Edited by Fabiana Di Porto and Rupprecht Podszun
Chapter 7: The application of Article 102 TFEU in the EU energy sector: a critical evaluation of commitments
EU competition law has played an important role in shaping EU energy markets, albeit in a rather opaque manner. The application of Article 102 TFEU in the energy sector after the completion of the Energy Sector Inquiry supports this contention, since the Commission’s decisional practice has endorsed a more flexible application of Article 102 TFEU via commitment decisions. While such a practice arguably may further disguise regulatory aims, it enhances competition and entails benefits for the implicated actors and the completion of the EU Internal Energy Market. Given that such flexible application has been endorsed by the Commission, the implicated actors and the European courts, it is time to acknowledge that the application of EU competition law in the energy sector will occasionally assume a regulatory tone. This realization will aid the improvement of current mechanisms by infusing more transparency into the process and designing remedies that account for concrete benefits for affected parties. Tackling the opaqueness in procedural enforcement may further account for a more principled substantive application.
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