Changes from report parliamentary committee draft to plenary report

Added4. Where the officials of, as well as those authorised or appointed by, the Agency find that a person refuses to supply the information requested, the Agency or the national regulatory authority of the Member State concerned shall afford those officials, or other relevant national regulatory authorities, the necessary assistance in ensuring the fulfilment of the obligation referred to in paragraph 3 of this Article, including through the imposition of penalties in accordance with applicable national law. The Agency may also take one or more of the measures provided for in Article 13dc.

Added5. Where the officials of, as well as those authorised or appointed by, the Agency find that a person refuses to supply the information requested, the Agency may draw conclusions on the basis of available information.

Added6. The Agency shall, without delay, send a copy of the request pursuant to paragraph 1 or the decision pursuant to paragraph 2 to the national regulatory authorities of the ▌ Member States concerned.

AddedProcedural guarantees

Added1. The Agency shall carry out on-site inspections and request information in full respect of the procedural guarantees of market participants, including:

Added(a) the right not to make self-incriminating statements;

Added(b) the right to be assisted by a person of choice;

Added(c) the right to use any of the official languages of the Member State where the on-site inspection takes place;

Added(d) the right to comment on facts concerning them;

Added(e) the right to receive a copy of the record of interview and either approve it or add observations.

Added2. The Agency shall seek evidence for and against the market participant, and carry out on-site inspections and request information objectively and impartially and in accordance with the principle of the presumption of innocence.

Added3. The Agency shall carry out on-site inspections and request information in full respect of applicable confidentiality and Union data protection rules.

AddedPower to take statements

Added1. In order to carry out the tasks conferred upon it by this Regulation, the Agency may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation.

Added2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Agency shall inform the national regulatory authority of the Member State in whose territory the interview takes place. The officials of the national regulatory authority of that Member State may assist the officials and other accompanying persons authorised by the Agency to conduct the interview.

AddedMutual assistance

Added▌ In order to ensure compliance with the relevant requirements set out in this Regulation, national competent authorities and the Agency shall assist each other in the course of the investigations.

Added13da

AddedDuties of the investigating officer

Added1. Where, in carrying out its duties under this Regulation, the Agency has reasonable grounds for suspecting the possible existence of facts liable to constitute a breach in the cases referred to in Article 13(4), (4a) and (5), the Agency shall appoint an independent investigating officer within the Agency to investigate the matter. The appointed investigating officer shall not be involved or have been involved in the direct or indirect supervision of the person concerned and shall perform his or her functions independently from the Agency.

Added2. The investigating officer shall investigate the alleged breach, taking into account any comments submitted by the persons subject to investigation, and shall submit a complete file with his or her findings to the Agency. In order to carry out his or her tasks, the investigating officer may exercise the powers to conduct on-site inspections, request information and take statements in accordance with Articles 13a, 13b, 13c and 13ca. When carrying out his or her tasks, the investigating officer shall have access to all documents and information collected by the Agency in its supervisory activities.

Added3. Upon completion of the investigation and before submitting the file with the findings, the investigating officer shall give the persons subject to the investigation the opportunity to be heard on the matters being investigated. The investigating officer shall base his or her findings only on facts on which the persons subject to investigation have had the opportunity to comment.

Added4. When submitting the file with his or her findings to the Agency, the investigating officer shall notify the persons who are subject to the investigation. The persons subject to the investigation shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information affecting third parties.

Added13db

AddedDecision making

Added1. On the basis of the file containing the investigating officer’s findings and after having heard the persons subject to the investigation, the Agency shall decide if one or more breaches in the cases referred to in Article 13(4), (4a) and (5) have been committed, and in such case, shall impose one or more of the measures provided for in Article 13dc.

Added2. The investigating officer shall not participate in the Agency’s deliberations or in any other way intervene in the Agency’s decision-making process.

Added3. The Agency shall refer matters for criminal prosecution to the relevant national authorities where, in carrying out its tasks under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute a criminal offence.

