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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.
Due to the financial markets disturbances of 2007/2008, a considerable number of financial intermediaries such as banks, credit institutions and asset management companies noticed substantial liquidity shortages, difficulties to refinance their operations as a result of a drying out of appropriate refinancing sources, and withdrawals of deposits by consumers. These turbulences in the financial markets forced governments and central banks to increase liquidity provisions to ensure a sufficient aggregate liquidity of the financial industry. Furthermore, policy-makers decided on bailouts of banks or on supporting financial intermediaries by governmental warranties or liquidity provisions to avoid a substantial number of insolvencies of banks and other financial institutions that may have rapidly deteriorated the global financial industry. In the aftermath of the crisis, politicians and economists discussed these decisions controversially because interventions by governments and central banks appear to have a deep impact on the global economy particularly in the financial industry. Moreover, legislative and regulatory authorities decided on increasing their vigilance, particularly with focus on principal-agent problems within certain sectors of the financial industry. A considerable amount of recent research papers has focused on the dynamics of liquidity shortages that suggest the recent crisis being related to both an increasing funding liquidity risk and an emerging market liquidity risk. Self-amplifying interdependencies appear to connect these two dimensions of liquidity risk that during the period 2007 to 2008 have led to the contagion effects in the global financial industry. Only little research work so far has provided evidence from the financial crisis in 2007/2008 while focusing on the German financial industry. Thus, my doctoral dissertation covers three research papers that address the occurrence of substantial liquidity risk and default probability within the German financial industry over the course of the financial crisis of 2007/2008. My first publication co-authored with Daniel Schmidt, Leuphana University of Lüneburg, entitled ‘Consumer reaction to tumbling funds - Evidence from retail fund outflows during the financial crisis 2007/2008’ focuses on funding liquidity risk of German retail funds. Contrary to the findings reported in some of the extant literature, our study indicates that over the past few years a change in investors’ behavior patterns means that investment decisions are made at short notice, and that shares are redeemed in a discriminatory manner when funds perform poorly. By using data assembled from 1672 retail funds in Germany over the period March 2008 to April 2010, we are able to show that in general, both the prior fund performance and prior net redemptions have a statistically significant influence on fund outflows. Moreover, there are indications that in recent crises situations that have resulted in the withdrawal of shares investors react fast to market signals. My second research paper entitled ‘Leveraging and risk-taking within the German banking system: Evidence from the financial crisis in 2007 and 2008’ examines the risk-taking attitudes of distinguishable German banking sectors. This study intends to examine whether the German banking system displays pro-cyclical behavior during 2000 to 2011, and to what extent specific sectors of the German banking system show significant balance sheet operations to increase their leverage during years of booming asset prices. The results of this study demonstrate that different sectors of the German banking system did operate their business more or less pro-cyclical. It also provides empirical evidence that certain banking sectors did favor refinancing their assets by short-term borrowing in the interbank market to increase their leverage during periods of extraordinary high returns in financial markets. Moreover, this study shows that banks, which operate above average leverages, tend to report a high volatility of return on assets and low distances-to-default. Finally, my third paper entitled ‘Are private banks the better banks? An insight into the ownership structure and risk-taking attitudes of German banks.’, and co-authored with Thomas Wein, Leuphana University of Lüneburg, tries to enlighten the influence of the different principal-agent relationships on the risk-taking attitudes of German banks. In this study, we propose our hypothesis that the distinguishable principal-agent relationships of German banks are significantly influencing the risk-taking attitudes of bank managers. Particularly, we intend to substantiate the theory that banks owned by dispersed shareholders or federal state authorities face a higher relevance of principal-agent problems than other banking sectors due to a missing ability to monitor bank managers. Our results underline that these problems appear to mislead bank managers showing an unreasonable risk-taking behavior. In a first stage, we rely on a theoretical model explaining that from the bank owners’ viewpoint three factors of the principal-agent relationships are determining the probability of choosing the optimal portfolio of risky assets. These factors cover the ability to control bank managers, the risk pooling capabilities of bank owners and bank managers, and the incentives of seeking high returns. To support our hypothesis we apply an empirical study to the distances-to-default of different German banking sectors. This demonstrates that risk-taking attitudes of banks are closely related to banks’ ownership. Consequently, our findings offer evidence, that legislative and regulatory authorities should increase their vigilance in terms of principal-agent problems within certain sectors of the banking industry.
