Presentation Transcript

1. THE ENFORCEMENT OF EU COMPETITION LAW IN THE ENERGY SECTOR THROUGH NON-ADVERSARIAL COMMITMENTS

   Yane Svetiev and Lucila de Almeida (EUI)
2. Introduction and Structure Role of Art. 9 Commitments in competition enforcement Commitments Decisions in the Energy Sector 2.1. Tailoring Commitment Remedies 2.2. Accountability Mechanisms for Article 9 decisions
3. 1. Commitment Decisions under the Article 9 Non-adversarial case resolutions Characterized as being among the most “high profile activities” of the EU Commission and Also used by National Competition Authorities (NCAs); Many cases in the energy sector decided through commitments procedure Literature: Article 9 is most commonly used in energy sector and in cases involving intellectual property
4. 1. Commitment Decisions under the Article 9 10 Commitment Decisions in the energy sector 2006 2010 2007 2009 2012 2008 EDF Electricity COM 39.386 March 2010 ENI Gas COM 39.315 September 2010 E.ON. Electricity COM 39.388 COM 39.389 November 2008 Repsol Oil COM 38.348 April 2006 SvK Electricity COM 39.351 April 2010 Siemens/Areva Electricity COM 39.736 June 2012 RWE Gas COM 39.402 March 2009 Distrigaz Gas COM 37.966 October 2007 E.ON. Gas COM 39.317 May 2010 GDF Gas COM 39.316 December 2008
5. 1. Commitment Decisions under the Article 9 Research Questions What are the reasons for the extensive use of non-adversarial procedures both by the Commission and by national authorities in the energy sector? peculiar sectoral characteristics that make such a procedure particularly adapted to the energy context? What are the distinguishing features of the use of non-adversarial procedures to restructure private relationships in the energy sector by the Commission? What role do national actors play in this process and are they a check and source of accountability on the Commission’s interventions?
6. 1. Commitment Decisions under the Article 9 Characterizing the Article 9 procedure 1. Settlements 1.1. Procedural: non-adversarial closure of cases 1.2. Substantive: clear-cut / non-serious cases 2. Tools of dynamic learning 2.1. Procedural: shift to monitoring 2.2. Substance: liability rules for an effects based policy
7. 1. Commitment Decisions under the Article 9 1. It is difficult to argue that energy commitment decisions stem from cases in which the infringement is relatively clear based on extant community law. The majority of the cases based on abuse of dominance theory.
8. 1. Commitment Decisions under the Article 9 Impugned conduct has involved 1.1. the manner in which a vertically-integrated company uses its own infrastructure or even its own capacity;
9. 1. Commitment Decisions under the Article 9 Impugned conduct has involved also 1.2. the length of the contracts that energy supplier has concluded with its customers
10. 1. Commitment Decisions under the Article 9 2. The commitments procedure is not limited to the cases that do not raise novel or disputes issues of law or its application to the facts(i.e. E.ON. Case)
11. 1. Commitment Decisions under the Article 9 3. It cannot be said that the cases concluded pursuant to commitments in the energy sector are non-serious.
12. 1. Commitment Decisions under the Article 9 The substance of the cases often raises complex issues, requiring both weighing and trading off both arguments and likely effects. The use of commitment decisions in the enforcement of EU competition law has been driven by the transformation of competition policy from a relatively blunt tool of economic integration towards a policy instrument increasingly sensitive to the effects of market conduct on policy relevant variables.
13. 2. Commitment Decisions in Energy Sector 2.1. Types of Commitments and their tailoring Decisions that involve divestment capacity for generation or transmission of energy.
14. 2. Commitment Decisions in Energy Sector 2.1. Types of Commitments and their tailoring Decisions that adopts more flexible approaches towards stimulating entry, by seeking to constrain autonomy and contract behaviour of investigated undertakings
15. 2. Commitment Decisions in Energy Sector 2.1. Types of Commitments and their tailoring Decision that are less intrusive, in part reflecting differences in conduct and context investigated and in part different remedial commitments that parties were prepared to offer or agreed to.
16. 2. Commitment Decisions in Energy Sector 2.2. Accountability Mechanisms under Article 9 The review mechanisms are distinguished along two dimensions: Timing of input Source of review between judicial and peer input into the commitments proposed and adopted as part of an Art. 9 decision.
17. 2. Commitment Decisions in Energy Sector Ex Ante Review: Market Testing of the Commitments ECN Advisory Committee (made-up of NCA representatives) Ex Post Review: Reports provided either by the entities offered to the commitment or by external “trustees” involved in monitoring the implementation of the remedies. Administrative or Private Law enforcement at the national level.
18. 3. National Dimension as a source of accountability In the remainder of the paper, we aim to explore three principal arguments: Characterize non-adversarial resolution practice of national competition authorities in energy sector; Compare objectives pursued by national competition authorities in energy market through commitments with objectives of national energy regulators; Understand the role that actions before national courts play in overall mix of interventions
19. Thank you! Yane.Svetiev@eui.eu Lucila.DeAlmeida@eui.eu