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Brussels, 10th January 2007
(see also IP/07/26)
The energy sector competition inquiry was launched in June 2005 (see IP/05/716
and is a competition investigation based on Article 17 of Regulation 1/2003. The
inquiry assesses the competition conditions on European gas and electricity
markets and examines whether current indications of market malfunctioning result
from breaches of competition law. The overall objective of the inquiry is to
address the barriers currently impeding the development of a fully functioning
open and competitive EU-wide energy market by 1st July 2007. A preliminary
report was published in February 2006 (see IP/06/174
in connection with a public hearing, and was followed by a two month
The Final Report confirms the preliminary findings from last February, which identified serious shortcomings in the electricity and gas markets. There is:
Furthermore, the continued work in the inquiry has shown that:
What was the outcome of the public consultation?
The majority of the stakeholders supported the findings of the Preliminary Report, although there were variations in the assessment of the gravity of the situation and whether the situation is improving or not. As regards the possible ways forward, there was both support and opposition to the ideas put forward in the Preliminary Report such as structural unbundling, while some called for even more radical remedies. Generally, the vertically integrated incumbent companies were not in favour of further measures, whilst consumers, traders/new entrants and authorities supported the call for legislative initiatives.
What will be the follow-up to the findings?
Already following the Preliminary Report, the Commission initiated a number of anti-trust cases where the Commission suspects that anti-competitive behaviour is contributing to the problems identified by the sector inquiry.
However, competition law cannot open markets by itself, and we need to complement our enforcement through an improved legal framework. Here, the Sector Inquiry plays an important role in the Commission's work on identifying necessary regulatory changes, in particular issues such as:
The Commission's intentions concerning regulatory proposals in this regard are set out in its Communication on "Prospects for the internal gas and electricity market", which was adopted in parallel to the Final Report of the Sector Inquiry.
How has the Sector Inquiry been useful in the Commission's competition enforcement work?
The findings of the Sector Inquiry enable the Commission to focus its enforcement action on the most serious concerns as identified in the report. They also make it easier to identify efficient remedies that can resolve the specific competition problems in individual cases.
The increased knowledge and understanding of the electricity and gas markets has already been used in order to better assess competition concerns in large energy mergers (e.g. GdF/Suez - see IP/06/1558, E.ON/MOL - see IP/05/1658). Moreover, a number of investigations into possible violations of the competition rules were launched in May 2006 (see MEMO/06/205 and MEMO/06/220). These cases relate mainly to suspicions of foreclosure of wholesale markets and infrastructure by companies that can be qualified as “incumbents”, as well as to collusion between those incumbents in the form of market sharing.
In December 2006, further inspections were carried out at more than 10 premises of the four incumbent electricity generators and suppliers in Germany (see MEMO/06/483). The suspected infringements relate to practices on the wholesale market and the balancing market (i.e. the market for ensuring balance between power generated and consumed). In addition, the Commission has received a number of very interesting complaints.
Large energy companies now appear to be very much aware that the spotlight is on them, and the sector inquiry has, hopefully, in itself led to a better conduct by the main players in the electricity and gas markets.
The European Council and the renewed Lisbon strategy put an efficient and integrated energy policy at the heart of the Commission’s priorities. The Commission’s 2006 Green Paper on energy underlines the need for a competitive energy market to promote competitiveness and security of supply. A High Level Group on competitiveness, energy and environment has been working on finding a balance between the EU's three essential policy objectives of sustainability, security of supply and competitiveness. All these initiatives, including the strategic EU energy review adopted in January 2007, is leading to a discussion on the concrete need for further liberalisation measures.
How is competition compatible with environmental goals?
Competitive energy markets will play a major role in developing and deploying new environmentally friendly technologies. Strong competition in the electricity market has a positive effect on the efficiency of power generation, because market players want to minimise costs and invest in efficient technologies. Renewable technologies would be better served by an increase in transparency, and by open, competitive markets. The larger the internal market, the more economies of scale can be realised.
How is competition compatible with security of supply goals?
