Changes from plenary report to adopted text

Removed“2a. National regulatory authorities shall give access to the mechanisms referred to in paragraph 1a of this Article only to authorities which have set up systems enabling the national regulatory authority to meet the requirements of Article 12(1).”;

Removed(13) Article 12 is amended as follows:

Removed(a) in paragraph 1, the second subparagraph is replaced by the following:

Removed“The Commission, national regulatory authorities, competent financial authorities of the Member States, national tax authorities and EUROFISC, national competition authorities, ESMA and other relevant authorities shall ensure the confidentiality, integrity and protection of the information which they receive pursuant to Article 4(2), Article 7(2) Article 8(5) or Article 10 and shall take steps to prevent any misuse of such information including according to applicable data protection laws.”;

Removed(b) paragraph 2 is replaced by the following:

Removed“2. The Agency shall develop and maintain a reference centre of information on Union wholesale energy market data. Subject to Article 17, ACER shall make public parts of the information which it possesses in an accessible format, including information regarding the trading of over the counter wholesale energy contracts, power purchase agreements and contracts for difference, provided that commercially sensitive information on individual market participants or individual transactions or individual market places are not disclosed and cannot be inferred. The Agency may publish information on OMPs, IIPs, RRMs in accordance with applicable data protection law, excluding commercially sensitive elements.

RemovedThe Agency shall make its commercially non-sensitive trade database available for scientific purposes, subject to confidentiality requirements.

RemovedInformation shall be published or made available in the interest of improving transparency of wholesale energy markets and provided it is not likely to create any distortion in competition on those energy markets.

RemovedThe Agency shall disseminate information in a fair manner according to transparent rules which it shall draw up and make publicly available.

RemovedThe Agency may, with regard to areas of common interest, cooperate with supervisory authorities in third countries and international organisations which can provide data, information and expertise, methodologies of data collection, analysis and assessment which are of mutual interest and which are necessary for the successful completion of the Agency’s work.”;

Removed(14) Article 13 is amended as follows:

Removed(a) paragraph 1 is replaced by the following:

Removed“1. National regulatory authorities shall ensure that the prohibitions set out in Articles 3 and 5 and the obligations set out in Articles 4, 7c, 8, 9 and 15 are applied.

RemovedNational regulatory authorities shall be competent to investigate all the acts carried out on their national wholesale energy markets and enforce this Regulation ▌, irrespective of where the market participant registered pursuant to Article 9(1) carrying out those acts is resident or established.

RemovedEach Member State shall ensure that its national regulatory authorities have the investigatory and enforcement powers necessary for the exercise of that function . Those powers shall be exercised in a proportionate manner.

RemovedThose powers may be exercised:

Removed(a) directly;

Removed(b) in collaboration with other authorities; ▌

Removed(c) by application to the competent judicial authorities; or

Removed(ca) following a recommendation by the Agency.

RemovedWhere appropriate, the national regulatory authorities may exercise their investigatory powers in collaboration with organised markets, trade-matching systems or other persons professionally arranging or executing transactions as referred to in point (d) of Article 8(4).”;

Removed(b) the following paragraphs ▌are added:

Removed“3. In order to combat breaches of ▌ this Regulation, to support and complement the enforcement activities of the national regulatory authorities, and to contribute to a uniform application of this Regulation throughout the Union, the Agency shall, in close and active cooperation with the relevant competent national regulatory authorities, carry out investigations by exercising the powers conferred onto it by and in accordance with Articles 13a to 13dc.

Removed3a. When exercising the powers referred to in paragraph 3, the Agency shall take into account the investigations already in progress or already carried out with regard to the same acts by a national regulatory authority pursuant to this Regulation. The Agency shall also take into account the cross-border impact of the investigation.

Removed4. The Agency shall exercise its powers to ensure that the prohibitions set out in Articles 3 and ▌ 5 ▌ are applied where:

Removed(a) acts related to the allegation are being or have been carried out on wholesale energy products for delivery in at least two Member States; ▌

Removed(b) acts related to the allegation are being or have been carried on wholesale energy products for delivery in at least one Member State and at least one of the natural or legal persons who is carrying or carried out those acts is resident or established in another Member State or in a third country but registered pursuant to Article 9(1); ▌

Removed(c) the competent national regulatory authority, without prejudice to the derogations referred to in Article 16(5), has not duly substantiated its refusal to comply with the request of the Agency referred to in Article 16(4), point (b) in cases in which there is a cross-border dimension; or

Removed(d) upon the competent national regulatory authority request, as regards the acts which, even if not falling within the scope of point (a), (b) or (c), have a cross-border dimension.

Removed4a. The Agency shall exercise its powers to ensure that the obligations set out in Article 4 are applied where the obligation to publish is related to inside information that is likely to significantly affect the prices of wholesale energy products for delivery in at least two Member States.

Removed5. The Agency shall exercise its powers to ensure that the obligations set out in Article 15 are met where the persons are professionally arranging or executing transactions on wholesale energy products for delivery in at least two Member States.

