Article 2(1) of REMIT defines "inside information" as:
- 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.
From the above explicit definition clearly follows that information is deemed to constitute inside information only if the circumstances on which the information is based would, if it became publicly known, likely have significant effect on the prices of a wholesale energy product.
ACER in its guidelines understands the criterion of significant price effect to narrow the wide notion of information down to that information which is crucial enough in order to have a potential to significantly affect prices.
ACER made, moreover, clear that the likelihood to significantly affect the prices of wholesale energy products is sufficient in order for the information to be qualified as inside information, hence, no actual price effect is required.
The concept of likelihood requires an assessment of the extent to which such circumstances would affect the price of a wholesale energy product if they were made public.
Such an assessment has to take into consideration the anticipated impact of the information in light of the related market participant's activity, as well as the market situation, including specificities of the market (size of the market, balance of demand and supply, steepness of the relevant offer curve - correlated with demand but also with already existing production limitations, information on supply variation already published, time of day - e.g. weekday/weekend, office hours/out of office hours, etc.) and any other market variables likely to affect the related wholesale energy product in the given circumstances.
Ex-post information may be used to check the presumption that the information has a significant price effect, but should not be used to take action against someone who drew reasonable conclusions from such presumption.
ACER currently considers that the following should be taken into consideration as useful indicators of whether information is likely to have a significant price effect:
- the type of information is the same as information which has, in the past, had a significant effect on prices;
- pre-existing analysts research reports, price reporter publications and opinions indicate that the type of information in question has effects on prices;
- the market participant itself has already treated similar events as inside information;
- another reasonable market participant has already treated similar events as inside information.
ACER emphasised that these factors are only indicators. They should not be treated as definitive in terms of meaning that the information in question will necessarily have a significant price effect.