# EUR-Lex - 52012SC0141 - EN

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# 52012SC0141

**COMMISSION STAFF WORKING PAPER Accompanying the REPORT FROM THE COMMISSION on Competition Policy 2011 /* SWD/2012/0141 final */**

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Table
of contents

I.            LEGISLATION AND POLICY DEVELOPMENTS. 3

State aid. 3

1........... Developments in State
aid in times of crisis. 3

2........... SGEI – a main policy
project 5

3........... State aid contributing
to Europe 2020 objectives. 6

4........... The Commission's
monitoring and recovery efforts in relation to State aid. 8

Antitrust & Cartel enforcement 10

1........... A sound framework for enforcement of competition rules. 10

2........... Improving procedures, enhancing transparency, safeguarding
efficiency. 11

3........... Private enforcement of EU competition law.. 11

4........... Technology Transfer Agreements: forthcoming policy review in light
of Europe 2020 objectives  12

5........... An on-going firm stance against cartels. 13

6........... Effective cooperation within the European Competition Network and
with National Courts. 15

7........... The international dimension. 16

Merger control 17

1........... Increased cooperation
among Member States and internationally. 17

2........... Rebound of merger
notifications and increase in complexity of the cases. 17

II.           SECTORAL OVERVIEW... 18

1........... Energy &
Environment 18

2........... Information and
Communication Technologies (ICT) and Media. 22

3........... Rail transport 26

4........... The Pharmaceutical and
health services sector 28

III.          COMPETITION DIALOGUE
WITH OTHER INSTITUTIONS. 30

IV.         ANNEXES. 34

I.       LEGISLATION
AND POLICY DEVELOPMENTS

The wider context of competition
policy and enforcement

EU competition policy aims at achieving three main objectives: i)
protecting competition on the market as a means of enhancing consumer welfare,
ii) supporting growth, jobs and the competitiveness of the EU economy and iii) fostering a competition culture.

Those objectives are an important part of the wider general
objectives of the Europe 2020 Strategy for smart, sustainable and inclusive
growth. The Strategy sets out concrete targets to be achieved within the next
decade in areas such as employment, education, energy use and innovation, in
order to overcome the impact of the financial crisis and put Europe back on
track for economic growth. Enforcement actions and advocacy efforts by the
Commission and the Member States have to be considered together for the overall
achievement of those objectives.

A weaker competition framework would have a negative impact on growth.
Strong competition policy and enforcement through all instruments – the control
of State aid, antitrust and merger
control – are essential
to rebuilding the economy. In times of economic hardship, there
may be calls to relax the competition rules to accommodate short-term concerns encountered
by businesses. Such relaxation would have prevented healthy recovery. So it is essential
that competition rules be fully maintained, even in the current economic context.

Competition stimulates entrepreneurship, improves
efficiency and creates the best conditions for innovation. In other words, everyone is better off when markets are competitive - consumers,
taxpayers, citizens and businesses. To increase awareness, the Commission has
undertaken various communication initiatives explaining the benefits of
competition policy to European citizens[1].

State aid

1. 
Developments in State aid in times of crisis

Prevailing uncertainties in financial markets required prolongation
of the extraordinary State aid crisis rules 2011. On 1 December, the Commission
decided to prolong the special rules applicable to financial institutions in
the context of the crisis[2].
The prolongation included some modifications on the remuneration requirements
for guarantees and recapitalisation. The rules will apply as long as required
by market conditions.

Through those rules, State aid control continued to ensure a
consistent policy response to the financial crisis throughout the EU, and
contributed significantly to limiting distortions of competition between
beneficiary financial institutions within the Single Market. A detailed
assessment of State aid control during the financial crisis can be found in the
Commission Staff Working Paper "The effects of temporary State aid rules
adopted in the context of the financial and economic crisis"[3], published by the Commission as
a response to the Parliament's request.

