Dutch REMIT Implementation Act, REMIT Consultation by the ACM & Implementation market monitoring by ACER possibly delayed


1.         REMIT Implementation Act

Last Tuesday (9 July 2013), the act on the implementation of REMIT(1) in the Netherlands (the "REMIT Implementation Act") was adopted. Through amendments of existing legislation in the Netherlands, the REMIT Implementation Act introduces a supervision and enforcement regime of REMIT in the Netherlands:

•the ‘Autoriteit Consument en Markt’ ("ACM") shall be the main REMIT supervising authority in the Netherlands and shall share information with a range of national and European (energy and financial) regulators, including ACER (Agency for the Cooperation of Energy Regulators);

•insider trading in, and market manipulation in respect of, wholesale energy products shall be a criminal offence in the Netherlands;

•any person who professionally arranges transactions in wholesale energy products and who reasonably suspects that a transaction is done with insider knowledge and/or constitutes market abuse will have to notify ACM; and

•'market participants’(2) shall have to register with the ACM. Registration will be required not later than 3 months after the date on which the European Commission has adopted certain implementing acts. These implementing acts have not been adopted yet.

The REMIT Implementation Act does not contain provisions with regard to trade reporting. Trade reporting is not required yet, but will be once the European Commission has adopted corresponding implementing acts.

Only after official publication the REMIT Implementation Act will come into force. It is currently unclear when the act will be published. We will, of course, send an update upon official publication.

2. REMIT Consultation

On Wednesday 10 July, the ACM published a public consultation on its website(3) on: (i.) the publication of inside information by market participants in general; and (ii.) a threshold for the publication of inside information for gas.

1.REMIT requires market participants in the energy wholesale market (such as, for instance, gas (storage) and electricity suppliers) to publicly disclose, in an effective and timely manner, inside information in relation to wholesale energy products. This includes information on outages/unavailability of facilities for the production, storage and transfer of gas and electricity.

As a result of the absence of a generally used central platform, currently, market participants in the Netherlands publish inside information on their own websites. Through a public consultation, the ACM wishes to learn whether there is a general desire for a central platform.

2.Contrary to thresholds in relation to the reporting of outages of electricity production and/or transmission, in the second guidance(4) by ACER on the application of REMIT, no equivalent thresholds have (yet) been established in relation to gas. The ACM considers that a threshold could take some of the administrative burdens of market participants.

With reference to thresholds in place in Denmark (14.000 MWh/day) and the UK (10mcm/day), the ACM asks respondents to provide their views as to the implementation and to be determined level of thresholds in the Netherlands.

The consultation closes on 30 August 2013 and responses can be submitted by e-mail.

3.         Implementation market monitoring by ACER possibly delayed

In the 'Mid-term review of the Agency’s Work Programme for 2013' by ACER of 13 June 2013(5), published on 2 July 2013, ACER made some remarkable statements about the further implementation of REMIT:

"If further delays emerge in the availability of the additional financial resources for the implementation of REMIT, the Agency (ACER) will be forced to postpone to subsequent years part of the development of IT solutions for market surveillance, data collectionand data sharing between the Agency and NRA's of wholesale energy markets".

(…) "The severe limitation in the financial resources available for REMIT-related IT development in 2013 implies that the order for IT solutions for data collection and data sharing will have to be postponed."

"This will make it impossible for the Agency to be ready fully to implement market monitoring under REMIT by the end of the first quarter of 2014, as currently planned".

Bird&Bird will closely monitor and further report on all developments in this respect. 

Previous Bird&Bird newsletters with regard to REMIT

•'Europese verordening integriteit en transparantie van de energiemarkt'
•'Gas market investigations – a quick guide to enforcement'
•'Belgian competition authority prosecutor accuses Electrabel of abuse of dominance'
•'DECC issues draft GB REMIT enforcement Regulations'

For more information, please contact Michelle de Rijke, Adam Pasaribu or Otto Nunnikhoven