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8.12.2011 Official
Journal
of
the
European
Union L
326/1
I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 1227/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2011
on wholesale energy market integrity and transparency
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
(3)
The advice of the Committee of European Securities
EUROPEAN UNION,
Regulators and the European Regulators Group for Elec
tricity and Gas confirmed that the scope of existing legis
lation might not properly address market integrity issues
Having regard to the Treaty on Functioning of European Union,
on the electricity and gas markets and recommended the
and in particular Article 194(2) thereof,
consideration of an appropriate legislative framework
tailored to the energy sector which prevents market
abuse and takes sector-specific conditions into account
Having regard to the proposal from the European Commission,
which are not covered by other directives and regu
lations.
After transmission of the draft legislative act to the national
parliaments,
(4) Wholesale
energy
markets
are
increasingly
interlinked
across the Union. Market abuse in one Member State
Having regard to the opinion of the European Economic and
often affects not only wholesale prices for electricity
Social Committee ( 1 ),
and natural gas across national borders, but also retail
prices to consumers and micro-enterprises. Therefore the
concern to ensure the integrity of markets cannot be a
After consulting the Committee of the Regions of the European
matter only for individual Member States. Strong cross-
Union,
border market monitoring is essential for the completion
of a fully functioning, interconnected and integrated
internal energy market.
Acting in accordance with the ordinary legislative procedure ( 2 ),
Whereas:
(5) Wholesale
energy
markets
encompass
both
commodity
markets and derivative markets, which are of vital
importance to the energy and financial markets, and
(1) It
is
important
to
ensure
that
consumers
and
other
price formation in both sectors is interlinked. They
market participants can have confidence in the integrity
include, inter alia, regulated markets, multilateral
of electricity and gas markets, that prices set on
trading facilities and over-the-counter (OTC) transactions
wholesale energy markets reflect a fair and competitive
and bilateral contracts, direct or through brokers.
interplay between supply and demand, and that no
profits can be drawn from market abuse.
(2) The
goal
of
increased
integrity
and
transparency
of (6)
To date, energy market monitoring practices have been
wholesale energy markets should be to foster open and
Member State and sector-specific. Depending on the
fair competition in wholesale energy markets for the
overall market framework and regulatory situation, this
benefit of final consumers of energy.
can result in trading activities being subject to multiple
jurisdictions with monitoring carried out by several
different authorities, possibly located in different
( 1 ) OJ C 132, 3.5.2011, p. 108.
Member States. This can result in a lack of clarity as to
( 2 ) Position of the European Parliament of 14 September 2011 (not yet
published in the Official Journal) and Decision of the Council of
where responsibility rests and even to a situation where
10 October 2011.
no such monitoring exists.

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L 326/2
EN
Official Journal of the European Union
8.12.2011
(7)
Behaviour which undermines the integrity of the energy
party should be clearly prohibited. Use of inside
market is currently not clearly prohibited on some of the
information can also consist in trading in wholesale
most important energy markets. In order to protect final
energy products by persons who know, or ought to
consumers and guarantee affordable energy prices for
know, that the information they possess is inside
European citizens, it is essential to prohibit such
information. Information regarding the market
behaviour.
participant's own plans and strategies for trading
should not be considered as inside information.
Information which is required to be made public in
accordance with Regulation (EC) No 714/2009 or (EC)
(8) Derivative
trading,
which
may
be
either
physically
or
No 715/2009, including guidelines and network codes
financially settled, and commodity trading are used
adopted pursuant to those Regulations, may serve, if it
together on wholesale energy markets. It is therefore
is price-sensitive information, as the basis of market
important that the definitions of insider trading and
participants' decisions to enter into transactions in
market manipulation, which constitute market abuse,
wholesale energy products and therefore could constitute
be compatible between derivatives and commodity
inside information until it has been made public.
markets. This Regulation should in principle apply to
all transactions concluded but at the same time should
take into account the specific characteristics of the
wholesale energy markets.
(13) Manipulation on wholesale energy markets involves
actions undertaken by persons that artificially cause
prices to be at a level not justified by market forces of
(9) Retail
contracts
which
cover
the
supply
of
electricity
or
supply and demand, including actual availability of
natural gas to final customers are not susceptible to
production, storage or transportation capacity, and
market manipulation in the same way as wholesale
demand. Forms of market manipulation include placing
contracts which are easily bought and sold. None the
and withdrawal of false orders; spreading of false or
less, the consumption decisions of the largest energy
misleading information or rumours through the media,
users can also affect prices on wholesale energy
including the internet, or by any other means;
markets, with effects across national borders. Therefore
deliberately providing false information to undertakings
it is appropriate to consider the supply contracts of such
which provide price assessments or market reports with
large users in the context of ensuring the integrity of
the effect of misleading market participants acting on the
wholesale energy markets.
basis of those price assessments or market reports; and
deliberately making it appear that the availability of elec
tricity generation capacity or natural gas availability, or
the availability of transmission capacity is other than the
(10) Taking account of the results of the examination set out
capacity which is actually technically available where
in the Commission Communication of 21 December
such information affects or is likely to affect the price
2010 entitled ‘Towards an enhanced market oversight
of wholesale energy products. Manipulation and its
framework for the EU Emissions Trading Scheme’, the
effects may occur across borders, between electricity
Commission should consider bringing forward a legis
and gas markets and across financial and commodity
lative proposal to tackle the identified shortcomings in
markets, including the emission allowances markets.
the transparency, integrity and supervision of the
European carbon market in an appropriate time-frame.
(14) Examples of market manipulation and attempts to
(11) Regulation (EC) No
714/2009 of the European
manipulate the market include conduct by a person, or
Parliament and of the Council of 13 July 2009 on
persons acting in collaboration, to secure a decisive
conditions for access to the network for cross-border
position over the supply of, or demand for, a
exchanges in electricity
( 1 ) and Regulation (EC)
wholesale energy product which has, or could have, the
No 715/2009 of the European Parliament and of the
effect of fixing, directly or indirectly, prices or creating
Council of 13 July 2009 on conditions for access to
other unfair trading conditions; and the offering, buying
the natural gas transmission networks ( 2 ) recognise that
or selling of wholesale energy products with the purpose,
equal access to information on the physical status and
intention or effect of misleading market participants
efficiency of the system is necessary to enable all market
acting on the basis of reference prices. However,
participants to assess the overall demand and supply
accepted market practices such as those applying in the
situation and identify the reasons for fluctuations in the
financial services area, which are currently defined by
wholesale price.
Article 1(5) of Directive 2003/6/EC of the European
Parliament and of the Council of 28 January 2003 on
insider dealing and market manipulation (market
abuse) ( 3 ) and which may be adapted if that Directive is
(12) The use or attempted use of inside information to trade
amended, could be a legitimate way for market
either on one's own account or on the account of a third
participants to secure a favourable price for a wholesale
energy product.
( 1 ) OJ L 211, 14.8.2009, p. 15.
( 2 ) OJ L 211, 14.8.2009, p. 36.
