The “transparency” of the financial markets is a recurring issue and one that has become more sensitive with the 2008 financial crisis. The energy sector has not escaped this requirement since its liberalisation, which has led to the development of transactions on wholesale markets and cross-border flows.
While these flows are controlled by national regulators and the Agency for the Cooperation of Energy Regulators (“ACER”) through capacity allocation mechanisms and now “network codes”, the European Union has more recently undertaken an effort to better monitor the operation of the wholesale gas and electricity markets, prevent abuses and, if necessary, sanction them: This is the purpose of Regulation 1227/2011 of 25 October 2011 on the integrity and transparency of the wholesale energy market, known as the “REMIT” Regulation, which partially entered into force on 28 December 2011.
The Commission de régulation de l’énergie (“CRE”) has thus been entrusted with the supervision of the French wholesale electricity and gas markets, under the aegis of ACER (article 1).
The REMIT regulation
The REMIT regulation defines and prohibits market abuse, i.e.: on the one hand, insider trading (article 3) and, on the other hand, market manipulation (article 5). These abuses may be sanctioned by the national regulatory authority following an investigation (Article 13). The regulation establishes market surveillance, which involves the registration of almost all market participants with the national regulator (article 9), so that above a very low threshold, all transactions are subject to REMIT reporting to ACER (article 8). French market players must thus provide ACER with data relating to their transactions on wholesale energy markets, including orders, and, in addition, transmit to both ACER and CRE information relating to the capacity and use of facilities for the production, storage, consumption or transmission of electricity or natural gas, or information relating to the capacity and use of liquefied natural gas infrastructures. Finally, the Regulation provides for an obligation to publish the information which it defines as “inside information” and which is held by market participants (Article 4).
The wholesale energy market
The “wholesale energy market” is defined as “any market within the Union on which wholesale energy products are traded” (Article 2, 6°), while a “market player” is “any person, including transmission system operators, who carries out transactions, including the issuance of orders, on one or more wholesale energy markets” (Article 2, 7°). Wholesale energy products correspond to the following contracts and derivatives, regardless of where and how they are traded: “(a) contracts for the supply of electricity or natural gas with delivery within the Union; (b) derivatives relating to electricity or natural gas produced, traded or delivered within the Union; (c) contracts relating to the transmission of electricity or natural gas within the Union; (d) derivatives relating to the transmission of electricity or natural gas within the Union. Contracts for the supply and distribution of electricity or natural gas to final customers shall not constitute wholesale energy products. However, contracts for the supply and distribution of electricity or natural gas to final customers with a consumption capacity above the threshold of 600 GWh per year shall be considered as wholesale energy products” (Article 2, 4°).
Energy production and trading
Energy producers thus fall within the scope of the REMIT regulation and must therefore submit their data to ACER, after registering with CRE.
The European Commission has adopted implementing regulation 1348/2014 of 17 December 2014 on data reporting pursuant to Article 8(2) and (6) of the REMIT Regulation. Under this Regulation, electricity producers with a single generating unit with a capacity of 10 MW or less or generating units with a combined capacity of 10 MW or less who sell their electricity under delivery contracts for the energy produced by these small units only, as well as natural gas producers with a single plant with a capacity of 20 MW or less, if they are indeed “market players” within the meaning of the REMIT Regulation, are nevertheless granted a preferential treatment. On the one hand, their contracts and the data on associated transactions are only subject to the reporting obligation upon a reasoned request from ACER and on an ad hoc basis (Article 4 §1 of the Implementing Regulation). On the other hand, if they only carry out transactions relating to these contracts, they are not obliged to register with CRE (Article 4 §2).
The registration of a market player as a “CEREMP user” must first be carried out with CRE, using the ACER CEREMP platform. It enables a unique identifier to be obtained.
The CEREMP user must then register as a market player.
Taking the example of producers, those whose generation facilities, whether new or already in operation, are above the above thresholds, and in particular those who sell their electricity to EDF or to a local distribution company under feed-in tariffs or as winners of a call for tenders, must register with CRE by providing the information determined by ACER Decision No. 01/2012 of 26 June 2012. The registration form comprises five sections: Section 1 “General information on the market player and the different codes of the market player (EIC code, BIC code, LEI code, GS1 code) when they exist”; Section 2 “Individual information concerning natural persons mandated by the market player (trading manager, operational decision manager, communication contact)”; Section 3 “Information on the ultimate controlling shareholder(s)”; Section 4 “Information on the group structure (related market players, etc.)”; Section 5 “Information relating to any parties delegated to collect data from ACER on the player”.
Once registered, the market player must declare the contracts and then the data associated with the contracts, as part of the “data collection” provided for in Article 8 of the REMIT Regulation, under the conditions set out in the Implementing Regulation.
In practice, the deadlines for registration and the start of data collection differed according to the type of contract subject to reporting under the Implementing Regulation. For example, market participants trading in “standard contracts” on an organised marketplace had to register before 7 October 2015, while other market participants had until 7 April 2016.
It is CRE which, as part of its mission to monitor transactions, guarantees compliance with Articles 3, 4, 5, 8, 9 and 15 of the REMIT regulation, in accordance with Article L.131-2 of the Energy Code. Furthermore, it is the CRE Disputes and Sanctions Settlement Committee (the “CoRDiS”) which is competent, under the terms of Article L.134-25 of the same code, to impose sanctions in the event of failure to comply with the rules defined by these articles, under the conditions set by Articles L.134-27 et seq. Thus, in the event that a market participant has failed to register on the prescribed date, the CoRDiS should give the market participant formal notice to comply with this obligation and only if this formal notice is not followed by action could the market participant be subject to a sanction, proportionate to the seriousness of the breach. In the case of failure to record or to transmit data, two penalties are provided for: a temporary ban not exceeding one year from exercising all or part of the professional activities of the persons concerned and, if the failure does not constitute a criminal offence, a financial penalty, the amount of which is proportionate to the seriousness of the failure, the situation of the person concerned, the extent of the damage and the benefits derived from it. However, the latter amount may not exceed 3% of the turnover before tax achieved during the last financial year, increased to 5% in the event of a further breach of the obligations to transmit information or documents. In the absence of activity making it possible to determine this ceiling, the amount of the penalty may not exceed 100,000 euros, increased to 250,000 euros in the event of a new violation of the same obligation.