International Competition Law University of Trento MIM course

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Transcript International Competition Law University of Trento MIM course

European Commission Decision Relating to proceeding under Article 82 - EC Treaty

(Case COMP/39.402 – RWE Gas foreclosure) Prof. Vezzoso Simonetta Master of International Management University of Trento Neda Memari WS 2010/11

Table of Content

I.

Subject Matter II. The Addressee III. Procedural Steps Under Regulation IV. Preliminary Assessment V. Proposed Commitments VI. Proportionality of the Final Commitments VII. Conclusion

Subject Matter

• Decision is Addressed to RWE AG • Preliminary assessment according to article 82 (now 102) EC treaty

The Addressee

• • • • • Rheinische Westfälisches Elektrizitätswerk AG (RWE AG) A German-based energy and utility company Primarily active in production & supply of gas & electricity Traditionally have been focused on NRW region in Germany Today has 8 subsidiaries and is active in other countries Its turnover was €42,507 million in 2007

Procedural Steps Under Regulation

• • • • In May 2006, the investigation was based on the results of an inspection at RWE’s premises.

On 20 April 2007, the EC initiated proceeding against RWE pursuant to article 81 & 82 .

On 15 October 2008, the EC adopted a preliminary assessment.

On 26 November 2008, RWE submitted comments to the preliminary assessment.

Procedural Steps Under Regulation

• • • • On 5 December 2008, a notice was published for inviting interested third parties to give their observations in one month.

On 19 January 2009, the EC informed RWE of the received observations.

On 2 February 2009, RWE submitted an amended commitment proposal.

On 6 March 2009, issued the final report of advisory committee on restrictive practices & dominant.

Preliminary Assessment

• Relevant markets • Substantial part of the common market • Practices raising concerns • Effect on trade between Member States

Relevant Markets

• The relevant product markets • • Distinguished between gas Supplier and transporter services TSO separate from DSO • Distinguished between Wholesalers and end Customers • • • The relevant geographic markets Negligible competition outside TSO Gas supply defined as grid-wide

Relevant Markets

• RWE’s dominant position on the relevant markets • • • • Dominant position since 2003 High entry barriers for potentially competing TSO Low market share on supply markets Entire available capacity was booked on a long term

Substantial part of the common market

• Gas transmission network covered by RWE • Affected geographic market of the most German population

Practices raising concerns

• • • • • • Capacity management (refusal to supply) RWE TSO may have pursued a strategy for keeping the transport capacities RWE has booked almost entire capacities on its transmission network on a long term basis Demand exceeded the offered capacities Huge difference between indicated and actual capacity used Lack of effective congestion management system

Practices raising concerns

• • • • • • • Margin squeeze RWE may have followed a strategy for squeezing competitors’ downstream gas supply margins Elevated tariffs for network access Elevated prices for access to its transmission network As a vertical integrated and dominant company control the gas transmission network Asymmetric cost elements disadvantaging competitors While RWE was itself exempted from paying balancing costs, due to agreements between RWE-energy-TSO, other transport customers had to pay high penalty fees within RWE TSO’s network

Effect on trade between Member States

• RWE’s behaviour was capable of affecting trade between Member States • Notably by affecting import and export flows • Hindering foreign competitors from competing within its grid area

Proposed Commitments

• I.

II.

RWE notably committed to divest: RWE’s German high-pressure gas transmission network with a total length of app. 4,000 Km Auxiliary equipment necessary for the operation of the transmission network III.

Intangible assets necessary for the operation of the transmission network • RWE commits to supply the purchaser for a limited period of up to five gas years • The business will be endowed with personnel and key personnel necessary for transmission network

Proportionality of the Final Commitments

• RWE’s divestiture can be a structural remedy • Oblige RWE to behave in a certain manner of its gas transmission activities • Ensure that RWE has no control over the gas transmission network • Clear-cut solution to the identified competition concerns

Conclusion

• Adopting a decision pursuant to article 9 (1) of regulation • Decision doesn’t conclude whether or not there has been or still is an infringement • In the light of the final commitments offered, the commission considers that there are no longer ground for action on its part • With no prejudice to Article 9(2) of regulation, the proceedings in this case should therefore be brought to an end.

References

• • • • http://ec.europa.eu/competition/ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E082:EN:HTML http://www.zoll.de/english_version/a0_passenger_traffic/member_states/index.html

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1306245

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