation, supply or purchase of electricity, and in the meaning of “natural gas undertaking” pursuant to Article 2(1) of Directive 2009/73/EC carrying out at least one of the following functions: transportation, supply or purchase of natural gas, including LNG;
• producers of electricity or natural gas in the meaning of Article 2(2) of Directive 2009/72/EC and Article 2(1) of Directive 2009/73/EC, including producers supplying their production to their in-house trading unit or energy trading company;
• shippers of natural gas;
• wholesale customers in the meaning of Article 2(8) of Directive 2009/72/EC and Article 2(29) of Directive 2009/73/EC;
• final customers in the meaning of Article 2(9) of Directive 2009/72/EC and Article 2(27) of Directive 2009/73/EC, unless they only conclude transactions for the supply and distribution of electricity and natural gas for their own consumption, with maximum consumption capacity staying below 600 GWh/year;
• transmission system operators in the meaning of Article 2(4) of Directive 2009/72/EC and Directive 2009/73/EC;
• storage system operators in the meaning of Article 2(10) of Directive 2009/73/EC;
• LNG system operators in the meaning of Article 2(12) of Directive 2009/73/EC;
• investment firms in the meaning of Article 4(1) No 1 of Directive 2004/39/EC.

Further reasons as to the inclusion of storage system operators and/or LNG system operators are stated in the relating ACER Guidance. 

 

What obligations do market participants have?

• The obligation to publish inside information according to Article 4 REMIT;
• the obligations referred to in Article 3(4)(b) REMIT if an exemption from the prohibition of insider trading applies;
• the obligations of data collection and reporting according to Article 8 REMIT;
• the obligation stipulated by Article 9(1) REMIT to register with the national regulatory authority in the member state in which market participants are established or resident or, if they are not established or resident in the Union, in the member state in which market participants are active, if such market participants are entering into transactions which are required to be reported to ACER in accordance with Article 8(1) REMIT.

What is inside information?

According to Article 2(1) REMIT, “inside information” means information of a precise nature which has not been made public, which relates, directly or indirectly, to one or more wholesale energy products and which, if it were made public, would be likely to significantly affect the prices of those wholesale energy products. “Information” means in any case:

• information which is required to be made public in accordance with Regulations 714/2009 and 715/2009, including guidelines and network codes adopted pursuant to those Regulations;
• information relating to the capacity and use of production, storage, consumption, transmission and LNG facilities, including planned or unplanned unavailability of these facilities;
• information which is required to be disclosed in accordance with legal or regulatory provisions at Union or national level, market rules, and contracts or customs on the relevant wholesale energy market, in so far as this information is likely to have a significant effect on the prices of wholesale energy products;
• other information that a reasonable market participant would be likely to use as part of the basis of its decision to enter into a transaction relating to, or to issue an order to trade in, a wholesale energy product.

Recital 12 REMIT states that information regarding the market participant’s own plans and strategies for trading should not be considered as inside information. For more details on the terms “trading plans” and “trading strategy” as well as examples of inside information, please refer to the ACER Guidance. 

When is information deemed to be public knowledge?

Once information has been made available to the broad trading public, such information is deemed to be public knowledge.

For further information please also see the ACER guidance.

When is information deemed to be of a precise nature?

Information is deemed to be of a precise nature if it indicates a set of circumstances which exists or may reasonably be expected to come into existence, or an event which has occurred or may reasonably be expected to do so, and if it is specific enough to enable a conclusion to be drawn as to the possible effect of that set of circumstances or event on the prices of wholesale energy products (Article 2(1) REMIT).

When are prices likely to be significantly affected?