( 3 ) OJ L 96, 12.4.2003, p. 16.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/3
(15) The
disclosure
of
inside
information
in
relation
to
a
structural data on capacity and use of facilities for
wholesale energy product by journalists acting in their
production, storage, consumption or transmission of
professional capacity should be assessed taking into
electricity or natural gas. For this reason market
account the rules governing their profession and the
participants, including transmission system operators,
rules governing the freedom of the press, unless those
suppliers, traders, producers, brokers and large users,
persons derive, directly or indirectly, an advantage or
who trade wholesale energy products should be
profits from the dissemination of the information in
required to provide that information to the Agency.
question or when disclosure is made with the intention
The Agency may for its part establish strong links with
of misleading the market as to the supply of, demand for,
major organised market places.
or price of wholesale energy products.
(19) In
order
to
ensure
uniform
conditions
for
the
implemen
(16) As
financial
markets
develop,
the
concepts
of
market
tation of the provisions on data collection, implementing
abuse applying to those markets will be adapted. In
powers should be conferred on the Commission. Those
order to ensure the necessary flexibility to respond
powers should be exercised in accordance with Regu
quickly to these developments therefore, the power to
lation (EU) No 182/2011 of the European Parliament
adopt acts in accordance with Article 290 of the
and of the Council of 16 February 2011 laying down
Treaty on the Functioning of the European Union
the rules and general principles concerning mechanisms
should be delegated to the Commission in respect of
for control by the Member States of the Commission's
technical updating of the definitions of inside
exercise of implementing powers ( 2 ). Reporting obli
information and market manipulation for the purpose
gations should be kept to a minimum and not create
of ensuring coherence with other relevant Union legis
unnecessary costs or administrative burdens for market
lation in the fields of financial services and energy. It is
participants. The uniform rules on the reporting of
of particular importance that the Commission carry out
information should therefore undergo an ex-ante cost-
appropriate consultations during its preparatory work,
benefit analysis, should avoid double reporting, and
including at expert level. The Commission should,
should take account of reporting frameworks developed
when preparing and drawing up delegated acts, ensure
under other relevant legislation. Furthermore, the
a simultaneous, timely and appropriate transmission of
required information or parts thereof should be
relevant documents to the European Parliament and the
collected from other persons and existing sources
Council.
where possible. Where a market participant or a third
party acting on its behalf, a trade reporting system, an
organised market, a trade-matching system, or other
person professionally arranging transactions has fulfilled
its reporting obligations to a competent authority in
accordance with Directive 2004/39/EC of the European
(17) Efficient
market
monitoring
at
Union
level
is
vital
for
Parliament and of the Council of 21 April 2004 on
detecting and deterring market abuse on wholesale
markets in financial instruments ( 3 ) or applicable Union
energy markets. The Agency for the Cooperation of
legislation on derivative transactions, central
Energy Regulators established by Regulation (EC)
counterparties and trade repositories, its reporting obli
No 713/2009 of the European Parliament and of the
gation should be considered fulfilled also under this
Council ( 1 ) (‘the Agency’) is best placed to carry out
Regulation, but only to the extent that all the
such monitoring as it has both a Union-wide view of
information required under this Regulation has been
electricity and gas markets, and the necessary expertise
reported.
in the operation of electricity and gas markets and
systems in the Union. National regulatory authorities,
which have a comprehensive understanding of devel
opments on energy markets in their Member State,
should have an important role in ensuring efficient
market monitoring at national level. Close cooperation
(20) It is important that the Commission and the Agency
and coordination between the Agency and national
work closely together in implementing this Regulation
authorities is therefore necessary to ensure proper moni
and consult appropriately with the European Networks
toring and transparency of energy markets. The
of Transmission System Operators for Electricity and for
collection of data by the Agency is without prejudice
Gas and the European Securities and Markets Authority
to the right of national authorities to collect additional
established by Regulation (EU) No 1095/2010 of the
data for national purposes.
European Parliament and of the Council ( 4 ) (ESMA),
with national regulatory authorities, competent financial
authorities and other Member State authorities such as
national competition authorities, and with stakeholders
such as organised market places (e.g. energy exchanges)
and market participants.
(18) Efficient
market
monitoring
requires
regular
and
timely
access to records of transactions as well as access to
( 2 ) OJ L 55, 28.2.2011, p. 13.
( 3 ) OJ L 145, 30.4.2004, p. 1.
( 1 ) OJ L 211, 14.8.2009, p. 1.
( 4 ) OJ L 331, 15.12.2010, p. 84.

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L 326/4
EN
Official Journal of the European Union
8.12.2011
(21) A
European
register
of
market
participants,
based
on
parency will help build confidence in the market and
national registers, should be established to enhance the
foster the development of knowledge about the func
overall transparency and integrity of wholesale energy
tioning of wholesale energy markets. The Agency
markets. One year after the establishment of that
should establish and make publicly available rules on
register, the Commission should assess in cooperation
how it will make that information available in a fair
with the Agency, in line with the reports submitted by
and transparent manner.
the Agency to the Commission, and with the national
regulatory authorities, the functioning and the usefulness
of the European register of market participants. If
deemed appropriate based on that assessment, the
Commission should consider presenting further
(26) National
regulatory
authorities
should
be
responsible
for
instruments to enhance the overall transparency and
ensuring that this Regulation is enforced in the Member
integrity of wholesale energy markets and to ensure a
States. To this end they should have the necessary inves
Union-wide level playing field for market participants.
tigatory powers to allow them to carry out that task
efficiently. These powers should be exercised in
conformity with national law and may be subject to
appropriate oversight.
(22) In
order
to
facilitate
efficient
monitoring
of
all
aspects
of
trading in wholesale energy products, the Agency should
establish mechanisms to give access to the information
which it receives on transactions on wholesale energy
(27) The
Agency
should
ensure
that
this
Regulation
is
applied
markets to other relevant authorities, in particular to
in a coordinated way across the Union, coherent with the
ESMA, national regulatory authorities, competent
application of Directive 2003/6/EC. To that effect, the
financial authorities of the Member States, national
Agency should publish non-binding guidance on the
competition authorities, and other relevant authorities.
application of the definitions set out in this Regulation,
as appropriate. That guidance should address, inter alia,
the issue of accepted market practices. Furthermore, since
market abuse on wholesale energy markets often affects
more than one Member State, the Agency should have an
(23) The Agency should ensure the operational security and
protection of the data which it receives, prevent unauth
important role in ensuring that investigations are carried
orised access to the information kept by the Agency, and
out in an efficient and coherent way. To achieve this, the
establish procedures to ensure that the data it collects are
Agency should be able to request cooperation and to
not misused by persons with an authorised access to
coordinate the operation of investigatory groups
them. The Agency should also ascertain whether those
comprised of representatives of the concerned national
authorities which have access to the data held by the
regulatory authorities and, where appropriate, other
Agency are able to maintain an equally high level of
authorities including national competition authorities.
security and are bound by appropriate confidentiality
arrangements. The operational security of the IT
systems used for processing and transmitting the data
therefore also needs to be ensured. For setting up an
(28) The
Agency
should
be
provided
with
the
appropriate
IT system that ensures the highest possible level of
financial and human resources, in order to adequately
data confidentiality, the Agency should be encouraged
fulfil the additional tasks assigned to it under this Regu
to work closely with the European Network and
lation. For this purpose, the procedure for the estab
Information Security Agency (ENISA). These rules
lishment, implementation and control of its budget as
should also apply to other authorities that are entitled
set out in Articles 23 and 24 of Regulation (EC)
to access to the data for the purpose of this Regulation.