Europe needs stable relationships with the main producers outside the EU. But this does not and must not prevent us from ensuring an integrated competitive market inside the EU. An open and competitive, liquid and interconnected, single EU market will guarantee a secure provision of energy in the future, as it will make the European market attractive for external suppliers. Such a market will also be open to new energy mixes.
How can we address the dependency on a few external gas suppliers?
An enhanced security of gas supply in the EU requires diversification of supply. This means exploring all possibilities to reduce dependency on fossil fuels by increased energy efficiency and investment into new alternative technologies. It also means a diversification of supply regions taking into account that gas will remain an important primary fuel for the years to come.
The best way to achieve this diversification is by establishing a competitive internal market. Competition prompts innovative solutions, as well as investment in new infrastructure and R&D leading to new technologies. As competition develops, the number of upstream producers supplying EU gas markets will continue to increase, both as regards Liquefied Natural Gas (LNG) supplies and pipelines linking Europe with new supply regions.
The Commission has commissioned a study, to identify whether the rise in prices is mainly due to the rise of fuel prices and to the impact of the EU Emissions Trading Scheme (ETS), or whether it is also due to substantial additional mark ups by market actors. It must also be noted that creating a competitive market will substantially contribute to reducing the scope for excessive profits.
How can the Commission tackle the problem of concentration?
Entry into the market and expansion of market share by competitors is the best way to tackle the problem of concentration. When applying the anti-trust rules, the Commission will therefore focus on cases that remove obstacles to market entry. Moreover, in the context of merger control, it is essential to ensure that market concentration does not further increase. While each merger case is assessed according to its specific characteristics, the inquiry helps to identify the most relevant criteria and the most efficient remedies in the given market environment. One option may be to secure increased use of gas and electricity release programmes in order to reduce the effect of concentration at the upstream supply level and inject liquidity into the market.
Single Market legislation alone does not create a common market. When it comes to market definitions it is always important to assess the markets on their own merits. The Commission takes a case by case approach to defining the geographic and product dimensions of the relevant market. The definition of the relevant market must take into account the different degrees of market developments in Member States, such as the level of openness to competition and the existence of an operator indispensable to meet demand. Other factors include the difference in prevailing price levels, the differences in market design and the availability of cross border capacity.
The report underlines the fact that a single competitive European energy market has not yet been achieved and that there is little cross border trade between the vertically integrated national incumbents. Although there is a significant amount of gas which is transported through Member States via pipelines, such gas rarely reaches the national gas markets through which it is transported, as it tends to be tied up in long term supply agreements.
Energy release programmes (i.e. electricity Virtual Power Plant auctions and gas release programmes) are a means to develop market liquidity and ensure that new suppliers can buy enough gas or electricity to build a supply business. They require incumbents to sell defined volumes of energy, and in order to be fully effective they must be well-designed, large scale and be combined with release of network capacity. They have sometimes been imposed by national authorities in the Member States and have also been imposed by the Commission in the context of merger control.
An even more effective measure to reduce concentration would be divestiture or swaps of electricity generation and ceding of control over long-term upstream gas contracts via contract release/swaps or divestiture of production assets. Some Member States have introduced ceilings on ownership of electricity generation and control over long-term upstream gas contracts (imports and national production), as an effective measure to rapidly reduce market power.
The Commission is not opposed to large companies per se, as long as there is effective competition in the marketplace. Competition is the best way to ensure diverse sources of energy throughout the EU. A competitive gas market would provide the best incentives to seek and achieve the most efficient outcomes. A competitive market would prevent external providers of gas dominating particular regions within the EU. An EU-wide market would arbitrage prices downwards thus enabling companies to source gas from the most efficient sources. High levels of concentration, combined with barriers to entry, stifle competition and so can inhibit diversification of energy supply.
Don't we need large companies to invest in power plants?
It does not necessarily take very large companies to make investments in this sector. In fact, it is not the largest energy companies which have invested the most in new generation facilities in the past few years. For instance, for gas-fired plants, much of the capacity has been created by more mid-size companies such as the various generators in the UK and the competitors of the incumbent in Italy. And in the nuclear sector, the only construction currently under way is made by one of the smallest operators of nuclear plants, not by the larger operators.
