Reconsidering the Regulation of Merchant Transmission Investment in the Light of the Third Energy Package: The Role of Dominant Generators

Following the grant of exemptions from the EC rules on third party access to the interconnectors
BritNed, Estlink and East West Cables, the regulation of merchant transmission investment has
become an important issue in the electricity sector. The creation of a new Agency for the Cooperation
of Energy Regulators (ACER), which will enjoy decision powers on this issue, is therefore a unique
occasion to question and maybe re-design the current strategy. This paper shows that the recent
decisions evidence a strong bias against dominant generators and that incumbent or new entrant TSOs
are generally favoured by European regulators and the European Commission. It argues that this
strategy is misguided as it fails to recognize both the conflict of interest between the regulated and
non-regulated activities of incumbent TSOs and the new incentives of generators. The opportunity to
let dominant generators undertake merchant investment is then investigated and we find that it is
generally welfare-improving as long as potential abuses of dominance can be mitigated. To deter
possible anti-competitive effects, the paper proposes a new and feasible allocation of regulatory
powers based on a clear demarcation between the monitoring of transparency requirements by ACER
and antitrust enforcement by the European Commission.