Energy & Dominance

Foreword Unilateral conduct in the energy sector: An overview of EU and national case law

This foreword provides an overview of the practice of the European Commission (EC) and European national competition authorities (NCAs) as regards the application of competition rules to unilateral conduct in the energy sector. It is based mainly on cases reported in e-Competitions. The reference period for this latest update is October 2021 to October 2022. We look at the way that the EC, NCAs and national courts have been applying Article 102 of the Treaty on the Functioning of the European Union (TFEU), or its national equivalents since Regulation 1/2003. It will be seen that the competition rules have been used extensively across Europe in support of liberalisation and promotion of cross-border trade in energy.

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WilmerHale (Brussels)
Belgium 3 contributions 1530 visits

Dominance

 The EU General Court annuls the Commission Decision which fined a State-owned energy holding company for abusing its dominant position by refusing access to strategic gas infrastructures in Bulgaria (Bulgarian Energy Holding)
General Court of the European Union (Luxembourg)
Luxembourg 64 contributions 32570 visits
The General Court annuls the Commission Decision according to which the BEH Group abused its dominant position by refusing access to strategic gas infrastructures in Bulgaria* At the time of the facts, Bulgarian Energy Holding (BEH), a company wholly owned by the Bulgarian State, had several (...)

The Polish Competition Authority concludes an investigation over an alleged abuse of dominance in the fuel market (PKN Orlen)
Polish Competition Authority (Warsaw)
Poland 120 contributions 22632 visits
Fuel market - conclusions of the investigation procedure* The investigation procedure regarding the fuel market has been completed. The prices charged by PKN Orlen at the end of 2022 were without prejudice to competition law. The case was consulted with the European Commission. UOKiK’s (...)

The Bulgarian Competition Authority issues a fine on a leading petrochemical distributor for abuse of dominance in the market for the wholesale trade of motor fuels (Lukoil-Bulgaria)
Bulgarian Commission for the Protection of Competition (Sofia)
Bulgaria 20 contributions 2966 visits
CPC sanctions "Lukoil-Bulgaria" EOOD 67 771 454 BGN for abuse of a dominant position* By Decision № 184/16.02.2023, ruled on case № KZK-864/274/2021, CPC imposed a pecuniary sanction in the amount of BGN 67,771,454 on "Lukoil-Bulgaria" EOOD for infringement of Art. 21 of the Law on the (...)

The Bulgarian Competition Authority publishes a Statement of Objections regarding an abusive margin squeeze by a vertically-integrated national company active in the fossil fuels industry (Lukoil-Bulgaria)
Bulgarian Commission for the Protection of Competition (Sofia)
Bulgaria 20 contributions 2966 visits
CPC has addressed allegations for committed abuse of dominant position under art. 21 of the LPC and art. 102 of the TFEU by "Lukoil Bulgaria" EOOD* Given the socio-economic importance of fuels, due to their direct impact on the entire Bulgarian economy and on the prices of goods and services (...)

The Spanish Competition Authority imposes a €4.9M fine on an energy grid and utility company for providing access to the grid on more favourable terms to its own downstream business than it does to rivals (Enel)
Van Bael & Bellis (Brussels)
Belgium 61 contributions 15267 visits
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Legance - Studio Legale (Milan)
Italy 5 contributions 1954 visits
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Van Bael & Bellis (Brussels)
Belgium 31 contributions 5895 visits
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On 10 June 2022, the Spanish Competition Authority (“SCA”) found that Enel Green Power SL (“Enel”), and its parent company Endesa Generación SA (“Endesa”) infringed the Spanish national provision prohibiting abuses of dominant position by taking advantage of its dominant position in the market (...)

Unilateral conduct in the energy sector: An overview of EU and national case law
Henderson Chambers (London)
United Kingdom 8 contributions 8636 visits
This foreword provides an overview of the practice of the European Commission (EC) and European national competition authorities (NCAs) as regards the application of competition rules to unilateral conduct in the energy sector. It is based mainly on cases reported in e-Competitions. The (...)

The EU General Court rejects an appeal to overturn a Commission decision which made the commitments of a gas company binding to address concerns on the wholesale supply of gas in Central and Eastern Europe (Gazprom)
General Court of the European Union (Luxembourg)
Luxembourg 64 contributions 32570 visits
The General Court dismisses the action brought against a decision by the Commission to make binding on Gazprom commitments proposed by the latter in order to address competition concerns raised by the former in relation to the national markets for the upstream wholesale supply of gas in the (...)