A well-functioning electricity market would provide the necessary signals for market actors to invest. This has to be combined with a stable regulatory framework, and good opportunities to make profits. Currently the profit level may be too high due to the poorly functioning markets, but on the other hand, a few years ago the prices may have been too low to provide sufficient rates of return.
A number of investments in generation are currently planned, which indicates that the price signals work, even if new entrants still face too many obstacles to build new plants and obtain grid connection for them. It is important to ensure efficient authorisation procedures that do not cause unnecessary delays.
Structural unbundling is the effective separation of ownership between the monopoly electricity and gas networks on the one hand and commercial activities elsewhere in the value chain. The gas and electricity networks that transport electricity and gas between producers and customers may be considered in a number of cases to be natural monopolies and continue to be regulated. However, many networks are still owned and operated by companies that are also active in the liberalised parts of the sector.
Companies that also own and operate the networks that are needed by their competitors, have an incentive to distort the level playing field in their own favour. Similarly, investment incentives are distorted, creating risks to security of supply, with decisions not necessarily taken in the interest of network/infrastructure operations, but instead on the basis of the supply interests of the integrated company. The gas and electricity liberalisation Directives contain provisions which aim at ensuring that owners of networks do not abuse their networks to restrict competition on the liberalised parts of the industry. However, the Sector Inquiry shows that the present measures are insufficient. Ultimately, the most effective way to remove the incentives for network companies to favour their own commercial activities is to remove the ownership link. This would create a level playing field and it would change the incentive structure in the right direction.
What about other solutions short of structural unbundling?
Full separation between networks and supply/generation business (i.e. ownership unbundling) would be a more effective means of resolving the problems than any other options, such as a fully Independent System Operator (ISO).
An ISO solution would be an improvement on the status quo, and would reduce the risk of discrimination for the day-to-day running of the network business. However, there are several unresolved concerns. It would require more detailed, complex and prescriptive regulation to be effective and would be less effective in addressing the disincentives to invest in networks. In practice an awkward and complicated relationship between regulators, asset owners and ISOs arises, with a need for complex regulatory arrangements requiring detailed and continuous monitoring. Unlike ownership unbundling, the creation of an ISO does not change the incentives of the asset owner. The construction seeks to force the asset owner to act contrary to its incentives. Experience shows that this is no easy task.
Has inappropriate unbundling actually led to competition problems?
The Commission has received a number of allegations that vertically integrated incumbents have discriminated against new entrants, for example by ensuring that the supply arm gets privileged access to available firm capacities on transit routes, as well as to capacity information, resulting in important competitive advantages over independent third parties. The Commission is currently carrying out several investigations based on such allegations, and has found that current requirements for separation of network and supply businesses are not respected. Examples include frequent information exchange, as well as investment decisions on network expansion being taken by the holding company in which the supply affiliate is represented.
In a decision in May 2006, the Italian competition authority found ENI guilty of abusing its dominant position on the wholesale gas supply market in Italy by delaying investments that would increase the capacity in a pipeline owned by one of its subsidiaries (Trans Tunisian Pipeline Company). The increased capacity would have improved the ability for competitors to import gas to Italy. In another recent case, the Czech competition authority in August 2006 found RWE Transgas guilty of abusing its dominant position by favouring its own local distribution affiliates at the expense of other distribution companies not belonging to the RWE group.
Vertical integration between generation and supply reduces the necessity for companies to trade on wholesale electricity markets, thus potentially hindering the development of liquidity. Vertical integration might not pose a problem per se where there is an actively traded wholesale market giving market participants the convenience to manage their price and volume risks. Vertical integration should give rise to concern where the extent of this phenomenon has a clear foreclosing effect and threatens the operation of independent generation and supply businesses.
The Commission is fully aware of efficiencies which may stem from vertical integration. Vertical integration may, for instance, provide a hedge against wholesale market price volatility and allow economies of scope to be realised. The related savings will, in a truly competitive electricity market, be transmitted through lower prices to final customers.
However, vertical integration across the entire supply chain means that companies have little reason to trade on electricity wholesale markets. Liquidity on electricity wholesale markets is therefore likely to remain low when vertical integration is widespread. Low liquidity results in non-transparent price formation, creating distrust both among customers and potential competitors and provides unreliable price signals for investments and, thus, poses a risk to the security of electricity supply. Illiquid wholesale markets also raise significant barriers for new entry into both generation and retail market segments.
