Sittings · Document
OPINION (COM(2023)0147 – C90050/2023 – 2023/0076(COD)) 2023-06-29
On the proposal for a regulation of the European Parliament and of the Council amending Regulations (EU) No 1227/2011 and (EU) 2019/942 to improve the Union’s protection against market manipulation in the wholesale energy market
Committee on Economic and Monetary Affairs · Rapporteur: Ondřej Kovařík
AMENDMENTS
The Committee on Economic and Monetary Affairs calls on the Committee on Industry, Research and Energy, as the committee responsible, to take the following into account:
Amendment 1
Proposal for a regulation
Recital 2
| Text proposed by the Commission | Amendment |
| (2) Financial instruments, including energy derivatives, traded on energy markets are of increasing importance. Due to the increasingly close interrelation between financial markets and energy wholesale markets, Regulation (EU) No 1227/2011 should be better aligned with the financial market legislation such as Regulation (EU) No 596/2014 of the European Parliament and of the Council17 , including with respect to the definitions of market manipulation and inside information respectively. More specifically the definition of market manipulation in Regulation (EU) No 1227/2011 should be slightly adjusted to mirror Article 12 of Regulation (EU) No 596/2014. To that end, the definition of market manipulation under Regulation (EU) No 1227/2011 should be adjusted to capture the entering into any transaction, or issuing any order to trade, but also any other behaviour relating to wholesale energy products which: (i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products; (ii) secures, or is likely to secure, by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level, or (iii) employs a fictitious device or any other form of deception or contrivance which gives, or is likely to give, false or misleading signals regarding the supply of, demand for, or price of wholesale energy products. | (2) Those wholesale energy products that are financial instruments, including energy derivatives, traded on energy markets are of increasing importance. Due to the increasingly close interrelation between financial markets and energy wholesale markets, Regulation (EU) No 1227/2011 should be better aligned with the financial market legislation such as Regulation (EU) No 596/2014 of the European Parliament and of the Council17 , including with respect to the definitions of market manipulation and inside information respectively. Alignment between this Regulation and financial markets legislation should ensure that national regulatory authorities, supervising energy markets, and competent financial authorities, supervising financial markets, can apply relevant legislation by taking into account the specificities of the energy markets. More specifically the definition of market manipulation in Regulation (EU) No 1227/2011 should be slightly adjusted to mirror Article 12 of Regulation (EU) No 596/2014. To that end, the definition of market manipulation under Regulation (EU) No 1227/2011 should be adjusted to capture the entering into any transaction, or issuing any order to trade, but also any other behaviour relating to wholesale energy products which: (i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products; (ii) secures, or is likely to secure, by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level, or (iii) employs a fictitious device or any other form of deception or contrivance which gives, or is likely to give, false or misleading signals regarding the supply of, demand for, or price of wholesale energy products. However, the scope of this Regulation should not overlap with sectoral financial markets regulation. Therefore, financial instruments as defined in Directive 2014/65/EU of the European Parliament and of the Council17a, should be carved out from the scope. |
| __________________ | __________________ |
| 17 Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1). | 17 Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1). |
| 17a Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349). |
Amendment 2
Proposal for a regulation
Recital 3
| Text proposed by the Commission | Amendment |
| (3) The definition of inside information should also be adjusted to mirror Regulation (EU) 596/2014. In particular, where inside information concerns a process which occurs in stages, each stage of the process as well as the overall process could constitute inside information. An intermediate step in a protracted process may in itself constitute a set of circumstances or an event which exists or where there is a realistic prospect that they will come into existence or occur, on the basis of an overall assessment of the factors existing at the relevant time. However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration. An intermediate step should be deemed to be inside information if it, by itself, meets the criteria laid down in this Regulation for inside information. | (3) The definition of inside information should also be aligned with Regulation (EU) 596/2014. In particular, where inside information concerns a process which occurs in stages, each stage of the process as well as the overall process could constitute inside information. An intermediate step in a protracted process may in itself constitute a set of circumstances or an event which exists or where there is a realistic prospect that they will come into existence or occur, on the basis of an overall assessment of the factors existing at the relevant time. However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration. An intermediate step should be deemed to be inside information if it, by itself, meets the criteria laid down in this Regulation for inside information. |
