Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law. Kim Talus. t Wolters Kluwer.

Transcription

1 Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law Kim Talus t Wolters Kluwer Law & Business

2 Preface and Acknowledgements Foreword xi xiii Introduction Objective of This Study EU Energy Law: Differences in Natural Gas and Electricity Key Definitions Structure 7 Chapter 1 EU Natural Gas Markets and Long-Term Contracting: An Overview of Economic and Political Aspects Natural Gas Supply to EU: Contractual and Political Factors Long-Term Contracts in Natural Gas Markets Long-Term Take-or-Pay Contracts in Europe Current Market Imperfections Legal Relations with Key Natural Gas-Supplying Countries Russia Bilateral Cooperation The Energy Charter Treaty Algeria Norway Caspian Region Concluding Remarks 31

3 Chapter 2 Security of Supply in the European Union Introduction EU Energy Security Discussion in the New Millennium Energy Security in the Context of EU Energy Policy Objectives Competitiveness and Security of Supply Sustainability and Security of Supply Elements of Security of Supply Definitions of Security of Supply Security of Supply in the Case Law of the ECJ Threats to the EU Security of Supply External Security of Supply: Insecurity of Gas Sources Reserve Depletion Investment in Gas Fields Insufficient Diversification Internal Security of Supply: Sufficient Investment Concluding Remarks 69 Chapter 3 Key EU Gas Market Regulation Relating to Long-Term Contracting Introduction Relationship between General Competition Laws and Sector-Specific Energy Regulation The Relationship: Possible Approaches The Case Law Application of the Two Regimes Third-Party Access to Gas Pipelines: The General Regulatory Regime Regulatory Framework for TPA TPA in the Natural Gas Market Directives: From Negotiation to Regulation The Access Regulation Regulated Tariffs Principles of Capacity Allocation Mechanisms and Congestion Management Procedures Continuing Relevance of Article 32(1) Access Regimes and Merchant Infrastructure An Overview of the Conditions Unbundling Introduction Status Quo: From Account Unbundling to Legal Unbundling and Beyond Unbundling in the Third Legislative Package The Third Country Clause 118 VI

4 3.5. Long-Term Commodity Contracts and Sector-Specific Regulation Take-or-Pay Agreements Concluding Remarks 123 Chapter 4 The Application of EU Competition Law in Natural Gas Markets: Background and Developments Introduction An Introduction to the Law and Economics of Vertical Restraints Why Are Certain Vertical Restraints Prohibited While Others Are Permitted? Negative Effects of Vertical Agreements Positive Effects of Vertical Agreements The Application of EU Law to Vertical Agreements Article 102 TFEU: Some General Remarks Establishing Dominance Abuse of Dominant Position Defining EU Natural Gas Markets under EU Competition Law Relevant Product Markets Upstream Markets Downstream Markets Infrastructure Markets Sales The Relevant Geographical Market Previous Competition Law Enforcement in the Energy Sector Introduction The Early Case Law The Case Law of the New Millennium Long-Term Supply Contracts and Downstream Natural Gas Markets The Cases Long-Term Downstream Contracts: Volume, Duration and More Destination Clauses: First Crack at the Upstream Supply Contracts Commission Practice Gazprom/ENI GDF/ENI - GDF/ENEL Sonatrach Approach in Sonatrach v. Approach in GDF/ENI/ENEL Commission Practice: The Destination Clause Saga and the E.ON/Ruhrgas Case Ownership Unbundling through Competition Law Concluding Remarks 175 vn

5 Chapter 5 Compatibility of Vertical Natural Gas Transportation Capacity, Commodity Contracts and EU Competition Law Long-Term Upstream Natural Gas Commodity Contracts Introduction Long-Term Contracts: Views from the Market Players The Effect of Long-Term Contracts on EU Energy Markets The Alternative Solution The Evolving Nature of EU Energy Markets Long-Term Natural Gas Transportation Capacity and EU Competition Law Refusal to Deal: An Introduction The Essential Facility Doctrine: General Considerations Refusal to Deal: Access to Natural Gas Pipelines An Overview of the Case Law The Essential Facilities Doctrine and Access to Pipelines Construction under Special Rights and TPA- Friendly Interpretation of Article 102 TFEU Concluding Remarks on Article 102(b) TFEU and Essential Facilities Discrimination in the Context of Article 102 TFEU Case C-17/03, VEMW and Others The Facts of the Case Main Arguments Presented to ECJ The Advocate General's Opinion The ECJ's Judgment Interpretation of the Judgment Concluding Remarks on Article 102(c) TFEU Concluding Remarks 229 Chapter 6 Security of Supply as Objective Justification Introduction Article 101 TFEU and the Rule of Reason Doctrine Non-economic Gains in EU Competition Law: Articles 101(3) and '102(3)' TFEU The Security of Supply Argument under Article 101(3) TFEU Security of Supply as a Quantifiable Economic Benefit Security of Supply as a Non-economic or Non-quantifiable Benefit Non-economic Gains in EU Competition Law: Environmental Benefits as the Example 250 Vlll

6 Security of Supply: Non-economic Gains and the Problem of Counterfactual - The Case Law How Should Security of Supply Be Considered under Article 101(3) TFEU? What is the Right Policy Choice? Brief Remarks on Long-Term Capacity Contracts and the Security of Supply Argument under Article 101(3) TFEU Concluding Remarks 266 Conclusions 269 Bibliography 279 Index 311 IX