Should the Financial Transmission Rights (FTRs), Physical Transmission Rights (PTRs) and other products be understood as wholesale energy products which are listed as reportable contracts according to Article 3(1) of the REMIT Implementing Regulation?
Answer: The Agency's understanding of Article 2(4) of REMIT and of Article 3(1) of the REMIT Implementing Regulation is that FTRs and PTRs are wholesale energy products which are listed as reportable contracts according to Article 3(1) of the REMIT Implementing Regulation. This is why the Agency has to consider FTRs and PTRs as wholesale energy products which will be reported to the Agency pursuant to Article 8(1) of REMIT, as long as ESMA does not specify in its guidance documents that these wholesale energy products are identified as financial instruments according to MiFID II which have to be reported under MiFIR and/or EMIR. The reporting obligation concerning any similar product should follow the same logic .
As long as the relevant products are not reportable under MiFIR or EMIR, the reporting obligation under REMIT applies even if the relevant products were to be considered financial instruments as defined in MiFID II by the financial authorities. As long as these products are not reported under MiFIR or EMIR, the reporting under REMIT does not constitute a case of double reporting under Article 8(3) of REMIT.
Please note that the above only applies for the data collection of these wholesale energy products under REMIT. This is without prejudice which national authority is the competent national authority for the investigation and enforcement of potential market abuse cases under REMIT and/or MAR.
The Agency and ESMA are closely cooperating with each other, and ACER is aiming at making available the data collected under REMIT to ESMA and NCAs for their investigation and enforcement purposes in the same way it already makes available the relevant REMIT information to NRAs.