Marco Botta and Alexandr Svetlicinii
Alexandr Svetlicinii and Marco Botta
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
Pier Luigi Parcu, Giorgio Monti and Marco Botta
A long time has passed since Advocate General (AG) Geelhoed stated in his Opinion in Manfredi that ‘private enforcement of (competition law) in Europe is still in its infancy’. One decade after the landmark ruling of the Court of Justice of the European Union (CJEU), the number of antitrust claims in national civil courts has steadily increased, though major differences exist among the EU Member States. In particular, the UK, Germany and the Netherlands have become the preferred fora by claimants in cross-border actions, while the majority of the other Member States have not recorded many antitrust damages cases. In term of remedies, however, claimants often request either injunctive relief or contract invalidation, rather than damages. Finally, industrial customers, rather than final consumers, start most of the legal actions, even in the countries where private enforcement of EU competition law is more developed. During the past decade, the EU Commission has actively promoted damages actions for breaches of EU competition rules. During this period of time, the pendulum of the policy discourse followed by the EU executive branch has swung between the goal of increasing the number of damages claims in national courts on the one hand, and the idea of establishing a level playing field among the EU Member States in terms of applicable procedural rules, in order to discourage forum shopping on the other. In the initial 2005 Green Paper, the EU Commission emphasized that damages actions should ‘deter’ competition law violations.