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What precisely should be published under new disclosure scheme for wholesale energy products?
ACER Agency in its Guidelines built its list consisting of three main items:
- any planned outage, limitation, expansion or dismantling of capacity of one generation unit that equals or exceeds 100 MW, including changes of such plans,
- any unplanned outage or failure of capacity that equals or exceeds 100 MW for one generation unit, consumption or transmission facility, including updates on such outages or failures,
- any other information that is likely to have a significant effect on the prices of one or more wholesale electricity product if made public;
the last one however is quite spacious.
But ERGEG’s catalogue released in December 2010 as regards electricity generators stipulated the positions for disclosure far more extensively and specifically.
The above-described three-itemised list designed by the Agency for the Cooperation of Energy Regulators (ACER) in the non-binding ‘Guidance on the application of the definitions set out in Article 2 of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ 1st Edition of 20 December 2011
(http://www.acer.europa.eu/portal/page/portal/ACER_HOME/Activities/REMIT) have been equipped by the ACER with the commentary stating that the said examples may constitute inside information for wholesale electricity products regarding the market participant’s own business or facilities at the current stage, at least until the “Comitology Guidelines on Fundamental Electricity Data Transparency” are adopted and enter into force.
In this context the linkage between the implementation of the REMIT (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) and the Comitology Guidelines on Fundamental Electricity Data Transparency as an implementing measure for the Third Energy Package is clearly visible and becomes particularly important.
REMIT - 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
Considering however that:
1) on the one side of the spectrum the process of REMIT implementation is not mature enough to achieve a stage where electricity generators dispose of a complete and sufficiently regulatory approved list of itemised data subject to disclosure, and,
2) at the other end the Third Energy Package Comitology Guidelines on Fundamental Electricity Data Transparency are also yet on the stage of public consultations carried on by the European Commission,
3) in parallel electricity generators are already subject to disclosure requirements running from 28 December 2011;
the question arises, which concrete items electricity generators should publish up to date in the discharge of the statutory requirement under REMIT Regulation as inside information.
It is clear that qualification of a certain information as ‘inside information’ entails strict legal consequences among which the prohibition on using such classified data in trading in energy before their publication is only one of the most important.
The postulate from industrial market participants (particularly power plants operators) stressing the importance of formulating the precise and, possibly, exhaustive list of such data have been formulated in the course of several public consultations regarding REMIT itself as well as enhanced data transparency on electricity market fundamentals.
The need for such an approach was underlined particularly by EDF which during the said consultations expressed the view that ‘legal certainty requires that the future regulation makes clear that the compliance with the transparency requirements shields utilities from any further information request from market participants under antitrust rules or REMIT. In other words, the high level of transparency should go with a consistent protection of the data providers that should not be asked to provide transparency data outside the scope of information definitions of the guidelines’ (EC consultation - Guidelines on enhanced data transparency on electricity market fundamentals EDF Response of 16 September 2011).
REMIT - 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
Considering however that:
1) on the one side of the spectrum the process of REMIT implementation is not mature enough to achieve a stage where electricity generators dispose of a complete and sufficiently regulatory approved list of itemised data subject to disclosure, and,
2) at the other end the Third Energy Package Comitology Guidelines on Fundamental Electricity Data Transparency are also yet on the stage of public consultations carried on by the European Commission,
3) in parallel electricity generators are already subject to disclosure requirements running from 28 December 2011;
the question arises, which concrete items electricity generators should publish up to date in the discharge of the statutory requirement under REMIT Regulation as inside information.
It is clear that qualification of a certain information as ‘inside information’ entails strict legal consequences among which the prohibition on using such classified data in trading in energy before their publication is only one of the most important.
The postulate from industrial market participants (particularly power plants operators) stressing the importance of formulating the precise and, possibly, exhaustive list of such data have been formulated in the course of several public consultations regarding REMIT itself as well as enhanced data transparency on electricity market fundamentals.
The need for such an approach was underlined particularly by EDF which during the said consultations expressed the view that ‘legal certainty requires that the future regulation makes clear that the compliance with the transparency requirements shields utilities from any further information request from market participants under antitrust rules or REMIT. In other words, the high level of transparency should go with a consistent protection of the data providers that should not be asked to provide transparency data outside the scope of information definitions of the guidelines’ (EC consultation - Guidelines on enhanced data transparency on electricity market fundamentals EDF Response of 16 September 2011).