Article 2(1) REMIT provides that, for information to be qualified as inside information, it is sufficient that such information, if it were made public, “would be likely to significantly affect” the prices of wholesale energy products. ACER understands the criterion of significant price effect to narrow the wide notion of information down to that information which is crucial enough to have a potential to affect prices.
The assessment of the likelihood of price effects thus requires a prognosis based on ex-ante considerations, i.e. there must be a reasonable prognosis suggesting that price effects are likely to occur. When assessing whether information is likely to have a significant price effect and thus qualifies as inside information, it does not matter whether a price effect has actually occurred, but whether the information has a potential to affect prices. Actual ex-post price increases can, however, be taken into consideration as indicators of whether certain information is likely to have an effect on prices. The assessment of the likelihood to affect prices always depends on the individual case. Such assessment thus takes into consideration the market participant’s activity, the market situation and the specificities of the relevant market (size of the market, balance of demand and supply, time of day, etc.). In that regard, ACER considers that the following should be taken into consideration as useful indicators:

• the type of information is the same as information which has, in the past, had a significant effect on prices;
• pre-existing publications indicate that the type of information in question has significant effects on prices;
• the market participant itself or another reasonable market participant has already treated similar events as inside information.

From E-Control's point of view, natural gas prices are in any case significantly influenced if a capacity of at least 200 MWh/h is affected. For the electricity market, it was assumed before the AT-DE price zone separation that a limit value of 100 MW would influence prices. Due to the changed market situation, however, this threshold value has to be seen critically. For both natural gas and electricity, this limit must be set lower in narrow market situations.

What does “market manipulation” mean?

Pursuant to Article 2(2) REMIT, “market manipulation” means:

a) entering into any transaction or issuing any order to trade in wholesale energy products which

i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products;

ii) secures or attempts to secure, by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level, unless the person who entered into the transaction or issued the order to trade establishes that their reasons for doing so are legitimate and that that transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or

iii) employs or attempts to employ a fictitious device or any other form of deception or contrivance which gives, or is likely to give, false or misleading signals regarding the supply of, demand for, or price of wholesale energy products; or

b) disseminating information through the media, including the internet, or by any other means, which gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products, including the dissemination of rumours and false or misleading news, where the disseminating person knew, or ought to have known, that the information was false or misleading.

When information is disseminated for the purposes of journalism or artistic expression, such dissemination of information shall be assessed taking into account the rules governing the freedom of the press and freedom of expression in other media, unless:

(i) those persons derive, directly or indirectly, an advantage or profits from the dissemination of the information in question; or

(ii) the disclosure or dissemination is made with the intention of misleading the market as to the supply of, demand for, or price of wholesale energy products.

Any engagement in, as well as any attempt to engage in, market manipulation on wholesale energy markets is prohibited (Article 5 REMIT).

Who is obliged to disclose inside information?

Article 4(1) REMIT requires market participants to publicly disclose inside information in an effective and timely manner. Such information relates to businesses or facilities

• which the market participant concerned, or its parent undertaking or related undertaking, owns or controls; or
• for whose operational matters that market participant or undertaking is responsible, either in whole or in part.

This obligation to disclose inside information also applies to or person employed by, or acting on behalf of, a market participant when that person discloses inside information to any other person in the normal course of the exercise of their employment, profession or duties as referred to in Article 3(1)(b) of REMIT. That market participant or person is required to ensure simultaneous, complete and effective public disclosure of that information.

Pursuant to section 10a Elektrizitätswirtschafts- und -organisationsgesetz (Electricity Act) 2010 and section 10a Gaswirtschaftsgesetz (Natural Gas Act) 2011, any market participant obliged to publish inside information pursuant to Article 4 REMIT is additionally required to submit such information to E-Control at the same time as publishing it.

What is effective disclosure of inside information?

Inside information must be disclosed in a timely manner and in a way that ensures the widest possible public dissemination of the information. ACER is therefore of the opinion that a publication of inside information via platforms is considered an effective publication according to Art 4 REMIT. A platform is an electronic system for the provision of information that is used by several participants and that meets the minimum quality criteria in chapter 7.2.2 ACER Guidance.

The publication should be precise and contain all necessary information to give the market a clear understanding of the situation. The format of the publication should ensure a level playing field and transparency. All publications according to Art 4(1) REMIT, in the form of a UMM (Urgent Market Message) should contain all information according to ANNEX VII (Electricity, Gas, Other) REMIT MoP on data reporting and should be provided accordingly. All fields and values described in this ANNEX should be supported by the platform.   
In the publication, irrelevant information (such as advertising) should be avoided. Disclaimers are to be presented in separate sections. 

