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Leigh Hancher and Francesco Maria Salerno

With three waves of internal energy market legislation already adopted and a fourth just tabled, a key questions is ‘Do we have an institutional structure that can effectively deliver the ambitious goals of the EU energy and climate change policy?’ To answer this question, the chapter employs a benchmark comparison, using general EU competition law as a benchmark for an effectively enforced EU policy. It compares the current as well as the emerging institutional structure of EU energy market regulation with that of EU competition law, to assess the extent to which there is a ‘competition law-ization’ of energy market institutions. The chapter finds that the Third Package of 2009 created an institutional structure that shares a number of features with competition law, hence laying the foundations for an effective institutional structure. The new ‘Winter’ package unveiled in November 2016 builds on the institutional acquis. However, there are also new trends – in particular a shift to relying on tools that require more Member State co-operation with the Commission. This trend might limit the effectiveness of competition law-ization, unless such co-operation concerns aspects that are complementary to the core subject matter of competition law.

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Leigh Hancher and Francesco Maria Salerno

The EU’s commitment to a ‘carbon-free’ economy will require an even higher effort from the Commission to clarify the application of the State aid rules to the energy sector. Starting from the notion of aid, this chapter highlights how the constituent elements of this notion have been applied by the Commission and the Courts in the field of energy. Next, the chapter discusses compatible aid in the energy sector, reviewing in particular the Commission Guidelines issued in 2014. Finally, we outline certain upcoming developments, especially the interplay with new legislation.