Brussels, 13 June 2012
Antitrust: Commission opens formal proceedings against Deutsche Bahn
The European Commission has opened formal antitrust proceedings to investigate whether the German railway incumbent Deutsche Bahn AG and several of its subsidiaries operate an anticompetitive pricing system for traction current in Germany, in breach of EU antitrust rules. Traction current is a type of electricity used by trains on the railway network. The Commission will investigate whether the discounts applied by Deutsche Bahn lead to higher prices for its competitors, placing them at a disadvantage on the rail freight and passenger markets. The opening of proceedings does not prejudge the outcome of the investigation; it merely means that the Commission will treat the case as a matter of priority.
Following complaints, the Commission carried out inspections at the premises of Deutsche Bahn in 2011 (see MEMO/11/208). The Commission's investigation will focus on the pricing of traction current in Germany.
Traction current is a particular type of electricity needed to move electric locomotives and trains on the railway network. In Germany, traction current is supplied at a specific frequency distinct from the frequency of the general electricity network.
DB Energie GmbH, a subsidiary of Deutsche Bahn AG, is the only supplier of traction current on the German market. The Commission will investigate in particular whether discounts on the price of traction current applied by DB Energie GmbH to railway undertakings active in Germany lead to higher prices for competitors of Deutsche Bahn and place them at a competitive disadvantage on the rail freight and passenger markets. Such behaviour, if established, would violate Article 102 of the Treaty on the Functioning of the EU (TFEU) that prohibits the abuse of a dominant market position.
Article 102 TFEU prohibits the abuse of a dominant position which may affect trade and prevent or restrict competition. The implementation of this provision is defined in the Antitrust Regulation (Council Regulation No 1/2003) which can be applied by the Commission and by the national competition authorities of EU Member States.
Article 11(6) of the Antitrust Regulation provides that the initiation of proceedings by the Commission relieves the competition authorities of the Member States of their competence to also apply EU competition rules to the practices concerned. Article 16(1) further provides that national courts must avoid giving decisions, which would conflict with a decision contemplated by the Commission in proceedings that it has initiated.
The Commission has informed Deutsche Bahn and the competition authorities of the Member States that it has opened proceedings in this case.
There is no legal deadline to complete inquiries into anti-competitive conduct. The duration of an antitrust investigation depends on a number of factors, including the complexity of the case, the extent to which the undertaking concerned cooperates with the Commission and the exercise of the rights of defence.