The crisis forced the government to relax competition rules among petrol companies to secure enough fuel supplies. It also had to suspend competition law to enable carbon dioxide producers to continue operating after a drop in production – caused when rising energy prices forced plants to close down – threatened fresh food deliveries.
The government has needed to provide financial support to one of the sector’s largest players, CF Fertilisers, which supplies around 60 per cent of the UK’s CO2, after the rise in wholesale gas prices forced the company to temporarily halt its operations. The ‘limited’ financial assistance could cost the UK taxpayer millions of pounds, the UK’s Secretary of State for Environment, Food and Rural Affairs, George Eustice, conceded.
Contracts […] just mean that you are going to get some compensation for a lack of supply but they don’t deal with the immediate problems that companies need to contend with
Shane Freitag
Chair, IBA Energy, Environment, Natural Resources and Infrastructure Law Section
The EU has also been pressed by individual Member States to relax competition rules. So far the European Commission has largely resisted such a move, although it released a temporary ‘toolbox’ in October to help governments cope. However, some countries – such as Spain – are pressing for an EU-wide response to allow them to relax rules the way the UK has done.
Sylvie Gallage-Alwis, a partner at law firm Signature Litigation, says it’s important for companies to check exactly what degree of leeway competition authorities are prepared to provide. For example, while the measures put in place by the EU during the early days of the pandemic were meant to help companies, they also created risks later on, she says, ‘because each national regulator had a different definition of what the end of the pandemic means and when it occurred’.
Shane Freitag is Chair of the IBA Energy, Environment, Natural Resources and Infrastructure Law Section and National Leader in the Electricity Markets practice at Borden Ladner Gervais, based in Toronto. He believes companies need to tackle supply chain disruption caused by events such as the energy and fuel crises ‘as just another risk’.
‘Contracts – even if written well – just mean that you are going to get some compensation for a lack of supply but they don’t deal with the immediate problems that companies need to contend with in the meantime, which is replacing that supply at likely a higher cost’, he says.
Freitag believes companies will have to accept a certain amount of risk even if they have a contract. ‘They will have to go beyond and look at their supply chains and check how they are managed and how resilient they are’, he says. ‘For example, is the company reliant on one or two key suppliers? Should the company have more inventory to tide it over if the supply chain falters? Making these kinds of checks may take up a significant amount of time but it will provide more assurance in the long run as contracts are only as good as the supply chain of the companies you are dealing with.’
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