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DRAFT REPORT (COM(2023)0147 – C90050/2023 – 2023/0076(COD))

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

ITRE-PR-747031

Committee on Industry, Research and Energy · Rapporteur: Maria da Graça Carvalho

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This is the rapporteur's draft report on the Commission proposal to amend Regulations (EU) No 1227/2011 and (EU) 2019/942 to improve protection against market manipulation in the wholesale energy market. It adopts Parliament's position at first reading and tables amendments replacing 'market manipulation' with 'market abuse', aligning definitions with Regulation (EU) No 596/2014, and clarifying the terms market participant, person professionally arranging transactions and organised market place. It sets rules for inside information platforms, registered reporting mechanisms, algorithmic trading, LNG price assessment and benchmark, and LNG market data reporting. It reinforces the Agency's investigation powers, lowers the cross-border threshold to two Member States, and adds a power to take statements. It asks the Commission to report by June 2027 on the Regulation's application, including its impact on market behaviour, liquidity, reporting requirements and administrative burden.

Committee position. The rapporteur welcomes the Commission's initiative and supports its main principles, but proposes amendments guided by legal coherence and transparency, a strengthened European dimension and a reinforced market, including reinforcing ACER's investigation powers and clarifying rules for market participants.

Key points

  1. Replaces 'market manipulation' with 'market abuse', covering market manipulation, attempts of market manipulation and insider trading, and aligns the definition of market manipulation with Article 12 of Regulation (EU) No 596/2014.
  2. Adjusts the definition of inside information to be in line with Regulation (EU) No 596/2014, referring to wholesale energy products, and empowers the Commission to adopt delegated acts listing relevant intermediate steps in a protracted process.
  3. Defines market participant to include transmission system operators, distribution system operators, storage system operators and LNG system operators, and requires market participants to report contracts for supply of electricity or natural gas that may result in physical delivery in the Union.
  4. Specifies that algorithmic trading provisions do not apply to transmission system operators' activities using automation already covered by Commission Regulation (EU) 2017/2195, and includes high frequency trading in the definition of algorithmic trading.
  5. Requires market participants to disclose inside information on dedicated inside information platforms (IIPs), which must be authorised and registered, and exempts market participants from liability for technical problems or publication errors caused by a duly registered and authorised IIP.
  6. Requires persons professionally arranging transactions to report suspicious orders and potential breaches of the obligation to publish inside information, and states that direct electronic access providers and shared order-book providers are not persons professionally arranging transactions.
  7. Empowers ACER to produce and publish an LNG price assessment and benchmark, to collect LNG market data from LNG market participants, and allows ACER to use third-party services; the Commission is to adopt implementing acts on the methodology, timing and frequency.
  8. Requires LNG market participants to submit LNG market data to ACER free of charge, through ACER's reporting channels, in a standardised format and as close to real-time as technologically possible, and sets out the data fields, units and currencies.
  9. Requires organised market places or third parties on their behalf to make order books available to the Agency, removing double reporting by individual market participants, while bilateral contracts continue to be reported under Article 8(1).
  10. Allows ACER to carry out investigations in close and active cooperation with national regulatory authorities, lowers the cross-border threshold to acts on wholesale energy products for delivery in at least two Member States, and adds a power to take statements.
  11. Requires the Agency to submit reports on its investigations to the European Parliament and the Council at least once a year, and allows the Agency to recommend follow-up measures to national regulatory authorities.
  12. Requires the Commission to assess the application of the Regulation by June 2027, in particular its impact on market behaviour, market participants, liquidity, reporting requirements and administrative burden, and to submit a report to Parliament and the Council, accompanied where appropriate by a legislative proposal.

Who is affected

  • Market participants, including transmission, distribution, storage and LNG system operators, must report contracts and LNG market data and disclose inside information.
  • Persons professionally arranging transactions must report suspicious orders and potential breaches of the obligation to publish inside information.
  • Inside information platforms must be authorised and registered by ACER and meet organisational requirements.
  • Registered reporting mechanisms must be authorised by ACER and ensure orderly substitution if authorisation is withdrawn.
  • National regulatory authorities and ACER cooperate on investigations and information exchange.

Figures and deadlines

  • Authorisation to operate as an RRM within a reasonable time period and, to the extent possible, in less than three months from the receipt of the application.
  • Implementing acts on IIPs to be adopted by ...[18 months after the date of entry into force of this amending Regulation].
  • Implementing acts on RRMs to be adopted by ...[18 months after the date of entry into force of this amending Regulation].
  • Commission assessment of the Regulation by June 2027.
  • ACER investigations where acts are carried out on wholesale energy products for delivery in at least two Member States.
  • ACER investigations where acts are carried on wholesale energy products for delivery in at least one Member State and at least one person is resident or established in another Member State or in a third country but registered pursuant to Article 9(1).
  • ACER powers to ensure obligations under Article 15 are met where persons are professionally arranging transactions on wholesale energy products for delivery in at least two Member States.

Legal basis: Article 294(2) and Article 194(2) of the Treaty on the Functioning of the European Union.