Added13dc

AddedEnforcement measures by the Agency

Added1. Where the Agency finds that a breach of the prohibitions and obligations referred to in Article 4a(1) to (4), Article 7c(1), Article 9a(1),(2) and (3), Article 13b(1) and (3), and in accordance with Article 13(4), (4a) and (5) has been committed, it shall take one or more of the following measures:

Added(a) adopt a decision requiring the person to bring the breach to an end;

Added(b) issue public warnings or notices; or

Added(c) adopt a decision imposing a fine or a periodic penalty payment.

Added2. The fines and periodic penalty payments referred to in paragraph 1 shall be effective, proportionate and dissuasive. They shall be set taking account of the gravity of the case, the activity to which the infringement pertains and the economic capacity of the legal or natural person concerned.

Added3. Without undue delay, the Agency shall notify any measure taken pursuant to paragraph 1 to the person responsible for the breach, and shall communicate it to the national regulatory authorities concerned and to the Commission. The Agency shall also publicly disclose any such measure on its website.

Added4. The Commission shall adopt delegated acts in accordance with Article 20 to supplement this Regulation by specifying:

Added(a) detailed criteria and a detailed methodology for establishing the amounts of the fines and periodic penalty payments;

Added(b) procedures for the collection of the fines and periodic penalty payments.

AddedThe first such delegated act shall be adopted by 1 March 2024.

Added13dd

AddedRights of defence and review of the Agency’s decisions

Added1. The Agency shall base any of the measures provided for in Article 13dc only on findings on which the persons subject to the proceedings have had an opportunity to comment.

Added2. The rights of defence of the persons subject to investigation shall be fully respected in the proceedings. They shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or the Agency’s internal preparatory documents.

Added3. The measures provided for in Article 13dc of this Regulation shall comply with Articles 28 and 29 of Regulation (EU) 2019/942.”;

Added(16) Article 15 is amended as follows:

Added“Article 15

AddedObligations of persons professionally arranging or executing transactions

Added1. Any person professionally arranging or executing transactions in wholesale energy products who reasonably suspects that an order to trade or a transaction, including any cancellation or modification thereof, whether placed on or outside a trading venue, might breach Article 3, 4 or 5 shall notify the Agency and the relevant national regulatory authority without further delay but no later than four weeks from the occurrence of the suspicious event.

Added2. Any person professionally executing transactions under Article 16 of Regulation (EU) No 596/2014 who also executes transactions in wholesale energy products that are not financial instruments, and who reasonably suspects that an order to trade or a transaction, including any cancellation or modification thereof, whether placed on or outside a trading venue, might breach Article 3, 4 or 5 shall notify the Agency and the relevant national regulatory authority without further delay but no later than four weeks from the occurrence of the suspicious event.

Added3. The persons referred to in paragraphs 1 and 2 shall establish and maintain effective arrangements, systems and procedures to:

Added(a) identify possible breaches of Article 3, 4 or 5 ;

Added(b) guarantee that their employees carrying out surveillance activities for the purpose of this Article are preserved from any conflict of interest and act in an independent manner.

Added(ba) prevent, detect and report suspicious orders and transactions.

Added4. Without prejudice to Article 22 of Regulation (EU) No 596/2014, persons professionally arranging or executing transactions shall be subject to the rules of notification of the Member State in which they are registered or have their head office. That notification shall be addressed to the competent authority of that Member State.

Added5. By 31 December 2023 and every year thereafter, the Agency, in cooperation with national regulatory authorities, shall issue and make public a report on the implementation of this Article, in particular with regard to:

Added(a) the supervision of the arrangements, systems and procedures to detect suspicious activity and report suspicious transactions;

Added(b) the supervision of persons professionally arranging transactions regarding their systems and arrangements to detect suspicious activity and report suspicious transactions;

Added(c) the response to poor quality and non-reporting of suspicious transactions and reporting as well as their related enforcement and sanctions activity;

Added(d) the analysis of suspicious transactions and reporting;