The Competition Law-ization of Enforcement: The Way Forward for Making the Energy Market Work?

The paper develops the concept of competition law-ization of EU regulation and applies it to current and forthcoming rules of EU energy regulation. “Competition law-ization” concerns the institutional structure of EU regulation. It consists of three aspects, namely (i) direct access to regulatees, i.e. the ability to speak directly to undertakings without the intermediation of Member States’ structures, or with as little intermediation as possible; (ii) networked enforcement, i.e., the creation of an orderly European apparatus that enforces EU law under the direction of the Commission; and (iii) private enforcement, i.e. the ability of private undertakings and individuals to enforce their rights, thus effectively patrolling the market. These aspects have been imported from competition law into EU telecommunication regulation and the result has been successful. The paper argues that competition law-ization could remedy some of the shortcomings of liberalization in the European energy sector. The recent proposals to reform EU energy regulation are assessed in the light of competition law-ization. Overall, the proposals can be seen as going in the direction of competition law-ization, but unbundling is criticized as a one-off structural measure that is incapable of giving rise to a permanent structure of rights that can be conducive to more effective regulation.