This document is an excerpt from the EUR-Lex website
Document 02011R1227-20240507
Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (Text with EEA relevance)Text with EEA relevance
Consolidated text: Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (Text with EEA relevance)Text with EEA relevance
Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (Text with EEA relevance)Text with EEA relevance
This consolidated text may not include the following amendments:
| Amending act | Amendment type | Subdivision concerned | Date of effect |
|---|---|---|---|
| 32024R1789 | Modified by | article 8 point 5 Text | 05/02/2025 |
| 32024R1789 | Modified by | article 2 point 1 point (b) Text | 05/02/2025 |
| 32024R1789 | Modified by | article 6 point 2 point (a) Text | 05/02/2025 |
| 32024R1789 | Modified by | article 3 point 4 point (c) Text | 05/02/2025 |
| 32024R1789 | Modified by | article 3 point 3 Text | 05/02/2025 |
| 32024R1789 | Modified by | article 6 point 2 point (b) Text | 05/02/2025 |
| 32024R1789 | Modified by | article 2 point 4 Text | 05/02/2025 |
| 32024R1789 | Modified by | article 4 point 1 Text | 05/02/2025 |
| 32024R1789 | Modified by | article 2 point 5 Text | 05/02/2025 |
| 32024R1106 | Modified by | article 7a | 01/01/2025 |
| 32024R1106 | Modified by | article 7e | 01/01/2025 |
| 32024R1106 | Modified by | article 7c | 01/01/2025 |
| 32024R1106 | Modified by | article 7b | 01/01/2025 |
| 32024R1106 | Modified by | article 7d | 01/01/2025 |
| 32024R1106 | Modified by | article 15 paragraph 2 | 08/11/2024 |
02011R1227 — EN — 07.05.2024 — 001.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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REGULATION (EU) No 1227/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326 8.12.2011, p. 1) |
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REGULATION (EU) 2024/1106 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 April 2024 |
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17.4.2024 |
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REGULATION (EU) No 1227/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2011
on wholesale energy market integrity and transparency
(Text with EEA relevance)
Article 1
Subject matter, scope and relationship with other Union legislation
The Agency, national regulatory authorities, ESMA and competent financial authorities of the Member States shall exchange relevant information and data on a regular, if possible quarterly, basis regarding potential breaches of Regulation (EU) No 596/2014 involving wholesale energy products covered by this Regulation.
Article 2
Definitions
For the purposes of this Regulation the following definitions shall apply:
‘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.
For the purposes of this definition, ‘information’ means:
information which is required to be made public in accordance with ►M1 Regulation (EU) 2019/943 ◄ and (EC) No 715/2009, including guidelines and network codes adopted pursuant to those Regulations;
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;
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;
information which is conveyed by a market participant, or by other persons acting on the market participant’s behalf, to a service provider trading on the market participant’s behalf and relating to the market participant’s pending orders in wholesale energy products, which is of a precise nature and relates directly or indirectly to one or more wholesale energy products; and
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 considered 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 occur, 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. Information may be considered to be of a precise nature if it relates to a protracted process that is intended to bring about, or that results in, particular circumstances or a particular event, including future circumstances or future events, and also if it relates to the intermediate steps of that process which are connected with bringing about or resulting in those future circumstances or future events.
An intermediate step in a protracted process shall be considered to be inside information if it, by itself, satisfies the criteria of inside information as referred to in the first subparagraph of this point.
For the purposes of the first subparagraph of this point, information shall be considered to be directly or indirectly related to the wholesale energy product if it has a possible effect on the demand, supply or prices of a wholesale energy product, or on the expectations of the demand, supply or prices of a wholesale energy product.
For the purposes of the first subparagraph of this point, information which, if it were made public, would be likely to significantly affect the prices of the wholesale energy products means information that a reasonable market participant would be likely to use as part of the basis of his or her decision concerning trading with wholesale energy products;
‘market manipulation’ means:
entering into any transaction, or issuing, modifying or withdrawing any order to trade or engaging in any other behaviour relating to 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 is likely to secure, by a person, or persons acting in collaboration, the price of one or more 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 such transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or
employs 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;
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.
or
transmitting false or misleading information or providing false or misleading input in relation to a benchmark where the person who made the transmission or provided the input knew or ought to have known that it was false or misleading, or engaging in any other behaviour which leads to the manipulation of the calculation of a benchmark.
Market manipulation may designate the conduct of a legal person, or, in accordance with Union or national law, of a natural person who participates in the decision to carry out activities for the account of the legal person concerned;
‘attempt to manipulate the market’ means:
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
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;
‘wholesale energy products’ means the following contracts and derivatives, irrespective of where and how they are traded:
contracts for the supply of electricity or natural gas, including LNG, where delivery is in the Union, or contracts for the supply of electricity which may result in delivery in the Union as a result of single day-ahead and intraday coupling;
derivatives relating to electricity or natural gas produced, traded or delivered in the Union, or derivatives relating to electricity which may result in delivery in the Union as a result of single day-ahead and intraday coupling;
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;
contracts relating to the storage of electricity or natural gas in the Union;
derivatives relating to the storage of electricity or natural gas in the Union.