The Commission confirmed its approach to failing banks in a number
of important decisions throughout the year. Institutions which have no
realistic prospect of returning to viability must exit the market and not be
kept artificially afloat by repeated state support. The troubled Irish lender
Anglo Irish Bank is a good example. The Commission approved the plan submitted
by the Irish authorities, which foresees a joint wind-down of Anglo Irish Bank
together with Irish Nationwide Building Society over a period of ten years.
Another prominent example is the case of long-time ailing German Landesbank
WestLB, which will ultimately be split up. Remaining assets and liabilities
will be transferred to a bad bank in order to be wound down. By 30 June 2012
WestLB is to stop its banking activities and henceforth only provide asset
management services. Only the small part of WestLB’s most conservative business
activities - the services it provides to small local savings banks - will stay
in the market, but taken over by Helaba.

On the other hand, some banks relied heavily on State aid but parts
of their activities have a realistic prospect to return to viability. Those
institutions can be allowed to stay on the market provided that they
considerably reduce their size and substantially change their business model to
focus only on these viable activities. That approach is well illustrated by the
approval of the restructuring of the German bank Hypo Real Estate, which is to reduce
to 15% of its pre-crisis balance sheet and phase out a number of business
fields. Similarly, the Commission approached restructuring aid to another German
bank HSH Nordbank in the light of a commitment to reduce its balance sheet size
by 61% compared to pre-crisis levels by exiting certain business lines. Such
deep restructuring tackling the root of past failure and avoiding aid being used
to undercut competitors ensure that distortions of competition created by
massive State support is minimised. The Commission also applied this approach
in the context of smaller banks. For instance Eik bank[4] in Denmark was split into a bad
bank put in liquidation, while the good part of the bank was subject to a sale
via a bidding process. A similar line was taken for the Austrian bank Kommunalkredit[5] which had to be nationalised in
a rescue operation. The bank's business was split into non-strategic activities
(to be wound down) and strategic activities (corresponding to approximately 40%
of the balance sheet) which will be re-privatized.

In the case of ABN Amro Bank[6],
the need for State aid stemmed primarily from the specific separation context:
separation of the Dutch bank activities from the ailing Fortis group and from
the previously existing ABN Amro Group. The two businesses were left with
insufficient capital to face the crisis and finance their merger. The
Commission took into account that the bank did not need aid primarily because
of mismanagement or excessive risk taking at its level and therefore only
requested behavioural safeguards (i.e. it did not seek any divestment of
businesses).

In October, the ECOFIN Council concluded
that the EU State Aid Framework should continue as the sole EU level
co-ordination tool and that – in the short-/medium-term – no further frameworks
are required.

The Competition DG started work developing new guidelines for the rescue
and restructuring of financial institutions in a post-crisis regime, as well as
on the new rescue and restructuring rules for the real economy.
Work on those rules will continue in 2012.

2. 
SGEI – a main policy project

Beyond the actions taken in the context of the
financial and economic turmoil, the revision of the State aid rules for services
of general economic interest (SGEI) constituted the main policy project in the
area of State aid.

After extensive public consultations and
valuable contributions received from Member States, European institutions and
stakeholders, the Commission adopted on 20 December a revised package of EU State
aid rules for the assessment of public compensation SGEI. The new package
clarifies key State aid principles and introduces a diversified and
proportionate approach with simpler rules for SGEIs that are small, local in
scope or pursue a social objective, while better taking account of competition
considerations for large cases.

The new SGEI package[7] provides Member States with a
simpler, clearer and more flexible framework for supporting the delivery of
high-quality public services to citizens. Member States are largely free to define
which services are of general interest, but the Commission must ensure that
public funding granted to provide such services does not unduly distort
competition in the internal market.

All social services are now exempt from the
obligation of notification to the Commission, regardless of the amount of the
compensation received. The services must meet "social needs as regards
health and long term care, childcare, access to and reintegration in the labour
market, social housing and the care and social inclusion of vulnerable groups".
Previously only hospitals and social housing were exempted. Other SGEIs are
exempted provided the compensation is less than €15 million a year.

On the other hand, there will be a greater
scrutiny of other SGEIs involving compensation of more than €15 million a year
and where the potential for distortions of competition within the single market
is higher. In its assessment the Commission will also check whether public
procurement rules have been complied with, thereby ensuring more convergence
between the two sets of rules.

