Chillin'Competition

I have just uploaded on ssrn a paper (see here), written jointly with Alexis Brunelle (Autorité de la concurrence), Adrien de Hauteclocque (General Court of the EU and Florence School of Regulation) and Juliette Ogez (Autorité de la concurrence).

The piece will be coming out in the Handbook of Energy and Competition Law, edited by Leigh Hancher and Ignacio Herrera Anchustegui.

The paper revolves around two relatively recent cases involving data leveraging by incumbents in the energy sector. One of them is EDF (available here in French). This case was settled (with commitments) by the French competition authority back in 2022.

The second is ENEL (aka Servizio Elettrico Nazionale), originally decided by the Italian authority (the decision, in Italian, is available here). This case is best known for the preliminary ruling delivered by the Court of Justice (and discussed abundantly on this blog; see here, here and here).

The two cases are interesting on a number of fronts. They show how competition law can act as a safety net in recently liberalised industries (regulation can rarely ever anticipate or adress every single leveraging strategy).

EDF and ENEL also illustrate, second, the role that data can play in network industries. In both, it was a central aspect of the contentious behaviour.

Finally, the discussion is useful in that it requires one to revisit some of the fundamental principles in EU competition law, in particular competition on the merits and the analysis of anticompetitive effects. In fact, the two cases provide concrete instances of conduct that depart, by their very nature, from legitimate competition on the merits.

My co-authors and I would be really keen to get your thoughts on the paper. Do not hesitate to send us your comments.