Non-discriminatory Third Party Access to the Gas Transmission ...

vertically integrated and supplies non-integrated rivals with inputs as TPA services, it may have
strong incentives to directly/indirectly:
(a) Refuse to offer/provide non-discriminatory TPA and thereby benefit from the exit of the
competition firm.
(b) Favour its own affiliates above that of non-integrated rivals in the terms and conditions
for offered or provided services and thereby placing the rivals at a competitive disadvantage
and benefit from that. The abuse may show itself in charging higher prices and degrading the
quality of the access services provided to downstream competitors and numerous covert
methods of discrimination, such as manipulating rate categories or capacity allocation, longterm
exclusive dealing, fidelity rebates and similar practices, abusing commercial information
or cross-subsidizing. 43
The second type of discriminatory TPA concerns discrimination by a TSO amongst customers
(anti-rivals) with whom the TSO is not in competition. This type of discrimination aims at equal
opportunities for all system users in order to institute a system that ensures competition is not
distorted. In this situation the TSO has no obvious interest in taking actions that would affect the
competiveness of one customer when compared to another customer. One could even argue; the
more (satisfied) customers the better, because a TSO would gain no advantage by discriminating
amongst customers (anti-rivals) and might even suffer a disadvantage through a reduction in its
sales. However, this does not suggest -when discrimination of this type occurs- that the TSO is
likely to have a valid reason for this discrimination. TSOs may have incentives to direct/indirect
distinguish between customers (anti-rivals):
(a) For efficiency considerations; for example, different treatment in terms and conditions
based on the volume of purchase of TPA services (such as quantity rebates);
(b) For strategic reasons; for example, different treatment based on whether or not a TSO
cooperates with a system user during a project. For example, in building new pipelines
(preserve a good relationship with business partners);
(c) As part of a strategy to divide markets in order to be able to exploit market power better
on the long term. 44 The abuse may take on the shape of exploitative abuse, a conduct which is
43 JONES, C.W. (2005) EU Energy law Volume 1: The Internal Energy Market. Leuven: Claeys & Casteels, p. 61-
62. GERADIN, D. (2000) The Liberalization of State Monopolies in the European Union and Beyond. London:
Kluwer Law International, p.10.
44 Irish sugar (Case T-228/97) [1999], paragraphs 123 and 151-154.
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