Open Access

This doctoral thesis examines how European merger control law is applied to the energy sector and to which extent its application may facilitate the liberalisation of the electricity, natural gas and petroleum industries so that only those concentrations will be cleared that honour the principles of the liberalisation directives (IEMD and IGMD ). In its communication on an energy policy for Europe, adopted on 10/01/2007, the Commission emphasized that a real internal European energy market is essential to meet Europe’s three energy objectives, i.e. competitiveness to cut costs for citizens and undertakings to foster energy efficiency and investment, sustainability including emissions trading, and security of supply with high standards of public service obligations (Art. 106 TFEU). The EU issued three pre-liberalisation directives since the 1990s. Dissatisfied with the existing monopolistic structures, i.e. in Germany through demarcation and exclusive concession agreements for the supply of electricity and natural gas, which were until 1998 exempted from the cartel prohibition provision (§ 1 GWB), and the prevalence of exclusive rights on the energy markets, the Commission triggered infringement proceedings against four member states under Art. 258 TFEU. The CJEU confirmed that the Commission has the power to abolish monopoly rights under certain circumstances and the rulings had the effect of convincing the member states to enter into negotiations for an opening up of energy markets owing to the internal market energy liberalization directives of 1996 / 1998 / 2003 / 2009 / 2019 (IEMD and IGMD) . The core element of the IEMD and IGMD is to abolish exclusive rights and offer primarily at least large industrial electricity and gas consumers to choose their supplier (market opening for eligible consumers) and to grant negotiated or regulated third party access to transmission and distribution grids so to address natural monopolies. The second liberalization package of 2003 brought a widening of market opening and acceleration of pace of market opening to a greater number of eligible customers (all non-household consumers since July 2004 and all consumers since July 2007) and an increase in the provisions on management and legal unbundling. In parallel, two regulations regulate the access to cross-border electricity infrastructure (interconnectors) and the third party access to gas transmission networks. Two further Directives addressed the security of natural gas and power supply and a third deals with energy end use efficiency and services , a fourth dealt with the promotion of co-generation and a fifths covers marine environmental policy (Marine Strategy Framework Directive in combination with the Hydrocarbons-Licensing Directive ) backed by the public procurement directive in the energy sector. A regulation covers energy statistics. The implementation of the second energy package was slow and the Commission launched infringement proceedings against 5 member states in front of the CJEU (Art. 258, 256 TFEU). The 3rd energy package of 2009 addressed ownership unbundling of key-infrastructure ownership and energy wholesale and retail supply consisting of three regulations and two directives, deals with independent regulators, an agency for the cooperation of energy regulators (ACER) and cross-border cooperation (the European Network for transmission system operators for electricity and gas [ENTSO-E/G] and a regulation on cross-border grid access for electricity and natural gas. Another new regulation deals with market integrity and transparency . Hence, new regulations regulate guidelines on electricity balancing, congestion management, long-term capacity allocation, the code for grid access and transmission system operation . Other regulations address the guidelines for a European cross-border energy infrastructure, which has to be interpreted in the context of European environmental impact assessment law, the submission of data in electricity markets, establish a network code on demand connection , rule on a network code for grid access for direct current transmission systems, define guidelines on electricity transmission system operation, regulate a network code on electricity emergency , deal with security of natural gas supply and establish a programme to aid economic recovery by granting financial assistance. Finally, Directives promote the usage of renewable energies, regulate common oil stocks, the safety of offshore oil and gas production and the quality of petrol and diesel fuels. The 4th liberalization package consists of a new IEMD2019 and IGMD2019, of a new regulation on European cross-border electricity trade, of a regulation on risk preparedness in the electricity sector, of a new agency for the cooperation of European energy regulators, addresses energy efficiency and rules on good governance in the energy union. Since 2008, the Art. 194 I-II TFEU governs the ordinary legislation procedure in the energy sector (internal market in energy, security of energy supply, energy efficiency, energy saving, renewable energies, interconnection of energy grids) notwithstanding of unanimous decision making in case of energy taxation matters (Art. 194 III TFEU). A brief analysis of the economic implications of concentrations is followed by an assessment of the evolution of European merger control law under