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2017 | OriginalPaper | Buchkapitel

5. Regulatory Enforcement

verfasst von : Panagiotis Tsangaris

Erschienen in: Capacity Withdrawals in the Electricity Wholesale Market

Verlag: Springer Berlin Heidelberg

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Abstract

The REMIT prohibits two kinds of market behaviour, namely insider trading and market manipulation. With regard to inside information, REMIT provides in Article 3 for the prohibition of insider trading and in Article 4 for the obligation of market participants to publicly disclose inside information. Persons who possess inside information in relation to a wholesale energy product shall be prohibited from improper disclosure of that information as well as from trading in wholesale energy products and recommending another person to acquire or dispose of wholesale energy products on the basis of inside information. According to Article 2(1)(a) of the REMIT, information includes ‘information which is required to be made public in accordance with Regulations (EC) No 714/2009 and (EC) No 715/2009, including guidelines and network codes adopted pursuant to those Regulations’. This includes information referred to in the Regulation 543/2013 which amends the guidelines annexed to Regulation 714/2009. As it has been explained by the ACER, inside information should be considered as ad hoc, structured data that is likely to have a significant effect on price if it were made public. The definition goes beyond the periodic and regular publication of data under Regulations 714/2009, 715/2009 and 543/2013 and may be fulfilled by certain transparency information. As provided for in the REMIT and elaborated upon by the ACER, information on planned and unplanned unavailability of facilities for production, storage, consumption or transmission of natural gas or electricity may constitute inside information which needs to be published. Information on planned and unplanned unavailabilities of generation units may significantly affect the price of wholesale electricity as it affects the supply and, due to its influence on the supply curve, also the decisions of other suppliers, traders and users of electricity. In contrast, information on the actual generation output of generation units does not seem to qualify as inside information. Information on the actual generation output as such would not be likely to significantly affect the prices of wholesale energy products if it were made public. It is rather the information on planned and unplanned unavailabilities of generation units that directly affects the supply curve and thus impacts on prices.

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Vorheriges Kapitel Transparency

Art 3 para 1 REMIT.

See also Art 2(1)(b) REMIT ‘For the purposes of this definition, “information” means: (b) information relating to the capacity and use of facilities for production, storage, consumption or transmission of electricity or natural gas or related to the capacity and use of LNG facilities, including planned or unplanned unavailability of these facilities’.

Ibid. See the definition of ‘inside information’ in Art 2(1) REMIT.

Art 4 para 1 REMIT; ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 28 ‘Regardless of whether indicative thresholds are applied by market participants, NRAs should ensure that market participants are aware that a planned or unplanned change in the capacity or output of any size at a facility for production, storage, consumption or transmission of natural gas or electricity may constitute inside information if it meets the criteria outlined in Article 2(1) of REMIT. It is up to market participants to judge whether information that they hold constitutes inside information and therefore needs to be made public.’

ERGEG, ‘ERGEG Draft Comitology Guidelines on Fundamental Electricity Data Transparency – Initial Impact Assessment’ (Chap. 4 n 11) 23.

In addition, this information does not have an ad hoc character. See ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 27.

Recital 12 REMIT ‘Information which is required to be made public in accordance with Regulation (EC) No 714/2009 or (EC) No 715/2009, including guidelines and network codes adopted pursuant to those Regulations, may serve, if it is price-sensitive information, as the basis of market participants’ decisions to enter into transactions in wholesale energy products and therefore could constitute inside information until it has been made public.’

On the issue of timely disclosure see ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 44.

ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (2nd edn, 28 September 2012) 23 <www.acer.europa.eu/remit/Documents/2nd%20edition%20of%20ACER%20Guidance%20on%20the%20application%20of%20REMIT.pdf> accessed 1 December 2015‘At the current stage, at least until the “Comitology Guidelines on Fundamental Electricity Data Transparency” are adopted and entered into force (emphasis added), the Agency believes that the following examples may constitute inside information for wholesale electricity products regarding the market participant’s own business or facilities of which the market participant concerned owns or controls or has the balance responsibility for in whole or in part, in particular information relevant to facilities for production, consumption or transmission of electricity, regarding: -any planned outage, limitation, expansion or dismantling of capacity of one generation unit, consumption or transmission facility that equals or exceeds 100 MW, including changes of such plans; -any unplanned outage or failure of capacity that equals or exceeds 100 MW for one generation unit, consumption or transmission facility, including updates on such outages or failures.’

