Third Party Access and Refusal to Deal: How Sector Regulation and Competition Law Meet Each Other

Abstract

In this paper, we will analyse further the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we will investigate how sector regulation in energy sector incorporates competition law principles and affirms in this way the hierarchical primacy of competition rules. Finally, we will observe how this hierarchical primacy is combined with the need for effectiveness and focus on other than competition objectives of sector regulation and we will result to a proposed framework that defines the relation between sector and competition rules in energy markets and the allocation of competence and powers between sector regulators and competition authorities.

Keywords: Antitrust Law, Essential Facilities, Essential Facilities Doctrine, Market Definition, Incentives to Invest, Innovation, Long-term Competition, Sector Rules, Energy Law, Internal Energy Market, Competition Law,Hierarchy of Rules, Refusal to Deal, EU Treaty Rules, Third Party Access, Forced Sharing

JEL Classification: K2, K20, K21, K23, L1, L4, L40, L41, L42, L43, L44, L49, L5, L50, L51, L9, L90, L94, L95, L96, L97