No 713/2009 should take due account of these tasks.
The budgetary authority should ensure that the best
standards of efficiency are met.
(24) This
Regulation
respects
fundamental
rights
and
observes
the principles recognised in particular by the Charter of
Fundamental Rights of the European Union as referred to
(29) National regulatory authorities, competent financial
in Article 6 of the Treaty on European Union and the
authorities of the Member States and, where appropriate,
constitutional traditions in the Member States and should
national competition authorities should cooperate to
be applied in accordance with the right to freedom of
ensure a coordinated approach to tackling market
expression and information recognised in Article 11 of
abuse on wholesale energy markets which encompasses
the Charter.
both commodity markets and derivatives markets. That
cooperation should include the mutual exchange of
information regarding suspicions that acts which are
likely to constitute a breach of this Regulation,
(25) Where
information
is
not,
or
no
longer,
sensitive
from
a
Directive 2003/6/EC, or competition law are being or
commercial or security viewpoint, the Agency should be
have been carried out on wholesale energy markets.
able to make that information available to market
Furthermore, that cooperation should contribute to a
participants and the wider public with a view to
coherent and consistent approach to investigations and
contributing to enhanced market knowledge. Such trans
judicial proceedings.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/5
(30) It
is
important
that
the
obligation
of
professional
secrecy
2. This
Regulation
applies
to
trading
in
wholesale
energy
applies to those who receive confidential information in
products. Articles 3 and 5 of this Regulation shall not apply
accordance with this Regulation. The Agency, national
to wholesale energy products which are financial instruments
regulatory authorities, competent financial authorities of
and to which Article 9 of Directive 2003/6/EC applies. This
the Member States and national competition authorities
Regulation is without prejudice to Directives 2003/6/EC and
should ensure the confidentiality, integrity and protection
2004/39/EC as well as to the application of European
of the information which they receive.
competition law to the practices covered by this Regulation.
(31) It
is
important
that
the
penalties
for
breaches
of
this
3. The
Agency,
national regulatory
authorities,
ESMA,
Regulation are proportionate, effective and dissuasive,
competent financial authorities of the Member States and,
and reflect the gravity of the infringements, the damage
where appropriate, national competition authorities shall
caused to consumers and the potential gains from trading
cooperate to ensure that a coordinated approach is taken to
on the basis of inside information and market manipu
the enforcement of the relevant rules where actions relate to
lation. The application of these penalties should be
one or more financial instruments to which Article 9 of
carried out in accordance with national law. Recognising
Directive 2003/6/EC applies and also to one or more
the interactions between trading in electricity and natural
wholesale energy products to which Articles 3, 4 and 5 of
gas derivative products and trading in actual electricity
this Regulation apply.
and natural gas, the penalties for breaches of this Regu
lation should be in line with the penalties adopted by the
Member States in implementing Directive 2003/6/EC.
Taking account of the consultation on the Commission
4. The
Agency's
Administrative
Board
shall
ensure
that
the
Communication of 12 December 2010 entitled ‘Rein
Agency carries out the tasks assigned to it under this Regulation
forcing sanctioning regimes in the financial services
in accordance with this Regulation and Regulation (EC)
sector’, the Commission should consider presenting
No 713/2009.
proposals to harmonise minimum standards for the
penalties systems of Member States in an appropriate
time-frame. This Regulation affects neither national
rules on the standard of proof nor obligations of
5. The Director of the Agency shall consult the Agency's
national regulatory authorities and courts of the
Board of Regulators on all aspects of implementation of this
Member States to ascertain the relevant facts of a case,
Regulation and give due consideration to its advice and
provided that such rules and obligations are compatible
opinions.
with general principles of Union law.
Article 2
(32) Since the objective of this Regulation, namely the
provision of a harmonised framework to ensure
Definitions
wholesale energy market transparency and integrity,
For the purposes of this Regulation the following definitions
cannot be sufficiently achieved by the Member States
shall apply:
and can therefore be better achieved at Union level, the
Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty on European Union. In accordance with the
(1) ‘inside information’ means information of a precise nature
principle of proportionality, as set out in that Article,
which has not been made public, which relates, directly or
this Regulation does not go beyond what is necessary
indirectly, to one or more wholesale energy products and
in order to achieve that objective,
which, if it were made public, would be likely to
significantly affect the prices of those wholesale energy
products.
HAVE ADOPTED THIS REGULATION:
For the purposes of this definition, ‘information’ means:
Article 1
Subject matter, scope and relationship with other Union
legislation
(a) information which is required to be made public in
accordance with Regulations (EC) No 714/2009 and
1. This
Regulation
establishes
rules
prohibiting
abusive
(EC) No 715/2009, including guidelines and network
practices affecting wholesale energy markets which are
codes adopted pursuant to those Regulations;
coherent with the rules applicable in financial markets and
with the proper functioning of those wholesale energy
markets whilst taking into account their specific characteristics.
It provides for the monitoring of wholesale energy markets by
(b) information relating to the capacity and use of facilities
the Agency for the Cooperation of Energy Regulators (‘the
for production, storage, consumption or transmission
Agency’) in close collaboration with national regulatory
of electricity or natural gas or related to the capacity
authorities and taking into account the interactions between
and use of LNG facilities, including planned or
the Emissions Trading Scheme and wholesale energy markets.
unplanned unavailability of these facilities;

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L 326/6
EN
Official Journal of the European Union
8.12.2011
(c) information which is required to be disclosed in
When information is disseminated for the purposes of
accordance with legal or regulatory provisions at
journalism or artistic expression, such dissemination of
Union or national level, market rules, and contracts
information shall be assessed taking into account the
or customs on the relevant wholesale energy market,
rules governing the freedom of the press and freedom
in so far as this information is likely to have a
of expression in other media, unless:
significant effect on the prices of wholesale energy
products; and
(i) those persons derive, directly or indirectly, an
advantage or profits from the dissemination of
(d) other information that a reasonable market participant
the information in question; or
would be likely to use as part of the basis of its
decision to enter into a transaction relating to, or to
issue an order to trade in, a wholesale energy product.
