2018年6月21日,欧盟委员会(" Commission ")开始了一项新的调查,以确定卡塔尔石油公司与欧洲买家的液化天然气(" LNG ")供应合同中所谓的目的地条款是否违反了欧盟(" EU ")的反垄断规则。
此次调查是在全球监管机构重新关注这些条款和LNG交易条件的背景下进行的。在此之前,欧盟委员会刚刚对俄罗斯天然气工业股份公司(Gazprom)使用的类似条款进行了为期7年的调查,尽管是在不同的管道天然气供应市场。长期以来,确保能源供应在欧盟范围内的自由流动一直是欧盟委员会能源议程的首要任务,也是该部门执法活动的重点。委员会认为液化天然气是通过管道供应天然气的一种有前途的替代品。从这个意义上说,这项新的调查是一个明确的信号,即如果欧盟监管机构发现在整个欧盟范围内获得液化天然气供应的任何有问题的障碍,就会进行干预。
两类条款似乎是欧盟委员会调查的重点:
This new investigation thus comes as no surprise. In fact, the Commission had been observing the LNG sector for quite a while. Last year, the Commission published the results of its study into LNG and Storage Strategy, in which it identified destination clauses as a significant obstacle to LNG trade and the development of a fully-integrated EU energy market.
This new investigation must also be seen in the context of heightened antitrust scrutiny of LNG supply flows globally. In June 2017, concluding an intense sector-wide review and debate, the Japanese Fair Trade Commission (“JFTC”) concluded that destination clauses and diversion restrictions and profit-sharing mechanisms in LNG supply contracts were likely or highly likely to violate the Japanese Anti-Monopoly Act depending on the terms of the contract in question. Shortly thereafter, the Korean Fair Trade Commission likewise started looking into the effects of these clauses on competition. The Commission and the Indian Competition Commission also signed bilateral cooperation agreements with the JFTC last year that aim at curbing problematic destination clauses in LNG arrangements.
In this toughening antirust regulatory context, it remains to be seen how the commercial complexities of the LNG sector and concerns about the EU’s security of supply of gas will play out in the Commission’s analysis. In previous cases, the Commission had considered in some detail the types of arrangements and restrictions at play (destination clauses and potential variations such as profit sharing mechanisms, incoterms (FOB, DES, CIF), etc.), as did the JFTC in its June 2017 report. Regardless of its approach, it is fair to assume that the Commission’s investigation may have implications that will go well beyond the specificities of this case and could impact the wider LNG industry.