Limitation of the Freedom of Contract and the Autonomy of the Will of a Party to a Framework Agreement and of a (Commodity) Exchange Transaction in the Energy and Fuel Gas Markets

Abstract

This paper deals with the automation of trading in electricity and fuel gas and the obligation for electricity and fuel gas to be traded on an energy exchange (“exchange trading obligation”), which are provided for in energy regulations and capital market regulations (covering the stock exchange and trading in financial instruments). The automation of trading, as exemplified by framework agreements and specific contracts based thereon, has created the problem of determining the limits of the legal effects of an expression of intent. In contrast, selling via a commodity exchange requires a complex system of purchase and sale relationships based on commodity orders and multi-entity sale contracts entered into via a commodity exchange. In either case, the conclusion of a sale contract entails the problem of determining the limits of the autonomy of the will of (or the situation of) the seller in a civil-law contractual relationship in relation to the other party (or other parties) to the contract and in connection with public-law obligations under mandatory provisions of law and/or private-law (contractual) obligations of all or only some of the parties to the contract. The obligation to sell that arises from both administrative law and private law (a voluntarily accepted obligation) delimits the autonomy of the will of the seller, resulting in his freedom of contract being limited as regards his discretion to decide whether or not to enter into a contract, to choose who to contract with, and to decide on the terms of the contract. This paper analyses the foundations and performance of a specific contract entered into under a framework agreement and, in similar terms, the commodity exchange transaction, with limitations of the freedom of energy contracts as a backdrop.