REMIT

Section 5, Paragraph three of the Energy Law stipulates that market participants and the natural gas transmission system operator, when carrying out activities in the wholesale natural gas market, shall comply with the requirements of the Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (hereinafter – REMIT), including prohibition of insider trading, prohibition of market manipulation, as well as the responsibility to provide information to the Regulator and the Agency for the Cooperation of Energy Regulators (hereinafter – ACER).

In accordance with Article 13(1) of REMIT, the Regulator shall ensure that the prohibitions set out in Articles 3 and 5 and the obligations set out in Article 4 of REMIT are applied. Section 37.⁵, Paragraph two of the Electricity Market Law stipulates that the compliance with REMIT shall be monitored by the Regulator within the competence laid down for it.

REMIT is the Regulation No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency. It entered into force on 28 December 2011. REMIT implements a coordinated EU-wide system which:

• defines market abuse, market manipulation, attempt to manipulate the market and inside information in the wholesale energy markets;
• implements clear prohibition of market manipulation, attempt to manipulate the market and insider trading in the wholesale energy markets;
• establishes a new system for the supervision of the wholesale energy market in order to detect and deter market manipulation and insider trading;
• ensures compliance with the above-mentioned prohibitions and applies penalties for market abuse in the legislation of a Member State.

In accordance with Article 1(2) of REMIT, this Regulation applies to trading in wholesale energy products or wholesale energy market including any EU market in which wholesale energy products are traded. The definition of wholesale energy products includes electricity and natural gas supply contracts if delivery takes place in the EU, as well as contracts concerning electricity transmission or natural gas transportation in the EU. The requirements relate to contracts on physical delivery or financial settlements. Articles 3 and 5 of this Regulation shall not apply to wholesale energy products which are financial instruments and to which Article 9 of Directive 2003/6/EC applies.

In accordance with Article 2(6) of REMIT, ‘wholesale energy market’ means any market within the Union on which wholesale energy products are traded. 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 regulated markets, multilateral trading facilities and over-the-counter transactions and bilateral contracts, direct or through brokers.

According to ACER interpretation, the definition of the wholesale energy market includes but is not limited to: 

• Balancing markets for the trading of electricity or natural gas with delivery in the Union; 
• Intraday or within-day markets for the trading of electricity or natural gas with delivery in the Union;
• Day-ahead or two-day-ahead markets for the trading of electricity or natural gas with delivery in the Union, including week-end products; 
• Physical markets for the trading of electricity or natural gas with delivery in the Union, including non-standard physical contracts and non-standard long-term contracts;
• Markets for the transportation of capacities of electricity or natural gas in the Union; 
• Derivatives markets relating to electricity or natural gas produced, traded or supplied in the EU, including financial over-the-counter markets; 
• Derivatives markets relating to electricity or natural gas transmission in the Union.

In accordance with Article 2(7) of 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 concept of market participant is closely linked to the understanding of concepts of wholesale energy market and wholesale energy products.

According to ACER, REMIT is currently applicable to the following market participants which conclude transactions including orders to trade in one or several wholesale energy products irrespective of where and how they are traded:

