Marking the close involves deliberately buying or selling wholesale energy products at the close of the market in a manner that seeks to secure the closing price of the wholesale energy product at an artificial price.
The European Agency of Energy Regulators (ACER) in its guidance refers to this practice as an example of the type of manipulation included in Article 2(2)(a)(ii) of REMIT.
The U.K. energy market regulator Ofgem in the document of 8 September 2015 "Prohibition of market abuse under the Regulation on wholesale energy market integrity and transparency (EU) No 1227/2011 (REMIT)" expressed the view such behaviour undertaken to secure price assessments or index prices at an artificial price would also be an example of the type of manipulation set out in Article 2(2)(a)(ii) of REMIT.
Therefore, when trading around the close of markets or around price assessment periods, market participants should be particularly mindful of how their trading may affect the closing or assessed price.
Market participants should also be aware that entering into erroneous trades around these times could also constitute market manipulation even where such trades are later cancelled.
Once the trade is executed the price signal is shared with market participants, and is not necessarily removed by its cancellation.
Ofgem also emphasised that even if a closing or assessed price is not impacted by a market participant's trading, attempts to alter or influence these prices could still constitute attempted market manipulation and therefore breach Article 5 of REMIT.
Recent example of this behaviour comes from the Lithuanian natural gas market, where, according to the press release of the National Energy Regulatory Council of Lithuania (NERC) of 13 January 2020 market participant UAB Geros dujos engaged in market manipulation, i.e.:
- on the last day of each month the said market participant inserted orders at the energy exchange with the minimum allowed volume at prices significantly different from the prevailing market prices,
- the orders gave false and misleading signals about the level of wholesale prices resulting into transactions that affected a reference price assessed by the energy exchange,
- by securing the reference price at an artificial level, the market participant extracted undue profits through some of its retail customers' contracts which were indexed to the reference price.
This behaviour was assessed by the Lithuanian regulator as a breach of REMIT and was sanctioned with a penalty of EUR 28,583, which corresponded to 7.5% of the market participant's annual revenue (the decision subject to appeal). UAB Geros dujos authorisation to carry out natural gas supply activity in Lithuania was, moreover, terminated due to previous investigations from NERC.
13 January 2020
Commission Delegated Regulation (EU) 2016/522 of 17 December 2015 supplementing Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards an exemption for certain third countries public bodies and central banks, the indicators of market manipulation, the disclosure thresholds, the competent authority for notifications of delays, the permission for trading during closed periods and types of notifiable managers' transactions