Tagged: automatic abuse doctrine

A Burning Desire to Clarify(?) the Law for Public Undertakings: The Judgment in Greek Lignite (Case T-169/08)

The General Court has finally handed down the judgment in the Greek Lignite (brown coal) case. This is a long-running case resulting from a complaint (dating from 2003) concerning the exploitation of lignite in Greece. As it happens, lignite is the most abundant fuel in Greece, and access to lignite is essential for the production of (relatively) cheap electricity. Greek lignite reserves amount to approximately 4 million tonnes of which about half can be exploited by DEI, the Greek Public Power Company. No such rights have been assigned for the remaining 50% of the lignite reserves, and DEI operates all power plants in Greece that use lignite. The Commission found the exclusive rights for lignite contrary to Article 106(1) in connection with 102 TFEU in what is a broad and teleological reading of the Court’s jurisprudence in this field. The General Court, however, has a rather different reading of this case law, resulting in annulment of the Commission Decision.

Because Greece has liberalised its electricity market, all companies intending to supply electricity to the Greek wholesale market must hand in daily  price-quantity offers. By examining these offers along with the forecast demand for electricity, the network operator determines the amount of electricity needed to meet demand. This electricity is then fed into the grid. Renewable electricity receives first priority, following which conventional electricity producers get to feed their electricity into the grid, with the cheapest offer coming first and the rest following in the order of their ascending prices. The price-quantity offer quoted by the last production unit to feed into the grid will determine the market price.  In these circumstances, having access to lignite as a fuel for electricity production is required for the production of cheap electricity, which in turn is required to ensure that this electricity will actually be sold on the market.

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