ACER is of the opinion that effective publication is only given if the following minimum quality criteria are met:

• Inside information should be disclosed in a non-discriminatory manner and free of charge;
• Technical precautions should be taken to ensure the completeness, security and confidentiality of data during transmission, processing, storage, etc;
• The inside information should be made available by means of a dedicated web feed, which allows easy and quick access for ACER as well as for the public;
• The information presented should be filterable (including historical information) to allow efficient use;
• The inside information (including all updates) should be kept available to the public for a period of at least 5 years;
• It should be possible to link the history of published messages by means of referencing;
• The information should be published in the official language(s) of the respective Member State and English or English only;
• Effective back-up systems and minimal unavailability in line with market expectations should be ensured and potential delays in publication should be kept to a minimum;
• Effective administrative arrangements to avoid conflicts of interest with market participants should be ensured (applies only to platforms);

If a publication requires a prediction, e.g. regarding the duration of an outage, this prediction may be subject to uncertainty. ACER is therefore of the opinion that market participants meet their requirements for publication if such a prognosis is based on all available data and was prepared with reasonable effort. If the prediction changes over time, the publication should be updated as soon as new information is available within the company.

In general, ACER is of the opinion that any incomplete or incorrect publication of inside information should be considered as non-effective disclosure and thus as a violation of Article 4(1) REMIT.

However, ACER is aware that market participants are held responsible for the publication of insider information, while at the same time they have no influence on the operation of platforms. ACER therefore states that market participants are not responsible for temporary technical problems of platforms meeting the above-mentioned minimum quality criteria. Therefore, if the information has been transmitted to the platform in time and temporary technical problems have occurred there, this should not be considered as a breach of the market participant's obligation to disclose inside information. However, if the technical problems persist, market participants should use other platforms or their company's website for publication.

Please find here an overview of the insider information platforms listed in the ACER REMIT portal: https://www.acer-remit.eu/portal/list-inside-platforms 

What does “disclosure of inside information in a timely manner” mean?

Inside information must be disclosed in an effective and timely manner. ACER considers that:

• the publication of inside information which was published in accordance with Regulations 714/2009 and 715/2009, including guidelines and network codes adopted pursuant to those Regulations, and Regulation 543/2013 is considered simultaneous, complete and effective public disclosure. However, this does not necessarily constitute disclosure in a timely manner. To ensure timely disclosure, the inside information has to be published, in any case, before trading in wholesale energy products which that information relates to or recommending another person to trade in wholesale energy markets which that information relates to.
• if information does not have to be made public in accordance with Regulations 714/2009, 715/2009 or 543/2013, there is no reason for applying a different timeframe for the disclosure of information than stated in the above-mentioned Regulations. Such information should therefore normally be published as soon as possible, but at the latest within one hour if not otherwise specified in applicable rules and regulations. But in any case the inside information has to be published before trading in wholesale energy products which that information relates to or recommending another person to trade in wholesale energy markets which that information relates to.

Market participants should develop a clear compliance plan towards real time or close to real time disclosure of inside information, beyond compliance with existing third package transparency obligations.

Who is subject to the prohibition of insider trading?

The prohibition of insider trading applies to the following persons who possess inside information in relation to a wholesale energy product:

• members of the administrative, management or supervisory bodies of an undertaking;
• persons with holdings in the capital of an undertaking;
• persons with access to the information through the exercise of their employment, profession or duties;
• persons who have acquired such information through criminal activity;
• persons who know, or ought to know, that it is inside information.

Are there exceptions to the prohibition of insider trading and the obligation to disclose inside information?

Article 3(4) REMIT stipulates that the prohibition of insider trading does not apply to some specified cases.

• Pursuant to Article 3(4)(a) REMIT, Article 3 REMIT does not apply to transactions conducted in the discharge of an obligation that has become due to acquire or dispose of wholesale energy products where that obligation results from an agreement concluded, or an order to trade placed, before the person concerned came into possession of inside information.

ACER holds that this exemption also applies under the Market Abuse Directive and particularly to transactions concerning derivatives contracts, conducted in the discharge of an obligation that has become due to acquire or dispose of wholesale energy products where that obligation results from an agreement concluded, or an order to trade placed, before the person concerned came into possession of inside information. Since the exemption also applies to orders to trade placed before the person concerned came into possession of inside information, ACER considers that the market participant is obliged to refrain from any amendment or selective withdrawal of the order placed (“hands-off approach”) in order to comply with the prohibition of insider trading.

