|Permanent/occasional trade character decisive for RRM designation in complex delegation chains|
|Monday, 14 December 2015 05:06|
Establishing circumstances where the RRM designation by the wholesale energy market participant is required, and where it is not, is almost entirely governed by ACER's frequently changing interpretations.
This is not a comfortable situation from legal certainty point of view. If these interpretations were a little bit clearer...
The first round of this interpretational circle has been signalled in RRM designation when first registering under REMIT - complicated case.
That one referred to the case of a reporting delegation chain, e.g. where a counterparty A delegates the reporting to counterparty B, which, in turn, delegates the reporting to C.
ACER in its recent opinion specified that only entities submitting data directly to the ACER (C, in the example) must register as an RRM.
However, it occurred the situation is even more complicated. The newest ACER's clarification mandates the wholesale energy market participants registering with the ACER to additionally examine whether the relevant trading relationship between the entities in the said delegation chain is permanent or occasional.
Only the outcome of this assessment will be decisive for the purposes of populating Section 5 of the registration form dedicated to the indication of the RRM that will ultimately report the market participant's data to the Agency.
If the counterparties do not trade on the regular and permanent basis then this, pursuant to ACER, could be seen as reporting on behalf of the counterparty under Article 6(7) of the REMIT Implementing Regulation No 1348/2014 and would not require suppliers placed at the end of the delegation chain to declare the RRM in the registration form as a reporting entity for their trades (see example from ACER REMIT Q&As in the box).
Article 6(7) of the REMIT Implementing Regulation No 1348/2014 reads as follows:
"Where a third party reports on behalf of one or both counterparties, or where one counterparty reports the details of a contract also on behalf of the other counterparty, the report shall contain the relevant counterparty data in relation to each of the counterparties and the full set of details that would have been reported had the contracts been reported by each counterparty separately."
The problem is, neither the said Regulation, nor REMIT itself, refer literally to any of the above ACER's legal qualifications, which are ACER's opinion only. Constantly modified, unfortunately...