Somebody my ask why exactly 100 MW (and above) outage is treated as inside information under REMIT Regulation and what is the legal basis for such determination...
Let’s recall that treatment of certain data as inside information triggers REMIT regime inter alia for public disclosure and for maintaining confidentiality in case when publication was delayed.
Thus, the determination for the threshold triggering these obligations is really important.
The level of 100 MW as such threshold value is specified in ACER (Agency for the Cooperation of Energy Regulators) ‘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. Point 2.6 of this document gives some examples of information which could constitute inside information.
In ACER’s view the definitions of Regulations (EC) No 714/2009 and (EC) No 715/2009 and Directives 2009/72/EC and 2009/73/EC, including guidelines and network codes adopted pursuant to those Regulations, apply also to REMIT.
ACER clarifies that as regards wholesale electricity products, Regulation (EC) No 714/2009, including guidelines and network codes adopted pursuant to this Regulation, particularly the current 2006 Congestion Management Guidelines annexed to the Regulation, apply. The Guidelines put obligations on TSOs to provide information on transmission infrastructure and its use, generation, load, balancing and also certain wholesale market aspects.
Outages of units that equal or exceed 100 MW are captured by REMIT.
As part of the information has its source outside the TSOs (i.e. generators and users of electricity), concerned market participants are obliged to provide the TSOs with the relevant data for publication. Information on network infrastructure shall include information on capacity allocation and congestion management procedures and operational and planning security standards. The classes of information to be published on a regular basis (annual, monthly, week-ahead forecasts, daily day-ahead and intra-day information) include data related to available transmission capacity, capacity used, aggregated realised commercial and physical flows and information on planned outages and unplanned outages of generation units larger than 100 MW. Additionally, information on forecast demand and generation, as well as (ex-post) realised values for the forecast information is to be published.
ACER concludes that at the current stage, at least until the “Comitology Guidelines on Fundamental Electricity Data Transparency” are adopted and enter into force, the Agency believes that the following examples may constitute inside information for wholesale electricity products regarding the market participant’s own business or facilities of which the market participant concerned owns or controls or has the balance responsibility for in whole or in part, in particular information relevant to facilities for production, consumption or transmission of electricity, regarding:
- 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.
In conclusion, the explicit mention of 100 MW threshold as a value having legal significance for REMIT inside information classification, contain above ACER Guidelines, which refer to Regulation (EC) No 714/2009 and strictly to the point 5.5.(i) of the Annex I to the said legal act. The legal basis for such reference is laid down in Article 2(10(a) of the REMIT Regulation which stipulates that for the purposes of the definition of inside information, ‘information’ means, among others, ‘information which is required to be made public in accordance with Regulations (EC) No 714/2009 and (EC) No 715/2009, including guidelines and network codes adopted pursuant to those Regulations’.
In my opinion the above clarifications should be, however, understood that 100 MW for sure is captured by REMIT - in every system - but in the smaller ones there may exist situations where units under the threshold specified may also qualify. One should be mindful of the overriding principle governing REMIT that, generally, inside information is any information that is likely to have a significant effect on the prices of one or more wholesale electricity product if made public. And there can’t be excluded the situation that Member States may exist where the outages of units smaller than 100 MW may influence on the prices. Thus, the individual circumstances of the case in may opinion must always be considered in that regard.