28 Amendments of Marina MESURE related to 2023/0076(COD)
Amendment 101 #
Proposal for a regulation
Recital 1 a (new)
Recital 1 a (new)
(1a) Combating market abuses, while helping to scale back speculative practices that can influence the price of electricity paid by final consumers, will not provide answers capable of bringing about a sustained reduction in electricity prices. The fact is that electricity prices are set according to the marginal cost of operating the last power station drawn on, which means that there is a considerable gap between market price and average production cost.
Amendment 102 #
Proposal for a regulation
Recital 1 b (new)
Recital 1 b (new)
(1b) Strengthening the powers and competences of ACER, in particular as regards investigations, presupposes a considerable increase in its financial and human resources, given the volume and complexity of the data processed. Some national regulators are better staffed than ACER despite having limited geographical jurisdiction. The success of such a reform is therefore based on the resources allocated to ACER in the long term and on sound cooperation between national regulators and ACER. Accordingly, ACER’s human resources should be increased over and above the 30 full-time equivalents initially envisaged.
Amendment 105 #
Proposal for a regulation
Recital 1 c (new)
Recital 1 c (new)
(1c) Resource disparities between national regulators call for stepped-up ACER assistance for national regulators which ask for it, in particular in order to conduct investigations under this Regulation.
Amendment 109 #
Proposal for a regulation
Recital 2
Recital 2
(2) Financial instruments, including energy derivatives, traded on energy markets are of increasing importance and pose a risk that energy prices will rise, which would have a significant impact on the economy as a whole and on people’s standard of living. 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. _________________ 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.
Amendment 112 #
Proposal for a regulation
Recital 5
Recital 5
(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. In view of the growing financialisation of the energy sector, national financial authorities should also be given sufficient resources to carry out their tasks.
Amendment 115 #
Proposal for a regulation
Recital 8
Recital 8
(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. The Commission should consider banning certain practices that pose a risk to Europe’s economic stability and are widening the gulf between the real economy and market value.
Amendment 125 #
Proposal for a regulation
Recital 13
Recital 13
(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. Transparency and regulation of the practices of market participants must take precedence over considerations relating to the administrative burden on them.
Amendment 130 #
Proposal for a regulation
Recital 16
Recital 16
(16) In order to obtain an accurate, objective and reliable assessment of the price for LNG deliveries to the Union, the Agency should collect all the LNG market data that are necessary to establish a daily LNG price assessment. The price assessment should be undertaken based on all transactions pertaining to LNG deliveries to the Union. ACER should be empowered to collect this market data from all participants active in LNG deliveries to the Union. All such participants should be obliged to report all of their LNG market data to ACER as close to real time as technologically possible either after the conclusion of a transaction or the posting of a bid or offer to enter into a transaction. The ACER price assessment should comprise the most complete dataset including transaction prices and, as of 31 March 2023, bids and offer prices for LNG deliveries to the Union. The daily publication of this objective price assessment, and of the spread established in comparison to other reference prices on the market in the form of an LNG benchmark, paves the way for its voluntary uptake by market participants as the reference price in their contracts and transactions. Once established, the LNG price assessment and the LNG benchmark could also become a reference rate for derivatives contracts used for hedging the price of LNG or the difference in price between the LNG price and other gas prices. The objective of this revision must be to reduce electricity prices and reduce the EU’s dependence on gas. The use of gas, and in particular LNG, is a major source of greenhouse gas emissions. In order to bolster European sovereignty and mitigate climate change, in line with the objectives of the REPowerEU legislation and the FitFor55 legislative package, reducing the use of gas must remain a key principle of EU energy action. When discharging its duties, and in particular when issuing an opinion, ACER must take this objective into account.
Amendment 133 #
Proposal for a regulation
Recital 17 a (new)
Recital 17 a (new)
(17a) In conjunction with financial authorities, combating money laundering must be one of ACER’s priority tasks as part of the process of supervising energy markets.
Amendment 134 #
Proposal for a regulation
Recital 17 b (new)
Recital 17 b (new)
Amendment 135 #
Proposal for a regulation
Recital 18
Recital 18
(18) A uniform and stronger framework to prevent market manipulation and other breaches of Regulation (EU) No 1227/2011 in the Member States is necessary. Penalties for breaches of that Regulation, in that they are the best way of preventing market abuses, should be proportionate, effective and dissuasive and reflect the type of the breaches, taking into account the ne bis in idem principle. Administrative sanctions, penalty payments and supervisory measures are complementary parts of an effective enforcement regime. A harmonised supervision of the wholesale energy market requires a consistent approach among national regulatory authorities.
Amendment 140 #
Proposal for a regulation
Recital 19
Recital 19
(19) To date, the supervision and enforcement of activities under Regulation (EU) No 1227/2011 have been the responsibility of the Member States. Market abuse behaviours are increasingly cross-border in nature, often affecting several Member States. EAlbeit without calling into question the competence and know-how of Member States in this field, the fact is that enforcement action against cross-border market abuses can present jurisdictional challenges relating to the identification of the national regulatory authority that would be best placed to pursue the investigation in question.