• Pursuant to Article 3(4)(b) REMIT, Article 3 REMIT does not apply to transactions entered into by electricity and natural gas producers, operators of natural gas storage facilities or operators of LNG import facilities the sole purpose of which is to cover the immediate physical loss resulting from unplanned outages, where not to do so would result in the market participant not being able to meet existing contractual obligations or where such action is undertaken in agreement with the transmission system operator(s) concerned in order to ensure safe and secure operation of the system. In such a situation, the relevant information relating to the transactions are reported to ACER and the national regulatory authority. This reporting obligation is without prejudice to the obligation set out in Article 4(1).

Concerning the exemption in Article 3(4)(b) REMIT, ACER considers that, since the exemption is limited in scope to the market participants mentioned therein, any unplanned outage under the exemption of Article 3(4)(b) REMIT may only relate to production, storage or LNG import facilities. It furthermore considers that the exemption may only be applied for unplanned outages, i.e. outages which are not ex-ante known by the primary owner of the data, and that any physical loss needs to be caused immediately and solely by that unplanned outage. The aforementioned market participants can only use this exemption to enter into transactions to cover the immediate physical loss. Any further trading that goes beyond covering the immediate physical loss does not fall under the scope of this exemption.

The exemption in Article 3(4)(b) REMIT may only be applied by the aforementioned market participants for transactions as described above in the following two instances:

• where not to do so would result in the market participant not being able to meet existing contractual obligations; or
• where such action is undertaken in agreement with the transmission system operator(s) concerned in order to ensure safe and secure operation of the system.

Regarding the first instance, ACER considers that the contractual obligations referred to must exist ex-ante of the immediate physical loss resulting from unplanned outages. The existing contractual obligations must relate to the relevant period of the unplanned outage.

ACER considers a market participant “not being able” to meet such existing contractual obligations only if the market participant has no other own assets available to cover the physical loss. The application of exemption in Article 3(4)(b) REMIT cannot coincide with the application of Article 4(2) REMIT concerning delayed disclosure of inside information, as Article 4(2) REMIT requires that the market participant does not make decisions based upon the relevant inside information.

As regards the second instance, ACER considers that the criterion “to ensure the safe and secure operation of the system” may apply in cases of Article 3(4)(c) REMIT.

If a market participant applies the exemption in Article 3(4)(b), the relevant information relating to the transactions must be reported to ACER and E-Control. In order to assist those market participants in reporting information, ACER has made an electronic notification platform available on its website. Should this notification platform be unavailable, it is also possible to fill in and submit the form that can be found in the section disclosure forms under Reporting information pursuant to Article 3(4)(b) REMIT by sending it to remit@e-control.at.

• Pursuant to Article 3(4)(c) REMIT, Article 3 REMIT does not apply to market participants acting under national emergency rules, where national authorities have intervened in order to secure the supply of electricity or natural gas and market mechanisms have been suspended in a member state or parts thereof. In this case the authority competent for emergency planning must ensure publication in accordance with Article 4.

With regard to the exemption of Article 3(4)(c) REMIT, ACER considers that it will normally coincide with the exemption of Article 4(2) REMIT and that in such case the authority competent for emergency planning must ensure publication in accordance with Article 4(1) REMIT. If a market participant is required by national emergency rules to enter into transactions, any such transactions entered into whilst in possession of inside information will not be in breach of Article 3 REMIT.

• Pursuant to Article 4(2) REMIT, a market participant may under its own responsibility exceptionally delay the public disclosure of inside information so as not to prejudice its legitimate interests provided that such omission is not likely to mislead the public and provided that the market participant is able to ensure the confidentiality of that information and does not make decisions relating to trading in wholesale energy products based upon that information. In such a situation the market participant must without delay provide that information, together with a justification for the delay of the public disclosure, to ACER and the relevant national regulatory authority having regard to Article 8(5).

