The European Emission Trading System and competition. Anticompetitive measures beyond reach? An assessment of the grandfathering allocation method and the Performance Standard Rate system

The center piece of the European Climate Change Program is the ambitious Greenhouse Gas Emissions Trading Scheme (EU ETS, Directive 2003/87/EC) which helps Member States to fulfill their Kyoto commitments. It particularly facilitates the old EU 15 Member States to make progress towards meeting their particular greenhouse gas emissions reduction goals committed under the Burden Sharing Agreement. EU Member States have developed national greenhouse gas allowances allocation plans and distributed these allowances to around 5000 operators with approximately 12.000 installations. Differences between allocations can give rise to severe anticompetitive effects. Undue interventions by Member States are largely contained through the application of the four freedoms, while EC Competition law (Articles 81 and 82) is geared to the containment of competitive distortions arising in particular from undue behavior of firms. State involvement in infringements is addressed through Articles 87 (State aid) and 86 (public undertakings) and the 'joint application doctrine' (Articles 10(2), 3(g), 81 and 82) which was developed by the ECJ upon recognition that State measures can undermine the effectiveness of the EC Treaty. The paper examines how anticompetitive distortions originating from Member State action under National Allocation Plans in general and by application of (historical) grandfathering and the (hypothetical) Performance Standard Rate (PSR) allocation format in particular are dealt with under European competition law rules. The PSR System is a relative benchmark system with an intended cap for all participants but without a cap for individual operators. This alternative approach has been developed and is actually in use for the Dutch NOx Emission Trading System. An interdisciplinary industrial economic and competition law framework is chosen to formulate an economic critique. After the introductory part the anticompetitive effects originating in State measures are examined. Subsequently the development and the present interpretation of the joint application doctrine are presented. The criteria identified under Article 81 (cartels), Article 82 (abuse) and Article 86 (public undertakings) are applied to the Emission Trading System. An economic appraisal concludes the paper.