Amendment 142 #
Proposal for a regulation
Recital 20
Recital 20
(20) Market abuse cases involving multiple cross-border elements and market participants established outside the Union are also particularly challenging from an enforcement perspective. The current supervisory set-up is not appropriate for the desired level of market integration. The absence of a mechanism to ensure the best possible supervisory decisions for cross- border cases, where joint action by national regulatory authorities and the Agency currently requires complicated arrangements and where there is a patchwork of supervisory regimes must be addressed. There is therefore a need to set up, on the basis of proper cooperation with national regulators, an efficient and effective supervisory and investigatory regime for this type of market abuse cases, which cannot, due to its Union wide features, be addressed by Member State action alone.
Amendment 148 #
Proposal for a regulation
Recital 22
Recital 22
(22) The Agency should be empowered to carry out investigations, with the agreement of national authorities, 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.
Amendment 156 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point a – paragraph 1
Article 1 – paragraph 1 – point 2 – point a – paragraph 1
Regulation (EU) No 1227/2011
Article 2
Article 2
“(e) information conveyed by a cliemarket participant or by other persons acting on the cliemarket participant’s behalf and relating to the cliemarket participant’s pending orders in wholesale energy products, which is of a precise nature, relating directly or indirectly, to one or more wholesale energy products”;
Amendment 158 #
Proposal for a regulation
Article 1– paragraph 1 – point 2 – point b
Article 1– paragraph 1 – point 2 – point b
Regulation (EU) No 1227/2011
Article 2, paragraph 1, point 1 – subparagraph 5
Article 2, paragraph 1, point 1 – subparagraph 5
For the purposes of paragraph 1, information which, if it were made public, would be likely to significantly affect the prices of those wholesale energy products shall mean information a reasonable investormarket participant would be likely to use as part of the basis of his or her investment decision(s) to enter into a wholesale market transaction or issue an order to trade relating to the wholesale energy market;
Amendment 172 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point f
Article 1 – paragraph 1 – point 2 – point f
Regulation (EU) No 1227/2011
Article 2
Article 2
Amendment 181 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point j
Article 1 – paragraph 1 – point 2 – point j
Regulation (EU) No 1227/2011
Article 1
Article 1
(17) ‘inside information platform’ or ‘IIP’ means a person registered under this Regulation to provide the service of operating a platformDoes not affect the English version.) Or. for the disclosure of inside information and for the reporting of disclosed inside information to the Agency on behalf of market participants. Justification
Amendment 201 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Regulation (EU) No 1227/2011
Article 4 a
Article 4 a
3a. 4. Within 12 months of the date of entry into force of the revised Regulation, the list set out in paragraph 3 shall be supplemented by a delegated act on the basis of an opinion from the Agency.
Amendment 206 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Regulation (EU) No 1227/2011
Article 4 a
Article 4 a
(d) has seriously and systematically infringed this Regulation.
Amendment 211 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Regulation (EU) No 1227/2011
Article 4 a
Article 4 a
The Commission shall, by means of implementingdelegated acts, specify :
Amendment 217 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Regulation (EU) No 1227/2011
Article 4 a
Article 4 a
Those implementingdelegated acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).”;
Amendment 262 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 – point b Regulation (EU) No 1227/2011
Article 1 – paragraph 1 – point 12 – point b Regulation (EU) No 1227/2011
“(1a) National regulatory authorities shall establish mechanisms to share information they receive in accordance with Article 7(2) and Article 8 with the competent financial market authorities, the national competition authorities, the national tax authorities and EUROFISC and other relevant authorities at national level. Before establishing such mechanisms, the national regulatory authority shall consult with the Agency and with those parties. Accordingly, combating tax fraud shall be an Agency priority.”;
Amendment 282 #
Proposal for a regulation
Article 1 – paragraph 1 – point 14 – point b
Article 1 – paragraph 1 – point 14 – point b
Regulation (EU) No 1227/2011
Article 13
Article 13
(a) acts are being or have been carried out on wholesale energy products for delivery in at least threewo Member States; or
Amendment 284 #
(aa) at the request of a national regulator; or
Amendment 286 #
Proposal for a regulation
Article 1 – paragraph 1 – point 14 – point b Regulation (EU) No 1227/2011
Article 1 – paragraph 1 – point 14 – point b Regulation (EU) No 1227/2011
(b) acts are being or have been carried on wholesale energy products for delivery in at least two Member States and at least one of the natural or legal persons who is carrying or carried out these acts is resident or established in a third country but registered pursuant to Article 9(1)or one Member State plus a third country; or
Amendment 292 #
Proposal for a regulation
Article 1 – paragraph 1 – point 14 – point b
Article 1 – paragraph 1 – point 14 – point b
Regulation (EU) No 1227/2011
Article 13
Article 13
(c) the competent national regulatory authority, without prejudice to the derogations referred to in Article 16(5), doehas not immediately take the necessary measures in orderduly substantiated its refusal to comply with the request from the Agency referred to in Article 16(4)(b); or
Amendment 297 #
(d) the relevant information as defined in Article 2(1) of this Regulation is likely to significantly affect the prices of wholesale energy products for delivery in at least threewo Member States.