The decision to exceptionally delay the public disclosure of inside information in accordance with Article 4(2) REMIT is for market participants to make. It is not the role of ACER or E-Control to pre-approve the application of Article 4(2) REMIT to a specific set of circumstances. In any instance where a market participant chooses to delay disclosure, it must ensure that such a delay is not likely to mislead the public, that it does not make trading decisions on that information and that the information remains confidential. As Article 4(2) REMIT requires that the market participant does not make trading decisions based on that inside information, ACER underlines that the application of Article 4(2) REMIT cannot coincide with the application of Article 3(4)(b) REMIT. Whether a market participant rightly or falsely applied Article 4(2) REMIT can only be determined ex-post. As soon as the legitimate interests cease to exist, the market participant must disclose the inside information in accordance with Article 4(1) REMIT.

To assist market participants to notify ACER and E-Control about a delay of the public disclosure of inside information and its reason without delay, ACER provides an electronic notification platform to market participants. Should this notification platform be unavailable, it is also possible to fill in and submit the form that can be found in the section disclosure forms under Reporting information pursuant to Article 4(2) REMIT by sending it to remit@e-control.at.

Does REMIT also apply to unsuccessful attempts to engage in market manipulation?

According to Article 5 REMIT, any engagement in, or attempt to engage in, market manipulation on wholesale energy markets is prohibited. An attempt to engage in market manipulation constitutes an administrative offence under section 99(4)(1) Elektrizitätswirtschafts- und -organisationsgesetz (Electricity Act) 2010 and section 159(4)(1) Gaswirtschaftsgesetz (Natural Gas Act) 2011 and is subject to the same penalty as engaging in market manipulation.

Which requirements does a compliance regime have to meet in order to satisfy REMIT requirements?

Market participants should develop a clear compliance regime towards real time or close to real time disclosure of inside information and the further REMIT requirements, beyond compliance with existing third package transparency obligations. National regulatory authorities regard the following compliance systems as best practice examples for market participants:

• Compliance culture: the creation of a corporate culture to comply with REMIT requirements;
• Compliance objectives: the compliance with REMIT requirements, namely the registration, disclosure and reporting obligations and the market abuse prohibitions;
• Compliance organisation: the definition of roles and responsibilities in the internal organisation (e.g. responsibilities for the REMIT requirements (centralised vs. decentralised), internal vs. external reporting lines, internal vs. external interfaces, provision of resources: human/technical (IT systems) resources);
• Compliance risks: the identification/assessment of concrete compliance risks;
• Compliance programme: the identification of concrete actions to define compliant/non-compliant behaviour/implementation of processes to ensure regulations are observed;
• Communication: the communication of the rules and regulations to be observed. This includes internal communication and training concepts (raising the awareness of employees) and external communication and reporting to ACER/national regulatory authorities;
• Reporting process: internal reports on compliance, reporting of infringements, status of current processes, etc.
• In addition, improvements in monitoring are advisable. Such improvements can encompass internal controls and audits, reporting lines for monitoring results and the documentation of processes and actions.

What are the duties of national regulatory authorities?

National regulatory authorities are obliged to monitor and investigate alleged cases of breaches of REMIT. Such breaches can include:

• breaches of the market abuse prohibitions pursuant to Articles 3 and 5 REMIT;
• breaches of the obligation to promptly notify the relevant information to ACER and the competent national regulatory authority about a delay in the public disclosure of inside information pursuant to Article 4(2) REMIT;
• breaches of the obligation to provide ACER with a record of wholesale energy market transactions including orders to trade pursuant to Article 8(1) REMIT;
• breaches of the obligation to register with the competent national regulatory authority pursuant to Article 9 REMIT;
• breaches of the obligations of persons professionally arranging transactions pursuant to Article 15 REMIT.

Does publication on ENTSO-E in accordance with Regulation (EU) 543/2013 equally cover the obligation under Article 4 REMIT?

If ENTSO-E meets the minimum requirements under Art 3 Regulation (EU) 543/2013, a publication covers the obligation to publish under Art 4 REMIT as well. 

However, if the platform does not meet the minimum requirements, it is not ensured that a publication is considered an effective inside information publication pursuant to Art 4 (4) REMIT.