(ii) the disclosure or dissemination is made with the
intention of misleading the market as to the supply
of, demand for, or price of wholesale energy
Information shall be deemed to be of a precise nature if it
products;
indicates a set of circumstances which exists or may
reasonably be expected to come into existence, or an
event which has occurred or may reasonably be expected
(3) ‘attempt to manipulate the market’ means:
to do so, and if it is specific enough to enable a conclusion
to be drawn as to the possible effect of that set of circum
stances or event on the prices of wholesale energy
(a) entering into any transaction, issuing any order to
products;
trade or taking any other action relating to a
wholesale energy product with the intention of:
(2) ‘market manipulation’ means:
(i) giving false or misleading signals as to the supply
of, demand for, or price of wholesale energy
(a) entering into any transaction or issuing any order to
products;
trade in wholesale energy products which:
(i) gives, or is likely to give, false or misleading
(ii) securing the price of one or several wholesale
signals as to the supply of, demand for, or price
energy products at an artificial level, unless the
of wholesale energy products;
person who entered into the transaction or
issued the order to trade establishes that his
reasons for doing so are legitimate and that that
(ii) secures or attempts to secure, by a person, or
transaction or order to trade conforms to accepted
persons acting in collaboration, the price of one
market practices on the wholesale energy market
or several wholesale energy products at an
concerned; or
artificial level, unless the person who entered
into the transaction or issued the order to trade
establishes that his reasons for doing so are
(iii) employing a fictitious device or any other form of
legitimate and that that transaction or order to
deception or contrivance which gives, or is likely
trade conforms to accepted market practices on
to give, false or misleading signals regarding the
the wholesale energy market concerned; or
supply of, demand for, or price of wholesale
energy products;
(iii) employs or attempts to employ a fictitious device
or any other form of deception or contrivance
or
which gives, or is likely to give, false or misleading
signals regarding the supply of, demand for, or
price of wholesale energy products;
(b) disseminating information through the media,
including the internet, or by any other means with
the intention of giving false or misleading signals as
or
to the supply of, demand for, or price of wholesale
energy products;
(b) disseminating information through the media,
including the internet, or by any other means, which
(4) ‘wholesale energy products’ means the following contracts
gives, or is likely to give, false or misleading signals as
and derivatives, irrespective of where and how they are
to the supply of, demand for, or price of wholesale
traded:
energy products, including the dissemination of
rumours and false or misleading news, where the
disseminating person knew, or ought to have known,
(a) contracts for the supply of electricity or natural gas
that the information was false or misleading.
where delivery is in the Union;

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8.12.2011 Official
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of
the
European
Union L
326/7
(b) derivatives relating to electricity or natural gas
(12) ‘parent undertaking’ means a parent undertaking within
produced, traded or delivered in the Union;
the meaning of Articles 1 and 2 of the Seventh Council
Directive 83/349/EEC of 13 June 1983 based on
(c) contracts relating to the transportation of electricity or
Article 54(3)(g) of the Treaty on consolidated accounts ( 3 );
natural gas in the Union;
(13) ‘related undertaking’ means either a subsidiary or other
(d) derivatives relating to the transportation of electricity
undertaking in which a participation is held, or an under
or natural gas in the Union.
taking linked with another undertaking by a relationship
within the meaning of Article 12(1) of Directive
83/349/EEC;
Contracts for the supply and distribution of electricity or
natural gas for the use of final customers are not wholesale
energy products. However, contracts for the supply and
(14) ‘distribution of natural gas’ has the meaning set out in
distribution of electricity or natural gas to final
point (5) of Article 2 of Directive 2009/73/EC;
customers with a consumption capacity greater than the
threshold set out in the second paragraph of point (5) shall
be treated as wholesale energy products;
(15) ‘distribution of electricity’ has the meaning set out in point
(5) of Article 2 of Directive 2009/72/EC.
(5) ‘consumption capacity’ means the consumption of a final
customer of either electricity or natural gas at full use of
Article 3
that customer's production capacity. It comprises all
consumption by that customer as a single economic
Prohibition of insider trading
entity, in so far as consumption takes place on markets
1. Persons
who
possess
inside
information
in
relation
to
a
with interrelated wholesale prices.
wholesale energy product shall be prohibited from:
For the purposes of this definition, consumption at indi
vidual plants under the control of a single economic entity
(a) using that information by acquiring or disposing of, or by
that have a consumption capacity of less than 600 GWh
trying to acquire or dispose of, for their own account or for
per year shall not be taken into account in so far as those
the account of a third party, either directly or indirectly,
plants do not exert a joint influence on wholesale energy
wholesale energy products to which that information
market prices due to their being located in different
relates;
relevant geographical markets;
(b) disclosing that information to any other person unless such
(6) ‘wholesale energy market’ means any market within the
disclosure is made in the normal course of the exercise of
Union on which wholesale energy products are traded;
their employment, profession or duties;
(7) ‘market participant’ means any person, including trans
(c) recommending or inducing another person, on the basis of
mission system operators, who enters into transactions,
inside information, to acquire or dispose of wholesale
including the placing of orders to trade, in one or more
energy products to which that information relates.
wholesale energy markets;
2. The
prohibition
set
out
in
paragraph
1
applies
to
the
(8) ‘person’ means any natural or legal person;
following persons who possess inside information in relation
to a wholesale energy product:
(9) ‘competent financial authority’ means a competent
authority designated in accordance with the procedure
laid down in Article 11 of Directive 2003/6/EC;
(a) members of the administrative, management or supervisory
bodies of an undertaking;
(10) ‘national regulatory authority’ means a national regulatory
authority designated in accordance with Article 35(1) of
(b) persons with holdings in the capital of an undertaking;
Directive 2009/72/EC of the European Parliament and of
the Council of 13 July 2009 concerning common rules for
the internal market in electricity ( 1 ) or Article 39(1) of
(c) persons with access to the information through the exercise
Directive 2009/73/EC of the European Parliament and of
of their employment, profession or duties;
the Council of 13 July 2009 concerning common rules for
the internal market in natural gas ( 2 );
(d) persons who have acquired such information through
criminal activity;
(11) ‘transmission system operator’ has the meaning set out in
point 4 of Article 2 of Directive 2009/72/EC and in point
4 of Article 2 of Directive 2009/73/EC;
(e) persons who know, or ought to know, that it is inside
information.
( 1 ) OJ L 211, 14.8.2009, p. 55.
( 2 ) OJ L 211, 14.8.2009, p. 94.
( 3 ) OJ L 193, 18.7.1983, p. 1.

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L 326/8
EN
Official Journal of the European Union
8.12.2011
3. Points
(a)
and
(c)
of
paragraph
1
of
this
Article
shall
not
Article 4
apply to transmission system operators when purchasing elec
tricity or natural gas in order to ensure the safe and secure
Obligation to publish inside information
operation of the system in accordance with their obligations
1. Market
participants
shall
publicly
disclose
in
an
effective
under points (d) and (e) of Article 12 of Directive 2009/72/EC
and timely manner inside information which they possess in
or points (a) and (c) of Article 13(1) of Directive 2009/73/EC.
respect of business or facilities which the market participant
concerned, or its parent undertaking or related undertaking,
owns or controls or for whose operational matters that
4. This
Article
shall
not
apply
to:
market participant or undertaking is responsible, either in
whole or in part. Such disclosure shall include information
relevant to the capacity and use of facilities for production,
(a) transactions conducted in the discharge of an obligation
storage, consumption or transmission of electricity or natural
that has become due to acquire or dispose of wholesale
gas or related to the capacity and use of LNG facilities, including
energy products where that obligation results from an
planned or unplanned unavailability of these facilities.
agreement concluded, or an order to trade placed, before
the person concerned came into possession of inside
information;
2. A
market
participant
may
under
its
own
responsibility
(b) transactions entered into by electricity and natural gas
exceptionally delay the public disclosure of inside information
producers, operators of natural gas storage facilities or
so as not to prejudice its legitimate interests provided that such
operators of LNG import facilities the sole purpose of
omission is not likely to mislead the public and provided that
which is to cover the immediate physical loss resulting
the market participant is able to ensure the confidentiality of
from unplanned outages, where not to do so would result
that information and does not make decisions relating to
in the market participant not being able to meet existing
trading in wholesale energy products based upon that
contractual obligations or where such action is undertaken
information. In such a situation the market participant shall
in agreement with the transmission system operator(s)
without delay provide that information, together with a justifi
concerned in order to ensure safe and secure operation of
cation for the delay of the public disclosure, to the Agency and
the system. In such a situation, the relevant information
the relevant national regulatory authority having regard to
relating to the transactions shall be reported to the
Article 8(5).
