ACER's New Playbook: Cross-Border Energy Market Abuse Meets Direct Enforcement

This month, ACER (the pan-EU energy regulator) unveiled its formal Rules of Procedure, detailing exactly how it will lead investigations into suspected energy market abuse. Following the introduction of REMIT II in 2024, ACER’s role has shifted from being a relatively benign overseer of the market to an active investigator, armed with tools and powers certain to make a material impact on EU cross-border energy trading.

The Theme: A New Era of Direct Oversight

For firms engaged in cross-border energy trading, these rules mark a significant pivot. ACER is now mandated to investigate cases involving two or more EU Member States, covering insider trading, market manipulation, and the disclosure of inside information. According to the agency, the Rules of Procedure published this week is a new framework that "ensures legal certainty, due process, fairness and efficiency."

You can read the full 14-page document here.

Key Insights from the ACER Rules of Procedure

The playbook spells out ACER’s invasive powers that firms must account for in their internal compliance frameworks. The following elements are particularly noteworthy:

• Dawn Raids and Private Premises: ACER is now empowered to perform unannounced site visits. Crucially, this includes the ability to inspect the private premises of directors or staff if there is a reasonable suspicion that business records are being kept there.
• Periodic Penalty Payments: To ensure cooperation, ACER can impose daily financial penalties. For legal persons, this can reach 3% of average daily turnover, applied until the requested data or access is provided.
• "Ex Officio" Investigations: ACER no longer needs to wait for a request from a national regulator; it can now open an investigation on its own volition.
• Public Notification: The agency may publish notices informing the public about the opening of an investigation. While a person is presumed innocent, the reputational risk of being named in such a notice is potentially substantial.
• Enhanced Surveillance: ACER has signalled its intent to step up cross-border surveillance, developing the analytical means to monitor activity in coupled power markets more effectively than ever before.

Why This Matters for Compliance

The shift in work practices, with key staff often working from home, creates new vulnerabilities for firms during unannounced inspections. If your "dawn raid" policy does not account for ACER's specific mandate or the potential for private residence visits, it is time for an update.

Furthermore, ACER has the power to draw conclusions based on available information if a firm provides incomplete or misleading data. Persuading the regulator to change a narrative once it is established is a costly and difficult process.

RegTrail provides comprehensive monitoring of REMIT developments, ensuring your compliance and legal teams are prepared for this elevated level of EU-wide enforcement.