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Edited by Pier L. Parcu, Giorgio Monti and Marco Botta

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Pier Luigi Parcu, Giorgio Monti and Marco Botta

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Edited by Pier L. Parcu, Giorgio Monti and Marco Botta

Granting rebates to a customer or refusing to supply a competitor are examples of ordinary commercial practices, which become ‘abusive’ under Article 102 of the Treaty on the Functioning of the EU (TFEU) when carried out by ‘dominant’ firms. This topical book provides an up-to-date account of the emerging trends in the enforcement and interpretation of this provision at both the EU and national level.
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Alexandr Svetlicinii and Marco Botta

The chapter analyses the pattern of enforcement of Art. 102 TFEU in network industries by the national competition authorities (NCAs) of the new and the EU Member States who candidate. The chapter concludes that while the European Commission has enforced Art. 102 TFEU in the context of its market liberalization agenda, the NCAs of the selected jurisdictions have enforced Art. 102 TFEU in order to protect final consumers. In particular, while the Commission has focused its enforcement on exclusionary conduct and adopted structural and behavioural remedies via commitment decisions, the NCAs of the selected jurisdictions have mainly sanctioned exploitative conduct, such as excessive pricing and unfair contractual conditions.
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Rozeta Karova and Marco Botta

Following the 2007 Sector Inquiry into the energy sector, the EU Commission has actively enforced Article 102 TFEU to sanction different forms of abuse of dominance by energy operators. Most of the cases have been concluded via commitments decisions which mainly included far-reaching structural (i.e. divestiture of capacity) rather than behavioural remedies. Moreover, in its commitment decisions the EU Commission has mainly targeted exclusionary conducts by energy undertakings, rather than directly sanctioning the excessive pricing in the wholesale and retail markets as exploitative abuses of dominance. Unlike the EU Commission, the National Competition Authorities (NCAs) of the EU Member States have directly sanctioned excessive pricing both at the wholesale and retail level as exploitative abuses of dominance. In particular, a number of NCAs have sanctioned withdrawals of capacity by electricity generators as abuses of dominance, since such conduct caused a direct rise of wholesale electricity prices. Secondly, NCAs of a number of EU Member States have also sanctioned the excessive prices in the retail energy markets imposed by undertakings on final customers. Besides the different focus in the enforcement of Article 102 TFEU in the energy markets in comparison to the EU Commission, the NCAs have mostly opted for imposition of fines on the sanctioned undertakings, rather than imposing structural remedies via commitment decisions. The chapter aims to analyse the enforcement trends of Article 102 TFEU by the NCAs with regard to excessive prices applied by energy operators in the wholesale and retail markets. In particular, the chapter compares such pattern of enforcement with that followed by the EU Commission in this sector during the past few years. The chapter tries to identify the reasons for the different focus of the authorities at national and EU level. It also discusses whether such divergences in the enforcement of Article 102 TFEU are justified in the light of the decentralized enforcement system of EU competition law. Keywords: electricity markets; excessive pricing; exploitative abuses; commitments; remedies