Agency and the national regulatory authority. This
reporting obligation is without prejudice to the obligation
set out in Article 4(1);
3. Whenever a market participant or a person employed by,
or acting on behalf of, a market participant discloses inside
(c) market participants acting under national emergency rules,
information in relation to a wholesale energy product in the
where national authorities have intervened in order to
normal exercise of his employment, profession or duties as
secure the supply of electricity or natural gas and market
referred to in point (b) of Article 3(1), that market participant
mechanisms have been suspended in a Member State or
or person shall ensure simultaneous, complete and effective
parts thereof. In this case the authority competent for
public disclosure of that information. In the event of a non-
emergency planning shall ensure publication in accordance
intentional disclosure the market participant shall ensure
with Article 4.
complete and effective public disclosure of the information as
soon as possible following the non-intentional disclosure. This
paragraph shall not apply if the person receiving the
5. Where
the
person
who
possesses
inside
information
in information has a duty of confidentiality, regardless of
relation to a wholesale energy product is a legal person, the
whether such duty derives from law, regulation, articles of
prohibitions laid down in paragraph 1 shall also apply to the
association or a contract.
natural persons who take part in the decision to carry out the
transaction for the account of the legal person concerned.
6. When information is disseminated for the purposes of
4. The
publication
of
inside
information,
including
in
journalism or artistic expression such dissemination of
aggregated form, in accordance with Regulation (EC)
information shall be assessed taking into account the rules
No 714/2009 or (EC) No 715/2009, or guidelines and
governing the freedom of the press and freedom of expression
network codes adopted pursuant to those Regulations
in other media, unless:
constitutes simultaneous, complete and effective public
disclosure.
(a) those persons derive, directly or indirectly, an advantage or
profits from the dissemination of the information in
question; or
5. Where
an
exemption
from
the
obligation
to
publish
certain data has been granted to a transmission system
operator, in accordance with Regulation (EC) No 714/2009 or
(b) the disclosure or dissemination is made with the intention
(EC) No 715/2009, that operator is thereby also exempted from
of misleading the market as to the supply of, demand for,
the obligation set out in paragraph 1 of this Article in respect of
or price of wholesale energy products.
that data.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/9
6. Paragraphs
1
and
2
are
without
prejudice
to
the
obli
(d) network codes and framework guidelines adopted in
gations of market participants under Directives 2009/72/EC
accordance with Regulations (EC) No 714/2009 and (EC)
and 2009/73/EC, and Regulations (EC) No 714/2009 and (EC)
No 715/2009.
No 715/2009, including guidelines and network codes adopted
pursuant to those Directives and Regulations, in particular
regarding the timing and method of publication of information.
Article 7
Market monitoring
7. Paragraphs 1 and 2 are without prejudice to the right of
1. The
Agency
shall
monitor
trading
activity
in
wholesale
market participants to delay the disclosure of sensitive
energy products to detect and prevent trading based on inside
information relating to the protection of critical infrastructure
information and market manipulation. It shall collect the data
as provided for in point (d) of Article 2 of Council Directive
for assessing and monitoring wholesale energy markets as
2008/114/EC of 8 December 2008 on the identification and
provided for in Article 8.
designation of European critical infrastructures and the
assessment of the need to improve their protection ( 1 ), if it is
classified in their country.
2. National
regulatory
authorities
shall
cooperate
at
regional
level and with the Agency in carrying out the monitoring of
wholesale energy markets referred to in paragraph 1. For this
Article 5
purpose national regulatory authorities shall have access to
relevant information held by the Agency which it has
Prohibition of market manipulation
collected in accordance with paragraph 1 of this Article,
Any engagement in, or attempt to engage in, market manipu
subject to Article 10(2). National regulatory authorities may
lation on wholesale energy markets shall be prohibited.
also monitor trading activity in wholesale energy products at
national level.
Article 6
Member States may provide for their national competition
Technical updating of definitions of inside information and
authority or a market monitoring body established within that
market manipulation
authority to carry out market monitoring with the national
1. The
Commission
shall
be
empowered
to
adopt
delegated regulatory authority. In carrying out such market monitoring,
acts in accordance with Article 20 in order to:
the national competition authority or the market monitoring
body shall have the same rights and obligations as the
national regulatory authority pursuant to the first subparagraph
of this paragraph, the second sentence of the second
(a) align the definitions set out in points (1), (2), (3) and (5) of
subparagraph of paragraph 3 of this Article, the second
Article 2 for the purpose of ensuring coherence with other
sentence of Article 4(2), the first sentence of Article 8(5), and
relevant Union legislation in the fields of financial services
Article 16.
and energy; and
3. The
Agency
shall
at
least
on
an
annual
basis
submit
a
(b) update those definitions for the sole purpose of taking into
report to the Commission on its activities under this Regulation
account future developments on wholesale energy markets.
and make this report publicly available. In such reports the
Agency shall assess the operation and transparency of
different categories of market places and ways of trading and
2. The
delegated
acts
referred
to
in
paragraph
1
shall
take may make recommendations to the Commission as regards
into account at least:
market rules, standards, and procedures which could improve
market integrity and the functioning of the internal market. It
may also evaluate whether any minimum requirements for
organised markets could contribute to enhanced market trans
(a) the specific functioning of wholesale energy markets,
parency. Reports may be combined with the report referred to
including the specificities of electricity and gas markets,
in Article 11(2) of Regulation (EC) No 713/2009.
and the interaction between commodity markets and
derivative markets;
The Agency may make recommendations to the Commission as
to the records of transactions, including orders to trade, which
(b) the potential for manipulation across borders, between elec
it considers are necessary to effectively and efficiently monitor
tricity and gas markets and across commodity markets and
wholesale energy markets. Before making such recommen
derivative markets;
dations, the Agency shall consult with interested parties, in
particular with national regulatory authorities, competent
financial authorities in the Member States, national competition
(c) the potential impact on wholesale energy market prices of
authorities and ESMA.
actual or planned production, consumption, use of trans
mission, or use of storage capacity; and
All recommendations should be made available to the European
( 1 ) OJ L 345, 23.12.2008, p. 75.
