(fra kommisjonsbeslutningen)

(1) Open and fair competition in the internal electricity and gas markets and ensuring a level playing field for market participants requires integrity and transparency of wholesale energy markets. Regulation (EU) No 1227/2011 of the European Parliament and of the Council (2) establishes a comprehensive framework to achieve this objective.

(2) Regulation (EU) No 1227/2011 tasked the European Union Agency for the Cooperation of Energy Regulators (the ‘Agency’) with monitoring wholesale energy markets in order to ensure, in close cooperation with the national regulatory authorities and other national authorities, their effective oversight. Article 32 of Regulation (EU) 2019/942 introduced fees to improve the Agency’s funding and cover costs related to its functions under Regulation (EU) No 1227/2011.

(3) Article 32 of Regulation (EU) 2019/942 sets out the scope and the basic principles of the fee scheme and tasked the Commission with setting the fees and the way in which they are to be paid, which has been done by the Commission with the adoption of Decision (EU) 2020/2152 (3). Increased funding available to the Agency has enabled the Agency to improve the quality of the services provided by the Agency to entities reporting data and to market participants in general.

(4) Commission Delegated Regulation (EU) 2019/715 (4) establishes the framework financial regulation for the bodies which are set up by the Union under the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community and which have legal personality and receive contributions charged to the Union budget. The Agency is such a body and, as required by Delegated Regulation (EU) 2019/715, adopted its own financial rules, the Financial Regulation of the Agency (5), which are in line with those pursuant to Delegated Regulation (EU) 2019/715.

(5) The Agency’s programming document, established in accordance with Article 20 of Regulation (EU) 2019/942 and Article 32 of the Financial Regulation of the Agency, contains annual and multi-annual programming and in this context sets out in detail the Agency’s tasks and the resources deployed for those tasks. The programming document is therefore the appropriate tool to identify those costs which are eligible to be covered by fees pursuant to Article 32 of Regulation (EU) 2019/942.

(6) In accordance with Article 20 of Regulation (EU) 2019/942, the Commission provides an opinion on the Agency’s draft programming document, including the Agency’s proposals as regards which costs are considered as eligible for funding by fees.

(7) According to recital 37 of Regulation (EU) 2019/942, the Agency should be mainly financed from the general budget of the Union. Therefore, the fee income should not exceed the contribution to the Agency from the Union budget.

(8) In order to provide transparency that fees are only used to cover eligible costs and that the Agency remains to be mainly financed by the general budget of the Union, the Consolidated Annual Activity Report, established in accordance with Article 48 of the Financial Regulation of the Agency, should provide information about the different sources of revenue received and the use of this revenue.

(9) In light of the evolving energy markets and the energy crisis, Regulation (EU) No 1227/2011 was amended in May 2024 by Regulations (EU) 2024/1106 (6) and (EU) 2024/1789 (7) of the European Parliament and of the Council, which introduced a number of changes to the reporting framework of data related to wholesale energy products. For example, now also details of transactions related to the storage of electricity, hydrogen or natural gas as well as transactions related to balancing markets need to be reported to the Agency. Also changes in the market, for example more high-frequency trading, as well as inflation result in increased costs incurred by the Agency. Furthermore, Regulation (EU) 2024/1106 provided the Agency with the new task of exercising the supervision and investigatory powers pursuant to Articles 13 to 13c and Article 16 of Regulation (EU) No 1227/2011.

(10) In addition, Regulation (EU) No 1227/2011, as amended, provides that market participants should report the data set out in Articles 7c and 8 of that Regulation only through Registered Reporting Mechanisms (‘RRMs’) and disclose information and submit inside information reports only through Inside Information Platforms (‘IIPs’). RRMs and IIPs are to be authorised by the Agency according to certain requirements set out in Regulation (EU) No 1227/2011, as amended, and as further detailed by the Commission by means of a delegated regulation according to Articles 4a(8) and 9a(6) of the same Regulation. The Agency shall monitor the compliance of RRMs and IIPs with the requirements according to which they have been authorised and, where it finds them non-compliant, it shall withdraw their authorisations.

