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The REMIT prohibits two kinds of market behaviour, namely insider trading and market manipulation. With regard to inside information, REMIT provides in Article 3 for the prohibition of insider trading and in Article 4 for the obligation of market participants to publicly disclose inside information. Persons who possess inside information in relation to a wholesale energy product shall be prohibited from improper disclosure of that information as well as from trading in wholesale energy products and recommending another person to acquire or dispose of wholesale energy products on the basis of inside information. According to Article 2(1)(a) of the REMIT, information includes ‘information which is required to be made public in accordance with Regulations (EC) No 714/2009 and (EC) No 715/2009, including guidelines and network codes adopted pursuant to those Regulations’. This includes information referred to in the Regulation 543/2013 which amends the guidelines annexed to Regulation 714/2009. As it has been explained by the ACER, inside information should be considered as ad hoc, structured data that is likely to have a significant effect on price if it were made public. The definition goes beyond the periodic and regular publication of data under Regulations 714/2009, 715/2009 and 543/2013 and may be fulfilled by certain transparency information. As provided for in the REMIT and elaborated upon by the ACER, information on planned and unplanned unavailability of facilities for production, storage, consumption or transmission of natural gas or electricity may constitute inside information which needs to be published. Information on planned and unplanned unavailabilities of generation units may significantly affect the price of wholesale electricity as it affects the supply and, due to its influence on the supply curve, also the decisions of other suppliers, traders and users of electricity. In contrast, information on the actual generation output of generation units does not seem to qualify as inside information. Information on the actual generation output as such would not be likely to significantly affect the prices of wholesale energy products if it were made public. It is rather the information on planned and unplanned unavailabilities of generation units that directly affects the supply curve and thus impacts on prices.
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