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(1997). Energy Regulation and Competition in Canada. Journal of Energy & Natural Resources Law: Vol. 15, No. 4, pp. 338-365.

Nowadays, the European electricity systems are evolving towards a generation mix that is more decentralised, less predictable and less flexible to operate. In this context, additional flexibility is expected to be provided by the demand side. Thus, how to engage consumers to participate in demand response is becoming a pressing issue. In this paper, we provide an analytical framework to assess consumers’ potential and willingness to participate in active demand response from a contract perspective. On that basis, we present policy recommendations to empower and protect consumers in their shift to active demand response participants.

Nowadays, the European electricity systems are evolving towards a generation mix that is more decentralised, less predictable and less flexible to operate. In this context, additional flexibility is expected to be provided by the demand side. Thus, how to engage consumers to participate in demand response is becoming a pressing issue. In this paper, we provide an analytical framework to assess consumers' potential and willingness to participate in active demand response from a contract perspective. On that basis, we present policy recommendations to empower and protect consumers in their shift to active demand response participants. © 2013 Elsevier Ltd. publisher: Elsevier articletitle: How to engage consumers in demand response: A contract perspective journaltitle: Utilities Policy articlelink: http://dx.doi.org/10.1016/j.jup.2013.10.001 content_type: article copyright: Copyright © 2013 Elsevier Ltd. All rights reserved. ispartof: UTILITIES POLICY vol:27 pages:108-122 status: published

The exemption regime for healthcare services that constitute SGEI as part of the 2011 Decision under the new SGEI Package has been broadened considerably to cover not just hospital care but all (curative) healthcare as well as long-term care, irrespective of the amount of aid or turnover concerned. The IRIS-H decision concerning the financing of public hospitals in the Brussels capital region of Belgium, although adopted by the Commission prior to the 2011 SGEI Package, proves a useful illustration of the way the Commission applies the rules on State aid and SGEI compensation in practice. Both the new 2011 SGEI Package and the State aid practice show that the Commission is content to do without a stringent application of the State aid rules based on economic analysis in the hospital sector—or indeed in healthcare and long-term care at large: net costs are assumed as given, and only the scope for reasonable profits is restrained. The Commission could presumably reverse this trend by bringing its own practice into line with a more ambitious interpretation of its recent legislation, and insisting that Member States do the same.

This chapter highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been—and still is—in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic, and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative, and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectorial setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best—albeit not complete—example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

This paper examines the challenges to creating sufficient cross border infrastructure to realise the European Union’s ambitions for the creation of a genuine and low carbon European energy market. In particular the relevant regulatory framework for cross border infrastructure has developed in a piecemeal fashion and many projects have in fact benefitted from an exemption procedure from important pillars of the EU energy market, including the requirements of third party access on a regulated basis. The paper reviews and critically assesses the exemption procedures for these co-called ‘merchant projects’under the current and future legislation.

European Union law prohibits direct-to-consumer advertising of medicinal products for human use that are subject to prescription. However, EU law does not clarify the borderline between advertising and provision of non-promotional information on medicines, the latter being not as yet regulated at EU level. This article examines the latest initiative launched by the European Commission to establish a Community legal framework on direct-to-consumer information on prescription medicines by the pharmaceutical industry. On the background of earlier attempts at reform and the growing body of case law of the European Court of Justice the article discusses whether the Commission proposal is likely to promote patient empowerment and prevent information from being used to persuade as opposed to empower patients.

This paper is a contribution to the 2nd edition of Craig and de Burca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been – and still is – in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectoral setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best – albeit not complete – example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

This chapter aims to analysis the new dynamics at work in EU energy regulation. Since the publication of the European Commission’s ‘Sector Inquiry Report’ in January 2007, European energy companies have felt the cold wind of competition law - many for the first time. In addition, national competition authorities (NCAs) have been actively pursuing abusive market practices - sometimes making innovative use of competition law in the process. Certain energy giants have agreed to unbundle their transmission networks - even when their national governments opposed the inclusion of ownership unbundling in the draft ‘Third Package’ of electricity and gas legislation. In parallel, the Third Package envisages the creation of a new regulatory agency - ACER - to co-ordinate technical crossborder regulatory issues in the internal market. So who will be in the driving seat in the next decade - and will co-ordinated regulatory powers be the preferred approach to market design? Will regulatory rules co-exist alongside competition based controls or will the latter gradually supersede the former? This chapter will examine these critical issues.

This book fills a gap in the existing literature by dealing with several issues linked to long-term contracts and the efficiency of electricity markets. These include the impact of long-term contracts and vertical integration on effective competition, generation investment in risky markets, and the challenges for competition policy principles.

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This paper aims, first, to chart the establishment case law of the European court and its impact on the “supply side” of healthcare provision. This shows that the development of this line of case law is slow and piecemeal: although on the one hand non-discriminatory rules are now caught by the prohibition, on the other hand the exceptions thereto are so far liberally applied based on the Gebhard test. In this manner systems based on public provision or self-regulation are shielded from market access and competitive entry. The main exception are those cases where the applicable national regulation is incoherent and can be picked apart on that basis as part of the proportionality test (necessity or appropriateness) of the disputed measures. Next, this paper looks at the possible contribution of a more integrated law and conomics based approach to improving the framework for deciding such cases and thereby to achieving a better result in terms of controlling expenditure and universal provision of a high standard of care due to market entry. It identifies developing the principle of proportionality and the application of state aid policy in healthcare as part of the future research agenda.