Contracts for the supply and distribution of electricity or natural gas for the use of final customers are not wholesale energy products. However, contracts for the supply and distribution of electricity or natural gas to final customers with a consumption capacity greater than the threshold set out in the second paragraph of point (5) shall be treated as wholesale energy products;
‘consumption capacity’ means the consumption of a final customer of either electricity or natural gas at full use of that customer's production capacity. It comprises all consumption by that customer as a single economic entity, in so far as consumption takes place on markets with interrelated wholesale prices.
For the purposes of this definition, consumption at individual plants under the control of a single economic entity that have a consumption capacity of less than 600 GWh per year shall not be taken into account in so far as those plants do not exert a joint influence on wholesale energy market prices due to their being located in different relevant geographical markets;
‘wholesale energy market’ means any market within the Union on which wholesale energy products are traded;
‘market participant’ means any person, including transmission system operators, distribution system operators, storage system operators and LNG system operators, who enters into transactions, including the placing of orders to trade, in one or more wholesale energy markets;
‘person’ means any natural or legal person;
‘person professionally arranging or executing transactions’ means a person professionally engaged in the reception and transmission of orders for, or in the execution of transactions in, wholesale energy products;
‘competent financial authority’ means a competent authority designated in accordance with the procedure laid down in ►M1 Article 22 of Regulation (EU) No 596/2014 ◄ ;
‘national regulatory authority’ means a national regulatory authority designated in accordance with Article 35(1) of 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 ( 6 ) or Article 39(1) of 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 ( 7 );
‘transmission system operator’ has the meaning set out in point 4 of Article 2 of Directive 2009/72/EC and in point 4 of Article 2 of Directive 2009/73/EC;
‘distribution system operator’ means distribution system operator as defined in Article 2, point (6), of Directive 2009/73/EC and in Article 2, point (29), of Directive (EU) 2019/944;
‘storage system operator’ means storage system operator as defined in Article 2, point (10), of Directive 2009/73/EC or operator of an ‘energy storage facility’ as defined in Article 2, point (60), of Directive (EU) 2019/944;
‘LNG system operator’ means LNG system operator as defined in Article 2, point (12), of Directive 2009/73/EC;
‘parent undertaking’ means a parent undertaking within the meaning of Articles 1 and 2 of the Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts ( 8 );
‘related undertaking’ means either a subsidiary or other undertaking in which a participation is held, or an undertaking linked with another undertaking by a relationship within the meaning of Article 12(1) of Directive 83/349/EEC;
‘distribution of natural gas’ has the meaning set out in point (5) of Article 2 of Directive 2009/73/EC;
‘distribution of electricity’ has the meaning set out in point (5) of Article 2 of Directive 2009/72/EC;
‘registered reporting mechanism’ or ‘RRM’ means a legal person authorised pursuant to this Regulation to report or to provide the service of reporting details of transactions, including orders to trade, and fundamental data to the Agency on its own behalf or on behalf of market participants;
‘inside information platform’ or ‘IIP’ means a person authorised pursuant to this Regulation to provide the service of operating a platform for the disclosure of inside information and for the reporting of disclosed inside information to the Agency on behalf of market participants;
‘algorithmic trading’ means trading, including high-frequency trading, in wholesale energy products where a computer algorithm automatically determines individual parameters of orders to trade such as whether to initiate the order, the timing, price or quantity of the order or how to manage the order after its submission, with limited human intervention or no such intervention at all, not including any system that is only used for the purpose of routing orders to one or more organised marketplaces or for the processing of orders involving no determination of any trading parameters or for the confirmation of orders or the post-trade processing of executed transactions;
‘direct electronic access’ means an arrangement whereby a member, participant or client of an organised marketplace allows another person to use its trading code so the person can electronically transmit orders to trade relating to a wholesale energy product directly to the organised marketplace, including arrangements which involve the use by a person of the information technology infrastructure of the member, participant or client, or any connecting system provided by the member, participant, or client, to transmit the orders to trade (direct market access) and arrangements whereby such an infrastructure is not used by a person (sponsored access);
‘organised marketplace’ or ‘OMP’ means an energy exchange, an energy broker, an energy capacity platform or any other system or facility in which multiple third-party buying or selling interests in wholesale energy products interact in a manner that may result in a transaction;
‘order book’ means all the details of wholesale energy products executed at an OMP, including matched and unmatched orders as well as system-generated orders and life cycle events;
‘benchmark’ means an index as defined in Article 3(1), point 3, of Regulation (EU) 2016/1011 of the European Parliament and of the Council ( 9 ), by reference to which the amount payable under a wholesale energy product, or a contract relating to a wholesale energy product, or the value of a wholesale energy product is determined;
‘LNG trading’ means bids, offers or transactions, including but not limited to those taking place over the counter or in an OMP, for the purchase or sale of LNG:
that specify delivery in the Union;
that result in delivery in the Union; or
in which one counterparty re-gasifies the LNG at a terminal in the Union;
‘LNG market data’ means records of bids, offers or transactions for LNG trading with corresponding information;
‘LNG market participant’ means any natural or legal person, irrespective of that person’s place of incorporation or domicile, who engages in LNG trading;
‘LNG price assessment’ means the determination of a daily reference price for LNG trading in accordance with a methodology established by the Agency;
‘LNG benchmark’ means the determination of a spread between the daily LNG price assessment and the settlement price for the TTF Gas Futures front-month contract established by ICE Endex Markets B.V. on a daily basis.