Art. 66 ECSCT, Art. 101 and 102 TFEU, the merger control regulation of 1989 and its significant amendments of 1997 and 2004. Then, the theoretical findings are contrasted to the results of recent merger proceedings in the energy sector with a focus on the VEBA/VIAG decision. Several deficiencies are established which limit the efficacy of merger control as a tool of offsetting shortcomings in the secondary EC law with regard to the liberalisation of the electricity and gas supply industry (IEMD and IGMD). Commitments proposed by the parties of a given concentration and accepted by the Commission as being sufficient to remedy a serious potential of dominance may only be of subsidiary relevance to the liberalisation of sectors owing to a number of analytical and practical drawbacks. One dominant drawback relates to the fact that the commitments depend always on parties' proposals and can never be imposed ex officio. Others relate to the blunt authorisations provided by the wording of Art. 6 and 8 MR1997 and MR2004 as to the implementation of undertakings. With regard to acquisitions of U.K. regional electricity companies by EdF, it is elaborated that the current merger control law leaves no scope for reciprocity considerations regarding acquisitions by incumbent companies in liberalised markets even though the acquirer is a protected public undertaking. Moreover, it is established that different decisions apply inconsistent market definitions. By means of the VEBA/VIAG and RWE/VEW cases, the question is addressed which causes are responsible for the established analytical and practical deficiencies of merger control in the energy sector. It is stated that the weaknesses of the IEMD 2009/72/EC and IGMD 2009/73/EC are partly responsible for weak undertakings which do not sufficiently remove the scope for dominance on the affected markets and which do not rule out any possibility of impediments of effective negotiated or regulated TPA and do not remove any commercial incentive of the grid subsidiaries of the vertically integrated companies as to access which discriminates between intra and extra group applicants. It is reported that another argument relates to the limited scope that the Commission has if it wants to remedy deficiencies of written primary law owing to the extraordinary nature of the implied powers doctrine based on the principle of constitutional state. Adverse political influence against competition authorities is also judged. Further, it is analysed that accidental regulation based on incidental provisions imposed on undertakings which may or not implement a concentration is by no means a consistent and non-discriminatory and predictable tool to overcome drawbacks of primary or secondary European law in a given sector owing to the democratic principle and the constitutional state doctrine. It is discussed that secondary legislation with regard to energy networks is inter alia restricted by Art. 345 TFEU and provisions of national constitutions which protect property rights against dis-proportionate expropriations or re-definitions of property. Further, legal authorisations of said calibre will have to be connected to a system of state liability law. Adverse political pressures are considered. The same is true for egoistic national policies which abstain from transnational task forces in order to settle difficulties and disputes. Furthermore, the adverse effect of different stages of the maturity of domestic markets, different consumer patterns and a potential isolation of the system is not neglected, because these conditions make it more difficult to apply consistent standards as to the appropriate market definition in order to facilitate harmonisation. The implementation of the VEBA/VIAG merger is discussed, as the former was further complicated owing to specifically evaluated circumstances which were difficult to predict. Nevertheless, the Commission is not exempted from the duty to take due care concerning potential impediments as to the realisation of parties' commitments. In contrast to the negative aspects, it can be highlighted that the Commission quickly realised flaws of the energy liberalisation project as expressed by the present form of the IEMD and IGMD. Consequently, the co-ordinative and innovative mechanisms of Florence and Madrid were created in order to boost the development of effective cross border trade - i.e. tariff systems and interconnector congestion management. It will be concluded that undertakings put forward by the parties and accepted by the Commission should be restricted to a subsidiary legal instrument, only applied if strictly necessary to overcome certain detrimental aspects of given concentrations in order to provide a hint for the legislator, to specify its legislation. Competition as a de-central distributor of risk, wealth and power will be extended to its maximum extent, if wholesale consumers benefit from lower energy prices which allow greater productivity of European products on the world markets in combination with higher environmental standards owing to modern, cost-efficient plants. A successful implementation will be described by liquid spot markets for power accompanied by tools of financial risk management like forwards, futures and options. These will be valuable indicators of efficient liberalisation of the European electricity and gas supply industries.