Parliament, the Council and the Commission and to the public.

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L 326/10
EN
Official Journal of the European Union
8.12.2011
Article 8
(d) an organised market, a trade-matching system or other
person professionally arranging transactions;
Data collection
1. Market participants, or a person or authority listed in
points (b) to (f) of paragraph 4 on their behalf, shall provide
(e) a trade repository registered or recognised under applicable
the Agency with a record of wholesale energy market trans
Union legislation on derivative transactions, central
actions, including orders to trade. The information reported
counterparties and trade repositories; or
shall include the precise identification of the wholesale energy
products bought and sold, the price and quantity agreed, the
dates and times of execution, the parties to the transaction and
(f) a competent authority which has received that information
the beneficiaries of the transaction and any other relevant
in accordance with Article 25(3) of Directive 2004/39/EC or
information. While overall responsibility lies with market
ESMA when it has received that information in accordance
participants, once the required information is received from a
with applicable Union legislation on derivative transactions,
person or authority listed in points (b) to (f) of paragraph 4, the
central counterparties and trade repositories.
reporting obligation on the market participant in question shall
be considered to be fulfilled.
5. Market
participants
shall
provide
the
Agency
and
national
regulatory authorities with information related to the capacity
2. The
Commission
shall,
by
means
of
implementing
acts:
and use of facilities for production, storage, consumption or
transmission of electricity or natural gas or related to the
capacity and use of LNG facilities, including planned or
(a) draw up a list of the contracts and derivatives, including
unplanned unavailability of these facilities, for the purpose of
orders to trade, which are to be reported in accordance with
monitoring trading in wholesale energy markets. The reporting
paragraph 1 and appropriate de minimis thresholds for the
obligations on market participants shall be minimised by
reporting of transactions where appropriate;
collecting the required information or parts thereof from
existing sources where possible.
(b) adopt uniform rules on the reporting of information which
is to be provided in accordance with paragraph 1;
6. The
Commission
shall,
by
means
of
implementing
acts:
(c) lay down the timing and form in which that information is
(a) adopt uniform rules on the reporting of information to be
to be reported.
provided in accordance with paragraph 5 and on appro
priate thresholds for such reporting where appropriate;
Those implementing acts shall be adopted in accordance with
the examination procedure referred to in Article 21(2). They
(b) lay down the timing and form in which that information is
shall take account of existing reporting systems.
to be reported.
3. Persons referred to in points (a) to (d) of paragraph 4 who
Those implementing acts shall be adopted in accordance with
have reported transactions in accordance with Directive
the examination procedure referred to in Article 21(2). They
2004/39/EC or applicable Union legislation on derivative trans
shall take account of existing reporting obligations under Regu
actions, central counterparties and trade repositories shall not be
lations (EC) No 714/2009 and (EC) No 715/2009.
subject to double reporting obligations relating to those trans
actions.
Article 9
Registration of market participants
Without prejudice to the first subparagraph of this paragraph,
the implementing acts referred to in paragraph 2 may allow
1. Market
participants
entering
into
transactions
which
are
organised markets and trade matching or trade reporting
required to be reported to the Agency in accordance with
systems to provide the Agency with records of wholesale
Article 8(1) shall register with the national regulatory
energy transactions.
authority in the Member State in which they are established
or resident or, if they are not established or resident in the
Union, in a Member State in which they are active.
4. For
the
purposes
of
paragraph
1,
information
shall
be
provided by:
A market participant shall register only with one national regu
latory authority. Member States shall not require a market
(a) the market participant;
participant already registered in another Member State to
register again.
(b) a third party acting on behalf of the market participant;
The registration of market participants is without prejudice to
obligations to comply with applicable trading and balancing
(c) a trade reporting system;
rules.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/11
2. Not
later
than
3
months
after
the
date
on
which
the information regarding wholesale energy products and
Commission adopts the implementing acts set out in
derivatives of emissions allowances collected by them available
Article 8(2), national regulatory authorities shall establish
to the Agency.
national registers of market participants which they shall keep
up to date. The register shall give each market participant a
unique identifier and shall contain sufficient information to
ESMA shall transmit to the Agency reports of transactions in
identify the market participant, including relevant details
wholesale energy products received pursuant to Article 25(3) of
relating to its value added tax number, its place of estab
Directive 2004/39/EC and under applicable Union legislation on
lishment, the persons responsible for its operational and
derivative transactions, central counterparties and trade reposi
trading decisions, and the ultimate controller or beneficiary of
tories. Competent authorities receiving reports of transactions in
the market participant's trading activities.
wholesale energy products received pursuant to Article 25(3) of
Directive 2004/39/EC shall transmit those reports to the
Agency.
3. National regulatory authorities shall transmit the
information in their national registers to the Agency in a
format determined by the Agency. The Agency shall, in coop
The Agency and authorities responsible for overseeing trading
eration with those authorities, determine that format and shall
in emissions allowances or derivatives relating to emissions
publish it by 29 June 2012. Based on the information provided
allowances shall cooperate with each other and establish appro
by national regulatory authorities, the Agency shall establish a
priate mechanisms to provide the Agency with access to records
European register of market participants. National regulatory
of transactions in such allowances and derivatives where those
authorities and other relevant authorities shall have access to
authorities collect information on such transactions.
the European register. Subject to Article 17, the Agency may
decide to make the European register, or extracts thereof,
publicly available provided that commercially sensitive
Article 11
information on individual market participants is not disclosed.
Data protection
This Regulation shall be without prejudice to the obligations of
Member States relating to their processing of personal data
4. Market
participants
referred
to
in
paragraph
1
of
this under Directive 95/46/EC of the European Parliament and of
Article shall submit the registration form to the national regu
the Council of 24 October 1995 on the protection of indi
latory authority prior to entering into a transaction which is
viduals with regard to the processing of personal data and on
required to be reported to the Agency in accordance with
the free movement of such data ( 1 ) or the obligations of the
Article 8(1).
Agency, when fulfilling its responsibilities, relating to its
processing of personal data under Regulation (EC)
No 45/2001 of the European Parliament and of the Council
of 18 December 2000 on the protection of individuals with
5. Market
participants
referred
to
in
paragraph
1
shall regard to the processing of personal data by the Community
communicate promptly to the national regulatory authority
institutions and bodies and on the free movement of such
any change which has taken place as regards the information
data ( 2 ).
provided in the registration form.
Article 12
Article 10
Operational reliability
Sharing of information between the Agency and other
1. The
Agency
shall
ensure
the
confidentiality,
integrity
and
authorities
protection of the information received pursuant to Article 4(2)
and Articles 8 and 10. The Agency shall take all necessary
1. The Agency shall establish mechanisms to share
measures to prevent any misuse of, and unauthorised access
information it receives in accordance with Article 7(1) and
to, the information maintained in its systems.
