ERC may hear competition cases vs power players–sc

THE Supreme Court has affirmed the jurisdiction of the Energy Regulatory Commission (ERC) to hear the case of anti-competitive behavior, abuse of market power, or other unfair trade or practices filed against the Manila Electric Company (Meralco) and Aboitiz Power Corporation’s subsidiaries prior to the enactment of R.A. 10667 or the Philippine Competition Act (PCA).

In a five-page resolution, the Court’s Third Division partially granted the petition filed by the ERC questioning the ruling issued by the Court of Appeals on May 23, 2018, which held that the Philippine Competition Commission (PCC) has jurisdiction over anticompetition issues and cases.

The appellate held that PCC’S jurisdiction over such cases is original, which means that it has the power to take cognizance of a case at its inception; exclusive, which precludes the idea of coexistence with other regulatory bodies; and primary, which means in case of conflict between the jurisdictions of PCC and other regulatory bodies, preference shall be given to the PCC.

However, the CA also declared that the PCA has no retroactive effect, the cases are still within the jurisdiction of the ERC.

It noted that since the complaints against the respondents were filed before the enactment of PCA on July 21, 2015.

Furthermore, the CA held that when a tribunal already acquired jurisdiction over an action or claims, its jurisdiction continues up to the conclusion of the same.

The ERC, however, did not agree with the CA that the PCC has exclusive, original and primary jurisdiction over competition-related issues concerning the energy sector.

Thus, the ERC elevated the issue before the SC.

In upholding the ERC’S jurisdiction over the case, the SC explained that at the time the complaints for anti-competitive behavior were filed against Meralco and Aboitiz

Power’s subsidiaries Therma Mobile, Inc. and AP Renewables, the ERC had jurisdiction over the same, in accordance with the powers granted to it by the Electric Power Industry Reform Act (EPIRA).

“Here, the complaints against respondents were all filed before the enactment of the PCA. Verily, the PCA was non-existent then and it is the EPIRA that governs issues regarding the energy sector at that time. EPIRA explicitly vested with the ERC jurisdiction to resolve respondents’ cases,” the SC said.

“In addition, the PCA expressly states that it has no retroactive effect. Hence, it is only proper that the complaints filed against respondents before the enactment of the PCA should stay with the ERC,” it added.

However, the SC ruled that the

CA’S discussion on PCC’S primary, original and exclusive jurisdiction over cases filed after the enactment of the PCA is immaterial in resolving the case.

It said that the Court cannot determine issues which are not fully litigated.

“The resolution of this issue need not touch upon the interpretation of the provisions of the PCA and the delineation of the jurisdiction of the PCC vis-a-vis the other sector regulators, such as the ERC,” the SC explained.

“This case is not the proper forum for the Court of Appeals to determine whether the PCC’S jurisdiction over competition cases filed after the enactment of the PCA is primary, original, and exclusive over all regulatory agencies of the government,” it added.