I aim to assess the sustainability of rural electrification efforts based on off-grid photovoltaic (PV) systems in three Andean countries: Chile, Ecuador, and Peru. Although deployment of off-grid PV solutions for rural electrification began in the early 1990s in the Andean region, most of the projects turned out to be unsustainable and did not last. Prior efforts have addressed the different issues and barriers that plagued these projects and inhibited their sustainability. However, these prior analyses were mostly quantitative; systematic qualitative evaluations have been scarce. In this thesis, I address the following research question: ´Are the rural electrification programs (based on off-grid PV Systems) in the Andean countries sustainable?´ In order to answer this research question, I conducted an exhaustive qualitative document analysis complemented by semi-structured expert interviews. The interviewees included experts from different ministries, project managers from leading Non-Governmental Organizations (NGOs), public and private companies´ representatives, supervisors, and researchers. Although I also describe several relevant PV-based electrification efforts in the Andean countries, my research was aimed at providing an overall picture of the rural electrification efforts in these countries, rather than measuring the success or failure of specific projects. The gathered information allowed me to assess the sustainability of rural electrification efforts in the Andean countries. This assessment was based on a set of indicators corresponding to the four dimensions of sustainability considered in this thesis: institutional, economical, environmental, and socio-cultural. I found that Ecuador and Chile have consistently failed to ensure mechanisms for the operation and maintenance of the deployed off-grid systems, which has made these solutions in poor Chilean and Ecuadorian communities inevitably unsustainable. Although Peru has adopted a cross-tariff scheme, the Peruvian case shows that ensuring the funding of off-grid PV solutions is not enough. Peruvian officials appear to be unaware of the importance of local participation (local values and lifestyles are constantly disregarded) and most of the projects have been designed without the participation and engagement of the communities, which has often led to project failures and payment defaults. Although each country has its particular challenges, I found that the three Andean countries have consistently neglected the importance of strong formal institutions with a flexible and decentralized structure, which in turn significantly compromised the rural electrification effort in these countries.

The world currently faces important issues concerning climate change and environmental sustainability, with the wellbeing of billions of people around the world at risk over the next decades. Existing institutions no longer appear to be sufficiently capable to deal with the complexity and uncertainty associated with the wicked problem of sustainability. Achieving the required sustainability transformation will thus require purposeful reform of existing institutional frameworks. However, existing research on the governance of sustainability of sustainability transformations has strongly focused on innovation and the more ‘creative’ aspects of these processes, blinding our view to the fact that they go hand with the failure, decline or dismantling of institutions that are no longer considered functional or desirable. This doctoral dissertation thus seeks to better understand how institutional failure and decline can contribute productively to sustainability transformations and how such dynamics in institutional arrangements can serve to restructure existing institutional systems. A systematic review of the conceptual literature served to provide a concise synthesis of the research on ‘failure’ and ‘decline’ in the institutional literature, providing important first insights into their potentially productive functions. This was followed up by an archetype analysis of the productive functions of failure and decline, drawing on a wide range of literatures. This research identified five archetypical pathways: (1) crises triggering institutional adaptations toward sustainability, (2) systematic learning from failure and breakdown, (3) the purposeful destabilisation of unsustainable institutions, (4) making a virtue of inevitable decline, and (5) active and reflective decision making in the face of decline instead of leaving it to chance. Empirical case studies looking at the German energy transition and efforts to phase out coal in the Powering Past Coal Alliance served to provide more insights on (a) how to effectively harness ‘windows of opportunity’ for change, and (b) the governance mechanisms used by governments to actively remove institutions. Results indicate that the lock-in of existing technologies, regulations and practices can throw up important obstacles for sustainability transformations. The intentional or unintentional destabilisation of the status quo may thus be required to enable healthy renewal within a system. This process required active and reflective management to avoid the irreversible loss of desirable institutional elements. Instruments such as ‘sunset clauses’ and ‘experimental legislation’ may serve as important tools to learn through ‘trial and error’, whilst limiting the possible damage done by failure. Focusing on the subject of scale, this analysis finds that the level at which failure occurs is likely to determine the degree of change that can be achieved. Failures at the policy-level are most likely to merely lead to changes to the tools and instruments used by policy makers. This research thus suggests that failures on the polity- and political level may be required to achieve transformative changes to existing power structures, belief-systems and paradigms. Finally, this research briefly touches on the role of actor and agency in the governance of sustainabilitytransformations through failure and decline. It finds that actors may play an important role in causing a system or one of its elements to fail and in shaping the way events are come to be perceived. Drawing on the findings of this research, this dissertation suggests a number of lessons policy makers and others seeking to revisit existing institutional arrangements may want to take into account. Actors should be prepared to harness the potential associated with failure and decline, preserve those institutional elements considered important, and take care to manage the tension between the need for ‘quick fixes’ to currently pressing problems and solution that maintain and protect the longterm sustainability of a system.