The new rules,
which replace the so-called "Monti-Kroes" Package of July 2005,
clarify basic notions such as "economic activity" to help national and
also regional or local governments apply the rules. The new package consists of
four instruments: (i) a Communication clarifying basic concepts of State aid
relevant to SGEI; (ii) a revised Decision, exempting Member States from the
obligation to notify public service compensation for certain SGEI-categories to
the Commission; (iii) a revised Framework for assessing large compensation
amounts granted to operators outside the social services field and (iv) a
proposal for a de minimis Regulation, providing that compensation below
a certain threshold (EUR 500,000 over three years) does not fall under State
aid scrutiny, thus cutting red tape for small SGEIs. The proposal is scheduled
for adoption in the spring 2012.

In its reform of the State aid rules for SGEI, the Commission
involved the European Parliament at an early stage. Vice-President Almunia and his services participated in meetings of
the Public Services Intergroup on SGEI in the months preceding the launch of
the public consultation. Following the adoption of the
Communication, the Vice-President presented the Commission's
initial thinking to the Economic Affairs (ECON) Committee of the European
Parliament on 22 March, and reported back to the committee in July and again in
November, when he stated that he would be able to take into account a number of
the concerns raised by Parliament in its Resolution on the SIMON report[8].

The final adopted version of the SGEI Package takes into account
comments received in the consultation process, including from the Parliament. For
example, the initial proposal was amended so as to cut red tape for
compensation for social services, thus making it easier to provide those
services in particular for the elderly and for people with disabilities, as
also requested by the Parliament. The Communication was also modified to
provide further clarification on the so-called fourth Altmark criterion[9] (either the beneficiary is
chosen in a public tender or compensation does not exceed the costs of a
well-run undertaking that is adequately equipped with the means to provide the
public service). In addition, the proposal for a de minimis regulation
for SGEI was amended substantially to provide further simplification: the
condition on the number of inhabitants represented by the public authority
granting the aid was removed and a three-year threshold was set.

3. 
State aid contributing to Europe 2020 objectives

The Commission's Europe 2020 strategy aims at enhancing
economic growth, sustainability and competitiveness in the European Union.
State aid control has an important role to play in that process.

In line with the objective of supporting sustainable
growth and achieving the 20/20/20 climate/energy target, the Commission
services have started to prepare guidelines for the treatment of State aid
connected to the Emissions Trading System (ETS) and have launched a public
consultation on the draft Commission Communication (State aid Guidelines). That
draft Communication defines the compatibility criteria of four new State aid measures
with the internal market (i.e. aid to compensate increases in electricity
prices resulting from the inclusion of the costs of greenhouse gas emissions
due to EU ETS; investment aid to highly efficient power plants; optional
transitional free allocation in the electricity sector in some Member States;
and the exclusion of certain small installations from the EU ETS, subject to
certain conditions).

The ETS was introduced to reduce CO2
emissions and moderate climate change. Directive 2003/87/EC established a
scheme for greenhouse gas emission allowance trading within the Union (the EU ETS), which was improved and extended as from 1 January 2013 by Directive
2009/29/EC (the ETS Directive). The ETS Directive is part of a legislative
package containing measures to fight climate change and promote renewable and
low-carbon energy. That package was mainly designed to achieve the Union’s
overall environmental target of a 20% reduction in greenhouse gas emissions
compared to 1990 and a 20% share of renewable energy in the Union’s total
energy consumption by 2020. The new rules are expected
to be adopted by the Commission in the course of 2012.

The Europe 2020 Strategy also underlined the importance
of broadband deployment to create a true single digital market and foster cohesion
and competitiveness in the EU and set ambitious targets for broadband development. One of its flagship initiatives, the
Digital Agenda for Europe (DAE)[10],
aims to deliver sustainable economic and social benefits from a digital single
market based on broadband networks and sets out ambitious coverage targets[11]. Investments in that sector
will come primarily from commercial operators; however, public intervention is
essential to achieve the DAE objectives in areas where the business case for
broadband is weak.