Article 3
Prohibition of insider trading
Persons who possess inside information in relation to a wholesale energy product shall be prohibited from:
using that information by acquiring or disposing of, or by trying to acquire or dispose 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;
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;
recommending or inducing another person, on the basis of inside information, to acquire or dispose of wholesale energy products to which that information relates.
The use of inside information by cancelling or amending an order, or any other trading action concerning a wholesale energy product to which the information relates, where the order was placed before the person concerned possessed the inside information, shall also be considered to be insider trading.
The prohibition set out in paragraph 1 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.
This Article shall 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;
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 shall be reported to the Agency and the national regulatory authority. This reporting obligation is without prejudice to the obligation set out in Article 4(1);
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 shall ensure publication in accordance with Article 4.
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.
Article 4
Obligation to publish inside information
Market participants shall disclose the inside information through IIPs. The IIPs shall ensure that the inside information is made public in a manner which enables prompt access to that information, including through a website or a clear application programming interface, and a complete, correct and timely assessment of that information by the public.
Article 4a
Authorisation and supervision of inside information platforms
By 8 May 2025, the Commission shall adopt a delegated act in accordance with Article 20 to supplement this Regulation by specifying:
the means by which an IIP is to fulfil the obligation to make public the inside information laid down in paragraph 3 of this Article;
the content and any relevant further details of the inside information made public pursuant to paragraphs 3 and 4 of this Article in such a manner as to enable the publication of information required under this Article;
the specific organisational requirements for the implementation of paragraph 5 of this Article;
the details concerning the process of withdrawing an authorisation of an IIP referred to in paragraph 7 of this Article;
the procedural safeguards referred to in paragraph 6 of this Article;
the details concerning the process of orderly substitution referred to in paragraph 7 of this Article;
the detailed arrangements for informing market participants of a decision to withdraw the authorisation of an IIP.
Article 5
Prohibition of market manipulation
Any engagement in, or attempt to engage in, market manipulation on wholesale energy markets shall be prohibited.
Article 5a
Algorithmic trading
The national regulatory authority of the Member State where the market participant is registered pursuant to Article 9(1), may require the market participant to provide, on a regular or ad hoc basis, a description of the nature of its algorithmic trading strategies, details of the trading parameters or limits to which the trading system is subject, key compliance and risk controls that are in place to ensure that the requirements laid down in paragraph 1 of this Article are satisfied and details of the testing of its trading systems.
The market participant shall arrange for records to be kept for five years in relation to the matters referred to in this paragraph and shall ensure that those records are sufficient to enable the national regulatory authority of the Member State where the market participant is registered pursuant to Article 9(1) to monitor compliance with this Regulation.
The national regulatory authority of the Member State where the market participant is registered pursuant to Article 9(1) may require the market participant to provide, on a regular or ad hoc basis, a description of the systems and risk controls referred to in paragraph 1 of this Article and evidence that those have been applied.
The market participant shall arrange for records to be kept for five years in relation to the matters referred to in this paragraph and shall ensure that those records be sufficient to enable the national regulatory authority of the Member State where the market participant is registered pursuant to Article 9(1) to monitor compliance with this Regulation.
Article 6
Technical updating of definitions of inside information and market manipulation
The Commission is empowered to adopt delegated acts in accordance with Article 20:
to amend this Regulation by:
aligning the definitions set out in Article 2, points (1), (2), (3) and (5), for the purpose of ensuring coherence with other relevant Union law in the fields of financial services and energy;
updating the definitions referred to in point (i) for the sole purpose of taking into account future developments on wholesale energy markets;
to supplement this Regulation by establishing, taking into account national specificities, minimum thresholds for the identification of events which, if they were made public, would be likely to significantly affect the prices of the wholesale energy products.
The delegated acts referred to in paragraph 1 shall take into account at least:
the specific functioning of wholesale energy markets, including the specificities of electricity and gas markets, and the interaction between commodity markets and derivative markets;
the potential for manipulation across borders, between electricity and gas markets and across commodity markets and derivative markets;
the potential impact on wholesale energy market prices of actual or planned production, consumption, use of transmission, or use of storage capacity; and
network codes and framework guidelines adopted in accordance with ►M1 Regulation (EU) 2019/943 ◄ and (EC) No 715/2009.
Article 7
Market monitoring
Member States may provide for their national competition authority or a market monitoring body established within that authority to carry out market monitoring with the national regulatory authority. In carrying out such market monitoring, the national competition authority or the market monitoring body shall have the same rights and obligations as the national regulatory authority pursuant to the first subparagraph of this paragraph, the second sentence of the second subparagraph of paragraph 3 of this Article, the second sentence of Article 4(2), the first sentence of Article 8(5), and Article 16.