Removed▌

Removed7. Upon completion of its actions taken to exercise its powers pursuant to paragraphs 4, 4a and 5 of this Article, the Agency shall draw up a report. The report shall be made public taking into account confidentiality requirements. If the Agency concludes that a breach of this Regulation took place, it shall inform the national regulatory authorities of the Member State or Member States concerned accordingly and require that the breach be dealt with in accordance with Article 18. The Agency shall provide the relevant national regulatory authorities with the full report and the case file containing all incriminating and exculpatory evidence relevant to the report, and may request certain follow-up to the relevant national regulatory authorities including, where appropriate, a suggestion with regard to which measures could be suitable to be considered by the relevant national authorities, and, where necessary, inform the Commission.

Removed7a. The Agency shall, on a regular basis and in any event at least once a year, submit the reports that it has drawn up, in aggregate form, to the European Parliament and to the Council.”;

Removed(15) The following articles ▌ are inserted:

Removed“Article 13a

RemovedOn-site inspections by the Agency

Removed1. The Agency shall prepare and conduct on-site inspections in close cooperation and coordination with the relevant authorities of the Member State concerned.

Removed2. In order to fulfil its obligations under this Regulation, the Agency may conduct all necessary on-site inspections at any premises of the persons subject to the investigation. Where the proper conduct and efficiency of the inspection so require, the Agency may carry out that on-site inspection without prior announcement to the persons subject to the investigation.

Removed3. The officials of, and other persons authorised, by the Agency to conduct an on-site inspection may enter any premises of the persons subject to an investigation decision adopted by the Agency pursuant to paragraph 6 and shall have all the powers referred to in this Article. They shall also have the power to seal any premises, property and books or records for the period of, and to the extent necessary for the inspection.

Removed4. In sufficient time before the inspection, the Agency shall give notice of the inspection to the national regulatory authority and other ▌ authorities concerned of the Member State where the inspection is to be conducted. Inspections under this Article shall be conducted provided that the relevant authority has confirmed that it is not about to start an inspection, or is not in the process of carrying out an inspection at any premises of the person subject to the investigation, in which case it shall invite the Agency to join. The national authorities shall respond to the Agency’s notice as soon as possible.

Removed5. The officials of and other persons authorised by the Agency to conduct an on-site inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection.

Removed6. The persons referred in this Article shall submit to on-site inspections ordered by a decision that shall be adopted by the Agency. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin, the legal remedies available under Regulation (EU) 2019/942 as well as the right to have the decision reviewed by the Court of Justice. The Agency shall consult the national regulatory authority of the Member State where the inspection is to be conducted prior to adopting such decision.

Removed7. Officials of, as well as those authorised or appointed by, the national regulatory authority of the Member State where the inspection is to be conducted shall, at the request of the Agency, actively assist the officials of and other persons authorised by the Agency. To that end they shall enjoy the powers set out in this Article . Officials of the national regulatory authority may also attend the on-site inspection upon request.

Removed8. Where the officials of, as well as those authorised or appointed by, the Agency find that a person opposes an inspection ordered pursuant to this Article, the national regulatory authority of the Member State concerned shall afford them, or other relevant national regulatory authorities, the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, to enable them to conduct their on-site inspection.

Removed9. If the on-site inspection provided for in paragraph 1 or the assistance provided for in paragraphs 7 and 8 requires authorisation by a judicial authority according to applicable national law, the Agency shall also apply for such authorisation. The Agency may also apply for such authorisation as a precautionary measure.

Removed10. Where the Agency applies for an authorisation as referred to in paragraph 9, the national judicial authority shall verify:

Removed(a) that the decision of the Agency is authentic; and

Removed(b) that any measures to be taken are proportionate and not arbitrary or excessive having regard to the subject matter of the inspection.

RemovedFor the purposes of point (b) of the first subparagraph, the national judicial authority may ask the Agency for detailed explanations, in particular relating to the grounds the Agency has for suspecting that a breach referred to in Article 13(3) has taken place, the seriousness of the suspected breach and the nature of the involvement of the person subject to the investigation. By way of derogation from Article 28 of Regulation (EU) 2019/942, the Agency’s decision shall be subject to review only by the Court of Justice.

RemovedRequest for information

Removed1. At the Agency’s request any person shall provide to it the information necessary for the purpose of fulfilling the Agency’s obligations under this Regulation. In its request the Agency shall:

Removed(a) refer to this Article as the legal basis for the request;

Removed(b) state the purpose of the request;

Removed(c) specify what information is required, and following which data format;

Removed(d) set a time-limit, proportionate to the request, within which the information is to be provided;

Removed(e) inform the person that the reply to the request for information shall not be incorrect or misleading.

Removed2. For the purpose of information requests as referred to in paragraph 1, the Agency shall have the power to issue decisions. In such a decision the Agency shall, in addition to the requirements in paragraph 1 indicate the right to appeal the decision before the Agency’s Board of Appeal and to have the decision reviewed by the Court of Justice in accordance with Articles 28 and 29 of Regulation (EU) 2019/942.

Removed3. The persons referred to in paragraph 1 or their representatives shall supply the information requested. The persons shall be fully responsible that the supplied information is complete, correct and not misleading.

Removed3a. Where system operators consider that requested information under this Regulation would risk undermining the performance of their tasks, and in particular the task of efficiently balancing the system, they may object to the disclosure of that information. The system operator concerned shall provide due reasons for its objection. Upon the information provided by the system operator, the Agency shall determine whether the objection is justified.