The Bulgarian Competition Authority files allegations of abuse of dominance against a national energy company for unilaterally replacing water meters of customers served by other heat accountants (Veolia Energy Varna)
Bulgarian Commission for the Protection of Competition (Sofia)
Bulgaria 20 contributions 2966 visits
The Commission for the Protection of Competition filed allegations of abuse of a dominant position of "Veolia Energy Varna" EAD, city of Varna* By Decision No. 1234/16.12.2021, issued under file No. KZK-370/2019, the KZK presented Veolia Energy Varna EAD with an allegation of a violation (...)

The EU Court of Justice AG Rantos delivers his opinion in a request for a preliminary ruling on the conduct of an energy and gas producer in the context of the liberalisation of the electricity market in Italy (Enel)
Norton Rose Fulbright (Brussels)
United Kingdom 26 contributions 23230 visits
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Covington & Burling (Brussels)
Belgium 4 contributions 1731 visits
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Freshfields Bruckhaus Deringer (Brussels)
Belgium 2 contributions 611 visits
On 9 December 2021, Advocate General (“AG”) Rantos delivered his Opinion in Servizio Elettrico Nazionale (Case C‑377/20), a request for a preliminary ruling from the Italian Consiglio di Stato. The case concerns the conduct of the ENEL Group (“ENEL”) in the context of the liberalisation of the (...)

The EU Court of Justice AG Rantos sets out the criteria for classifying an exclusionary practice as an abuse of a dominant position (Enel)
European Court of Justice (Luxembourg)
Luxembourg 331 contributions 110063 visits
Advocate General Rantos sets out the criteria for classifying an exclusionary practice as an abuse of a dominant position* An incumbent operator may adopt practices aimed at retaining its customers, even in the context of a liberalisation process, but must not resort to practices which, by (...)

The EU Court of Justice AG Rantos suggests to the Court criteria to qualify abusive exploitation for a dominant position involving exclusionary practices (Servizio Elettrico Nazionale)
ACTECON (Istanbul)
Turkey 13 contributions 1904 visits
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ACTECON (Istanbul)
Turkey 2 contributions 444 visits
Introduction: In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English. In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with (...)

The Mexican Competition Authority notifies an economic agent of a statement of probable responsibility for a possible relative monopolistic practice in the commercialisation, storage and transport of oil products
Mexican Competition Authority (Mexico City)
Mexico 139 contributions 27038 visits
COFECE notifies an economic agent of a statement of probable responsibility for a possible relative monopolistic practice in the commercialization, storage and transport of oil products* With this notification of a statement of probable responsibility, the trial-like procedure initiates, in (...)

The Russian Competition Authority issues a warning to a gas company to reduce retail gasoline prices in the Volgograd Region (Lukoil-Yugnefteprodukt)
Russian Federal Antimonopoly Service (Moscow)
France 327 contributions 57096 visites
FAS issued to the company Lukoil-Yugnefteprodukt a warning to reduce the retail gasoline price in the Volgograd Region* Being a dominant in the regional market, the company increased retail gasoline prices in the daytime at individual gas stations The Office of the Federal Antimonopoly (...)

The Russian Competition Authority issues a warning to a gas company on the need to reduce retail gasoline prices in the Republic of Kalmykia (Lukoil-Yugnefteprodukt)
Russian Federal Antimonopoly Service (Moscow)
France 327 contributions 57096 visites
FAS issued Lukoil-Yugnefteprodukt warning on the need to reduce retail gasoline prices* Being a dominant in the regional market, the company increased retail gasoline prices in the daytime at individual gas stations The Office of the Federal Antimonopoly Service in the Republic of Kalmykia (...)

The Romanian Competition Authority fines a natural gas transportation company €6.1M for abusing its dominant position (Delgaz Grid)
Romanian Competition Council (Bucharest)
Romania 160 contributions 29340 visits
The competition council has santioned Delgaz Grid sa with fine of euro 6.1 milion* The Competition Council has sanctioned Delgaz Grid SA, a member of E.ON group, with a fine of lei 30 million (approximately Euro 6.1 million) for abuse of dominant position on the market of services related to (...)