Public utilities have come under increasing scrutiny from European Community institutions in recent years. This article examines the impact of Community law and policy on the utility sector from three perspectives. It describes the basic principles of Community law which are applicable to the sector and suggests some reasons why utilities were neglected until the adoption of the Single Market exercise. It then examines the Commission's proposals to extend the Community rules on public procurement to the ‘excluded sector’, ie water, energy, telecommunications and transport. Finally, it describes the potential impact of the Commission's new ‘trans-European network’ proposals for this sector. The article argues that while it is not yet possible to talk of a coherent Community utility policy, some basic orientations are becoming apparent.

The article deals with the advantages and disadvantages of an international solution for the safe, permanent disposal or long-term storage of high level radioactive waste from a legal perspective. Firstly, some early attempts to create an International Waste Repository (IWR) and their subsequent fate are examined. Next to this, pros and cons of an IWR in the context of recent national and international developments in the management of, and trade in radioactive waste, are considered. Main related question is, whether an international solution to waste disposal is a useful option. Finally, the legal and institutional problems which must be considered if states decide to create an international facility for waste disposal are described. Special attention is given to a model provided for in Chapter V of the Euratom Treaty of 1957.

On 21 January, 1988 the European Parliament established a committee of inquiry into the so-called Transnuklear scandal which involved alleged illegalities in the transport of radioactive waste to and from West Germany and the reprocessing centre at Mol in Belgium. This article will examine some of the issues surrounding the inquiry to illustrate a number of 'accountability gaps' which can arise in European regulation. This particular case study has been selected on the grounds that it provides a number of useful insights: first, into the nature of the legal problems which can arise when responsibility for the regulation of a particular activity is effectively shared between national authorities and the EC Commission; and second, into problems which can arise when the lines of demarcation between the respective authorities are by no means clear. In particular, the article will examine the potential for European institutions, and especially the European Parliament (EP), to exert control over the joint or shared exercise of regulatory powers, that is, powers shared between national administrations and the EC institutions.

This article examines the European Commission's plans to create a single or internal energy market by 1992. It analyses the Commission's programmes and priorities for action from a legal perspective, because it is argued, legal factors are not only fundamentally important to circumscribing the Commission's field of action and for determining the success of its initiatives, but also because the legal dimension offers a useful critical tool with which to appraise the feasibility of these plans. The article reviews the various legal powers which the Commission may currently deploy, and argues that they are ill-suited to the most difficult but fundamental task which faces the Community; that of reconciling the objectives of market integration through greater competition between energy suppliers with that of securing energy supply in general. It concludes by suggesting that the only way out of this dilemma lies in the formulation of a clear set of Community energy policy objectives.

This chapter examines various European Community initiatives which have been adopted with a view to guaranteeing and promoting the security of energy supply. It explains that this concept includes not only physical and technical security in terms of access to resources, but also reliability, affordability, and continuity of supply. It argues that despite or even because of market integration, security of supply concerns remain paramount. It adds that as a result of legislative harmonisation, in particular following the entry into force of the new Electricity and Gas Directives, it may well be that member states will be required to pursue their energy policy objectives in relation to supply security and reliability through specific kinds of instrument. It examines the issue of the division of competences between the Community policy initiatives in the energy sector, which have a close bearing on security of supply, and discusses recent legislative measures.

This article discusses which legal principles of good economic governance should form the basis of market legislation and supervision. Respect for the principles will contribute to a good functioning regulatory framework which is likely to enhance business confidence and produce the kind of stability required for longterm investment to take place. Several case studies on access regulation illustrate how disrespect for the principles can hamper an effective realization of the goals of a legal framework for the liberalization of a network industry. The article concludes with some recommendations on how to improve the quality of legislation, practices and procedures that affect the market. It is argued that independent administrative authorities should be obliged to adopt a code of good market governance. The adoption of a code of good market governance will form an extra check on the exercise of discretionary powers and guarantees that the agency’s decisions are based on sound economic analysis and comply with the principles of predictability and consistency.

This paper addresses an issue which is of a certain novelty — the impact of Community rules and regulations on the way in which energy sectors are organized and indeed regulated at the national level. I have deliberately chosen to qualify the word ‘novelty’ for several reasons. Firstly, as is generally well-known, the three Treaties establishing the European Communities (the EEC, ECSC and Euratom Treaties) have, at least in theory, applied to national energy sectors since the 1950s. Nevertheless, many of the powers available to the European Commission, the institution entrusted with the role of guardian of the Community constitution, have never been fully exercised. The reasons for the ‘benign neglect’ of energy are complex, and can largely be attributed to the sensitive political and economic nature of the sector.

This article examines the nature of control over the promotional activities of the pharmaceutical industry in the UK. It focuses on the variety of methods which companies use to promote their products to the medical profession and considers the special problems this raises, for the government who seeks to secure the supply of safe products at reasonable prices, for the doctor who has often little but the company's own promotional literature to guide him/her in selecting a new drug, and for the consumer/patient who is supplied with a minimum of information about the product and who is consequently dependent on the doctor's judgment. It assesses the amount of money currently expended by the industry on promotional material and examines the adequacy and efficacy of the complex interaction of the current statutory, non-statutory and self-regulatory controls.

‘Deregulation’ is best conceived as covering two separate sets of processes: changes to the structure of rules embodied in regulatory systems; and disturbances to the stability of those systems due to the inability of system ‘governors’ to function effectively. The most striking feature of deregulation is variety - in incidence, form and extent. This variety is a function of three broad sets of variables: place, notably national setting; time, notably the historical epoch and the stage in a regulatory cycle when deregulation happens; and arena, notably the economic arena and policy networks where deregulation takes place.