Competition on the Merits in Liberalised Electricity Markets: a Regulatory Reading of AG Rantos’ Opinion in Servizio Elettrico Nazionale

Utilities Law Review, Vol 23, Issue 5 (2022)

12 Pages Posted: 17 Jun 2022

See all articles by Ignacio Herrera Anchustegui

Ignacio Herrera Anchustegui

University of Bergen, Faculty of Law

Leigh Hancher

Tilburg Law and Economics Center (TILEC)

Date Written: May 16, 2022

Abstract

The Opinion of Advocate General (‘AG’) Rantos in Servizio Elettrico Nazionale goes to the core of Article 102 TFEU. What is an abuse? What type of conduct is abusive? When does abusive conduct take place? What are the goals pursued by the prohibition of abuse of dominance, and who should be held liable within a corporate group? The Opinion sheds light on non-price related competition issues that can arise in partially liberalised markets where some market segments are open to competition, and other segments of the market are still heavily regulated. The electricity and gas markets are a case in point. The Opinion highlights the importance of the use of data in the market liberalisation process. Data is a competitive tool, and access to formerly ‘captive customers’ in liberated markets is critical to enable competition. Similar concerns regarding data sharing and data flows between different companies and within vertically integrated undertakings also arise in other sectors, such as telecommunications. AG Rantos’ Opinion confirms the importance of data in a liberalisation process (para. 76) and associated competition risks related to it.As a takeaway, this Opinion provides crucial guidance for network sectors on when data use can amount to anti-competitive leveraging, an area in which some previous national cases exist.

In this analysis, we focus on the relevance of the Opinion to highly regulated and liberalised markets. Servizio Elettrico provides an opportunity to reflect on the competitive risks associated with network industries. First, we summarise the main parts of the Opinion. We then discuss the implications of the Opinion for regulated industries, with a particular focus on the importance of data as a competitive tool.

Keywords: Competition, electricity, data, abuse of dominance, former monopoly, regulation

JEL Classification: K11, K21, K23, L12, L13, L4, L43

Suggested Citation

Herrera Anchustegui, Ignacio and Hancher, Leigh, Competition on the Merits in Liberalised Electricity Markets: a Regulatory Reading of AG Rantos’ Opinion in Servizio Elettrico Nazionale (May 16, 2022). Utilities Law Review, Vol 23, Issue 5 (2022), Available at SSRN: https://ssrn.com/abstract=4129345

Ignacio Herrera Anchustegui (Contact Author)

University of Bergen, Faculty of Law ( email )

Norway

Leigh Hancher

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

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