Art 2(2) REMIT ‘“market manipulation” means: (a) entering into any transaction or issuing any order to trade in wholesale energy products which: (i) gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products; (ii) secures or attempts to secure, by a person, or persons acting in collaboration, the price of one or several wholesale energy products at an artificial level, unless the person who entered into the transaction or issued the order to trade establishes that his reasons for doing so are legitimate and that that transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or (iii) employs or attempts to employ a fictitious device or any other form of deception or contrivance which gives, or is likely to give, false or misleading signals regarding the supply of, demand for, or price of wholesale energy products; or (b) disseminating information through the media, including the internet, or by any other means, which gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of wholesale energy products, including the dissemination of rumours and false or misleading news, where the disseminating person knew, or ought to have known, that the information was false or misleading.’ These four types of market manipulation in addition to three types of insider trading referred to in Art 3 of the REMIT constitute the seven types of behaviour which may amount to market abuse. See ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 47.

Art 2(3) REMIT ‘“attempt to manipulate the market” means: (a) entering into any transaction, issuing any order to trade or taking any other action relating to a wholesale energy product with the intention of: (i) giving false or misleading signals as to the supply of, demand for, or price of wholesale energy products; (ii) securing the price of one or several wholesale energy products at an artificial level, unless the person who entered into the transaction or issued the order to trade establishes that his reasons for doing so are legitimate and that that transaction or order to trade conforms to accepted market practices on the wholesale energy market concerned; or (iii) employing a fictitious device or any other form of deception or contrivance which gives, or is likely to give, false or misleading signals regarding the supply of, demand for, or price of wholesale energy products; or (b) disseminating information through the media, including the internet, or by any other means with the intention of giving false or misleading signals as to the supply of, demand for, or price of wholesale energy products’.

Recitals 13 and 14 REMIT.

Ibid 37. See also Recital 13 REMIT ‘Forms of market manipulation include [] deliberately making it appear that the availability of electricity generation capacity or natural gas availability, or the availability of transmission capacity is other than the capacity which is actually technically available where such information affects or is likely to affect the price of wholesale energy products.’

The examples of the various types of practices that could constitute price positioning in the ACER’s guidance on the REMIT are only indicative. In relation to the examples given by the ACER, economic withholding could be considered like physical withholding, due to the fact that it has the same effects on the market, as an action that artificially causes prices to be at a level not justified by market forces of supply and demand. It could also fall under abusive squeeze in the sense that the withholding party exploits its decisive position in order materially to distort the price at which wholesale electricity is traded. See ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 36–38.

Ibid 37; Recital 13 REMIT; Wasenden and Aurmo, ‘Regulation on Wholesale Energy Market Integrity and Transparency’ (Chap. 4 n 10) 88–89.

In cases of market tightness, i.e. when supply is much lower than demand, prices may skyrocket but they are not at an artificial level. High prices are still driven by market forces of supply and demand and not by market manipulation.

Art 2(2)(a)(ii) and (3)(a)(ii) REMIT.

Recital 27 REMIT; ACER, ‘Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency’ (Chap. 4 n 25) 56ff.

Recital 14 REMIT ‘However, accepted market practices such as those applying in the financial services area, which are currently defined by Article 1(5) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and which may be adapted if that Directive is amended, could be a legitimate way for market participants to secure a favourable price for a wholesale energy product.’

Ibid 57.

Ibid 57–58.

See Energy E2 A/S (Chap. 3 n 366); Peter Willis and Malte Abel, ‘National Article 102 Cases in the Energy Sector’ (Chap. 3 n 373).

The wording of the REMIT causes confusion. In Art 2(2)(a)(ii) market manipulation is also defined as ‘entering into any transaction or issuing any order to trade in wholesale energy products which secures or attempts to secure [] the price [] at an artificial level’. The attempt to secure the price at an artificial level is, in effect, the same as the attempt to manipulate the market. See Wasenden and Aurmo, ‘Regulation on Wholesale Energy Market Integrity and Transparency’ (Chap. 4 n 10) 88 footnote 51.

On the ‘intentional’ element in the attempt to manipulate the market see Feltkamp and Musialski, ‘Integrity and Transparency in the EU Wholesale Electricity Market – New Rules for a Better Functioning Market?’ (Chap. 4 n 12) 29.

Art 7 paras 1, 2 REMIT.

Arts 7 para 2, 16 para 1 sentence 3 REMIT.

Art 16 para 4(b) REMIT.