Article 8
Data collection
For the purpose of reporting records of transactions on the wholesale energy market, including orders to trade, that are entered into, concluded or executed at OMPs, those OMPs, or third parties on their behalf, shall:
make available to the Agency data relating to the order book, in accordance with the specifications set out in the Implementing Regulation (EU) No 1348/2014, thereby fulfilling on behalf of market participants their obligations pursuant to paragraph 1 of this Article; or
upon the Agency’s request, give the Agency access without delay to the order book so that the Agency is able to monitor trading on the wholesale energy market.
By 8 May 2025, the Commission shall adopt implementing acts specifying the further details regarding the operation of this paragraph, including the specific arrangements for ensuring effective data reporting. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).
The Commission shall, by means of implementing acts:
draw up a list of the contracts and derivatives, including orders to trade, which are to be reported in accordance with paragraph 1 and appropriate de minimis thresholds for the reporting of transactions where appropriate;
adopt uniform rules on the reporting of information which is to be provided in accordance with paragraph 1;
lay down the timing and form in which that information is to be reported.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). They shall take account of existing transaction reporting systems for monitoring trading activity to detect market abuse.
Without prejudice to the first subparagraph of this paragraph, the implementing acts referred to in paragraphs 1a and 2 may allow organised markets and trade matching or trade reporting systems to provide the Agency with records of wholesale energy transactions.
►M1 For the purposes of paragraphs 1, 1a and 1b, information shall be provided by: ◄
the market participant;
a third party acting on behalf of the market participant;
a trade reporting system;
an OMP, a trade-matching system or other person professionally arranging or executing transactions;
a trade repository registered or recognised under applicable Union legislation on derivative transactions, central counterparties and trade repositories; or
a competent authority which has received that information in accordance with Article 25(3) of Directive 2004/39/EC or ESMA when it has received that information in accordance with applicable Union legislation on derivative transactions, central counterparties and trade repositories.
The Commission shall, by means of implementing acts:
adopt uniform rules on the reporting of information to be provided in accordance with paragraph 5 and on appropriate thresholds for such reporting where appropriate;
lay down the timing and form in which that information is to be reported.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). They shall take account of existing reporting obligations under ►M1 Regulation (EU) 2019/943 ◄ and (EC) No 715/2009.
Article 9
Registration of market participants
By 8 November 2024, market participants established or resident in a third country that enter into transactions that are required to be reported to the Agency pursuant to Article 8(1):
shall designate a representative in a Member State in which the market participants are active on the wholesale energy markets, and shall register with the national regulatory authority of that Member State. The representative shall be designated by a written mandate and shall be authorised to act on the market participants’ behalf;
shall mandate their designated representative for the purpose of being addressed in addition to or on their behalf, by the national regulatory authorities or the Agency, on all issues necessary for the receipt of, compliance with and enforcement of decisions or requests for information issued in relation to this Regulation;
shall provide their designated representative with the necessary powers and means to guarantee their efficient and timely cooperation with the national regulatory authorities or the Agency and to comply with the decisions and requests for information of the national regulatory authorities or the Agency issued in relation to this Regulation, including providing access to the requested information; and
shall notify the name, email address, postal address and telephone number of their designated representative to the national regulatory authority of the Member State where that designated representative resides or is established and to the Agency.
The designation of a representative shall be without prejudice to legal actions which could be initiated against the market participant itself.
A market participant shall register only with one national regulatory authority. Member States shall not require a market participant already registered in another Member State to register again.
The registration of market participants is without prejudice to obligations to comply with applicable trading and balancing rules.
Article 9a
Authorisation and supervision of registered reporting mechanisms
By 8 May 2025, the Commission shall adopt a delegated act in accordance with Article 20 to supplement this Regulation by specifying:
the means by which an RRM is to fulfil the obligation referred to in paragraph 1 of this Article;
the specific organisational requirements for the implementation of paragraphs 2 and 3 of this Article;
the details concerning the process of withdrawing an authorisation of an RRM referred to in paragraph 5 of this Article;
the procedural safeguards referred to in paragraph 4 of this Article;
the details concerning the process of orderly substitution referred to in paragraph 5 of this Article;
the detailed arrangements for informing market participants of a decision to withdraw the authorisation of an RRM.
Article 10
Sharing of information between the Agency and other authorities
The Agency shall give access to the mechanisms referred to in the first subparagraph of this paragraph only to authorities which have set up systems enabling the Agency to meet the requirements set out in Article 12(1).
National regulatory authorities shall give access to the mechanisms referred to in the first subparagraph of this paragraph only to authorities which have set up systems enabling the national regulatory authorities to meet the requirements set out in Article 12(1).
ESMA shall transmit to the Agency reports of transactions in wholesale energy products received pursuant to Article 25(3) of Directive 2004/39/EC and under applicable Union legislation on derivative transactions, central counterparties and trade repositories. Competent authorities receiving reports of transactions in wholesale energy products received pursuant to Article 25(3) of Directive 2004/39/EC shall transmit those reports to the Agency.
The Agency 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 the Agency with access to records of transactions in such allowances and derivatives where those authorities collect information on such transactions.
Article 11
Data protection
This Regulation shall be without prejudice to the obligations of Member States relating to their processing of personal data under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 12 ) or the obligations of the Agency, when fulfilling its responsibilities, relating to its processing of personal data under Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( 13 ).