• Energy trading undertakings or in accordance with Article 2(35) of the Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (hereinafter – Directive 2009/72/EC) ‘electricity undertaking’ carrying out at least one of the following functions: generation, transmission, distribution, supply, or purchase of electricity, which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but does not include final customers and in accordance with Article 2(1) of the Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas (hereinafter – Directive 2009/73/EC) ‘natural gas undertaking’ carrying out at least one of the following functions: production, transmission, distribution, supply, purchase or storage of natural gas, including liquefied natural gas (hereinafter – LNG), which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but shall not include final customers;
• Electricity or natural gas producers in accordance with Article 2(2) of the Directive 2009/72/EC and Article 2(1) of the Directive 2009/73/EC including producers which supply their products to an internal trading unit or energy trading undertaking;
• Transporters of natural gas;
• Wholesale customers which in accordance with Article 2(8) of the Directive 2009/72/EC are wholesale electricity customers or final customers and in accordance with Article 2(29) of the Directive 2009/73/EC are wholesale customers other than transmission system operators or distribution system operators who purchase natural gas for the purpose of resale inside or outside the system where they are established;
• Final customers which in accordance with Article 2(9) of the Directive 2009/72/EC are customers purchasing electricity for their own use and in accordance with Article 2(27) of the Directive 2009/73/EC are customers purchasing natural gas for their own use with the consumption capacity of one economic unit equal to or larger than 600 GWh per year. Market participants are also considered final customers having the relevant economic unit if the total consumption capacity of their separate facilities exceeds 600 GWh per year in markets with interlinked wholesale prices;
• Transmission system operators (TSOs) which in accordance with Article 2(4) of the Directive 2009/72/EC and Directive 2009/73/EC are responsible for operating, ensuring the maintenance of and, if necessary, developing the transmission system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the transmission of electricity or gas;
• Storage system operators (SSOs) which in accordance with Article 2(10) of the Directive 2009/73/EC carry out the function of storage and are responsible for operating a storage facility;
• LNG system operators which in accordance with Article 2(12) of the Directive 2009/73/EC carry out the function of liquefaction of natural gas, or the importation, offloading, and re-gasification of LNG and are responsible for operating a LNG facility;
• Investment firms which in accordance with Article 4(1) of the Directive 2004/39/EC are any legal person whose regular occupation or business is the provision of one or more investment services to third parties and/or the performance of one or more investment activities on a professional basis.

An important criterion to assess if a company is a market participant is the existence of concluded transactions including placement of trading orders in the wholesale energy markets.

The “market participant” concept also applies to undertakings outside the EU and outside the European Economic Area (hereinafter – EEA) in accordance with REMIT rules which means that REMIT obligations to register and report trading and fundamental data also apply to them if they carry out transactions in one or several wholesale energy markets.

In accordance with Article 2(1) of 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. The four elements that make up the definition are:

• information is precise;
• it is not public;
• it directly or indirectly relates to one or more wholesale energy products;
• if this information was published, it could significantly affect the prices of wholesale energy products. Information on the trading plans and strategies of a market participant is not considered inside information.

For the purposes of this definition, ‘information’ means: 

1. information which is required to be made public in accordance with Regulation (EC) No  714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 and Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 including guidelines and network codes adopted pursuant to those Regulations;
2. information relating 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;
3. 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; 
4. 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. Information shall be 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. 

Inside information may be related to any information which is part of the above-mentioned normative acts, as well as the following additional information insofar as it may significantly impact the prices of wholesale energy products: 

• Information relating to the capacity and use of facilities for production of electricity or natural gas, including planned or unplanned unavailability of these facilities; 
• Information relating to the capacity and use of facilities for storage of electricity or natural gas, including planned or unplanned unavailability of these facilities;
• Information relating to the capacity and use of facilities for consumption of electricity or natural gas, including planned or unplanned unavailability of these facilities;
• Information relating to the capacity and use of facilities for transmission of electricity or natural gas, including planned or unplanned unavailability of these facilities;
• Information related to the capacity and use of liquefied natural gas facilities, including planned or unplanned unavailability of these facilities;
• Information to be provided in accordance with the EU or state-level legislation;
• Information to be provided in accordance with Market Rules;
• Information to be provided in accordance with concluded contracts;
• Information to be provided in accordance with customs rules of the market; 
• Other information which a market participant could use as a partial basis for its decision to conclude a contract or issue an order to trade in wholesale energy products.

In accordance with Article 2(2) of REMIT, ‘market manipulation’ means:

1. entering into any transaction or issuing any order to trade in wholesale energy products which: 

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

2. 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: 

• those persons derive, directly or indirectly, an advantage or profits from the dissemination of the information in question; or
• 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.

In accordance with Article 2(3) of REMIT, ‘attempt to manipulate the market’ means:

1. entering into any transaction, issuing any order to trade or taking any other action relating to a wholesale energy product with the intention of:

• giving false or misleading signals as to the supply of, demand for, or price of wholesale energy products; 
• securing 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 his 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 
• employing 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 

2. disseminating information through the media, including the internet, or by any other means with the intention of giving false or misleading signals as to the supply of, demand for, or price of wholesale energy products.

ACER is the Agency for the Cooperation of Energy Regulators whose mission is to coordinate the work of national regulatory authorities at EU level, and to work towards the completion of the single EU energy market for electricity and natural gas.

