Article from: OGEL 1 (2010), in Editorial
This Special OGEL issue on "Antitrust in the energy sector" is devoted to the challenges arising from the implementation of the antitrust laws across various energy sectors. While this Special spans a range of countries, its primary focus is on the European Union ("EU") and the United States ("US"). This is natural considering the strong antitrust law traditions on both sides of the Atlantic, as well as the current leading position of the EU and the US authorities within the global competition community.
To start with the EU, the energy sector - deemed to represent a value of total retail sales superior to € 500 billion per year - has occupied a prominent position on the antitrust agenda. Accordingly, gas and electricity are clearly areas where antitrust enforcement has been the most pervasive in recent years. In addition to the very significant sector inquiry 2005 - 2007 and the cases that are now resulting from that inquiry, the remedies (e.g. divestiture of significant network assets in the E.ON and RWE cases, Gas release commitments in the Distrigaz case, virtual power plants, etc.) that have been ordered by the European Commission ("the Commission") in the energy sector have sparked a lot of controversy. Even so, the clear trend in the competition law enforcement has been towards an increasingly forceful application of EU competition rules. The papers published in this Special offer fresh, critical, thoughts on those issues, and cover topics such as long-term exclusivity contracts, third party access and security of supply issues to exchanges of information, commitments and settlements in the energy industry. Also the interplay between competition law and sector regulation is addressed in several articles. Finally, a number of papers shed light on the very significant case law of national agencies and courts in the energy sector.
Whilst the EU seems to lean towards increased antitrust intervention in energy markets, including access issues, downstream markets, LNG imports, etc. other jurisdictions, such as the US, have apparently endorsed less intrusive approaches (as a result, amongst others, of US Supreme Court decisions such as Trinko). This being said, in recent years, the US antitrust agencies have taken enforcement initiatives which are of direct relevance for both the energy industry and even the OPEC as an institution. Issues addressed in this Special include a discussion of whether the scope of the US antitrust rules should be extended to the whole industry and OPEC in particular. It offers inter alia thoughts on the risks arising from private litigation in the US; on the Federal Trade Commission's investigations into petroleum pricing; on the added value of rules prohibiting market manipulation, etc.
Finally, two papers shed light on how other jurisdictions carry out antitrust enforcement activities in the energy sector, thus providing a very insightful comparative hue to this Special. Those papers focus in particular on Canada's merger enforcement policy in the energy sector and on the sector specific regulatory framework in Japan.
Put simply, this OGEL Special issue demonstrates that antitrust matters. The antitrust rules encompass a myriad of energy players' business practices, ranging from structural M&A transactions and joint ventures, to exchange of information and promotional activities, at all levels of the supply chain. Importantly, and perhaps with the exception of the US, in most jurisdictions the existence of a sector-specific regulatory framework often provides no shield against antitrust law exposure. Hence, energy firms should be aware that the enforcement of the antitrust laws may trigger hefty fines, very significant structural remedies, endless and burdensome follow-on private enforcement actions, etc. In addition, antitrust proceedings disrupt firms' daily business operations, convey negative reputational effects and inspire distrust in capital markets. Whilst there are significant differences in the various national approaches explored in this Special, a common, underlying, belief is that free competition drives energy prices down and delivers consumer welfare. In the aftermath of an unprecedented economic recession and still far from the emergence of alternative, affordable, eco-friendly energy technologies, prospects of vigorous, proactive, antitrust enforcement in the energy sector are strong.