Revised electricity transparency proposals maintain competition risks

By Peter Willis


On 17 December, representatives of EU Member States gave a favourable opinion to a proposed Commission Regulation on the submission and publication of data in electricity markets. The proposed Regulation will require the collection and publication of large quantities of detailed information about the operation of electricity markets. Although this version alleviates some of the competition concerns raised in respect of earlier drafts, in particular by providing for delayed publication, or the publication of aggregated data, it does not remove them entirely. The proposed Regulation, while intended to enhance competition in electricity markets by increasing transparency, may therefore have precisely the opposite effect, by facilitating collusion or the exercise of individual market power.
The proposed Regulation started life as the proposed Comitology Guidelines on fundamental electricity data transparency. They provided for the submission to transmission system operators, and the publication on a platform established by ENTSO-E, of detailed information on forecast and actual load, generation, transmission capacity and balancing services. Numerous stakeholders raised concerns about the requirement to publish information, on a unit-by-unit bass, on planned and unplanned outages and actual generation, the latter at H+1.  Many of the competition authorities around Europe expressed concerns that the publication of such detailed real-time information would facilitate collusion between generators, either tacit or express, or the exercise of unilateral market power. Some of those authorities pointed to previous or ongoing investigations into precisely these issues. The Commission therefore launched a new consultation in July 2011, specifically requesting comments on competition issues. 
A draft considered in June 2012 retained the provisions that caused concern. However, the later version that was the subject of the favourable opinion from the cross-border committee in December 2012, in addition to various changes in format and structure, included some small but significant changes to the provisions that had raised competition concerns. For example, it is now clear that planned and actual consumption unit unavailability is to be published only in aggregated form per bidding zone.
Most significantly, actual generation output is to be published 5 days after the operational period, rather than 1 hour after. Only aggregated data will be published at H+1. Hydro reservoir filling rates are to be published (where applicable) even later, at D+10. The delays will go some way towards addressing concerns about the facilitation of collusion and/or abuse. However, it is significant that the decision of the Italian Competition Authority in June 2012, penalising members of a cartel among generators in the Campania region, demonstrated how publication of individual information (albeit with price data) at D+8 allowed the generators concerned to coordinate their behaviour in bidding to provide balancing services to the TSO, Terna. Indeed the AGCM noted in the decision that the publication of aggregated data also aided coordination in some instances, where it allowed the parties to infer each other's conduct. High levels of transparency in relation to transmission infrastructure and generation unit availability also facilitate abuse, and these rules remain unchanged in the latest proposal. In short, the revised proposal maintains a number of the features that caused such concern to competition authorities in the earlier drafts.
It is important to note that to the extent that market participants are required to disclose and/or publish information under the Regulation, they will not infringe the competition rules by that disclosure/publication. However, any actions that they may take on the basis of the information disclosed or published as a result of these requirements will be subject to competition law in the usual way.

Peter Willis