Given that supplies of Russian gas to various Member States as well as gas companies are being drastically cut, the EU considers that storage buffers need to be put in place urgently. Member states are given a considerable range of options on how to meet these targets but two possible measures from the menu are worthy of comment from a competition law angle. These are the use of coordinated instruments, such as platforms for the purchase of LNG, with other Member States, and/or using voluntary mechanisms for the joint procurement of natural gas.2
In fact, the European Commission (EC), had earlier this year launched plans for an “EU Energy Platform”, to establish bilateral negotiations with major gas producers,3 including a new EU-US partnership. The United States will export additional LNG volumes of at least 15 bcm in 2022, with the goal of approximately 50 bcm/year until at least 2030. For its part, the European institutions had committed to an urgent upgrade of the EU regulatory framework for energy storage.
The new storage Regulation however comes with the express caveat that the optional measures on platforms and joint procurement ‘shall not unduly distort competition or the proper functioning of the internal market in gas or endanger the security of gas supply of other Member States or of the Union’.
It also indicates that the EC may, if necessary, issue guidance by 1 August 2022. That guidance - if and when issued - will not be legally binding or confer any kind of block exemption or antitrust immunity. The draft of the EC’s Horizontal Guidelines (“the Draft”) has also introduced a new section explaining the distinction between joint purchasing and buyer cartels.4 Although “joint purchasing arrangements” “normally do not amount to a restriction of competition by object if they truly concern joint purchasing”5 , the EC has brought a number of cases and imposed significant fines in recent years against purchasing cartels. The criteria for that assessment will depend in part on whether the collaboration would be classified as joint purchasing or might be deemed a nascent buyer’s cartel under EU competition law. Companies must evaluate the difference and be aware of the sanctions that could attach to collaboration that could potentially allow a platform or any other form of joint procurement mechanism to fix prices and/or share markets or customers. Additionally, any danger that collaboration could be seen as an attempt to coordinate competitive behavior downstream must be firmly avoided. Recent fines imposed in the chemical and car batteries sectors are a reminder that buyer cartels are currently on the European Commission’s radar.
Energy companies – whether buyers or sellers – intending to collaborate with an LNG purchasing platform or with any other voluntary mechanism for the joint procurement of natural gas are still be expected to undertake a self-assessment to ensure full compliance with EU competition law. Compliance with Article 101 and 102 TFEU remains their responsibility irrespective of the urgency of the current EU gas supply situation.
Baker Botts has an established track record in the natural gas and LNG sectors advising on EU competition issues including joint purchasing structures.
In the context of the war in Ukraine, the European Union has approved a range of measures aimed at increasing the EU independence from the Russian gas.6
It is in the effort to diversify LNG supplies, early in March 2022, the European Commission reached an agreement with the United States.7 Under the new EU-US partnership, the United States will strive to ensure additional LNG volumes for the EU market of at least 15 bcm in 2022, with the goal of approximately 50 bcm/year until at least 2030. For its part, the European Commission will work to upgrade the existing European regulatory framework for energy security of supply and storage.
One of the recently proposed measure, and capable of impacting on the future purchases of imported gas, is the “EU Energy Platform”, with which the European Commission, in a coordinating role, plans to establish bilateral negotiations with major gas producers.8 The proclaimed goal is to help diversification and smart risk management in the view to ensure supply on favourable conditions for all buyers across the EU.
Key elements of the EU Energy Platform
The core purpose of the Platform is to help ensuring security of supply 9:
- Demand pooling to maximise leverage to attract reliable supplies from global markets and at stable prices that reflect the predictability and the size of the common EU market;
- Efficient use of existing gas infrastructure;
- Facilitate long-term cooperation with key suppliers, also trough Memoranda of Understanding.
The EU Energy Platform will be the voluntary joint purchasing mechanism for the purchase of gas, LNG and hydrogen.10 It will be responsible ‘for negotiating and contracting on behalf of participating Member States of the aggregated gas demand and competitive release to the market’ and it will be also open for Western Balkan countries and the three associated Eastern Partners, i.e. Georgia, Moldova and Ukraine.11
At the time of writing (June 2022), it is not clear yet which legal form the mechanism will take. The Commission proposed that the joint purchasing mechanism could take the form of a Joint Venture or a business-owned entity.
Finally, the Platform, and the related joint purchasing mechanism, will be assisted by:
- Regional Task Forces which will identify needs and diversification of supply options and coordinate on contractual issues.
- Advisory Group which will inform the Platform on issues such as LNG trade, financing and hedging.
The status and scope of the EU joint purchasing mechanism has not been fully defined as of yet but these recent developments already raise important competition questions. Its success depends upon the involvement of the industry, but participants must act with due caution. Any involvement with the Platform or other form of joint purchasing will require companies to carefully calibrate their participation in order to avoid the risk of sanctions.
1.REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2017/1938 and (EC) No 715/2009 with regard to gas storage - https://www.consilium.europa.eu/en/press/press-releases/2022/06/27/council-adopts-regulation-gas-storage/
2. Article 6b of the Regulation
3. European Commission, ‘REPowerEU: Joint European Action for more affordable, secure and sustainable energy’, COM(2022) 108 final, available at https://energy.ec.europa.eu/system/files/2022-03/REPowerEU_Communication_with_Annexes_EN.pdf.
4. Horizontal Guidelines 2022 – Draft, section 4, available at https://ec.europa.eu/competition-policy/public-consultations/2022-hbers_en.
5. European Commission press release – Ethylene case (14 July 2020), available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1348; European Commission press release - Car Battery Recycling case ( 8 February 2017), available at https://ec.europa.eu/commission/presscorner/detail/en/IP_17_245.
6. European Commission – press release (8 March 2022), ‘REPowerEU: Joint European action for more affordable, secure and sustainable energy’, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_22_1511; European Commission – press release (18 May 2022), ‘REPowerEU: A plan to rapidly reduce dependence on Russian fossil fuels and fast forward the green transition’, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_22_3131.
7. EU and US Joint Statement of 25 March 2022, available at https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/25/fact-sheet-united-states-and-european-commission-announce-task-force-to-reduce-europes-dependence-on-russian-fossil-fuels/.
8. European Commission, ‘REPowerEU: Joint European Action for more affordable, secure and sustainable energy’, COM(2022) 108 final, available at https://energy.ec.europa.eu/system/files/2022-03/REPowerEU_Communication_with_Annexes_EN.pdf.
9. European Commission – press release of 8 April 2022, ‘Energy Security: Commission hosts first meeting of EU Energy Purchase Platform to secure supply of gas, LNG and hydrogen’, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2387.
10. European Commission, ‘REPowerEU Plan’, COM/2022/230 final, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2022%3A230%3AFIN.
11. European Council conclusions of 24-25 March 2022, available at https://data.consilium.europa.eu/doc/document/ST-1-2022-INIT/en/pdf.
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