REMIT: obliging market participants to publish inside information they hold

CRE monitors the wholesale energy markets. Its mission falls within the framework of the European Regulation n°1227/2011 of the European Parliament and of the Council of 25 October 2011 on the integrity and transparency of the wholesale energy market (REMIT), the application modalities of which are specified in the Energy Code. REMIT reporting lays down rules prohibiting abusive practices on wholesale energy markets and aims at ensuring market integrity.

The prohibitions on market manipulation and insider dealing provided for in Articles 3 and 5 of the REMIT Regulation do not apply to wholesale energy products which are also financial instruments: they are subject to the provisions of Articles 14 and 15 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (MAR). However, wholesale energy products qualified as financial instruments remain concerned by the obligation to disclose inside information pursuant to Article 4 of the REMIT Regulation.

The obligation to Publish Inside Information

The notion of inside information

Article 2(1) of the REMIT Regulation defines inside information and specifies what is to be understood by “information”.

CRE reminded market players of the scope of the obligation to publish inside information in its report on the supervision of wholesale markets 2015-2016. Determining the privileged nature of information is primarily the responsibility of market players, who must assess the non-public and precise nature of the information they hold and the influence it could have on market prices.

The Agency for the Cooperation of Energy Regulators (ACER) has, in its non-binding guidelines, provided examples and details on the contours of this concept.

As specified by Article 4 of the REMIT Regulation, information does not have to be certain to be considered accurate and therefore subject to the obligation to publish inside information.

The determination of whether information is precise or imprecise must be analysed on a case-by-case basis, depending on the nature of the information and taking into account the general context. This approach is notably recalled by ACER in chapter 5.2 of its guidelines.

With regard in particular to information relating to the means of production, events likely to alter the level of supply may influence market prices. For example, estimates of the risk of quantified losses on one or more production sites at a given date are, as soon as they are identified by the market player, likely to fall within the scope of the publication obligation provided for by REMIT, even if they are still uncertain.

Furthermore, information can be considered public if it is accessible from an electronic platform dedicated to the exchange of information relating to the wholesale energy market. ACER refers in this respect to the concept of “sectoral publicity”.

A publication on the dedicated RTE portal is likely to satisfy the constraints of accessibility of information by the public. The notion of the public can be understood as all the players in the market concerned (“broad trading public”) as specified by ACER in chapter 5.3 of its guidelines.

The publication obligation

Article 4 of the REMIT Regulation stipulates that market participants are obliged to make public the inside information they hold: disclosure must be made in such a way as to be public, effective and efficient. Disclosure must be timely, simultaneous and full.
ACER specifies, in chapter 7 of its guidelines, the principle and modalities of the effective publication of privileged information. A disclosure of inside information that does not meet the above criteria (including incomplete or late publication) shall be considered as a breach of Article 4 of the REMIT Regulation.

The market participant must also monitor and update its publications.

CRE monitors the compliance of market players’ operations and practices with the requirements of the REMIT Regulation, particularly in terms of publication of inside information.

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