By Janina C. Lim, May 1 2019; Business World

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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