Article 8 with national regulatory authorities, competent
financial authorities of the Member States, national competition
authorities, ESMA and other relevant authorities. Before estab
lishing such mechanisms, the Agency shall consult with those
National regulatory authorities, competent financial authorities
authorities.
of the Member States, national competition authorities, ESMA
and other relevant authorities shall ensure the confidentiality,
integrity and protection of the information which they receive
pursuant to Articles 4(2), 7(2) or 8(5) or Article 10 and shall
2. The
Agency
shall
give
access
to
the
mechanisms
referred take steps to prevent any misuse of such information.
to in paragraph 1 only to authorities which have set up systems
enabling the Agency to meet the requirements of Article 12(1).
The Agency shall identify sources of operational risk and
minimise them through the development of appropriate
systems, controls and procedures.
3. Trade repositories registered or recognised under
applicable Union legislation on derivative transactions, central
( 1 ) OJ L 281, 23.11.1995, p. 31.
counterparties and trade repositories shall make relevant
( 2 ) OJ L 8, 12.1.2001, p. 1.

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L 326/12
EN
Official Journal of the European Union
8.12.2011
2. Subject to Article 17, the Agency may decide to make
orders or conduct of the operations concerned, as well as
publicly available parts of the information which it possesses,
their principals, and, if necessary, the right to summon and
provided that commercially sensitive information on individual
hear any such person or principal;
market participants or individual transactions or individual
market places are not disclosed and cannot be inferred.
(c) carry out on-site inspections;
The Agency shall make its commercially non-sensitive trade
database available for scientific purposes, subject to confiden
tiality requirements.
(d) require existing telephone and existing data traffic records;
Information shall be published or made available in the interest
(e) require the cessation of any practice that is contrary to this
of improving transparency of wholesale energy markets and
Regulation or delegated acts or implementing acts adopted
provided it is not likely to create any distortion in competition
on the basis thereof;
on those energy markets.
(f) request a court to freeze or sequester assets;
The Agency shall disseminate information in a fair manner
according to transparent rules which it shall draw up and
make publicly available.
(g) request a court or any competent authority to impose a
temporary prohibition of professional activity.
Article 13
Implementation of prohibitions against market abuse
Article 14
1. National
regulatory
authorities
shall
ensure
that
the
prohibitions set out in Articles 3 and 5 and the obligation set
Right of appeal
out in Article 4 are applied.
Member States shall ensure that suitable mechanisms exist at
national level under which a party affected by a decision of the
regulatory authority has a right of appeal to a body independent
Each Member State shall ensure that its national regulatory
of the parties involved and of any government.
authorities have the investigatory and enforcement powers
necessary for the exercise of that function by 29 June 2013.
Those powers shall be exercised in a proportionate manner.
Article 15
Obligations of persons professionally arranging
Those powers may be exercised:
transactions
Any person professionally arranging transactions in wholesale
(a) directly;
energy products who reasonably suspects that a transaction
might breach Article 3 or 5 shall notify the national regulatory
authority without further delay.
(b) in collaboration with other authorities; or
(c) by application to the competent judicial authorities.
Persons professionally arranging transactions in wholesale
energy products shall establish and maintain effective
arrangements and procedures to identify breaches of Article 3
Where appropriate, the national regulatory authorities may
or 5.
exercise their investigatory powers in collaboration with
organised markets, trade-matching systems or other persons
professionally arranging transactions as referred to in point (d)
Article 16
of Article 8(4).
Cooperation at Union and national level
1. The
Agency
shall
aim
to
ensure
that
national
regulatory
2. The
investigatory
and
enforcement
powers
referred
to
in authorities carry out their tasks under this Regulation in a coor
paragraph 1 shall be limited to the aim of the investigation.
dinated and consistent way.
They shall be exercised in conformity with national law and
include the right to:
The Agency shall publish non-binding guidance on the appli
(a) have access to any relevant document in any form, and to
cation of the definitions set out in Article 2, as appropriate.
receive a copy of it;
National regulatory authorities shall cooperate with the Agency
(b) demand information from any relevant person, including
and with each other, including at regional level, for the purpose
those who are successively involved in the transmission of
of carrying out their duties in accordance with this Regulation.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/13
National regulatory authorities, competent financial authorities
out on wholesale energy market which are likely to
and the national competition authority in a Member State may
constitute a breach of competition law.
establish appropriate forms of cooperation in order to ensure
effective and efficient investigation and enforcement and to
contribute to a coherent and consistent approach to investi
4. In
order
to
carry
out
its
functions
under
paragraph
1,
gation, judicial proceedings and to the enforcement of this
where, inter alia, on the basis of initial assessments or
Regulation and relevant financial and competition law.
analysis, the Agency suspects that there has been a breach of
this Regulation, it shall have the power:
2. National
regulatory
authorities
shall
without
delay
inform
the Agency in as specific a manner as possible where they have
(a) to request one or more national regulatory authorities to
reasonable grounds to suspect that acts in breach of this Regu
supply any information related to the suspected breach;
lation are being, or have been, carried out either in that Member
State or in another Member State.
(b) to request one or more national regulatory authorities to
commence an investigation of the suspected breach, and to
take appropriate action to remedy any breach found. Any
Where a national regulatory authority suspects that acts which
decision as regards the appropriate action to be taken to
affect wholesale energy markets or the price of wholesale energy
remedy any breach found shall be the responsibility of the
products in that Member State are being carried out in another
national regulatory authority concerned;
Member State, it may request the Agency to take action in
accordance with paragraph 4 of this Article and, if the acts
affect financial instruments subject to Article 9 of Directive
(c) where it considers that the possible breach has, or has had,
2003/6/EC, in accordance with paragraph 3 of this Article.
a cross-border impact, to establish and coordinate an inves
tigatory group consisting of representatives of concerned
national regulatory authorities to investigate whether this
Regulation has been breached and in which Member State
3. In order to ensure a coordinated and consistent approach
the breach took place. Where appropriate, the Agency may
to market abuse on wholesale energy markets:
also request the participation of representatives of the
competent financial authority or other relevant authority
of one or more Member States in the investigatory group.
(a) national regulatory authorities shall inform the competent
financial authority of their Member State and the Agency
where they have reasonable grounds to suspect that acts are
5. A
national
regulatory
authority
receiving
a
request
for
being, or have been, carried out on wholesale energy
information under point (a) of paragraph 4, or receiving a
markets which constitute market abuse within the
request to commence an investigation of a suspected breach
meaning of Directive 2003/6/EC and which affect
under point (b) of paragraph 4, shall immediately take the
financial instruments subject to Article 9 of that Directive;
necessary measures in order to comply with that request. If
for these purposes, national regulatory authorities may
that national regulatory authority is not able to supply the
establish appropriate forms of cooperation with the
required information immediately, it shall without further
competent financial authority in their Member State;
delay notify the Agency of the reasons.
