Electricity Merger Control in the Light of the EU Third Energy Package

After more than two years of legislative proceedings within the European Union Institutions, the “third energy package” –a set of legislations conceived to lead the EU electricity and gas markets to a complete integration and liberalization - was published on August 2009. Nonetheless, the set of legislations was not passed without long discussions on some of its cornerstones, particularly in that related to the unbundling provisions in the electricity markets. Against this backdrop, the EU merger control applied by the European Commission faces new challenges. The role that the EU merger regulation should play in the liberalization process arena is indeed controversial, with supporters and detractors of more relaxed or strict standards. This paper, assuming the necessary interplay between competition law and regulation in the electricity liberalized markets, discusses the extent to which EU merger control should undertake a new (or just traditional but nuanced) approach to mergers in order to facilitate the achievement of the energy goals and, if necessary, whether and to what extent merger control could offset possible gaps of the sector-specific legislation. In order to address these questions, the paper proceeds with a comparative analysis of the merger control applied in the electricity sector in the EU and the US