Are long-term downstream contracts anti-competitive?
Long term contracts tying large customers to dominant suppliers can create market foreclosure, and therefore have to be carefully examined. We must avoid that a good part of demand is tied up by long term contracts, since that will make it difficult to create well functioning energy markets. If we are not careful, our efforts to open up other parts of the supply chain could be jeopardised.
The Sector Inquiry has confirmed tying of markets by long-term downstream contracts as an immediate priority for review of individual situations under competition law. The German competition authority recently took a decision against long term gas supply contracts concluded by EON Ruhrgas for the German market.
Although many energy intensive industries favour long term supply contracts for electricity, others are less convinced of this as the best solution to high electricity prices, since a well-functioning electricity market will be able to provide cost reflective prices in the long run.
Are long-term gas supply contracts in upstream markets anti-competitive?
Long contract duration is not, in itself, anti-competitive. It is established Commission policy that long term import contracts have an important role to play when it comes to ensuring Europe’s security of supply. However, where a significant proportion of the gas that can come to the market is locked in for the long-term, the cumulative effect might be that new entrants are excluded from the market.
Individual terms and conditions contained in such contracts may also be anti-competitive: e.g. territorial restrictions are generally viewed negatively under Community competition rules. However, legitimate needs to underpin large investments with certain long-term contracts, must be taken into account.
Is access to gas storage working?
Although non-discriminatory access to storage is supposed to be ensured under the existing gas Directive, either by regulation or by negotiation, the Sector Inquiry indicates that access conditions are not yet satisfactory. In order to provide sufficient guarantees for effective access, third party access for gas storage needs to be reviewed so as to strike the right balance between the need for effective access and maintaining incentives for new storage developments.
The Sector Inquiry confirms that Europe needs a substantial strengthening of the powers of independent regulators and enhanced European coordination. Reinforced coordination between national energy regulators, with a stronger role for Community oversight, particularly as regards cross-border issues and areas most critical for market entry, will be necessary to overcome the current regulatory cross-border gap. In order to achieve a single European network from the perspective of the network user, there is also a need for harmonisation of market design, especially regarding methods having an effect on cross-border trade. Wherever current capacity is insufficient, interconnector capacity needs to be developed as a necessary condition for the development of competition and the integration of markets. This can only be achieved through increased cooperation between national regulators inducing increased cooperation among Transmission System Operators across national borders within a well-defined procedural framework.
Explicit auction: along with the requested capacity amount, the applicants have to declare how much they are willing to pay for this capacity. These bids are ordered by price and allocated starting from the highest one until the available capacity is used up. Usually the price for the capacity is set to the bid price of the lowest allocated bid.
Implicit auction: transmission capacity is managed implicitly by two or more neighbouring spot markets. Network users submit purchase or sale bids for energy in the geographical zone where they wish to generate or consume, and the market clearing procedure determines the most efficient amount and direction of physical power exchange between the zones. Hence, separate allocation of transmission capacity is not required, and cross border capacity and energy are traded together.
Since traders do not have perfect foresight, they have to bid in the explicit auction without knowing what the prices are on the spot markets in two connected markets. The Sector Inquiry indicates that implicit auctioning results in a better utilisation of interconnector capacity. Implicit day-ahead auctions or equivalent measures should therefore be promoted as much as possible to ensure that interconnectors are used to their maximum extent.
Should new investments in gas infrastructure be exempted from regulation?
Under the Second Gas Directive, new or upgraded infrastructure can be exempted from third-party access if strict competition criteria are met. This enables regulators to be flexible to investors’ needs to mitigate part of the risk through long-term contracts, so long as competition is not harmed. This approach reflects the fact that new investments bringing new gas sources to the market can enhance competition and benefit consumers, so long as long-term reservations do not cement incumbents’ market shares and discourage new entry.
It is important that projects continue to be scrutinised on a case by case basis with strict application of competition principles striking a proper balance between incentives for ex-ante investment and ex-post competition, and that the exemption procedures are streamlined.
