電力市場中之長期購電契約與相關市場界定及其限制競爭效果之研析──以最高行政法院109年度上字第839號行政判決及臺灣高等法院107年度重字第605號民事判決評析為中心

Power Purchase Agreements and Their Relationships with Relevant Market Definition and Competitive Effects: Comments on the Administrative and Civil Judgements or The Supreme Administrative Courts and Taiwan High Court

This article explores the problem of the completely opposite conclusions in the factual findings and argumentation between the administrative judgment and civil judgment of the same case involving alleged cartel by private power plant operators, decided by the Supreme Administrative Court and the Taiwan High Court. Clarifying the transaction arrangement, legal nature, and competitive effects of the long-term power purchase agreements (PPAs), which played a significant role in this case, and its position under competition law, the article elaborates on the mutual or bilateral monopolies formed between the contracting parties due to being locked in by the PPA. Then, the concepts of“competition for the market”and“competition in the market”are introduced to explain that under the system design of PPAs, private power plant operators can only be in a competitive relationship during the“competition for the market”stage of the bidding process. Once they win the bid and sign a long-term power purchase agreement, each private power plant occupies a monopoly position in its own PPA, without a competitive relationship with other private power plants. Regarding the cartel of“delaying to wait for change”in this case, this article believes that the Fair Trade Commission’s ruling on its impact on the supply and demand function of the power trading market and the judgment of the Supreme Administrative Court not only misidentified the relevant market of the behavior, but also only corrected the problem of the failure of planning and designing PPAs. It did not contribute to the market failure of the power trading market, which is the real concern of the Fair Trade Act.