Article 12
Operational reliability
The Commission, national regulatory authorities, competent financial authorities of the Member States, national tax authorities, Eurofisc, national competition authorities, ESMA and other relevant authorities shall ensure the confidentiality, integrity and protection of the information that they receive pursuant to Article 4(2), Article 7(2), Article 8(5) or Article 10, shall take steps to prevent any misuse of such information, and shall ensure compliance with the applicable data protection law.
The Agency shall identify sources of operational risk and minimise them through the development of appropriate systems, controls and procedures.
The Agency shall make its commercially non-sensitive trade database available for scientific purposes, subject to confidentiality requirements.
Information shall be published or made available in the interest of improving transparency of wholesale energy markets and provided it is not likely to create any distortion in competition on those energy markets.
The Agency shall disseminate information in a fair manner in accordance with transparent rules which it shall draw up and make publicly available.
Article 13
Implementation of prohibitions against market abuse
National regulatory authorities shall be competent to investigate all the acts carried out on their national wholesale energy markets and enforce this Regulation, irrespective of where the market participant carrying out those acts is registered or under an obligation to register pursuant to Article 9(1).
Each Member State shall ensure that its national regulatory authority has the investigatory and enforcement powers necessary for the exercise of the functions referred to in the first and second subparagraphs. Those powers shall be exercised in a proportionate manner.
Those powers may be exercised:
directly;
in collaboration with other authorities;
by application to the competent national judicial authorities; or
following a recommendation by the Agency.
Where appropriate, the national regulatory authorities may exercise their investigatory powers in collaboration with OMPs, trade-matching systems or other persons professionally arranging or executing transactions as referred to in Article 8(4), point (d).
The investigatory and enforcement powers referred to in paragraph 1 shall be limited to the aim of the investigation. They shall be exercised in conformity with national law and include the right to:
have access to any relevant document in any form, and to receive a copy of it;
demand information from any relevant person, including those who are successively involved in the transmission of orders or conduct of the operations concerned, as well as their principals, and, if necessary, the right to summon and hear any such person or principal;
carry out on-site inspections;
require existing telephone and existing data traffic records;
require the cessation of any practice that is contrary to this Regulation or delegated acts or implementing acts adopted on the basis thereof;
request a court to freeze or sequester assets;
request a court or any competent authority to impose a temporary prohibition of professional activity.
In sufficient time before exercising the powers referred to in paragraph 3 within the jurisdiction of a Member State where the acts that the Agency reasonably suspects to be in breach of this Regulation are carried out, the Agency shall inform the national regulatory authority and other authorities concerned of that Member State. The Agency may exercise its powers in that jurisdiction, unless the national regulatory authority objects on the grounds that it:
has formally opened or is conducting an investigation on the same facts; or
has conducted an investigation on the same facts and determined the existence or the absence of a breach.
The Agency may continue to exercise its powers in the remaining jurisdictions of those national regulatory authorities that have not raised an objection pursuant to the first subparagraph, point (a). The Agency shall not exercise its powers if an investigation has already been conducted on the same facts and has concluded on the existence or the absence of a breach.
The national regulatory authority shall inform the Agency of its objection within three months of being informed pursuant to the first subparagraph. In such cases, the national regulatory authority shall cooperate with the Agency, including by:
sharing information and findings relevant for the Agency to exercise its powers under paragraph 3 in other relevant jurisdictions concerned; and
participating, upon the request of the Agency, in an investigatory group established pursuant to Article 16(4), point (c).
The Agency shall inform the Commission of the establishment of the investigatory group and, upon the request of one of the national regulatory authorities concerned, the Agency may invite the Commission to participate, as an observer, in that investigatory group.
The Agency may exercise its powers to ensure that the prohibitions set out in Articles 3 and 5 are enforced where:
acts are being or have been carried out on wholesale energy products for delivery in at least two Member States;
the competent national regulatory authority, without prejudice to the derogations referred to in Article 16(5), does not take the necessary measures as soon as possible to comply with the request of the Agency pursuant to Article 16(4), point (b), where there is a cross-border impact;
without prejudice to paragraph 4, the national regulatory authority requests the Agency to exercise its powers with regard to acts that, even if not falling within the scope of point (a) or (b) of this paragraph, have a cross-border impact.
The Agency may exercise its powers to ensure that the obligations laid down in Article 8 are fulfilled where:
a suspected breach affects the monitoring referred to in Article 7 by the Agency, of trading activity in wholesale energy products in at least two Member States; or
a suspected breach affects the quality of information sharing referred to in Article 10 in at least two Member States.
This paragraph shall be without prejudice to the possibility of a national regulatory authority concerned to submit a request pursuant to paragraph 5, point (c) or to object pursuant to paragraph 4.
Article 13a
On-site inspections by the Agency
To the extent necessary for the on-site inspection, the officials of, and persons authorised or appointed by, the Agency to conduct that inspection shall be empowered, with respect to the persons subject to a decision adopted by the Agency pursuant to paragraph 6, to:
enter the relevant premises of those persons;
examine the books and other records related to their business, irrespective of the medium on which they are stored;
take or obtain in any form copies of or extracts from such books or records;
seal any business premises and books or records for the period and to the extent necessary for the inspection;
ask any representative or member of staff of those persons for explanations on facts or documents relating to the subject matter and purpose of the on-site inspection and to record the answers.
