May 1, 2019 | 9:50 pm
THE DIVISION of labor between the
Philippine Competition Commission (PCC) and the Energy Regulatory Commission
(ERC) will be clarified once the Supreme Court decides on a case which was
elevated by the power regulator, according to a PCC official.
“We have to afford them the right to
seek further clarification from SC. A MoA [memorandum of agreement] will take a
while,” PCC Commissioner Johannes Benjamin R. Bernabe told reporters in Makati
City last week.
Following the spate of outages that
struck some parts of Luzon, the PCC revived proposals to sign a MoA with the
DoE and ERC to facilitate market competition and investigations in the power
sector.
The PCC and ERC had been tackling
ways to coordinate efforts in the competition area of the power sector, with
talks first surfacing in late 2016 when several areas of the country were
struck with a series of power outages.
Republic Act (RA) 9136, known as the
Electric Power Industry Reform Act (EPIRA) of 2001, authorizes the ERC to
monitor and penalize any act that constitutes market power abuse and/or
anti-competitive or discriminatory behavior by any electric power industry
participant.
Meanwhile, RA 10667 or the
Competition Act of 2015 authorizes the PCC to implement a national competition
policy and ensure the promotion and protection of the competitive market by
prohibiting anti-competitive agreements, abuse of dominant position, and
anti-competitive mergers and acquisitions.
A resolution the Court of Appeals
(CA) issued on May 23, 2018, dealing with a petition filed by Manila Electric
Co., which questioned ERC’s jurisdiction over a competition concern related to
the Malampaya shutdown in 2013, resolved this, saying the Competition law
repeals Sections 43 and 45 of the EPIRA law which gives ERC the function to
resolve cases of anti-competitive behavior and other unfair trade practices in
the energy sector.
However, the ERC appealed the CA
decision before the SC, according to Mr. Bernabe.
Mr. Bernabe added that regulators,
specially those with competition mandates like ERC, are still not precluded
from conducting their own investigation and factfinding inquiries.
“But when it comes to the period
that there is a need for a quasi judicial determination whether there is breach
of competition law or competition related laws, then it is the PCC, which has
jurisdiction.”
Nevertheless, he added “there is
nothing that prevents us from agreeing and reviewing certain other aspects of
the MoA, exchanges of information, coordination in factfinding missions,
preliminary inquiries and investigations.”
At present, the PCC is also looking
into the merits of whether it will launch a probe into the alleged collusion of
power plants that announced unscheduled closures, resulting in power outages on
Luzon.
“There’s an urgency to address the
issue of power outages. Of course, it is important that if there are any
breaches of the law, that these should be subject to appropriate proceedings.
But of course, we have to ensure that in the process of undertaking those
proceedings, the facts and evidence would show that there’s breach of
competition law, “ Mr. Bernabe added. — Janina C. Lim
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