The EU Commission opens a formal investigation to assess whether a power exchange company abused its dominant position (EPEX Spot)
European Commission - DG COMP (Brussels)
Belgium 1362 contributions 2929776 visits
Antitrust: Commission opens investigation into possible anticompetitive behaviour by the power exchange EPEX Spot* The European Commission has opened a formal investigation to assess whether the power exchange EPEX Spot SE (‘EPEX Spot’) has been taking advantage of its dominant position to (...)

The EU Commission opens an investigation into an electricity wholesaler’s behaviour in the Greek energy market (PPC)
European Commission - DG COMP (Brussels)
Belgium 1362 contributions 2929776 visits
Antitrust: Commission opens investigation into PPC’s behaviour in the Greek wholesale electricity market* The European Commission has opened a formal antitrust investigation to assess possible abusive behaviour by Public Power Corporation (‘PPC’) in the wholesale Greek electricity sector. (...)

The Italian Competition Authority accepts a company’s commitments in an abuse of dominance probe in the market for natural gas distribution (Italgas)
Freshfields Bruckhaus Deringer (Rome)
Italy 1 contribution 387 visits
The Italian Competition Authority ("ICA") has recently closed with commitments an investigation against Italgas for an alleged abuse of dominance consisting of the refusal to supply essential information to the Venice municipality which was launching a tender concerning gas distribution (...)

The Italian Competition Authority ends an infringement proceeding by adopting a commitment decision following a natural gas distributor’s abusive conduct (Italgas)
Municipality of Cagliari
168 contributions 134234 visites
By a commitment decision made on 23 February 2021 the Italian Competition Authority (ICA) has closed an Article 102 TFEU investigation against a distributor of natural gas. This undertaking was found to have abused its dominant position by frustrating a competitive tender procedure organized (...)

The Italian Competition Authority closes its investigation into a national gas distributor for allegedly abusing its dominant position after committing to address competition concerns (Italgas)
Italian Competition Authority (Rome)
Italy 72 contributions 19202 visits
ICA: Italgas commitments accepted for the tender concerning the gas distribution service in some municipalities of the province of Venice* According to the Authority, the competitive concerns that had led to the opening of the investigation in May 2020 have been solved L’Autorità Garante (...)

The Czech Competition Authority fines a national natural gas transporter for abuse of a dominant position (NET4GAS)
Czech Competition Authority (Brno)
Czech Republic 49 contributions 6619 visits
The office imposed fine amounting to CZK 10,000,000 on NET4GAS for abuse of dominant position* The Office for the Protection of Competition imposed a fine amounting to CZK 10,000,000 on NET4GAS, s. r. o., for abuse of dominant position and prohibited alleged conduct for the future. The (...)

The Austrian Supreme Court confirms that long-term contracts for the import of Russian natural gas into Austria did not constitute an abuse of market power through discrimination
KPMG (Vienna)
1 contribution 219 visites
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Schoenherr (Vienna)
Australie 1 contribution 219 visites
On 25 January 2021, the Supreme Court issued a decision on long-term contracts for the import of Russian natural gas into Austria (16 Ok 3/20g). The contracts had been concluded in 2006 for the supply of unstructured natural gas. All of the contracts expired on 31 December 2027. At the time of (...)

The Luxembourg Administrative Tribunal rules for the first time on the Competition Authority’s competence in matters of ex post control of concentrations in the energy sector (Fédération des Artisans / Encevo / Enovos Luxembourg / Paul Wagner / Fils)
Bonn & Schmitt (Luxembourg)
Luxembourg 27 contributions 88418 visits
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2 contributions 1008 visits
I. Introduction On January 25, 2021 the Administrative Tribunal of the Grand Duchy of Luxembourg (hereinafter the “Administrative Tribunal”) rendered a judgment ruling for the first time on the competence of the Competition Council of the Grand Duchy of Luxembourg (hereinafter the (...)

The Saudi Arabian Competition Authority fines the national gas and industrialization company for abusing its dominant position in the market by imposing special conditions on sales and purchases (GASCO)
General Authority for Competition (Riyadh)
Arabie saoudite 19 contributions 1794 visites
General Authority for Competition Announces Penalties against GASCO* In accordance with the mandate and jurisdiction of the General Authority for Competition (GAC) to enforce the Competition Law, in fulfillment of its role in the protection and promotion of fair competition and combating of (...)