Except in duly substantiated cases, seals referred to in the first subparagraph, point (d) shall not be affixed for more than 72 hours.
Where the Agency applies for an authorisation as referred to in paragraph 9, the national judicial authority shall verify:
that the decision of the Agency is authentic; and
that any measures to be taken are proportionate and not arbitrary or excessive having regard to the subject matter of the on-site inspection.
For the purposes of the first subparagraph, point (b), of this paragraph, the national judicial authority may ask the Agency for detailed explanations, in particular relating to the grounds the Agency has for suspecting that a breach referred to in Article 13(3) has taken place, the seriousness of the suspected breach and the nature of the involvement of the person subject to the investigation. By way of derogation from Articles 28 and 29 of Regulation (EU) 2019/942, the Agency’s decision shall be subject to review only by the Court of Justice.
Article 13b
Request for information
At the Agency’s request any person shall provide to it the information necessary for the purpose of fulfilling the Agency’s obligations laid down in Article 13(5) to (8). In its request the Agency shall:
refer to this Article as the legal basis for the request;
state the purpose of the request;
specify what information is required, and following which data format;
set a time-limit, proportionate to the request, within which the information is to be provided;
inform the person that the reply to the request for information is not to be incorrect or misleading.
By way of derogation from Articles 28 and 29 of Regulation (EU) 2019/942, the Agency’s decision shall be subject to review only by the Court of Justice.
Article 13c
Power to take statements
Article 13d
Procedural safeguards
The Agency shall carry out on-site inspections, request information and take statements in full respect of the procedural safeguards of persons subject to an investigation, including:
the right not to make self-incriminating statements;
the right to be assisted by a person of choice;
the right to use any of the official languages of the Member State where the on-site inspection takes place;
the right to comment on facts concerning them before the adoption of the investigation report pursuant to Article 13(11);
the right to receive a copy of the record of interview and either approve it or add observations to it.
The invitation to comment on facts pursuant to the right referred to in point (d) shall include a summary of the facts concerning the person in question and shall indicate an adequate time limit for submitting comments. In duly substantiated cases where necessary to preserve the confidentiality of the on-site inspection or of an on-going or future administrative or criminal investigation by a national authority, the Agency may decide to defer the invitation to comment.
Article 13e
Mutual assistance
In order to ensure compliance with the relevant requirements set out in Articles 13 to 13c national regulatory authorities and the Agency shall assist each other in the course of an investigation.
Article 13f
Investigating officer
Article 13g
Periodic penalty payments
The Agency shall, by means of a decision, impose a periodic penalty payment in respect of a person subject to an investigation in order to compel that person:
to submit to an on-site inspection ordered by a decision adopted pursuant to Article 13a(6);
to supply the information requested by a decision adopted pursuant to Article 13b(2).
Article 13h
Procedural safeguards with regard to periodic penalty payment decisions
Article 13i
Nature, enforcement and allocation of periodic penalty payments
Enforcement shall be governed by the applicable national procedural rules of the Member States concerned.
The order for its enforcement shall be appended to the Agency’s decision without any other formality than verification of the authenticity of the decision by the national authority which the government of each Member State shall designate for that purpose and which it shall make known to the Agency and to the Court of Justice.
When the designated national authority has completed the formalities referred to in the third subparagraph, upon application by the Agency, the Agency may proceed to enforcement in accordance with the applicable national law, by bringing the matter directly before the designated national authority.
Enforcement may be suspended only by a decision of the Court of Justice. However, the courts of the Member States concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.
Article 13j
Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction to review decisions of the Agency imposing periodic penalty payments. It may annul, reduce or increase the periodic penalty payment imposed.
Article 14
Right of appeal
Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
Article 15
Obligations of persons professionally arranging or executing transactions
The persons referred to in paragraphs 1 and 2 shall establish and maintain effective arrangements, systems and procedures to:
identify potential breaches of Article 3, 4 or 5;
guarantee that their employees carrying out surveillance activities for the purpose of this Article are preserved from any conflict of interest and act in an independent manner;
detect and report suspicious orders and transactions.
By 8 May 2025 and every year thereafter, the Agency shall, in cooperation with national regulatory authorities, issue and make public a report with aggregated information in compliance with applicable data protection law, excluding commercially sensitive information, on the implementation of this Article, in particular with regard to:
the arrangements, systems and procedures referred to in paragraph 3 and their effectiveness;
the national regulatory authorities’ analysis of suspicious transactions, response to poor quality reporting and non-reporting of suspicious transactions and related activities with regard to enforcement and penalties.
Article 16
Cooperation at Union and national level
The Agency shall, as appropriate, publish non-binding guidance on:
the application of the definitions set out in Article 2, including with regard to the establishment of a non-exhaustive list of relevant intermediate steps in a protracted process in those cases where, by itself, the information meets the criteria laid down in Article 2, point (1); and
non-exhaustive indicators and examples of market behaviour relating to market manipulation, as well as insider trading as referred to in Article 3.