(11) Regulation (EU) 2019/942 has also been amended in order to reflect the changes introduced in Regulation (EU) No 1227/2011. In particular, pursuant to the amended Article 32 of Regulation (EU) 2019/942, fees due to the Agency should cover the Agency’s tasks for collecting, handling, processing and analysing of information reported by market participants, or by persons or entities reporting on their behalf, pursuant to Article 8 of Regulation (EU) No 1227/2011 and for disclosing inside information pursuant to Articles 4 and 4a of that Regulation. Revenues from those fees may also cover the costs of the Agency for exercising the supervision and investigatory powers pursuant to Articles 13 to 13c and Article 16 of Regulation (EU) No 1227/2011. The amount to be covered by fees set by the Agency can be lower than the total eligible costs.

(12) In addition, in accordance with Article 32 of Regulation (EU) 2019/942, the fees should be proportionate to the costs of the relevant services as provided in a cost-effective way and be sufficient to cover those costs and they should be set at such a level as to ensure they are non-discriminatory and avoid placing an undue financial or administrative burden on market participants or entities acting on their behalf.

(13) Therefore, Decision (EU) 2020/2152 should be repealed in order to take into account the modifications introduced by Regulation (EU) 2024/1106 and Regulation (EU) 2024/1789.

(14) Decision (EU) 2020/2152 placed the obligation to pay the fees on RRMs, through which, at the time, the majority of market participants reported data records. RRMs are currently registered by the Agency on the basis of Article 11 of Commission Implementing Regulation (EU) No 1348/2014 (8). The Agency also registers IIPs, through which market participants disclose inside information. The definition of RRMs and relevant references thereof should reflect that, while in the future RRMs will need to be authorised by the Agency pursuant to Article 9a of Regulation (EU) No 1227/2011, the fee-paying requirement continues to apply to the RRMs already registered with the Agency even if they are not authorised yet. IIPs have so far not been covered by Decision (EU) 2020/2152. However, given that, according to the legislative amendments mentioned above, fees should be due to the Agency by IIPs, this Decision also applies to IIPs and more specifically once they are authorised pursuant to Article 4a of Regulation (EU) No 1227/2011.

(15) This Decision also includes an updated definition of transaction record, with a reference to Regulation (EU) No 1227/2011 to ensure that such definition is not affected by any possible changes to Implementing Regulation (EU) No 1348/2014. The definition is fundamental for the identification of data clusters and hence for the calculation of fees and should hence be sufficiently detailed. For the identification of data clusters, a market participant is considered to be a beneficiary of the transaction or, if such information is not available, a counterparty of the transaction.

(16) Article 8(1) of Regulation (EU) No 1227/2011, as amended, introduces an obligation on market participants to report to the Agency providing information about their exposures. That new reporting requirement should be covered by and reflected in this Decision.

(17) The main cost drivers of the relevant services, and hence of the Agency’s eligible costs, are the number of RRMs and IIPs, the number of market participants they report for and the amount and the characteristics of the data they report. In order to reflect those cost drivers, the fee each RRM needs to pay should be a combination of a flat amount, the flat enrolment fee component, and a variable amount, the transaction records-based fee component. The latter depends on the number of market participants for which the RRM is reporting data as well as the amount and the characteristics of the reported data.

(18) The changes introduced by Regulation (EU) 2024/1106 and Regulation (EU) 2024/1789 result in a considerable increase in the Agency’s costs which will need to be covered by fees. Therefore, both the flat enrolment fee component and the revenues generated from the transaction records-based fee component should be increased in this Decision. At the same time fees should not place an undue financial burden on RRMs and thereby indirectly on market participants. Therefore, the increase in revenues generated from the transaction records-based fee component should be achieved in a proportionate way which avoids a large increase of revenue stemming from smaller market participants reporting a low number of transactions records but also avoids that revenues stemming from market participants reporting a high volume of transaction records increase excessively.