The UK’s Office of Gas and Electricity Markets (Ofgem) has stated this explicitly in its Guidance on the Transmission Constraint License Condition (TCLC) which has been introduced into the licences of GB generators and entered into force at the end of October 2012. The purpose of the TCLC is to prohibit generators from obtaining an excessive benefit from electricity generation during a period of transmission constraints. The Guidance states that ‘Ofgem does not intend to interpret the scope of the TCLC by reference to competition law and, in particular, the assessment of whether or not there has been a breach will be undertaken with reference to the framework of the TCLC and will not apply automatically the analytical framework for establishing excessive pricing under competition law.’ See Office of Gas and Electricity Markets (Ofgem), ‘Transmission Constraint Licence Condition Guidance’ (Chap. 2 n 92) 4.

Art 1 para 2 REMIT.

Recitals 22, 29 and Arts 1 para 3, 10 para 1, 16 para 1 sentence 4 REMIT.

Art 16 para 3(d) REMIT.

Art 7 para 2 REMIT. See also Recital 27 REMIT. In Germany, the Market Transparency Body for electricity and gas wholesale trading (Markttransparenzstelle für den Großhandel mit Strom und Gas) which has come into life with an Act in December 2012 has been installed at the Federal Network Agency (Bundesnetzagentur) but its tasks are to be carried out jointly by the Federal Network Agency and the Federal Cartel Office (Bundeskartellamt). See sections 47a-47j GWB (German Act against Restraints of Competition).

DG Competition Report on Energy Sector Inquiry (Chap. 2 n 1) para 401. See also Sect. 3.1.2.

Case COMP/M.4370 – EBN/Cogas Energy (Chap. 3 n 68) paras 24–27; Case COMP/M.5467 – RWE/Essent (Chap. 3 n 7) paras 25, 30–32.

The total net imports are taken into account for the calculation of the RSI. See Sect. 3.2.2.

DG Competition Report on Energy Sector Inquiry (Chap. 2 n 1) para 398.

To date, the Commission has neither accepted nor rejected the possibility of a separate product market for peak and off-peak hours. In the case of the Netherlands, the Commission left open whether there is a national market for peak hours and a geographic market including Germany for off-peak hours, during which there is sufficient capacity available on interconnectors so that electricity producers in the Netherlands are disciplined by imports from Germany. See Case COMP/M.5467 – RWE/Essent (Chap. 3 n 7) paras 25, 30–32.

Bundeskartellamt, ‘Sektoruntersuchung Stromerzeugung und -großhandel’ (Chap. 2 n 98) 17. The Bundeskartellamt acknowledged that inclusion of Austria in the geographic market in the future will increase the effort required to investigate the market. This has been repeated by the Bundeskartellamt in “RWE/Stadtwerke Unna” (Chap. 3 n 165) paras 57, 59.

See Sect. 3.2.1.

See Chap. 3 footnote 96.

Competition authorities might themselves find it difficult to bring a case of abuse under Article 102 TFEU, or the domestic equivalent, against generators with relatively small market shares. See UK Competition Commission (now Competition and Markets Authority), ‘Evaluation of the Competition Commission’s Past Cases’ Final Report, January 2008, 44 <http://webarchive.nationalarchives.gov.uk/20140402141250/http://www.competition-commission.org.uk/assets/competitioncommission/docs/pdf/non-inquiry/our_role/analysis/evaluation_report.pdf> accessed 1 December 2015; Capobianco (Chap. 3 n 96) 12.

See Sect. 3.2.1. See also UK Competition Commission (n 45) 44; DG Competition Report on Energy Sector Inquiry (Chap. 2 n 1) paras 408–410.

Ofgem announced an investigation into Scottish Power (SP) and Scottish and Southern Energy (SSE) in April 2008 following suspicions that SP and SSE had made uneconomic dispatch/withhold decisions for thermal plants, and then made balancing services available at higher prices in order to resolve constraints. The investigation was closed in January 2009 noting that the likelihood of making an infringement finding under UK Competition Act 1998 was low. Because of the ‘difficulties in applying CA98 legislation in the wholesale electricity context, given that market power is often intermittent in nature and may be held by more than one generator at key times, which renders the task of establishing dominance and/or collective dominance under CA98 problematic’ the Ofgem suggested and introduced a new license condition, i.e. the Transmission Constraint Licence Condition (TCLC), in order to prevent generators from exercising market power in periods of transmission constraints. See Office of Gas and Electricity Markets (Ofgem), ‘Addressing Market Power Concerns in the Electricity Wholesale Sector – Initial Policy Proposals’ Ref: 30/09, March 2009, 10, 19, 43 <www.ofgem.gov.uk/ofgem-publications/40530/market-power-concerns-initial-policy-proposals.pdf> accessed 1 December 2015; Office of Gas and Electricity Markets (Ofgem), ‘Transmission Constraint Licence Condition Guidance’ (Chap. 2 n 92).

