logo-eui RSCAS
FSR

Energy Union Law


Energy Union Law

Topic of the Month

12.07.2019

The traditional separation of regulatory powers

FSR Topic of the Month Competing Architectures for Regulatory and Competition Law Governance by Peter Alexiadis and Caio Mario da Silva Pereira Neto In this […] read more

Energy Union Law

Cover picture of FSR new publication on Energy Competition Law

Publications

3.07.2019

FSR new research report on Energy Competition Law is available in open access

We are delighted to announce the publication of a new FSR research report, ‘Competing Architectures for Regulatory and Competition Law Governance’, from Peter Alexiadis, a […] read more

Energy Union Law

REMIT

Opinion

21.06.2019

REMIT: Update from the Florence School of Regulation

Written by Ella Adler from Baker Botts, a participant in our recent training on REMIT. Introduction On 12 April 2019, the Florence School of Regulation […] read more

Energy Union Law

Leigh Hancher

Opinion

14.06.2019

Exploring the limits of EU’s unbelievable behaviour on Nord Stream 2

by Kim Talus and Leigh Hancher In a letter dated 12 April 2019, Nord Stream 2 AG, a Swiss company owned by Russian Gazprom, informed […] read more

Energy Union Law

norway northern-lights

News

13.06.2019

Today! A Revision of Hydropower Concessions

Today at 14.30 in Florence, Professor Henrik Bjornebye from the University of Oslo and a visiting fellow of the Energy Union Law Area of the Florence […] read more

Energy Union Law

Annual Training on the Regulation of Energy Utilities

Podcast

29.03.2019

Regulating Transparency: The Concept of Confidential Information

The implications of EU Case C-15/16 Bundesanstalt für Finanzdienstleistungsaufsicht V Ewald Baumeister  In this podcast, Sohra Askaryar from Baker Botts (Brussels) addresses the recent case […] read more

Energy Union Law

great britain

Online Debate

13.03.2019

The GB Capacity Market Standstill: What is Happening and Why?

Investigating the Impact of the Tempus State Aid Judgment On 15 November 2018, the General Court of the European Union issued a judgment on Case […] read more

Energy Union Law

pipeline

Webinar

6.03.2019

EU Common Rules for Gas Import Pipelines – the Amendment to the Gas Directive

In case you missed our webinar with Professor Kim Talus, organised by the Energy Union Law Area, you can catch up by following the lecture […] read more

Energy Union Law

News

26.02.2019

New Paper Published! Amending the 2009 Gas Directive

Professor Leigh Hancher, director of the Energy Union Law Area has just published a new paper on the European Commission’s proposal to amend the 2009 […] read more

Page 1 of 9123456789

The traditional separation of regulatory powers

- Energy Union Law

FSR Topic of the Month

Competing Architectures for Regulatory and Competition Law Governance

by Peter Alexiadis and Caio Mario da Silva Pereira Neto

In this Topic of the Month, we will turn to the notion of energy governance, both within and beyond the EU, and consider how regulation and competition law function as competing governing tools. The two authors for this month will be Peter Alexiadis, a partner at Gibson Dunn & Crutcher LLP and part-time professor at King’s College London, and Caio Mario da Silva Pereira Neto, a professor at FGV Law School São Paolo, Brazil and partner at Pereira Neto – Macedo. Each week, they will take a look at a different angle of this topic and weigh the effectiveness of these two governing methods.

The first post will focus on the division of regulatory powers, the second will turn to the future of regulation, the third will consider the notion of a ‘super-regulator’, and, finally, focus on the importance of the independence of regulators.

The traditional separation of regulatory powers

The overwhelming number of OECD countries (including those of the EU) have institutional architectures which establish: (1) more than one specialist ex-ante regulatory agency; and (2) an ex-post competition enforcement agency that is distinct from those regulatory agencies.

Among the specialist, sector-specific regulatory agencies, the institutional pattern that is most often relied upon is that of:

  1. a sectoral regulator or National Regulatory Authority (“NRA”) covering electronic communications (or telecommunications) matters, whose mandate often extends to postal services and, on occasion, to issues relating to broadcasting or “content” from various media sources more generally (although this latter type of authority is much more controversial, given the cultural dimension to any such form of regulatory intervention); and
  2. a sectoral regulator covering energy issues (electricity and gas) which, on occasion, includes jurisdiction over other basic commodities or classic ‘utilities’ such as water and sewage.

The principal rationale for drawing the distinction between these two main groups of sector-specific regulators is the fact that the telecommunications and postal sectors are characterised by the existence of a monopoly or bottleneck network element at the local customer service point (e.g., the so-called local loop), while there are real possibilities for competition at ‘core network’ level (especially in the case of telecommunications). By contrast, it is widely acknowledged that the electricity and gas (as well as water) sectors are all characterised by the existence of physically unavoidable central networks (often along with local distribution networks).

There are, of course, other sector-specific regulators which deal with industries as diverse as transportation (civil aviation, railways, ports and roads), banking, insurance, payment systems, etc., which have their own idiosyncratic characteristics, which are driven by many other public policy considerations. For example, the commercial impact of new technologies has led to policymakers being put under pressure to expand the scope of traditional telecommunications sector regulation into areas that are more associated with specific types of content.

In addition, there is a range of institutional options to achieve the formal allocation of powers between sector-specific regulators and competition authorities. A clear differentiating factor between sector-specific regulation and competition law – at least in theory – is the widespread belief that the former can pursue a range of public policy goals that are able to shape an industry, whereas competition rules are there to apply rational economic theory across all commercial sectors with a view to maximising consumer welfare. The debates within the competition law family turn largely on whether the optimization of consumer welfare is to be appraised in the short term or in the longer term, whether overwhelming emphasis is to be placed on price considerations, whether a broader total welfare evaluation is the preferred alternative standard to be applied, and whether the maintenance of competitive structures is more important than the protection of individual competitors.

 

Note:

For a more in-depth study on this topic, you can read Peter and Caio’s recent FSR Research Report on the issue, available here.

Join FSR Energy & Climate Community

Subscribe to our Newsletter

JOIN OUR MAILING LIST

Subscribe

* indicates required
What topics are you interested in?

Florence School of Regulation will use the information you provide on this form to be in touch with you and to provide updates about our upcoming online and residential events, publications and other activities.All you need to do to receive insightful updates from us is to click the button below:

You can change your mind at any time by clicking the unsubscribe link in the footer of any email you receive from us, or by contacting us at daniela.bernardo@eui.eu. Personal data will be processed in accordance with the EUI’s Data Protection Policy (President’s Decision No. 40 of 27 August 2013 regarding Data Protection at the EUI) as well as under the specific modalities outlined in the Privacy statement for events organised at the Robert Schuman Centre for Advanced Studies. We will treat your information with respect. For more information about our privacy practices please visit our website. By clicking below, you agree that we may process your information in accordance with these terms.

We use Mailchimp as our marketing platform. By clicking below to subscribe, you acknowledge that your information will be transferred to Mailchimp for processing. Learn more about Mailchimp's privacy practices here.