Brussels, 30th July 2007
Antitrust: Commission opens formal proceedings against E.ON and Gaz de France concerning suspected market-sharing
The European Commission has decided to open formal anti-trust proceedings against the German energy company E.ON and the French gas company Gaz de France for a suspected breach of the EC Treaty's rules on restrictive business practices (Article 81). The case arises out of the inspection carried out in 2006 on E.ON and Gaz de France premises in Germany and France (see MEMO/06/205). The Commission proceedings focus on a possible agreement or concerted practice between E.ON and Gaz de France to keep out of each other's home market, even after the liberalisation of the European gas markets.
Why has the Commission decided to initiate proceedings?
The initiation of proceedings against E.ON and Gaz de France originates from information obtained during the inspection carried out in 2006.
The possible infringement, which will be further investigated, takes the form of a suspected agreement and/or concerted practice between E.ON and Gaz de France whereby they agreed not to sell gas in each other's home market. This agreement and/or concerted practice may concern in particular supplies of natural gas transported over the MEGAL pipeline, which is jointly owned by E.ON and Gaz de France and transports gas across Southern Germany between the German-Czech and German-Austrian borders on the one side and the French-German border on the other side. These suspected practices, constituting possible infringements of Article 81 of the EC Treaty, are engaged in by E.ON AG, its subsidiaries and companies under their control, including E.ON Ruhrgas AG, E.ON Gastransport AG & Co. KG and MEGAL Mittel-Europäische Gasleitungsgesellschaft mbH & Co. KG, as well as by Gaz de France SA, its subsidiaries and companies under their control, including Gaz de France Réseau Transport (GRTgaz) and MEGAL Mittel-Europäische Gasleitungsgesellschaft mbH & Co. KG.
The proceedings against E.ON and Gaz de France are not part of the energy sector competition inquiry, on which the final report was presented on 10th January 2007 (see IP/07/26 and MEMO/07/15). The energy sector inquiry has allowed the Commission to gain an in-depth understanding on the functioning, and in some respects mal-functioning, of the energy sector, which is of key importance for the overall competitiveness of the European economy. The knowledge acquired during the sector inquiry has allowed the Commission to draw conclusions as regards where Commission investigations based on competition law could be appropriate and effective.
It is important to note that the initiation of proceedings does not imply that the Commission has conclusive proof of an infringement. It only signifies that the Commission will conduct an in-depth investigation of the case as a matter of priority.
There is no strict deadline to complete inquiries into anticompetitive conduct. Their duration depends on a number of factors, including the complexity of each case, the extent to which the undertakings concerned co-operate with the Commission and the exercise of the rights of defence.
What is the legal base for the decision?
The legal base of this procedural step is Article 11(6) of Council Regulation No 1/2003 and article 2(1) of Commission Regulation No 773/2004.
Article 11(6) of Regulation No 1/2003 provides that the initiation of proceedings relieves the competition authorities of the Member States of their authority to apply the competition rules laid down in Articles 81 and 82 of the Treaty. Moreover, Article 16(1) of the same Regulation provides that national courts must avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings that it has initiated.
Article 2 of Regulation No 773/2004 provides that the Commission can initiate proceedings with a view to adopting at a later stage a decision on substance according to Articles 7-10 of Regulation No 1/2003 at any point in time, but at the latest when issuing a statement of objections or a preliminary assessment notice in a settlement procedure. In the case at stake, the Commission has chosen to open proceedings before such further steps.
The Commission may make public the initiation of proceedings in any appropriate way. Before doing so, it informed the parties concerned. The Competition Authorities of the Member States concerned have also been informed.
The company's rights of defence will be fully respected.