Amendment 3
Proposal for a regulation
Recital 5
| Text proposed by the Commission | Amendment |
| (5) Sharing of information between national regulatory authorities and the national competent financial authorities is a central aspect of cooperation and detection of potential breaches in both the wholesale energy markets and the financial markets. In the light of the exchange of information between competent authorities pursuant to Regulation (EU) 596/2014 at national level, national regulatory authorities should share relevant information they receive with national financial and competition authorities. | (5) Sharing of information between national regulatory authorities and the national competent financial authorities is a central aspect of cooperation and detection of potential breaches in both the wholesale energy markets and the financial markets. In the light of the exchange of information between competent authorities pursuant to Regulation (EU) 596/2014 at national level, national regulatory authorities should share relevant information they receive with national financial and competition authorities, as well as with the European Agency for the Cooperation of Energy Regulators (ACER) and ESMA. |
Amendment 4
Proposal for a regulation
Recital 5 a (new)
| Text proposed by the Commission | Amendment |
| (5 a) ACER and ESMA should closely coordinate in their supervisory activities, including, but not limited to, on issues arising from the adoption of this Regulation, in order to ensure that the most complete data sets are available to and that action can be taken as needed by the European or national regulatory authorities or competent financial authorities, as applicable. ACER and ESMA should particularly explore arrangements in order to ensure that the flow of information between them and national regulatory authorities and competent financial authorities is unobstructed, and that they can have, at all times, an overview of the energy markets in the Union. |
Amendment 5
Proposal for a regulation
Recital 8
| Text proposed by the Commission | Amendment |
| (8) The use of trading technology has evolved significantly in the past decade and is increasingly used on the wholesale energy markets. Many market participants use algorithmic trading and high frequency algorithmic techniques with minimal or no human intervention. The risks arising from these practises should be addressed under Regulation (EU) No 1227/2011. | (8) The use of trading technology has evolved significantly in the past decade and is increasingly used on the wholesale energy markets. Many market participants use algorithmic trading and high frequency algorithmic techniques with minimal or no human intervention. The risks arising from these practises should be clearly addressed under Regulation (EU) No 1227/2011. |
Amendment 6
Proposal for a regulation
Recital 13
| Text proposed by the Commission | Amendment |
| (13) In order to facilitate monitoring to detect potential trading based on inside information and data quality of collected information, the collection of inside information needs to be aligned with the current processes for trade data reporting. | (13) In order to facilitate monitoring to detect potential trading based on inside information and data quality of collected information, the collection of inside information needs to be aligned with the current processes for trade data reporting while ensuring that reporting overlaps arising from obligations under other pieces of linked legislation, such as financial services legislation are minimised. |
Justification
While data collection is imperative, we also need to facilitate reporting standards horizontally in EU legislation to avoid duplicative reporting from market participants
Amendment 7
Proposal for a regulation
Recital 22
| Text proposed by the Commission | Amendment |
| (22) The Agency should be empowered to carry out investigations by conducting on-site inspections and by issuing requests for information to the persons under investigations, in particular where the suspected breaches of Regulation (EU) No 1227/2011 have a clear cross-border dimension. In undertaking the on-site inspections and in issuing requests for information to the persons under investigations, the Agency should closely and actively cooperate with the relevant national regulatory authorities, which in turn should provide the Agency with full assistance, including where a person refuses to be subject to the inspection or to provide the requested information. It is important that the procedural guarantees and fundamental rights of the persons concerned of the persons subject to the Agency’s investigations are fully respected. The confidentiality of the information submitted by the persons subject to the investigation should be safeguarded exchanged in accordance with applicable Union data protection