National regulatory authorities shall cooperate with the Agency and with each other, including at regional level, for the purpose of carrying out their duties in accordance with this Regulation.
National regulatory authorities, competent financial authorities of the Member States, national competition authorities and national tax authorities shall establish appropriate forms of cooperation in order to ensure timely, effective and efficient investigation and enforcement and to contribute to a coherent and consistent approach to investigation, to judicial proceedings and to the enforcement of this Regulation and of the relevant financial and competition law.
Where a national regulatory authority suspects that acts which affect wholesale energy markets or the price of wholesale energy products in that Member State are being carried out in another Member State, it may request the Agency to take action in accordance with paragraph 4 of this Article and, if the acts affect financial instruments subject to ►M1 Article 2 of Regulation (EU) No 596/2014 ◄ , in accordance with paragraph 3 of this Article.
Before adopting a decision finding a breach of this Regulation, the national regulatory authority may inform the Agency and provide it with a summary of the case and the envisaged decision in an official language of the Member State concerned. After adopting a decision finding a breach of this Regulation, the national regulatory authority shall provide that decision to the Agency, including information on the date of its adoption, the name of the persons subject to penalties, the Article of this Regulation that has been breached and the penalty imposed. At the same time, the national regulatory authority shall indicate to the Agency what information it has disclosed to the public as referred to in Article 18(6) and shall promptly inform the Agency of any subsequent changes to such information. The Agency shall maintain a public list of information that the national regulatory authorities have disclosed to the public as referred to in Article 18(6).
In order to ensure a coordinated and consistent approach to market abuse on wholesale energy markets:
national regulatory authorities shall process reports of possible breaches of this Regulation without undue delay and, if possible, within one year of the date of receipt of those reports, and inform the competent financial authority of their Member State and the Agency where they have reasonable grounds to suspect that acts are being, or have been, carried out on wholesale energy markets which constitute market abuse within the meaning of Regulation (EU) No 596/2014 and which affect financial instruments subject to Article 2 of that Regulation; for those purposes, national regulatory authorities may establish appropriate forms of cooperation with the competent financial authority in their Member State;
the Agency shall inform ESMA and the competent financial authority where it has reasonable grounds to suspect that acts are being, or have been, carried out on wholesale energy markets which constitute market abuse within the meaning of ►M1 Regulation (EU) No 596/2014 ◄ and which affect financial instruments subject to ►M1 Article 2 of that Regulation ◄ ;
the competent financial authority of a Member State shall inform ESMA and the Agency where it has reasonable grounds to suspect that acts in breach of Articles 3 and 5 are being, or have been, carried out on wholesale energy markets in another Member State;
national regulatory authorities shall inform the national competition authority of their Member State, the Commission and the Agency where they have reasonable grounds to suspect that acts are being, or have been, carried out on wholesale energy market which are likely to constitute a breach of competition law;
the Agency and the national regulatory authorities shall inform the competent national tax authorities and Eurofisc where they have reasonable grounds to suspect that acts are being, or have been, carried out on wholesale energy market which are likely to constitute tax fraud.
In order to carry out its functions under paragraph 1, where, inter alia, on the basis of initial assessments or analysis, the Agency suspects that there has been a breach of this Regulation, it shall have the power:
to request one or more national regulatory authorities to supply any information related to the suspected breach;
to request one or more national regulatory authorities to commence an investigation of the suspected breach, and to take appropriate action to remedy any breach found. Any decision as regards the appropriate action to be taken to remedy any breach found shall be the responsibility of the national regulatory authority concerned;
where it considers that the possible breach has, or has had, a cross-border impact, to establish and coordinate an investigatory group consisting of representatives of concerned national regulatory authorities to investigate whether this Regulation has been breached and in which Member State the breach took place. Where appropriate, the Agency may also request the participation of representatives of the competent financial authority or other relevant authority of one or more Member States in the investigatory group.
By way of derogation from the first subparagraph, a national regulatory authority may refuse to act on a request where:
compliance might adversely affect the sovereignty or security of the Member State addressed;
judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the Member State addressed; or
a final judgment has already been delivered in relation to such persons for the same actions in the Member State addressed.
In any such case, the national regulatory authority shall notify the Agency accordingly, providing as detailed information as possible on those proceedings or the judgment.
National regulatory authorities shall participate in an investigatory group convened in accordance with point (c) of paragraph 4, rendering all necessary assistance. The investigatory group shall be subject to coordination by the Agency.
Article 16a
Delegation of tasks and responsibilities
The Agency may assist national regulatory authorities by issuing non-binding guidance or exchanging best practices on the delegation of tasks and responsibilities between competent national regulatory authorities.
Article 16b
Guidelines and recommendations
Article 17
Professional secrecy
The obligation of professional secrecy shall apply to:
persons who work or who have worked for the Agency;
auditors and experts instructed by the Agency;
persons who work or who have worked for the national regulatory authorities or for other relevant authorities;
auditors and experts instructed by national regulatory authorities or by other relevant authorities who receive confidential information in accordance with this Regulation.