Unilateral conduct in the energy sector: An overview of EU and national case law
Henderson Chambers (London)
United Kingdom 8 contributions 8636 visits
This foreword provides an overview of the practice of the European Commission (“EC”) and European national competition authorities (“NCAs”) as regards the application of competition rules to unilateral conduct in the energy sector. It is based mainly on cases reported in e-Competitions (...)

The Estonian District Court orders a State-owned energy company to pay €7M in damages to a shale oil company for abuse of its dominant position by imposing excessive prices on shale oil supply (Enefit Mines / VKG Oil)
Cobalt Legal (Tallinn)
Estonie 11 contributions 276 visites
Estonian incumbent state-owned energy mining company Enefit Kaevandused AS (“Enefit Mines”) was ordered to pay to VKG Oil AS (“VKG”) for the abuse of dominant position by imposing excessive prices on oil shale supply. The final award was made by Tartu District Court on 21 May 2021, following (...)

The Spanish Competition Authority investigates a possible abuse of dominance in the country’s natural gas market
Spanish Competition Authority (CNMC) (Madrid)
Spain 143 contributions 31579 visits
The CNMC investigates possible anticompetitive practices in Spain’s natural gas market* It assesses an alleged abuse of dominant position in said market involving foreclosure. The CNMC investigates a potential antitrust violation in Spain’s natural gas market. On 30 September and 1 (...)

The Spanish Competition Authority investigates a potential abuse of a dominant position in the natural gas market
Ecija & Asociados (Madrid)
Espagne 20 contributions 2222 visites
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Bird & Bird (Madrid)
Spain 29 contributions 4787 visits
In Spain, as in many other countries, the gas sector is crucial given its strategic importance and its necessary use for many industrial and consumer applications. It is also one of the most complex sectors, with several players spread over different upstream and downstream markets such as (...)

The Hellenic Competition Authority examines a complaint lodged against three companies in the mineral sector for abuse of dominance (Mytilineos / Imerys Voxites / Imerys Greece)
Hellenic Competition Commission (Athens)
Greece 132 contributions 18392 visits
Press Release: Examination of the complaint of the company MYTILINEOS S. A.* Subject: Examination of the complaint of the company MYTILINEOS S. A. - GROUP OF COMPANIES against the companies IMERYS VOXITES SA and IMERYS GREECE SA for possible violation of articles 2 of law 3959/2011 and 102 (...)

The Italian Council of State refers to the EU Court of Justice questions concerning the interpretation and application of Art. 102 TFEU following an abuse of dominance in the electricity market (Enel)
Luiss Guido Carli University (Rome)
Italy 27 contributions 5602 visits
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Bird & Bird (Rome)
Italy 19 contributions 4190 visits
On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU. In the context of the dispute following the Italian Competition Authority’s decision to (...)

The Italian Competition Authority investigates whether a current gas distribution concessionaire abused its dominance by delaying bidding for the next concession (Italgas)
Italian Competition Authority (Rome)
Italy 72 contributions 19202 visits
ICA: investigation launched into Italgas to verify abusive practices in the tender for the gas distribution service in some municipalities in the province of Venice* The Authority has decided to launch an investigation to verify whether Italgas Reti Spa, the current operator under extension (...)

The Slovak Competition Authority opens an investigation into an alleged abuse of dominance in the energy, media production and distribution sectors
Norton Rose Fulbright (Brussels)
Belgium 2 contributions 250 visits
Slovak Antimonopoly Office maintains enforcement pressure during pandemic with dominance abuse probe in energy and media sectors* On April 21, 2020, the Antimonopoly Office of the Slovak Republic (the AMO) opened an investigation into an alleged abuse of a dominant position in the energy and (...)

The EU Commission adopts a decision imposing commitments on an undertaking to free up capacities at interconnection points to increase natural gas exports between countries (Transgaz)
Van Bael & Bellis (Brussels)
Belgique 191 contributions 66945 visites
On 6 March 2020, the European Commission adopted a decision imposing commitments on Transgaz to free up capacities at interconnection points in order to allow for increased natural gas exports from Romania to Hungary and Bulgaria. According to the Commission’s press release, Transgaz the (...)