There is general recognition that access to market information should be further enhanced. All relevant market information should be published on a rolling basis in a timely manner. Any exceptions should be very strictly limited to what is required to reduce the risk of collusion. Guidelines, as well as monitoring and eventually adaptation of existing regulation, should serve to further enhance transparency in the gas and electricity sector.
Does transparency not endanger business secrets or facilitate collusion?
While such concerns have to be taken very seriously, we consider that in the current situation, the need for transparency outweighs the fear of collusion. A balance must certainly be found as to what data is published and how it is published, in order to improve transparency without endangering business secrets or facilitating collusion. Transparency is needed to enable market players to take sound commercial decisions. Reliable and publicly available information creates a level playing field and plays an important role in building confidence in the market.
The price of gas varies considerably across the EU for many reasons. In some Member States the cost of importing gas is higher than elsewhere, reflecting the gas prices negotiated in the past between importers and gas producers. The cost of transporting gas to the Member States can also differ significantly. If there is a shortage of gas or import capacity is congested, prices can of course rise dramatically. Finally, the degree of competition on a market will affect the pricing strategies of the gas suppliers in the Member State.
Also prices of electricity vary considerably across the EU, but there are many valid reasons for these price differences. For electricity, the generation mix (coal, gas, hydro, nuclear, etc) available in each country and the cost of each input will determine the overall price level. The lack of interconnector capacity also explains why the price differences remain.
For a more detailed comparison of wholesale and retail prices in all Member States, please consult Eurostat, the Statistical Office of the European Communities.
The inquiry seeks to identify market malfunctioning and possible anti-competitive conduct by companies. By remedying such problems, an integrated and efficient European energy market can be achieved. The reinforcement of competition principles on the market will also lead to competitive prices. This solves problems at the root, in order to ensure long-term advantages for the consumers. The setting of prices on supply markets can have very negative consequences for the market structure. If the regulated tariff is too low, new entrants are excluded from the market. Moreover, when prices are artificially low, market players will not invest in new capacity, which is detrimental to security of supply. It would, therefore, be important to assess the impact of remaining regulated supply tariffs on the development of competition.
In several Member States, special measures to reduce electricity bills for energy intensive industries have also been considered. Such schemes must be compatible with antitrust and state aid rules.
Why are the electricity prices so high?
There are a number of reasons why the prices have climbed over the past few years. Some of the reasons can be considered as acceptable, while some are not. One of the reasons that has to be accepted is the increase of fuel prices, in particular oil and gas, although the indexing of gas to oil prices can be questioned.
Another acceptable reason is that many Member States now include various forms of levies on electricity to finance the development of renewable energy. Such price increases, which are generally relatively low compared to the overall prices, have to be accepted as part of the costs of reducing the climate change problem. The EU Emissions Trading Scheme (ETS), which is a crucial element in the EU climate change strategy, has also had an impact on prices.
On the contrary, anti-competitive behaviour would not be an acceptable reason for higher electricity prices.
How do CO2 allowances affect electricity prices?
It seems that generators are, at least to some extent, including the value of CO2 allowances into their pricing decisions. This practice was also confirmed by the sector inquiry, but the extent to which this happens is unclear and the inquiry has not analysed individual company conduct. The Bundeskartellamt has opened an investigation against German generators on this aspect.
As regards the market price of allowances, it must be noted that CO2 pricing is a function of supply and demand and that the Commission does not intervene to adjust the prices. The Commission has recently reviewed the emissions trading scheme. In its report, the Commission analyses how the ETS has worked to date. It identifies the need for a review process with a view to improving some features of the ETS for the trading period starting in 2013. Prices of allowances for the current trading period (2005-2007) have fallen, reflecting the rather generous CO2 allocations by the Member States. For the next trading period (2008-2012) CO2 forward prices are higher, reflecting expected more stringent national allocations of CO2.
While some gas supply contracts have fixed prices many others are historically linked to oil prices. This oil/gas price link may have been beneficial for consumers during the many years of low and stable oil prices, but is now posing a problem for consumers. This link could also be a symptom of malfunctioning markets. In well-functioning markets the price would to a much greater extent be set by gas-to-gas competition.
