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Energy Market Mergers – quick guide to EU Competition Law assessment

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This blog is a summary of an article that appeared in Competition Law Insight examining the key competition law principles in energy market mergers. The article can be found at: https://www.competitionlawinsight.com/competition-issues/energy-market-mergers–1.htm?origin=internalSearch.

Since the mid-1990s, the European Commission has pursued a policy of energy market liberalization. At first, the Commission did so as legislator with the adoption of three successive liberalization directives. Since the beginning of the century, the Commission has supplemented its role as policy-maker by making full use of its competition policy enforcement powers. This has particularly manifested itself in its assessment of gas and electricity mergers under the EU Merger Regulation. The Commission’s push towards increasingly competitive energy markets by way of this two-track approach was approved by the Court of Justice of the European Union in a 2010 judgment.

In its assessment of energy mergers, the Commission must first define the relevant product and geographical markets. Because energy mergers usually comprise both gas and electricity markets, this determination must be made for both markets separately. In terms of the relevant product market, the Commission distinguishes between upstream and downstream markets for electricity. The upstream electricity market comprises a single wholesale electricity market, which interestingly includes the financial trading of electricity, as well as the market for ancillary services and balancing power. In making these distinctions, the Commission bases itself mostly on the criteria of substitutability, including price elasticity.

At the downstream level of the electricity market, the Commission has identified three levels of supply, i.e. supply through the transmission network, and two types of supply through the distribution network, one to small industrial and commercial users and the other to eligible household customers. The Commission’s assessment practice has demonstrated a steady preference for market share calculation on the basis of supplied volume, despite the fact that publicly available data released by regulators is mostly provided on the basis of physical connection points. To date, it firmly refuses to differentiate between sources of electricity such as wind, solar or nuclear. In future, this practice could come under increasing pressure for change given the increased impact of these power sources on consumer preferences.

In defining the relevant product market for natural gas, the Commission has categorized five different supply markets—supply to dealers from the supply to electricity producers, supply to large industrial and commercial users, supply to small industrial and commercial users and supply to eligible household customers. Finally, markets having a physical trading hub, such as a dedicated LNG sea port terminal, also constitute a separate gas market segment. Despite this seemingly uniform approach in defining market segments, there exists a high degree of variation in the thresholds at which they have been categorized. For example, in France, the threshold between the categories for small and large industrial and commercial users was set at 5 Gigawatt hours, whereas the threshold between the same gas market segments was set at 12 Gigawatt hours for Belgium. The Commission breaks down gas market segments further between high-calorific and low-calorific gas (H- and L-gas) because of their non-substitutability. However, there have been recent cases where parties have not even disclosed such data because they were of the view that the market shares would not differ significantly, or would involve a minimum increment.

At the geographic market level, energy market definition is subject to a case-by-case approach, with some markets being national and others sub-national or regional. These ad hoc determinations are made mostly by looking at customer switch rates, local marketing strategies and pricing policies.

Finally, our article identifies five market factors that can be regarded as the most significant obstacles to further market liberalization. In particular, we have pointed to high concentration levels on energy markets, high levels of vertical integration, the remaining government regulatory influences on pricing as well as public ownership, differences in prices and the “incumbency effect”, referring to the structurally lower rate of customer switching, to the benefit of legacy suppliers.

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