rules. | (22) The Agency should be empowered to carry out investigations by conducting on-site inspections and by issuing requests for information to the persons under investigations, in particular where the suspected breaches of Regulation (EU) No 1227/2011 have a clear cross-border dimension. In undertaking the on-site inspections and in issuing requests for information to the persons under investigations, the Agency should closely and actively cooperate with the relevant national regulatory authorities, which in turn should provide the Agency with full assistance, including where a person refuses to be subject to the inspection or to provide the requested information. Where it deems this necessary, the Agency should also closely cooperate with ESMA with regard to on-site inspections. It is important that the procedural guarantees and fundamental rights of the persons concerned of the persons subject to the Agency’s investigations are fully respected. The confidentiality of the information submitted by the persons subject to the investigation should be safeguarded exchanged in accordance with applicable Union data protection rules. |
Amendment 8
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point a
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 1 – paragraph 2
| Text proposed by the Commission | Amendment |
| 2. This Regulation applies to trading in wholesale energy products. This Regulation is without prejudice to the application of Directive (EU) 2014/65, Regulation (EU) 600/2014 and Regulation (EU) 648/2012 as regards activities involving financial instruments as defined under Article 4(1)(15) of Directive (EU) 2014/65 as well as to the application of European competition law to the practices covered by this Regulation. | 2. This Regulation applies to trading in wholesale energy products. Articles 3, 5, 5a and Article 9(1), second subparagraph, of this Regulation shall not apply to wholesale energy products which are financial instruments as defined in Article 4(1), point (15), of Directive (EU) 2014/65 and to which Article 2 of Regulation (EU) No 596/2014 applies. This Regulation is without prejudice to the application of Directive (EU) 2014/65, Regulation (EU) No 600/2014, Regulation (EU) No 596/2014 and Regulation (EU) 648/2012 as regards activities involving financial instruments as well as to the application of European competition law to the practices covered by this Regulation . |
Amendment 9
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point b
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 1 – paragraph 3 – subparagraph 2
| Text proposed by the Commission | Amendment |
| The Agency, national regulatory authorities, ESMA and competent financial authorities of the Member States shall in particular exchange relevant information and data on a regular, at least quarterly, basis regarding potential breaches of Regulation (EU) No 596/2014 of the European Parliament and of the Council involving wholesale energy products covered by this Regulation. | The Agency, national regulatory authorities, ESMA and competent financial authorities of the Member States shall exchange relevant information and data on a regular basis regarding potential breaches of Regulation (EU) No 596/2014 of the European Parliament and of the Council involving wholesale energy products covered by this Regulation. |
Amendment 10
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point c
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 2 – point a – introductory part
| Text proposed by the Commission | Amendment |
| (a) entering into any transaction, issuing any order to trade or engaging in any other behaviour relating to wholesale energy products which: | (a) entering into any transaction or placing any order to trade or engaging in any other behaviour relating to wholesale energy products which: |
Amendment 11
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point c
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 2 – point a – point i
| Text proposed by the Commission | Amendment |
| (i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products; | (i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products; or |
Amendment 12
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point c
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 2 – point a – point ii– subparagraph 1
| Text proposed by the Commission | Amendment |
| (ii) secures, or is likely to secure , by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level | (ii) secures, or is likely to secure , by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level |
Amendment 13
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point c
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 2 – point a – point ii – subparagraph 2
| Text proposed by the Commission | Amendment |
| unless the person who entered into the transaction or issued the order to trade establishes that his reasons for doing so are legitimate and that that transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or | unless the persons who entered into the transaction or placed the order to trade establishes that their reasons for doing so are legitimate and that that transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or |
Amendment 14
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point g