Is the gas-oil price link compatible with a competitive market?
Gas import contracts use price indices that are linked to oil derivatives. The indexation of gas prices to oil prices in gas supply contracts has historical roots from the pre-liberalisation period. However, with market opening and the emergence of credible gas hubs, one would expect such contractual practices to gradually become less pronounced. This expectation is supported by the situation in the United Kingdom, a more liberalised energy market where gas-oil link indexation is much less prevalent.
No clear trend towards more market based pricing mechanisms can currently be observed in long-term import contracts. As a result, wholesale prices fail to react to changes in the supply and demand for gas, which is damaging to security of supply. Ensuring liquidity will be crucial to improve confidence in price formation on gas hubs, which will allow for a relaxation of the linkage to oil.
A market which is foreclosed (i.e. from which new market entrants are excluded) is not subject to effective competition. If a new entrant cannot start up their business in a certain market, the incumbents are not subject to competitive pressure that encourages them to provide customers with good services at low prices.
Are long term contracts alone enough to foreclose the market?
The Commission will look at contract duration in addition to other contractual clauses and market conditions which may lead to market foreclosure. It is necessary to examine whether there are real concrete possibilities for a new competitor to penetrate a bundle of contracts. Factors that would be considered include the volumes tied under the individual contracts, the duration of the contracts, the cumulative market coverage of the contracts and any efficiencies claimed by the parties. It is also necessary to consider any exclusivity clauses in the contracts which may prevent the customer from switching supplier. The cumulative effect of long term contracts, exclusivity clauses and market characteristics may make it very difficult for the customer to switch.
How can the problems highlighted on downstream markets be addressed?
The analysis indicates that levels of foreclosure vary considerably in different Member States. Generally, the Commission will look to impose remedies in merger and anti-trust cases that will assist in opening up downstream markets to competitors. Removing barriers to entry is a key goal in EU energy markets. Closely related to this is splitting the network companies away from the potentially competitive parts of the gas and electricity supply chain (such as retail, generation, gas production). This helps to ensure that new entrants gain non-discriminatory access to essential pipeline and grid networks.
When will we be able to switch our gas and electricity suppliers?
By 1st July 2007 all customers, including household customers, should have the ability to switch. However, some countries benefit from a derogation under the Second Gas Directive. This means that they are not obliged to implement the Directive in the same time frame and so customers may have to wait longer before they have the legal option to switch.
Why are balancing rules important to competition in energy markets?
Balancing rules are rules imposed by the network operator on network users, for a specific network or a portion of a network ("balancing zone"), which oblige the user to maintain a balance between input and output and to pay for any imbalance it causes. The cost of balancing increases with the complexity of the rules and with the number of balancing zones with different rules that the energy needs to cross. While complex balancing rules can constitute a barrier to new market entry, incumbents are generally less likely to have problems, because of their large portfolios and access to flexible supply sources.
What can be done to resolve problems on balancing markets?
The size of current balancing zones is too small. It would therefore be important to enlarge them, as well as to harmonise and simplify the rules in the different zones. Balancing by the network operator is less necessary when the suppliers can exchange energy when they are not balanced. Consequently, the development of hubs and removal of obstacles to a better fluidity of the market are also important.
Can LNG supplies lead to more competition?
LNG supplies widen Europe’s upstream supply base and are therefore important for both security of supply and competition between upstream suppliers. Strong investment in LNG terminals has taken place and is scheduled to continue in the coming years. Recent trends, also point to more capacity going to new entrants and to producers themselves. This is likely to have a positive impact on downstream competition unless such effects are frustrated by anticompetitive rules or behaviour.
Should LNG infrastructure be exempted from regulation?
In assessing an exemption request from third-party access for an LNG terminal from the point of view of competition, the Commission will apply the same principles as for other types of new infrastructure. In other words, we will seek to achieve a balance between ex ante incentives to invest and competition in the downstream markets once the investment has been made. Within this framework, some of the key facts to consider are the characteristics of the contracts allocating capacity on the new LNG terminal and, in particular, the counterparties concerned.
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