Sadowska, ‘Energy Liberalisation: Excessive Pricing Actions Dusted off?’ (Chap. 3 n 248) 44. The Italian Competition Authority has undertaken a pivotality analysis in its sector inquiry but at the same time it acknowledged that being pivotal in this sense was likely to fall short of dominance as traditionally applied in EU competition cases. See Capobianco (Chap. 3 n 96) 12.

Another possible solution to circumvent the dominance problem would be to segment the wholesale market according to the time of delivery to the one for delivery of electricity at peak hours and that for delivery at off-peak hours. Hence, an operator could be, for instance, considered dominant in the wholesale market for delivery of electricity during peak hours. The Commission has not to date taken a stance on such a segmentation of the relevant product market. See footnote 41.

“RWE/Stadtwerke Unna” (Chap. 3 n 165) para 59.

Céline Gauer and Lars Kjølbye, ‘Competition Law Enforcement in a New Regulatory Framework’ in Jean-Michel Glachant, Nicole Ahner and Adrien de Hauteclocque (eds), EU Energy Law and Policy: Yearbook 2012 – The Priorities of the European Commission (3rd edn, Claeys & Casteels 2013) 153.

Ibid 153; Office of Gas and Electricity Markets (Ofgem), ‘Addressing Market Power Concerns in the Electricity Wholesale Sector – Initial Policy Proposals’ (n 47) 7, 28.

See Sect. 3.2.4.

DG Competition Report on Energy Sector Inquiry (Chap. 2 n 1) paras 403–410; Office of Gas and Electricity Markets (Ofgem), ‘Addressing Market Power Concerns in the Electricity Wholesale Sector – Initial Policy Proposals’ (n 47) 19 ‘difficulties in applying CA98 legislation in the wholesale electricity context, given that market power is often intermittent in nature and may be held by more than one generator at key times, which renders the task of establishing dominance and/or collective dominance under CA98 problematic’.

DG Competition Report on Energy Sector Inquiry (Chap. 2 n 1) paras 408–410.

Ibid, para 408.

See also Motta and de Streel, ‘Excessive Pricing in Competition Law: Never Say Never?’ (Chap. 3 n 335) 23. The authors argue that the antitrust authority should refrain from taking excessive pricing actions in case of collective dominance because proceeding against excessive prices in cases where firms are engaging in tacit collusion would add two instances where the risk and cost of type I errors are particularly high.

The original decisions in Spanish are available at <www.cncompetencia.es/Inicio/Expedientes/tabid/116/Default.aspx?sTipoBusqueda=3&PrPag=1&PagSel=1&Numero=552%2f02&Ambito=Conductas> accessed 1 December 2015. For a summary in English see Francesco Maria Salerno, ‘Debate on ‘Market vs. Regulation’: Insights from Selected National Competition Law Cases’ in Jean-Michel Glachant, Nicole Ahner and Adrien de Hauteclocque (eds), EU Energy Law and Policy: Yearbook 2012 – The Priorities of the European Commission (3rd edn, Claeys & Casteels 2013) 166–168. The Supreme Court also disagreed with the finding on abuse of dominance because if the generators had enjoyed positions of local dominance which could be easily abused, then it was not clear why the abuse only took place for three days.

The Danish Competition and Consumer Authority concluded on 22 December 2010 in a decision against Energy E2 that when taking all relevant factors into account, including the limited period affected and the absence of evidence of an exploitative price strategy, there were insufficient grounds to conclude that E2 had abused its dominant position. In fact, prices exceeded costs with no legitimate reason in only 48–52 hours out of the 21,900 hours studied, which represents a very small fraction of the total. See Energy E2 A/S (Chap. 3 n 366); Peter Willis and Malte Abel, ‘National Article 102 Cases in the Energy Sector’ (Chap. 3 n 373).

The original decision in Spanish is available at <www.cncompetencia.es/Inicio/ResultadosdelaBusqueda/tabid/37/Default.aspx?xsq=5106%2f2009> accessed 1 December 2015. For a summary in English see Carolina Luna, ‘The Spanish Supreme Court changes stance and rules that an isolated conduct in the daily energy market constitutes a continuous abuse of dominance (Iberdrola Generación)’ e-Competitions, January 2012, N^o 49215 <www.concurrences.com>.

