Competition Law and Sector Specific Rules in European Energy Sector: A Comparison to Trinko, Recent Commission’s Antitrust Decisions and a Look to the Future

Abstract

This paper aims at highlighting the Commission's approach towards the relation between sector specific regulation and general competition law, especially concerning energy markets and the road to Internal Market objective.We firstly present Trinko case, in order to focus on two crucial and relevant to our analysis issues: essential facilities doctrine and the relation between sector regulation and competition law. Our intention is to offer a basis for comparison and counterarguments concerning EU approach towards these issues. After showing how Trinko case addressed these issues, we examine the relevant points of view of European Competition Authorities and ECJ. Concerning Essential Facilities Doctrine, we show how a similar to the American approach was established and how Commission and ECJ eventually formed a very flexible -in comparison to the American- and open to third parties, system for access to facilities. Futhermore, we note that recent regulation - Third Energy Package - tries to address this issue by sector specific rules, instead of general antitrust law. One other major conclusion is that in EU, Commission applies competition law, in order to address issues fitting to sector regulation in a possibly stricter way than sector regulation does - for example Third Energy Package offers many alternatives to full ownership unbundling, while Commission's decisions actually present it as a single option; thus Commission tries to implement a sector specific policy by competition law means and methodology and especially by commitments procedure - a procedure that allows Commission to avoid ECJ investigation. We seek the reasons that lead to this approach and we highlight the weak points of it, while we also explain why far-reaching structural remedies may not be acceptable under competition law framework. We also use facts from other markets that opened to competition before energy, such as telecommunications, in order to recognise similar approaches and their results.Finally, we conclude that the recent Commission's approach may eventually lead to a dualistic system - possibly dangerous and inefficient as well - of addressing energy market's issues; a dualistic system that will fully reveal its possibly negative consequences after the Third Energy Package comes into force.