Vor dem Hintergrund der 2004 durchgeführten Reform auf dem Handwerksmarkt sollte anhand einer theoretisch-empirischen Analyse überprüft werden, ob Informationsasymmetrien bezüglich der Qualität auf dem Handwerksmarkt in unterschiedlicher Stärke auftreten und dementsprechend auch eine differenzierte Regulierung erfordern sowie inwieweit marktendogene und wirtschaftspolitische Lösungsmöglichkeiten zum Abbau von Informationsasymmetrien auf dem deutschen Handwerksmarkt wirken. Als empirische Datengrundlage wurde dazu eine Haushaltsumfrage durchgeführt, die neben der Ermittlung des Informationsnachfrageverhaltens auch die Beurteilung handwerklicher Qualität durch private Bauherren zum Ziel hatte. Die Befragung zeigt, dass trotz des Meisterbriefes Informationsasymmetrien auf den einzelnen Märkten bestehen, so dass eine über alle Gewerke geltende und den Wettbewerb stark einschränkende Regulierung in Frage gestellt werden muss. Die aus den Ergebnissen der Befragung deutlich gewordene Anwendung marktendogener Reputationsmechanismen zur Lösung von Informationsasymmetrien macht gleichzeitig den Schutz der Konsumenten als Regulierungsbegründung fraglich. Dies wird verstärkt durch die in der Befragung deutlich gewordene hohe Nutzung spezialisierter Dritter, die aufgrund ihrer Fachkenntnis keinen expliziten Verbraucherschutz benötigen sollten. Die Handwerksnovelle 2004 stellt somit insbesondere durch die Auflockerung der Marktzutrittsbeschränkungen aus informationsökonomischer Sicht einen Schritt in die richtige Richtung dar.
In the early 1990s the European Commission and the national governments of the EU member states initiated an extensive deregulation and liberalization process in the European railway industry. Prior to this process, the European railway industry was characterized by loosely connected national monopoly railway companies which faced severe losses of transportation market share and required increasing subsidies. Overall, this system was not what a single European market needed: an integrated transport system that provides reliable and fast cross-border transportation of goods, services, and people. The main elements of the reforms have been the separation of infrastructure management from transport operations, the implementation of interoperability among the national railway systems, the assurance of third-party access to the infrastructure, and the introduction of independent railway regulatory systems. In general, the intention of the reforms has been to enhance competition by opening the market and to improve the economic performance of the European railway industry. The objective of this thesis is to analyze the effectiveness of the European railway deregulation process in enhancing efficiency and productivity in the European railway industry. For that purpose three empirical papers are introduced that use non-parametric and parametric benchmarking methods to evaluate the impact of different production technologies and country- and firm-specific environmental and regulatory conditions on efficiency and productivity. The first paper, ‘Testing for Economies of Scope in European Railways: An Efficiency Analysis’, conducts a pan-European efficiency analysis to investigate the performance of European railways with a particular focus on economies of vertical integration. We test the hypothesis that integrated railways realize economies of scope and, thus, produce railway services with a higher level of efficiency. To determine whether joint or separate production is more efficient, we apply an innovative two-stage data envelopment analysis super-efficiency model which relates the efficiency for integrated production to a reference set consisting of separated firms which use a different production technology. We find that for a majority of European railways economies of scope exist. The second paper, ‘Productivity Growth in European Railways: Technological Progress, Efficiency Change and Scale Effects’, analyzes the efficiency and productivity of the European railway sector in the period of deregulation (1990-2005). Using a stochastic frontier panel data model that controls for unobserved heterogeneity a distance function model is estimated in order to evaluate the sources of productivity growth: technological progress, technical efficiency change and scale effects. The results indicate that technology improvements were by far the most important driver of productivity growth, followed by gains in technical efficiency, and to a lesser extent by exploitation of scale economies. Overall, we find an average productivity growth of 39 percent within the sample period. The third paper, ‘European Railway Deregulation: The Influence of Regulatory and Environmental Conditions on Efficiency’, investigates the impact of regulatory and environmental conditions on technical efficiency of European railways. Using a panel data set of 31 railway firms from 22 European countries from 1994 to 2005, a distance function model, including regulatory and environmental factors, is estimated using stochastic frontier analysis. The results obtained indicate positive and negative efficiency effects of different regulatory reforms. Furthermore, estimating models with and without regulatory and environmental factors indicates that the omission of environmental factors, such as network density, substantially changes parameter estimates and, hence, leads to biased estimation results. The last chapter of the thesis summarizes the results of the three empirical analyses. It contains overall conclusions, highlights implications for economic policy, and provides directions for further research.