Ibid 52.

Bundeskartellamt, ‘Sektoruntersuchung Stromerzeugung und -großhandel’ (Chap. 2 n 98) 194–195.

Ibid 195; van der Woude (Chap. 3 n 354) 633.

Shmuel S Oren, ‘Ensuring Generation Adequacy in Competitive Electricity Markets’ in James M Griffin and Steven L Puller (eds), Electricity Deregulation: Choices and Challenges (University of Chicago Press 2005) 394; Stoft (Chap. 2 n 30) 72; James F Wilson, ‘Scarcity, Market Power, and Price Caps in Wholesale Electric Power Markets’ (2000) 13 (9) The Electricity Journal 33, 35.

Wilson (n 65) 42.

For a critical analysis of an obligation to offer available capacities (Andienungspflicht) on the EEX power exchange from the perspective of property rights, see Nicole Angenendt and others, ‘Effizienz und Stabilität des Stromgroßhandelsmarktes in Deutschland – Analyse und wirtschaftspolitische Implikationen’ Wissenschaftliches Institut für Infrastruktur und Kommunikationsdienste (WIK), Diskussionsbeitrag Nr 317, Dezember 2008, 1–14 <www.econbiz.de/archiv1/2010/126980_effizienz_stabilitaet_stromgrosshandelsmarkt.pdf> accessed 1 December 2015.

von Wrede (Chap. 4 n 39) 165.

Arts 13, 16 para 4(b) REMIT.

Arts 13 para 1 sentence 2, 18 sentence 3 REMIT.

Recital 31, Art 18 sentence 2 REMIT.

The Commission should consider harmonising minimum standards for the penalties systems of Member States. See Recital 31 REMIT. With regard to provisions introduced by individual Member States which set out specific remedies for the enforcement of the REMIT see, for instance, Energiewirtschaftsgesetz vom 7. Juli 2005 (BGBl. I S. 1970, 3621), das zuletzt durch Artikel 6 des Gesetzes vom 21. Juli 2014 (BGBl. I S. 1066) geändert worden ist (German Energy Industry Act) Sections 65, 95, 95a. For the UK see The Electricity and Gas (Market Integrity and Transparency) (Enforcement etc) Regulations 2013 and come into force on 29^th June 2013, Regulations 21–34.

Hannes Weigt, Anne Neumann and Christian von Hirschhausen, ‘Divestitures in the Electricity Sector: Conceptual Issues and Lessons from International Experiences’ (2009) 22 (3) The Electricity Journal 57, 66.

See, for instance, Commission Decision of 7 February 2001 in Case COMP/M.1853 – EDF/EnBW (see also the Commission Decision of 30 November 2011 amending Decision 2002/164/EC in Case COMP/M.1853 – EDF/EnBW as regards the EnBW Commitments, C(2011) 8775 final, which released EDF from the VPP Commitments); Commission Press Release IP/02/792, 31 May 2002, ‘Commission clears Irish Synergen venture between ESB and Statoil following strict commitments’; Conseil de la Concurrence (now Autorité de la concurrence, French Competition Authority), Decision n°07-MC-04, EDF/Direct Energie, 28 June 2007 (interim measures) and Conseil de la Concurrence, Decision n°07-D-43, EDF/Direct Energie, 10 December 2007 (commiments).

Lawrence M Ausubel and Peter Cramton, ‘Virtual Power Plant Auctions’ (2010) 18 Utilities Policy 201, 202.

See de Frutos and Fabra (Chap. 3 n 226); Silvester van Koten and Andreas Ortmann, ‘Structural versus Behavioral Remedies in the Deregulation of Electricity Markets: An Experimental Investigation Guided by Theory and Policy Concerns’ (2013) 64 European Economic Review 256.

In a case of economic withholding, the Italian Competition Authority accepted commitments from Enel to set a price cap on its capacity bids in the day-ahead auction from 1 January 2011 to the end of 2013. See Chap. 3 footnote 372. See also the ECN Brief 1/2011, ‘Italy: The Italian Competition Authority (ICA) Accepts Commitments and Closes Investigations into Sicilian Power Prices’ February 2011 <http://ec.europa.eu/competition/ecn/brief/01_2011/it_sicily.pdf> accessed 1 December 2015.

Yves Smeers, ‘How Well Can One Measure Market Power in Restructured Electricity Systems?’ in Jean-Michel Glachant and François Lévêque (eds), Electricity Reform in Europe – Towards a Single Energy Market (Elgar 2009) 253.

