REMIT update NL: ACM’s oversight priorities for 2025 and what about ‘marking the close’

The Dutch regulator ACM recently published its oversight priorities in relation to the Regulation on Wholesale Energy Market Integrity and Transparency (REMIT, as amended by REMIT II) together with a market warning about conduct described as ‘marking the close’. This article discusses the ACM’s announcement of a reprimand against an international company for possible market manipulation as well as ACM’s oversight indicators for 2025.

‘Marking the close’ – ACM reprimands company for alleged market manipulation

On 6 February 2025, the ACM announced that it has reprimanded an international company about possible market manipulation on the Dutch wholesale market for natural gas (the Title Transfer Facility, TTF). 

Article 2(2)(a)(i) of REMIT i.a. defines ‘market manipulation’ as the: 

“entering into any transaction, or issuing, modifying or withdrawing any order to trade or engaging in any other behavior relating to wholesale energy products which gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products.”

Conduct referred to as ‘marking the close’ is a form of market manipulation where the ‘close price’ is manipulated in order to settle contracts with a delivery on the next day at a higher price. More specifically, on the TTF Day Ahead market, natural gas with delivery on the next day is traded throughout the day. Most gas contracts with delivery on the next day are settled at a so-called ‘reference price’ (usually the TTF Heren Day Ahead). This reference price is determined every day at exactly 17:30h and is thereby based on the market price at the end of the trade day (the close price). This close price (which results in the reference price) also influences gas prices in other EU countries. ‘Marking the close’ is an illegal trading practice under REMIT as the market participant influences the reference price by buying or selling right before the market closes (right before the moment that the close price is determined). This leads to a profit for the market participant engaging in ‘marking the close’ as the contracts that they have signed earlier in the day are settled at this higher close price.

ACM explained this conduct in a useful graphic:

Source: ‘ACM reprimands international company about indications of market manipulation on wholesale market for natural gas’, ACM 6 February 2025

Our leading REMIT expert Peter Willis has stated on LinkedIn:

“There have been relatively few REMIT infringements decisions around Europe involving marking the close - one was the CNMC decision in September 2024 fining Enérgya VM Gestión de Energía €1 million for the practice. It's also unusual to see reprimands for market manipulation - a decision imposing a penalty is the more usual outcome.”

The ACM states that it has received several signals of market manipulation by the company in question through ‘marking the close’. Trading on the Dutch TTF has a significant impact on the energy prices paid by consumers and businesses in the Netherlands and beyond. Market manipulation is considered a serious infringement as it can lead to higher prices. Given that the Dutch TTF is by far the largest TTF in Europe, it is indeed surprising that the alleged conduct did not result in the imposition of a penalty. Instead, the company undertook to refrain from the trading practice under investigation and that marks the end of the case (for now).

ACM’s oversight indicators for 2025

The ACM furthermore provided an update of indicators for ACM’s regulatory activities under REMIT. At the end of 2024, 22 cases were still under investigation, 10 were closed, 14 resulted in a brief intervention by the ACM (such as standard setting discussions, explanation of the rules, a warning or potential commitments by the market participant) and 2 cases were referred to another regulatory authority. The ACM is currently investigating a total of 32 signals of suspected infringements of REMIT relates to Articles 3-5 and 8. Most signals concern possible market manipulation, such as layering, spoofing, capacity hoarding, quote stuffing, wash trades, marking the close and off market price orders.

The ACM furthermore notices a decrease of publishing insider trading information (through ‘Urgent Market Messages’) in relation to outages of energy production facilities. The percentage of untimely or unclear publications has increased to 1.5-2%. The ACM will monitor this obligation closely and where necessary take enforcement actions. The ACM states on its website that most traders consider outages above 50 to 100 MW to be important information and therefore could be considered as inside information. The ACM therefore monitors the publication of non-availability above 100 MW. Furthermore, ACM strongly recommends all market participants to publish insider trading information accordingly on an Inside Information Platform (IIP).

Finally, the ACM notes that the trend of an increasing proportion of market participants registered with the ACM coming from non-EU countries continues. Since July 2024, almost half (46%) of new market participants registered with the ACM are non-EU. Of the total number of registered market participants at the ACM, more than a quarter (27%) are not established in the Netherlands. Following the amendment of REMIT, Article 9(1)(a) REMIT obliges non-EU market participants to designate a representative in a Member State where they are active on the wholesale energy market and to register with the national regulatory authority of that Member State.

Trends

The ACM remains committed in its tasks to monitor the wholesale energy market and act against (potential) violations of REMIT. Whilst its indicators provide practical examples of potential violations under REMIT, it also demonstrates that the line between standard practices and potential REMIT violations can be thin. Given the highly fluctuating wholesale energy market prices and the velocity of trading transactions, particularly using technology and algorithms for trading practices, certain situations could lead to entering a grey area of what is still permitted.

The ACM continues to enforce REMIT mostly through means of soft enforcement (i.e. warnings, reprimands, setting standards through discussions with the market participants, explaining the rules of REMIT and opting for commitments by market participants rather than imposing penalties). The ACM urges stakeholders to share information about possible illegal trading activities by using ACER’s Notification Platform. The ACM collaborates closely with the Dutch Authority for the Financial Markets (AFM), other European regulators, and ACER in relation to ensuring compliance with REMIT.

Curious about the impact of the REMIT in light of ACM’s oversight indicators update? Please reach out to Peter Willis, Tialda Beetstra, and Sander Wagemakers.