EN
TR
The Commission claimed in its decision that these commitments were necessary and…
In addition, according to the Commission, no behavioural remedies would have been…
The ENI decision demonstrates two important points related to commitment-based enforcement. First, the status of ENI as a state-owned undertaking raises the question of what role the Italian Government played in the commitment proceeding between the Commission and ENI. On the one hand, the decision indicates that the Commission could have used its public power through antitrust settlement vis-à-vis undertakings, and perhaps Member States, in order to achieve the creation of a fully unbundled market structure in the European energy markets. On the other hand, the settlement procedure illustrates that a political power of a Member State can be used against the Commission, with the consideration of the divestiture of the ownership of the TAG pipeline to another state-owned company. Although it was quite clear that this structural commitment could not precisely address the concern of the Commission, it was satisfied with the idea of selling the stake to a state-owned entity, namely CDP, because the latter was independent of and unconnected to ENI. Also, the CDP had its own financial resources, competencies and incentives to develop the divested business as a viable and reliable entity.(169)…
Second, similarly to the RWE decision, the set of structural commitments proposed by ENI seems to comply with the economic analyses and the findings of the Sector Inquiry on vertical de-integration (Chapter 3). However, despite the compliance of the proposed commitments with the economic assessment, the idea of using commitment-based enforcement to overcome certain regulatory failures in the Italian and German energy market could be rather harmful for the creation of a single and competitive energy market in Europe, since an environment with legal uncertainty or with the expectation of possible intervention by the Com-