Article 18
Penalties
Without prejudice to any criminal penalties and without prejudice to supervisory powers of national regulatory authorities under Article 13, Member States shall, in accordance with national law, provide for national regulatory authorities to have the power to adopt appropriate administrative fines and other administrative measures in relation to the breaches of this Regulation as referred to in Article 13(1).
The Member States shall notify, in detail, those provisions to the Commission and to the Agency and shall notify them without delay of any subsequent amendment affecting those provisions.
Member States shall, in accordance with national law and subject to the ne bis in idem principle, ensure that the national regulatory authorities have the power to impose at least the following administrative fines and other administrative measures with regard to breaches of this Regulation:
require the breach to be brought to an end;
order the disgorgement of the profits gained or losses avoided due to the breaches insofar as they can be determined;
issue public warnings or notices;
impose periodic penalty payments;
impose administrative fines.
With regard to natural persons, maximum administrative fines referred to in paragraph 3, point (e), shall be as follows:
for breaches of Articles 3 and 5, at least EUR 5 000 000 ;
for breaches of Articles 4 and 15, at least EUR 1 000 000 ;
for breaches of Articles 8 and 9, at least EUR 500 000 .
Notwithstanding paragraph 3, point (e), the amount of the administrative fine shall not exceed 20 % of the yearly income in the preceding calendar year of the natural person concerned. Where the natural person has directly or indirectly benefited financially from the breach, the amount of the administrative fine shall be at least equal to that benefit.
With regard to legal persons, maximum administrative fines referred to in paragraph 3, point (e), shall be as follows:
for breaches of Articles 3 and 5, at least 15 % of the total annual turnover in the preceding business year;
for breaches of Articles 4 and 15, at least 2 % of the total annual turnover in the preceding business year;
for breaches of Articles 8 and 9, at least 1 % of the total annual turnover in the preceding business year.
Notwithstanding paragraph 3, point (e), the amount of the administrative fine shall not exceed 20 % of the total annual turnover in the preceding business year of the legal person concerned. Where the legal person has directly or indirectly benefited financially from the breach, the amount of the administrative fine shall be at least equal to that benefit.
Member States shall ensure that when determining the type and level of administrative fines and other administrative measures, national regulatory authorities take into account all relevant circumstances, including, where appropriate:
the gravity and duration of the infringement;
the degree of responsibility of the person responsible for the infringement;
the financial strength of the person responsible for the infringement, as indicated, for example, by the total annual turnover of a legal person or the yearly income of a natural person;
the importance of the profits gained or losses avoided by the person responsible for the infringement, insofar as they can be determined;
the level of cooperation of the person responsible for the infringement with the competent authority, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
previous infringements by the person responsible for the infringement;
measures taken by the person responsible for the infringement to prevent its repetition; and
the duplication of criminal and administrative proceedings and fines for the same infringement against the person responsible for the infringement.
Article 19
International relations
In so far as is necessary to achieve the objectives set out in this Regulation and without prejudice to the respective competences of the Member States and of the Union institutions and bodies, including the European External Action Service, the Agency may develop contacts and enter into administrative arrangements with supervisory authorities, international organisations and the administrations of third countries in particular with those impacting the Union energy wholesale market in order to promote the harmonisation of the regulatory framework. Those arrangements shall not create legal obligations in respect of the Union and its Member States, nor shall they prevent Member States and their competent authorities from concluding bilateral or multilateral arrangements with those supervisory authorities, international organisations and the administrations of third countries. Those arrangements may concern aspects of common interest, such as methodologies of data collection, analysis and assessment of data or other information, and other areas of expertise.
Article 20
Exercise of the delegation
The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five year period.
The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
Article 21
Committee procedure
Article 21a
Report and review
Article 22
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Paragraph 1, the first subparagraph of paragraph 3, and paragraphs 4 and 5 of Article 8 shall apply with effect from 6 months after the date on which the Commission adopts the relevant implementing acts referred to in paragraphs 2 and 6 of that Article.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
COMMISSION STATEMENT
The Commission considers that the thresholds for reporting transactions within the meaning of Article 8(2)(a) and information within the meaning of Article 8(6)(a) cannot be set through implementing acts.
Where appropriate the Commission will come forward with a legislative proposal to set such thresholds.
COUNCIL STATEMENT
The EU legislator has conferred on the Commission implementing powers in accordance with Article 291 TFEU in relation to measures foreseen in Article 8. That is legally binding for the Commission despite the declaration it made in respect to Article 8(2)(a) and Article 8(6)(a).
( 1 ) Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).
( 2 ) Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1).
( 3 ) Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84).
( 4 ) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
( 5 ) Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (OJ L 158, 14.6.2019, p. 22).
( 6 ) OJ L 211, 14.8.2009, p. 55.
( 7 ) OJ L 211, 14.8.2009, p. 94.
( 8 ) OJ L 193, 18.7.1983, p. 1.
( 9 ) Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29.6.2016, p. 1).
( 10 ) Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ L 158, 14.6.2019, p. 54).
( 11 ) OJ L 345, 23.12.2008, p. 75.
( 12 ) OJ L 281, 23.11.1995, p. 31.
( 13 ) OJ L 8, 12.1.2001, p. 1.