Leigh Hancher and Adrien de Hauteclocque, ‘Manufacturing the EU Energy Markets: The Current Dynamics of Regulatory Practice’ (2010) 11 Competition and Regulation in Network Industries 307, 323; Sadowska, ‘Energy Liberalization in an Antitrust Straitjacket: A Plant Too Far?’ (Chap. 2 n 5) 471.

Sadowska, ‘Energy Liberalization in an Antitrust Straitjacket: A Plant Too Far?’ (Chap. 2 n 5) 462.

On the issue of proportionality in commitments decisions see also Monopolkommission, ‘Strom und Gas 2009: Energiemärkte im Spannungsfeld von Politik und Wettbewerb’ (Chap. 2 n 49) para 499.

Commission v Alrosa (Chap. 2 n 155) paras 40–41.

Sadowska, ‘Energy Liberalization in an Antitrust Straitjacket: A Plant Too Far?’ (Chap. 2 n 5) 471; Adrien de Hauteclocque, ‘Legal Uncertainty and Competition Policy in European Deregulated Electricity Markets: the Case of Long-term Exclusive Supply Contracts’ (2009) 32 World Competition: Law and Economics Review 91, 111.

Philip Lowe and Frank Maier-Rigaud, ‘Quo Vadis Antitrust Remedies’ in Barry E Hawk (ed), International Antitrust Law & Policy: Fordham Competition Law 2007 (Annual proceedings of the Fordham Competition Law Institute, vol 34, Juris Publishing 2008) 607.

Hancher and Hauteclocque, ‘Manufacturing the EU Energy Markets: The Current Dynamics of Regulatory Practice’ (n 79) 327; Penelope Papandropoulos and Alessandro Tajana, ‘The Merger Remedies Study – In Divestiture We Trust?’ (2006) 27 European Competition Law Review 443, 445.

Ariel Ezrachi, ‘Behavioural Remedies in EC Merger Control – Scope and Limitations’ (2006) 29 World Competition: Law and Economics Review 459, 462.

For an analysis of fundamental principles that could limit the power to order structural remedies see Peter Willis and Paul Hughes, ‘Structural Remedies in Article 82 Energy Cases’ (2008) 4 Competition Law Review 147, 168ff.

James Bushnell, Erin T Mansur and Celeste Savaria, ‘Vertical Arrangements, Market Structure, and Competition: An Analysis of Restructured US Electricity Markets’ (2008) 98 (1) American Economic Review 237, 259.

Smeers (n 78) 253.

Sadowska, ‘Energy Liberalization in an Antitrust Straitjacket: A Plant Too Far?’ (Chap. 2 n 5) 471; Ulrich Scholz and Stephan Purps, ‘The Application of EC Competition Law in the Energy Sector’ (2010) 1 Journal of European Competition Law & Practice 37, 49ff.

Smeers (n 78) 208.

Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, para 8.

Smeers (n 78) 253.

Hancher and Hauteclocque, ‘Manufacturing the EU Energy Markets: The Current Dynamics of Regulatory Practice’ (n 79) 327.

See, for instance, Bundesverband der Energie- und Wasserwirtschaft (BDEW), ‘Proposals for a Fundamental Reform of the German Renewable Energy Sources Act’ Position Paper, 18 September 2013, 6 <www.bdew.de/internet.nsf/res/44E1E89F7EEF4D67C1257C13004551DF/$file/Positionspapier_Vorschl%C3%A4ge%20f%C3%BCr%20eine%20grundlegende%20Reform%20des%20EEG_final_180913_en.pdf> accessed 1 December 2015.

They may, however, stimulate investments in generation in the long-term, as part of a two-stage strategy where entry in retail will attract entry in production by independent power producers, or at least enable resellers to build a sufficiently stable customer base to subsequently integrate backward. See Hancher and Hauteclocque, ‘Manufacturing the EU Energy Markets: The Current Dynamics of Regulatory Practice’ (n 79) 327.

Ibid 328.

Ibid 322.

Recital 29 and Art 16 para 1 sentence 4 and para 3(d) REMIT.

Titel: Regulatory Enforcement
verfasst von: Panagiotis Tsangaris
Verlag: Springer Berlin Heidelberg
Buch: Capacity Withdrawals in the Electricity Wholesale Market
Print ISBN: 978-3-662-55512-5

Electronic ISBN: 978-3-662-55513-2

Copyright-Jahr: 2017
DOI: https://doi.org/10.1007/978-3-662-55513-2_5

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