EC guidelines needed
Notwithstanding all that was said, the legal situation remains ambiguous. It should be borne in mind that the definition of inside information on an electricity market covers not only the Regulation No. 714/2009 by also information which is required to be disclosed in accordance with other legal or regulatory provisions at both Union and national level, and – what could be even more contentious as regards concrete items - market rules and customs.
Enigmatic remains also the referral to contracts. It is obvious that unlawful disclosure of trading secrets owned by one party to the contract by the other party can effect in a contractual liability for infringement of the confidentiality clause. But it seems at the first glance to be divergent situation from the one related to the premature disclosure of the ‘inside information’. What kinds of contracts are mentioned in the Article 2 of the REMIT? Neither the REMIT, nor the Regulation do not explain that issue in further detail.
So, the guidance from the European Commission would be very appreciated. The legal basis for such guidance provides Article 16 of the Regulation, which in paragraph 3(a) explicitly envisions the specification by the Commission of the details relating to provision of information in accordance with the general principles set out in the Regulation. The purpose of this guidance should be ‘the minimum degree of harmonisation’ required to achieve the aim of Regulation. Issuing the guidance the Commission shall consult the ACER and the ENTSO for Electricity. Another source of clues helpful to identify the concrete categories of ‘inside information’ will be the network codes elaborated by the ENTSO for Electricity.
Network codes and framework guidelines adopted in accordance with the provisions of Regulation will, furthermore, be taken into account by the Commission in specifying the definitions set out at Article 2 of REMIT (that is also the definition of ‘inside information’). The specification by the Commission (by the adoption of delegated acts) in that regard is expressis verbis provided for in Article 5 of the REMIT proposal.