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 7
| Text proposed by the Commission | Amendment |
| (7) ‘market participant’ means any person, including transmission system operators and persons professionally arranging or executing transactions when trading on their own account, who enters into transactions, including the placing of orders to trade, in one or more wholesale energy markets; ”; | (7) ‘market participant’ means any person, including transmission system operators and distribution system operators, storage system operators and LNG system operators, who enter into transactions, including the placing of orders to trade, in one or more wholesale energy markets; ”; |
Amendment 15
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point h
Regulations (EU) No 1227/2011 and (EU) 2019/942
Artice 2 – point 8
| Text proposed by the Commission | Amendment |
| (8a) 'person professionally arranging or executing transactions' means a person professionally engaged in the reception and transmission of orders for, or in the execution of transactions in, wholesale energy products;”; | (8a) 'person professionally arranging transactions' means a person professionally engaged in the reception and transmission of orders for, or in the arrangement of transactions in, wholesale energy products that are not financial instruments;”; |
Amendment 16
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 17
| Text proposed by the Commission | Amendment |
| (17) ‘inside information platform’ or ‘IIP’ means a person registered under this Regulation to provide the service of operating a platform for the disclosure of inside information and for the reporting of disclosed inside information to the Agency on behalf of market participants. | (17) ‘inside information platform’ or ‘IIP’ means a person registered under this Regulation to provide the service of operating a platform for the disclosure of inside information and for the reporting of disclosed inside information to the Agency. |
Amendment 17
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 18 a (new)
| Text proposed by the Commission | Amendment |
| (18 a) “over the counter (OTC) wholesale energy contract” means a wholesale energy contract the execution of which takes place bilaterally between market participants or via a broker and not on an energy exchange; |
Amendment 18
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 20
| Text proposed by the Commission | Amendment |
| (20) ‘organised market place’ (‘OMP’) means an energy exchange, an energy broker, an energy capacity platform or any other person professionally arranging or executing transactions, including shared order book providers but excluding purely bilateral trading where two natural persons enter into each trade on their own account. | (20) ‘organised market place’ (‘OMP’) means an energy exchange, an energy broker, an energy capacity platform or any other person professionally arranging or executing transactions, including shared order book providers but excluding trading venues as defined in Article 4(1), point (24), of Directive 2014/65/EU and purely bilateral trading where two natural persons enter into each trade on their own account; |
Amendment 19
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 21
| Text proposed by the Commission | Amendment |
| (21) ‘LNG trading’ means bids, offers or transactions for the purchase or sale of LNG: (a) that specify delivery in the Union; (b) that result in delivery in the Union; or (c) in which one counterparty re-gasifies the LNG at a terminal in the Union. | (21) ‘LNG trading’ means entering into any transactions, including orders to trade on an organised market place, relating to the purchase or sale of LNG: (a) that specify delivery in the Union; (b) that result in delivery in the Union; or (c) in which one counterparty re-gasifies the LNG at a terminal in the Union; |
Amendment 20
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 24 a (new)
| Text proposed by the Commission | Amendment |
| (24 a) benchmark’ means any index that is not a benchmark as defined in Article 3(1), point (29), of Regulation (EU) 596/2014 and that is periodically or regularly determined by the application of a formula to, or on the basis of, the underlying wholesale energy products, including estimated prices, by reference to which the amount payable under a wholesale energy product or a contract relating to a wholesale energy product, or the value of a wholesale energy product, is determined, whereas that wholesale energy product is not a financial instrument; |
Amendment 21
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 2 – point 25
| Text proposed by the Commission | Amendment |
| (25) ‘LNG benchmark’ means the determination of a spread between the daily LNG price assessment and the settlement price for the TTF Gas Futures front-month contract established by ICE Endex Markets B.V. on a daily basis.; | (25) ‘LNG benchmark’ means a benchmark with regard to LNG trading. |
Amendment 22
Proposal for a regulation
Article 1 – paragraph 1 – point 3
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 3 – paragraph 1 – subparagraph 2
| Text proposed by the Commission | Amendment |
