REMIT: the emerging case law at EU and national level

Summary:

The enactment and beginning of implementation of the Regulation on Energy Market Integrity and Transparency (Regulation 1227/2011 - also known as REMIT)  which introduces a EU-wide wholesale market monitoring framework, has constituted an important and innovative regulatory development. REMIT came into force in December 2011 and provided for an explicit prohibition of market manipulation, attempted market manipulation and insider trading, together with alternative (to antitrust) enforcement tools. It was indeed felt that the antitrust laws (in particular Article 102 TFEU and equivalent national provisions) were ill suited to tackle some of the most complex infringements, even though certain practices such as capacity withholding had been addressed successfully (see e.g. Case AT.39388, German electricity wholesale market).

Member States were required under REMIT to endow energy regulators with sufficient investigatory and prosecutorial powers to act upon these prohibitions. The first enforcement actions took place in 2015. Since then, we have seen a surge in enforcement by national regulatory authorities, under Article 5 REMIT in particular, which complements and partly overlaps with the scope of Article 102 TFEU by addressing ‘market manipulation’. The enactment of REMIT, as of the Digital Markets Act lately, shows that the frontier between ex ante regulation and ex post enforcement of the antitrust laws is a moving one. National regulators are now increasingly involved in ex post control of firm behaviors through the enforcement of the REMIT framework.