Further investigative steps

Based on the initial results of the Authority, the following investigative steps may be initiated:

Contacting market participants

There are various ways persons can submit information regarding potential breaches of the stipulations of Articles 3 and 5 REMIT to E-Control and the regulatory authority can learn of such breaches in various ways. In all probability, not every suspicion will substantiate and trigger the initiation of an investigation procedure according to section 25a E-Control-Gesetz (E-Control Act). To establish whether further investigations in the course of an investigation procedure are necessary, E-Control might have to informally, to ensure proportionality in administrative efforts, get in touch with market participants. The objective of contacting market participants in this way is to clarify incidents observed in order to exclude incidents that constitute accepted practices from further prosecution.

Initiating an investigation procedure pursuant to section 25a(1) Energie-Control-Gesetz (E-Control Act)

If a suspicion is confirmed, E-Control will initiate an investigation procedure pursuant to section 25a(1) E-Control Act, in the course of which it is, while maintaining the principle of proportionality, authorised to

  • have access to any relevant document in any form, and to receive a copy of it;
  • demand information from any relevant person or principals;
  • summon and hear any such person or principal;
  • carry out investigations on site and demand access to information, explanations or documents which are related to the subject and purpose of the investigations;
  • have access to and receive a copy of already filed results of a provision of message transfer and message monitoring data;
  • suggest a seizure of property pursuant to section 110 Strafprozessordnung (Criminal Procedure Code) at the competent public prosecution authority;
  • if there is suspicion of market manipulation, to request the responsible authority, which can be asked to cooperate in ensuring that stipulations and prohibitions of REMIT are heeded by imposing a temporary prohibition of professional activity on the accused party for the duration of the procedure.

It is in the framework of these powers that E-Control might contact market participants concerned. However, actual investigation and punishing powers according to penal law remain with the judicial law enforcement authorities or district administration authorities, which serve as administrative penal authorities.

Coordination with ACER

Article 16(2) REMIT requires E-Control to without delay inform ACER in as specific a manner as possible where it has reasonable grounds to suspect that acts in breach of REMIT are being, or have been, carried out either in Austria or in another member state. This obligation must thus be complied with as soon as a procedure is initiated by E-Control. The exchange of information with other relevant authorities is governed by Article 16(3) REMIT.

Referral to the law enforcement authorities

Within the scope of application of REMIT and/or section 25a Energie-Control-Gesetz (E-Control Act), E-Control must ascertain in the course of the investigation procedure whether the reasonable suspicions of a breach of REMIT upon which the procedure was initiated are confirmed and must be referred to the relevant law enforcement authorities, i.e. the public prosecution authority or district administration authority, for further investigation, or whether the investigation procedure must be discontinued because the suspicions were unfounded. Breaches of REMIT under administrative penal law are referred to the competent district administration authorities while breaches under judicial penal law are referred to the public prosecution authority.

The subsequent course of the procedure depends on the investigative steps undertaken by the competent authority; in that respect, E-Control is required to cooperate with the judicial law enforcement authority as provided for in section 25b E-Control Act.