(19) The flat amount should reflect the Agency’s costs for processing applications for authorisation or registration of RRMs as well as for ensuring continued compliance of already authorised or registered RRMs with the requirements set out in Regulation (EU) No 1227/2011. In the future, such requirements shall be further detailed out by the Commission by means of a delegated regulation according to Articles 4a(8) and 9a(6) of the same Regulation. Since those costs are incurred by the Agency regardless of whether RRMs report transaction records or fundamental data, the flat amount should be paid by all RRMs.

(20) Pursuant to Article 4a of Regulation (EU) No 1227/2011 and once the relevant delegated act supplementing that Article is adopted, the Agency is to be in charge of authorising and supervising IIPs, equivalent to the supervision of RRMs. Therefore, IIPs should pay a fix fee equivalent to the flat enrolment fee component RRMs have to pay.

(21) Fundamental data like information related to the capacity and use of facilities for production, storage, consumption or transmission of electricity and natural gas or related to the capacity and use of LNG facilities, is only collected by the Agency to complement the collected transaction records. Fundamental data should therefore not be included in the calculation of the variable fee component. Since the status of a RRM as such is a significant cost driver for the Agency, RRMs reporting fundamental data should nevertheless pay the flat fee component.

(22) In order to avoid setting an undue financial burden on RRMs, the variable amount of the transaction record-based fee component should reflect the amount of reported transaction records, which is linked to the volume of trading and hence the potential revenues of a RRM. The variable component should take account of the fact that many RRMs report data for a multitude of market participants that are often active on several organised market places and are using different trading channels.

(23) In order to effectively uncover market abuses, the Agency does not only collect data on trades and other contracts, but also a considerable amount of data on orders to trade placed on organised market places like energy exchanges. Therefore, also orders to trade should be covered by the fee scheme in order to ensure cost proportionality. For the same reasons, lifecycle information should be covered by the fee scheme as well.

(24) Trading of wholesale energy products at organised market places is characterised by a higher level of standardisation than the trading of such products outside organised market places. Moreover, reported transaction records stemming from organised market places include orders to trade. Market developments in the trading of standard contracts like algorithmic and high frequency trading are gaining in importance resulting in an increasing number of orders to trade being reported from organised market places per standard supply contract compared to supply contracts concluded outside organised market places. Transaction records on wholesale energy products stemming from organised market places should therefore be weighted differently than those stemming from outside organised market places when calculating the variable fee component.

(25) Pursuant to Article 8(1) of Regulation (EU) No 1227/2011 and once the relevant implementing act supplementing that Article is adopted, RRMs will report market participants’ exposure to the Agency for each individual market participant. Therefore, a dedicated fee component should be introduced setting a fix amount for each such report, irrespective of its content or length

(26) Pursuant to Article 71 of the Financial Regulation of the Agency, an agency is only to provide services after the corresponding fee has been paid in its entirety. Since the fees are calculated on the basis of the amount of transaction records reported and inside information reports submitted in the previous year, the amounts receivable can only be established, and invoices be sent out, at the beginning of each year. RRMs and IIPs should nevertheless be able to continuously report data and submit inside information reports to the Agency, hence also prior to them having paid the invoice for the respective year. RRMs which cease to be authorised or registered by the Agency, should not be entitled to any reimbursement of fees paid or waiving of fees due. Equally, IIPs which cease to be authorised by the Agency, should not be entitled to any reimbursement of fees paid or waiving of fees due.

(27) In case a positive or negative correction amount to balance differences between the transaction records- based fee component paid in the previous year and the transaction records-based fee component that would have been paid according to the actual reporting in that year applies, the calculation of the correction amount should be based on the transaction record-based fee component a RRM actually paid in the previous year, and not on the initially calculated amount, since the actually paid amount differs from the initially calculated amount in case a reduction factor applies.

(28) As the Agency incurs additional costs to be covered by fees already in 2025, it should be able to levy a surcharge amounting to the difference between the revenues from fees as budgeted in the Agency’s Programming Document for 2025-2027 and the sum of the amounts already invoiced in 2025. The surcharge should be calculated in a straightforward way in order for RRMs to easily identify how the different market participants, on whose behalf they are reporting data, impact the invoiced surcharge. Therefore, the surcharge should depend on the number of market participants a RRM is reporting transaction records for. In case a market participant reports data via more than one RRM, this market participant would nevertheless be taken into account for each RRM when calculating the surcharge. Since the surcharge may have an impact on the charges paid by a market participants to a RRM, market participants which ceased to be market participants earlier in 2025 should not be taken into account when calculating the surcharge.

