Głowacki Law Firm

Capacity withholding (market manipulation practice)
European Union Electricity Market Glossary

  

Capacity withholding can sometimes be qualified as manipulative practice to artificially cause prices to be at a level not justified by market forces of supply and demand (including actual availability of production, storage or transportation capacity).

 

New

15 December 2019

 

ACER Guidance on the application of REMIT, 4th edition updated, p. 38, 39

ACER in its Guidance on the application of REMIT (4th edition, updated on 15 October 2019, pkt 6.4.1 (i), p. 38, 39) underlines the need to reflect “the difference between market outcomes that are the result of true market conditions, such as scarcity and those that are the result of market manipulation through withholding of capacity”.

 

According to the ACER, manipulative capacity withholding occurs, for example, “when a market participant with the relative ability to influence the price or the interplay of supply and demand of a wholesale energy product, decides, without justification, not to offer or to economically withhold the available production, storage or transportation capacity on the market. This includes the unduly limiting of infrastructure or transmission capacities, resulting in prices that likely do not reflect the fair and competitive interplay of supply and demand.

 

In particular, electricity generation capacity withholding refers to the practice of keeping available generation capacity from being competitively offered on the wholesale electricity market, even though offering it competitively would lead to profitable transactions at the prevailing market prices”.

 

Two forms of electricity generation capacity withholding are differentiated by ACER, i.e.:

 

- physical withholding (not offering the available generation capacity at any price),


- economic withholding (actions undertaken to offer available generation capacity at prices which are above the market price and do not reflect the marginal cost (including opportunity cost) of the market participant’s asset, which results in the related wholesale energy product not being traded or related asset not being dispatched).

 

Electricity generation capacity withholding may be performed by one or more market participants (for example, producer or storage asset owners) acting independently or in collaboration.

 

ACER unequivocally underlines that REMIT applies to electricity generation capacity withholding irrespective of whether competition law (also) applies.

 
In case of intent, any action involving capacity withholding, even beyond the issuing of orders to trade or the entering into transactions, can amount to an attempt to manipulate the market.

 

However, the ACER acknowledges the fact that electricity generation capacity withholding does not always automatically amount to a breach of Article 5 of REMIT.

 

As the Agency underlines, “REMIT does not prohibit prices to be high, provided that they reflect a fair and competitive interplay between supply and demand”.

 

A case-by-case analysis of the circumstances and specificities of the market (like, for example, different timeframes and types of market places) is therefore needed.

 

The ACER proposes the following methodology, based on two concurrent elements, for assessments whether a behaviour involving electricity generation capacity withholding amounts to a breach of Article 5 of REMIT in view of the market manipulation criteria as defined in Article 2(2) of REMIT (e.g., and not limited to, setting prices at an artificial level).

 

In the first step it is necessary to assess whether the market participant at issue is able, in the case-specific circumstances, to influence the price or the interplay of supply and demand of a wholesale energy product by engaging in such behaviour (for example, being a ‘pivotal supplier’ i.e., a power supplier whose capacity must be used to meet peak demand and whose capacity exceeds the market’s supply margin).

 

The second stage, that appears to be more complex, is the assessment of legitimate justification for not offering available generation capacity or offering it above marginal cost.

 

The category of “legitimate justification” can, in principle, include technical, regulatory and/or economic determinants.

 

Technical reasons seem to be in this regard the most objective elements.

 

With respect to regulatory aspect market participant can be, for instance, in situation of force majeure or localised transmission constraints.

 

The most contestable justifications will most likely be the economic ones.

 

ACER understands the “economic” justification as the opportunity costs, which represent the expected value of the most valuable choice that was not taken.

 

In wholesale electricity markets, this can, for example, represent producing at a different point in time for energy-limited generation assets, e.g. reservoir hydropower units, or producing in a different sequential market for capacity-limited generation assets.

 

ACER finally declares that the Agency intends to provide further clarifying guidance with respect to above justifications.

 

 

 

 

chronicle

 Capacity withholding - regulatory chronicle 

 

 

 

 

 

15 December 2019

 

ACER Guidance on the application of REMIT, 4th edition updated, p. 38, 39

 

 

 

 

  

 

IMG 0744

    Documentation    

 

 

 

 

ACER Guidance on the application of REMIT, 4th edition updated on 15 October 2019, p. 38, 39

  

 

 

 

clip2

    Links    

 

 

 


 

Market manipulation prohibition under REMIT

 

Wash trades

 

Spoofing

 

Phishing

 

 



 

  

 

Last Updated on Saturday, 21 December 2019 12:16
 

Search

TwitterFacebookLinkedin
Copyright © 2009 - 2020 Michal Glowacki. All rights reserved.
The materials contained on this website are for general information purposes only and are subject to the disclaimer