| The use of inside information by cancelling or amending an order concerning a wholesale energy product to which the information relates, where the order was placed before the person concerned possessed the inside information, shall also be considered to be insider trading.; | The use of inside information by cancelling orders or amending or modifying an existing order, the establishment of links or dependencies between orders, concerning a wholesale energy product to which the information relates, where the order was placed before the person concerned possessed the inside information, shall also be considered to be insider trading. |
Amendment 23
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 5a – paragraph 1
| Text proposed by the Commission | Amendment |
| 1. A market participant that engages in algorithmic trading shall have in place effective systems and risk controls suitable to the business it operates to ensure that its trading systems are resilient and have sufficient capacity, are subject to appropriate trading thresholds and limits and prevent the sending of erroneous orders to trade or the systems otherwise functioning in a way that may create or contribute to a disorderly market. The market participant shall also have in place effective systems and risk controls to ensure that the trading systems comply with this Regulation and with the rules of an organised market place to which it is connected. The market participant shall have in place effective business continuity arrangements to deal with any failure of its trading systems and shall ensure its systems are fully tested and properly monitored to ensure that they meet the requirements laid down in this paragraph. | 1. A market participant that engages in algorithmic trading shall have in place effective systems and risk controls suitable to the business it operates to ensure that its trading systems are resilient and have sufficient capacity, are subject to appropriate trading thresholds and limits and prevent the sending of erroneous orders to trade or the systems otherwise functioning in a way that may create or contribute to a disorderly market or excessive market volatility. The market participant shall also have in place effective systems and risk controls to ensure that the trading systems comply with this Regulation and with the rules of an organised market place to which it is connected. The market participant shall have in place effective business continuity arrangements to deal with any failure of its trading systems and shall ensure its systems are fully tested and properly monitored by one or more designated persons on a regular basis to ensure that they meet the requirements laid down in this paragraph. |
Amendment 24
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 5a – paragraph 2 – subparagraph 3
| Text proposed by the Commission | Amendment |
| The market participant shall arrange for records to be kept in relation to the points referred to in this paragraph and shall ensure that those records are sufficient to enable its national regulatory authority to monitor compliance with this Regulation. | The market participant shall arrange for records to be kept in relation to the points referred to in this paragraph for a period of five years, and shall ensure that those records are sufficient to enable its national regulatory authority to monitor compliance with this Regulation. |
Amendment 25
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 5a – paragraph 3 – subparagraph 3
| Text proposed by the Commission | Amendment |
| The market participant shall arrange for records to be kept in relation to the matters referred to in this paragraph and shall ensure that those records be sufficient to enable its national regulatory authority to monitor compliance with this Regulation. | The market participant shall arrange for records to be kept in relation to the matters referred to in this paragraph for a period of five years and shall ensure that those records be sufficient to enable its national regulatory authority to monitor compliance with this Regulation. |
Amendment 26
Proposal for a regulation
Article 1 – paragraph 1 – point 15
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 13a – paragraph 1
| Text proposed by the Commission | Amendment |
| 1. The Agency shall prepare and conduct on-site inspections in close cooperation with the relevant authorities of the Member State concerned. | 1. The Agency shall prepare and conduct on-site inspections in close cooperation with the relevant authorities of the Member State concerned and, where it deems it necessary, with ESMA. |
Amendment 27
Proposal for a regulation
Article 1 – paragraph 1 – point 15
Regulations (EU) No 1227/2011 and (EU) 2019/942
Article 13a – paragraph 4
| Text proposed by the Commission | Amendment |
| 4. In sufficient time before the inspection, the Agency shall give notice of the inspection to the national regulatory authority and other concerned authorities of the Member State where the inspection is to be conducted. Inspections under this Article shall be conducted provided that the relevant authority has confirmed that it does not object to those inspections. | 4. In sufficient time before the inspection, the Agency shall give notice of the inspection to the national regulatory authority and other concerned authorities of the Member State where the inspection is to be conducted. |