(29) To ensure that the Agency receives sufficient revenues from fees to cover its eligible costs, the Agency should have the option to add a surcharge to the invoices sent out in January 2026. That surcharge should be based on the number of market participants a RRM reports transaction records for. Since the possible surcharge in 2026 is calculated at the same time as the other fee components, the calculation can be based on the number of market participants identified for a RRM when calculating the transaction records-based fee component. For purposes of legal certainty and to provide assurance to RRMs that this option is not used to unduly increase the Agency’s eligible costs, the total revenues the Agency can receive including this surcharge should be capped to the estimated revenues from fees as presented in the Agency’s Programming Document for 2025-2027 or to the revenues from fees as budgeted in the Agency’s Programming Document for 2026-2028, whichever of the two values is lower.

(30) The calculation of the transaction record-based fee component is considerably different from 2026 onwards compared to the calculation of that component in previous years. In 2026 this could lead to exaggerated values for the correction amount when calculated in order to balance differences between the transaction records-based fee component paid in 2025 and the transaction records-based fee component that would have been paid according to the actual reporting in 2025. In 2026, the Agency should therefore calculate the correction amount by subtracting the transaction records-based fee component paid in 2025 not from the transaction record-based fee component calculated, but from a predetermined value calculated according to the fees’ subcomponents per data cluster applicable prior to the adoption of this Decision.

(31) Exposure reports are reported ex-post, hence in the year in which the exposure reporting obligation becomes applicable (‘the reference year’) the Agency will receive less exposure reports than in the following years. Therefore, the number of exposure reports reported by a RRM in the reference year needs to be adapted to be a proper basis for calculating the exposure report-based fee component in the year following the reference year. No exposure report-based fee component will be calculated in the reference year.

(32) In order to avoid that this Decision would need to be amended purely because fee revenues are insufficient to cover eligible costs due to inflation, fees should be automatically adjusted to inflation should fee revenues fall below eligible costs. Further, to allow RRMs and IIPs to prepare for the changes to the different fee components, the adjustment should only have effect in the subsequent year and should be announced by the Agency sufficiently in advance.

(33) The Agency should send invoices to RRMs and IIPs. Since the fees are entirely determined by this Decision, which is the basis for the Agency establishing the amounts receivable, in accordance with Article 71 of the Financial Regulation of the Agency, the invoices should be debit notes.

(34) The invoices sent to RRMs should include information about how the fee was calculated to make it transparent to the RRM how the different market participants it is reporting data for contribute to the invoiced fee. To avoid an undue financial burden for RRMs, it should be possible that large invoices are paid in instalments in agreement with the Agency. At the same time, the Agency needs to have regular and plannable revenues from fees in order to be able to cover its costs and to plan its spending accordingly. The increase in fee revenues could mean that a considerable share of those revenues would only be available to the Agency later in the year if the deadline of 30 September was to be maintained for all invoices. Therefore, the deadline of 30 September should only apply to the highest invoices, whereas lower invoices should be paid no later than 30 June.

(35) Deciding to which extent electricity or gas transmission system operators who are RRMs can recover costs incurred by having to pay the fees due to the Agency from network users via network tariffs is part of the duties and powers of Member States’ regulatory authorities pursuant to Article 59(1) of Directive (EU) 2019/944 of the European Parliament and of the Council (9) and Article 78(1) of Directive (EU) 2024/1788 of the European Parliament and of the Council (10).

(36) Article 32 of Regulation (EU) 2019/942 requires the Commission to regularly examine the level of the fees. This should be done together with the evaluations of the Agency’s performance pursuant to Article 45 of Regulation (EU) 2019/942. Such a requirement does not prevent the Commission from revising the fee scheme independently of those evaluations.

(37) In accordance with Article 32 of Regulation (EU) 2019/942, a public consultation took place and the Agency’s Administrative Board and Board of Regulators were consulted,