By way of derogation from the first subparagraph, a national
(b) the Agency shall inform ESMA and the competent financial
regulatory authority may refuse to act on a request where:
authority where it has reasonable grounds to suspect that
acts are being, or have been, carried out on wholesale
energy markets which constitute market abuse within the
(a) compliance might adversely affect the sovereignty or
meaning of Directive 2003/6/EC and which affect financial
security of the Member State addressed;
instruments subject to Article 9 of that Directive;
(b) judicial proceedings have already been initiated in respect of
the same actions and against the same persons before the
(c) the competent financial authority of a Member State shall
authorities of the Member State addressed; or
inform ESMA and the Agency where it has reasonable
grounds to suspect that acts in breach of Articles 3 and 5
are being, or have been, carried out on wholesale energy
markets in another Member State;
(c) a final judgment has already been delivered in relation to
such persons for the same actions in the Member State
addressed.
(d) national regulatory authorities shall inform the national
competition authority of their Member State, the
In any such case, the national regulatory authority shall notify
Commission and the Agency where they have reasonable
the Agency accordingly, providing as detailed information as
grounds to suspect that acts are being, or have been, carried
possible on those proceedings or the judgment.

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L 326/14
EN
Official Journal of the European Union
8.12.2011
National regulatory authorities shall participate in an investi
national law, confidential information provided that it has not
gatory group convened in accordance with point (c) of
been received from an authority of another Member State or
paragraph 4, rendering all necessary assistance. The investi
from the Agency under this Regulation.
gatory group shall be subject to coordination by the Agency.
Article 18
6. The last sentence of Article 15(1) of Regulation (EC)
Penalties
No 713/2009 shall not apply to the Agency when carrying
out its tasks under this Regulation.
The Member States shall lay down the rules on penalties
applicable to infringements of this Regulation and shall take
all measures necessary to ensure that they are implemented.
Article 17
The penalties provided for must be effective, dissuasive and
proportionate, reflecting the nature, duration and seriousness
Professional secrecy
of the infringement, the damage caused to consumers and the
1. Any
confidential
information
received,
exchanged
or potential gains from trading on the basis of inside information
transmitted pursuant to this Regulation shall be subject to the
and market manipulation.
conditions of professional secrecy laid down in paragraphs 2, 3
and 4.
The Member States shall notify those provisions to the
Commission by 29 June 2013 at the latest and shall notify it
2. The
obligation
of
professional
secrecy
shall
apply
to:
without delay of any subsequent amendment affecting them.
Member States shall provide that the national regulatory
(a) persons who work or who have worked for the Agency;
authority may disclose to the public measures or penalties
imposed for infringement of this Regulation unless such
disclosure would cause disproportionate damage to the parties
(b) auditors and experts instructed by the Agency;
involved.
(c) persons who work or who have worked for the national
Article 19
regulatory authorities or for other relevant authorities;
International relations
In so far as is necessary to achieve the objectives set out in this
(d) auditors and experts instructed by national regulatory
Regulation and without prejudice to the respective competences
authorities or by other relevant authorities who receive
of the Member States and the Union institutions, including the
confidential information in accordance with this Regulation.
European External Action Service, the Agency may develop
contacts and enter into administrative arrangements with super
visory authorities, international organisations and the adminis
3. Confidential
information
received
by
the
persons
referred trations of third countries in particular with those impacting the
to in paragraph 2 in the course of their duties may not be
Union energy wholesale market in order to promote the
divulged to any other person or authority, except in summary
harmonisation of the regulatory framework. Those
or aggregate form such that an individual market participant or
arrangements shall not create legal obligations in respect of
market place cannot be identified, without prejudice to cases
the Union and its Member States nor shall they prevent
covered by criminal law, the other provisions of this Regulation
Member States and their competent authorities from concluding
or other relevant Union legislation.
bilateral or multilateral arrangements with those supervisory
authorities, international organisations and the administrations
of third countries.
4. Without
prejudice
to
cases
covered
by
criminal
law,
the
Agency, national regulatory authorities, competent financial
authorities of the Member States, ESMA, bodies or persons
Article 20
which receive confidential information pursuant to this Regu
lation may use it only in the performance of their duties and for
Exercise of the delegation
the exercise of their functions. Other authorities, bodies or
1. The
power
to
adopt
delegated
acts
is
conferred
on
the
persons may use that information for the purpose for which
Commission subject to the conditions laid down in this Article.
it was provided to them or in the context of administrative or
judicial proceedings specifically related to the exercise of those
functions. The authority receiving the information may use it
2. The power to adopt delegated acts referred to in Article 6
for other purposes, provided that the Agency, national regu
shall be conferred on the Commission for a period of 5 years
latory authorities, competent financial authorities of the
from 28 December 2011. The Commission shall draw up a
Member States, ESMA, bodies or persons communicating
report in respect of the delegation of power not later than 9
information consent thereto.
months before the end of the 5-year period. The delegation of
power shall be tacitly extended for periods of an identical
duration, unless the European Parliament or the Council
5. This
Article
shall
not
prevent
an
authority
in
a
Member opposes such extension not later than 3 months before the
State from exchanging or transmitting, in accordance with
end of each period.

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EN
8.12.2011 Official
Journal
of
the
European
Union L
326/15
3. The
delegation
of
power
referred
to
in
Article
6
may
be
Article 21
revoked at any time by the European Parliament or by the
Council. A decision to revoke shall put an end to the delegation
Committee procedure
of the power specified in that decision. It shall take effect the
1. The
Commission
shall
be
assisted
by
a
committee.
That
day following the publication of the decision in the Official
committee shall be a committee within the meaning of Regu
Journal of the European Union or at a later date specified
lation (EU) No 182/2011.
therein. It shall not affect the validity of any delegated acts
already in force.
2. Where
reference
is
made
to
this
paragraph,
Article
5
of
Regulation (EU) No 182/2011 shall apply.
4. As
soon
as
it
adopts
a
delegated
act,
the
Commission
shall
notify it simultaneously to the European Parliament and to the
Council.
Article 22
Entry into force
5. A
delegated
act
adopted
pursuant
to
Article
6
shall
enter
into force only if no objection has been expressed either by the
This Regulation shall enter into force on the 20th day following
European Parliament or the Council within a period of 2
its publication in the Official Journal of the European Union.
months of notification of that act to the European Parliament
and to the Council or if, before the expiry of that period, the
Paragraph 1, the first subparagraph of paragraph 3, and
European Parliament and the Council have both informed the
paragraphs 4 and 5 of Article 8 shall apply with effect from
Commission that they will not object. That period shall be
6 months after the date on which the Commission adopts the
extended by 2 months at the initiative of the European
relevant implementing acts referred to in paragraphs 2 and 6 of
Parliament or the Council.
that Article.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 25 October 2011.
For the European Parliament
For the Council
The President
The President
J. BUZEK
M. DOWGIELEWICZ

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L 326/16
EN
Official Journal of the European Union
8.12.2011
COMMISSION STATEMENT
The Commission considers that the thresholds for reporting transactions within the meaning of
Article 8(2)(a) and information within the meaning of Article 8(6)(a) cannot be set through implementing
acts.
Where appropriate the Commission will come forward with a legislative proposal to set such thresholds.
COUNCIL STATEMENT
The EU legislator has conferred on the Commission implementing powers in accordance with Article 291
TFEU in relation to measures foreseen in Article 8. That is legally binding for the Commission despite the
declaration it made in respect to Article 8(2)(a) and Article 8(6)(a).

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