ACER helps to guarantee proper functioning of the single European gas and electricity market. The Agency assists the national regulatory authorities in performing regulatory functions at EU level and, if necessary, coordinates the work of these authorities.

In particular, ACER:

• complements and coordinates the work of national regulatory authorities;
• helps to formulate the regulations on the use of European networks;
• if necessary, adopts binding individual decisions on the conditions for the availability of cross-border infrastructure and operational security;
• consults EU authorities on issues related to electricity and natural gas;
• monitors the internal markets for electricity and natural gas and reports on the findings;
• monitors the wholesale energy market to detect market abuse and deter it in close cooperation with the national regulatory authorities (the Agency took up this duty in 2012 in accordance with REMIT Regulation).

The ACER Guidance is directed towards National Regulatory Authorities to ensure the required coordination and consistency in their monitoring activities under REMIT.

The Guidance is deliberately drafted using non-legal terminology and does not provide an interpretation of REMIT. It is made public for transparency purposes only. The Guidance will be updated from time to time to reflect the changing market conditions and the experience gained by NRAs and the Agency in the implementation of REMIT and through the feedback from market participants and other stakeholders.

Further information and documents related to REMIT is available on the ACER website.

After the REMIT’s entry into force on 28 December 2011, market participants and persons which professionally arrange transactions in the wholesale electricity or gas market have the following obligations:

• Article 3(1) of REMIT – prohibition of insider trading;
• Article 4(1) of REMIT – obligation to publish inside information;
• Article 5 of REMIT – prohibition of market manipulation.

If a market participant does not comply with the requirements specified by REMIT, the Regulator has a right to impose a penalty the amount of which is determined in accordance with the Cabinet of Ministers Regulations No 839 “Procedure for Determining the Amount of the Penalty in Electricity and Natural Gas Supply” of 23 December 2014.

Any person professionally arranging transactions in wholesale energy products who reasonably suspects that a transaction might breach REMIT regulations shall notify the national regulatory authority (in Latvia – the Regulator) without further delay in accordance with Article 15 of REMIT. 

A market participant has an obligation to notify ACER and relevant national regulatory authority (in Latvia – the Regulator) when separate exemptions are applied (Article 3(4)(b) and Article 4(2)) and must use the ACER platform to fulfil its reporting obligation.

To implement the obligation of market participants to disclose inside information, ACER has established a platform for reporting suspicious transactions by persons professionally arranging transactions. The platform enables these persons to fulfil their reporting obligation. To submit the relevant report to ACER, please click here.

Regarding any additional information, please consult ACER by e-mail: [email protected].

Taking into account Article 8(2) and Article 8(6) of REMIT, the European Commission has adopted the Commission Implementing Regulation (EU) No 1348/2014 of 17 December 2014 on data reporting implementing Article 8(2) and Article 8(6) of Regulation (EU) No 1227/2011 of the European Parliament and of the Council on wholesale energy market integrity and transparency (hereinafter – Implementing Regulation).

In accordance with Article 9(2) of REMIT, not later than 3 months after the date on which the European Commission has adopted the implementing act, national regulatory authorities (in Latvia – the Regulator) shall establish national registers of market participants. To implement the requirements of Article 9(1) of REMIT, the Regulator has created access to ACER’s Centralized European Register for Energy Market Participants (CEREMP) where European market participants will be able to register.

If a market participant engages in transactions which must be reported to ACER in accordance with Article 8(1) of REMIT, then it shall have the following obligations in accordance with Article 12(2) of the Implementing Regulation:

• As of 7 October 2015, to start reporting on standard contracts;
• As of 7 April 2016, to start reporting on non-standard contracts.

In accordance with Article 12(2) of the Implementing Regulation:

• As of 7 October 2015, the European Network of Transmission System Operators (ENTSO) for Electricity shall, on behalf of market participants, report information to ACER in relation to the capacity and use of facilities for production, consumption and transmission of electricity including planned and unplanned unavailability of these facilities;
• As of 7 October 2015, the ENTSO for Gas shall, on behalf of market participants, report information to ACER in relation to the capacity and use of facilities for transmission of natural gas including planned and unplanned unavailability of these facilities.