The Liberalisation Of European Energy Markets: The Use Of Competition Law As A Regulatory Tool

V. Can Existing Long-term Supply Contracts Objectively Justify Preferential Network Reservations under Article 102 TFEU?

So far this chapter has shown how ex-ante regulation facilitates the effective and fair allocation of cross-border interconnectors and pipelines through regulatory rules, and how EU competition law should in theory have a complementary role in the solution of the problem of discriminatory capacity allocation. Yet, it has also shown how, in practice, the Commission has developed a more interventionist approach through antitrust settlements. Given this strategic approach by the Commission, the case law implies several important outcomes. It clearly shows that the aim of the Commission is to eliminate market deficiencies as well as the infringement of EU competition law through antitrust enforcement. It also shows that the Commission attempts not only to increase scarce capacity of cross-border transmission networks by identifying investments as objective justifications under Article 102 TFEU, but also to promote efficient use of them by imposing capacity release commitments on the undertakings concerned. Moreover, it is indicated that the Commission has not been tempted to take into consideration existing cross-border long-term supply contracts as a justification within investigations into related priority access rights. Therefore, a question that arises is, to what extent is it possible to claim an existing cross-border long-term supply