On 26 September 2015 the President signed a law amending the Polish Energy Law and several other laws. The purpose of the amendment is to ensure that Regulation (EU) No. 1227/2011 of the European Parliament and of the Council of 25 October 2011 on the wholesale energy market integrity and transparency (REMIT) is applied.
Since its entry into force (i.e. 28 December 2011) REMIT directly prevails in the Polish legal system, but for its effective application it was necessary for the legislator to introduce appropriate amendments in the Polish regulations to ensure enforcement of the obligations arising from it. This was done, in particular, by way of:
- extending the regulatory powers of the President of the Energy Regulatory Authority (“President of the ERA”) necessary for the effective monitoring of the wholesale energy market and detecting manipulation and other abuses in this market,
- specifying the legal basis for the cooperation among the national authorities and ACER (Agency for the Cooperation of Energy Regulators), as well as
- introducing sanctions for breaching the obligations arising from REMIT.
After the entry into force of the amendment, an authorised employee of the Energy Regulatory Authority will be able to carry out an inspection or preliminary investigation relating to a market manipulation or an attempt to manipulate the market or unlawful use of inside information concerning wholesale energy products, which are not financial instruments. Such employee will be entitled, among others, to enter the premises of the entity subject to the inspection, to inspect the files, books and all kinds of records and information carriers, or to request explanations and information.
The amendment stipulates criminal liability for failing to observe the basic prohibitions arising from REMIT, including market manipulation, an attempt to manipulate the market or insider trading. The amendment provides for a fine for committing such acts of up to PLN 5,000,000 (ca. EUR 1,200,000), non-custodial sentence or imprisonment of up to 8 years (types and amounts of fines differ depending on the act).
In addition, the President of the ERA will be authorised to impose a fine ranging from PLN 10,000 to PLN 1,000,000 inter alia for an entity’s failure to make inside information public, to provide ACER with data regarding transactions made on the wholesale energy markets, to provide ACER or the President of the ERA with information related to the capacity and use of the facilities for production, storage and transmission of electric energy or natural gas or for the sale of the wholesale energy products without the required entry in the register of market participants. The President of the ERA may also publish information on the measures or sanctions imposed.
The Law will come into force 14 days after its announcement.