Towards the end of April Ofwat issued a stern rebuke to the managing directors of England & Wales water undertakers over delays in introducing the much heralded retail competition and common carriage for large non-domestic customers.

Cynical observers might suggest that there is perhaps a link between Ofwat's move and the wrist slapping administered to the regulator on the same topic by the Competition Appeal Tribunal in its 'Bath House' judgement at the end of March.

That case concerned an attempt by Albion Water and its affiliates to use the Chapter II Prohibition to obtain acceptable common carriage terms from Thames Water in relation to some sites in London.  The dispute in the case was somewhat academic, since common carriage arrangements are now organised under the new Water Act 2003 regime.   However, in passing judgement the CAT took the opportunity to criticise Ofwat's efforts to use the Competition Act to drive forward competition in the sector.

In the judgement, the CAT first noted that Ofwat had not been able to give it a satisfactory explanation as to why competition by common carriage (foreshadowed by Ofwat guidance over the period 1999 and 2002) had not in fact occurred.  It went on to acknowledge implicitly that, in considering individual complaints (which may be small in themselves, taken in isolation), Ofwat might be failing fully to take into account a possible pattern of exclusionary conduct by incumbent water undertakers raising wider issues under the Chapter II prohibition or Article 82.


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