Regardless of its inability to force a mandatory unbundling obligation on all vertically integrated energy companies at the legislative level (see story above), the European Commission (Commission) is continuing to attempt to push industry in this direction using its powers under Article 82 EC. On 18 March 2009, the Commission accepted legally binding commitments from the German gas company RWE, to divest the whole of its Western German gas transmission network. The commitments were offered following an investigation into allegations that RWE was abusing a dominant position in breach of Article 82 of the EC Treaty. The Commission’s preliminary view was that RWE had breached Article 82 on two grounds: (i) refusing access to its gas network in an attempt to retain it for its own supplier; and (ii) setting the transmission tariffs to the gas network at an artificially high level. RWE offered the divestment to ward off fines and other remedies which might be imposed by the Commission.
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