Refusal to Grant Third-Party Access by an Electricity Transmission System Operator - Overview of Competition Law Issues

摘要

This article investigates the competition law regime surrounding third-party access (TPA) to electricity transmission networks. From a legal point of view, TPA is a matter of sector-specific regulation as well as competition rules, for it is to a large extent part of the essential facilities doctrine. Against this background, the article outlines the applicable sector-specific regulation and attempts to define its relation to general EC competition law. First, it touches on the issue of the concurrent application of competition law and sector-specif ic regulation to TPA. It then attempts to identify situations in which a refusal to grant TPA both express and implied might constitute an abuse of a dominant position. In particular, it explores the possibility of applying margin-squeeze-type abuses to refusals to grant TPA by transmission systems operators as well as potential defences that transmission system operators may invoke in such cases. Finally, the article identifies certain drawbacks to the current legal framework and formulates some policy recommendations.