The Commission's approach to State aid in this sector is
represented by the Broadband Guidelines[12],
which are due for review by September 2012. In 2011 the Commission started the
revision by launching a fact-finding exercise, including a public consultation
of Member States and other stakeholders in the sector and drafting an expert
report to highlight the main technological, market and regulatory developments.

Sustainability and competitiveness of the European
economy can be further enhanced by innovative financial instruments, as they
enable Member States to deliver policy objectives with less and better targeted
State aid. State aid control focuses on enhanced financial leverage, investment
risk mitigation and the involvement of professional intermediaries. Potential
risks include, in particular, the risk of crowding out other potential sources
of funding and transferring all the financial risks to the public investor, rather
than mitigating them. Such developments would create inefficient market
structures and potential market distortions, which need to be addressed by
competition policy.

Innovative financial instruments refer to
public interventions other than grant funding. They cover a broad range of
repayable instruments, such as loans, equity and guarantees. There has been an
increasing use of financial instruments by Member States and the
Commission, which reflects a policy shift from a traditional grant
approach to repayable investments, with an emphasis on financial
sustainability and leverage funding, as well as the involvement of professional
investment intermediaries. That trend is expected to continue in the current
environment of budgetary constraints.

In 2011, Member States continued to develop
a variety of innovative financial instruments, often financed from Structural
Funds. There are two notable examples: (i) JEREMIE, which focuses on improving
access to finance for SMEs, and (ii) JESSICA, which promotes sustainable
urban development[13]. The
Commission, building on its recent experience, has placed innovative financial
instruments at the heart of the Europe 2020 Strategy. To ensure a coherent
approach and sound financial management, the Commission has proposed common
rules and guidance for innovative financial instruments which make use of
equity or debt, the so-called equity and debt platforms[14] implemented in cooperation
with the EIB (European Investment Bank).

In that context, the Commission continued its competition advocacy efforts
vis-à-vis Member States and other external stakeholders by shaping the design
of financial instruments in order to ensure their alignment with State aid
policy. Moreover, recognising the limitations of existing State aid
instruments, the Commission has developed a coherent compatibility approach to
innovative financial instruments through its decision-making practice. In 2011
the Commission also took two important decisions on JESSICA funds established
in the United Kingdom and Spain, approved directly under Art 107(3)(c)
TFEU[15].

Under that new approach, the decisions approving the
funding set out detailed compatibility principles. To avoid crowding out and
ensure an incentive effect, financial instruments must aim at addressing market
failures and/or enhancing socio-economic cohesion in pursuit of objectives of common
interest. To avoid over-compensation and limit potential distortions of
competition, any form of asymmetric risk sharing between public and private
investor must not exceed what is necessary to generate a fair rate of return on
investment in favour of the latter. That approach avoids the need to assess separately
each individual project under a JESSICA measure, possibly under different
guidelines, and hence considerably reduces red tape.

The decisions
provide detailed guidance to Member States on operating conditions and
governance principles for investment intermediaries operating under the JESSICA
framework. Moreover, the experience in the context of JESSICA provides
important input for future State aid policy developments in the field of financial
instruments, including the next generation of innovative financial instruments
under the new financial framework 2014-2020.

4. 
The Commission's monitoring and recovery efforts
in relation to State aid

To ensure the
effective enforcement of the State aid rules as regards approved aid, the
Commission has, since 2006, launched regular ex
post monitoring
exercises for non-notified aid measures granted under the GBER[16] or under approved schemes.

The 2010-2011 exercise included the ex post monitoring
of 30 approved aid schemes or measures exempted of notification in 18 Member States. 
It targeted measures where the biggest budgets are spent overall (regional aid,
environmental aid and R&D&I aid), but also sectoral schemes, aid in the
form of risk capital, and aid in the broadband area. The
results showed that generally the part of the existing State aid architecture
allowing the approval of aid schemes and enabling Member States to implement
aid measures under the General Block Exemption Regulation (GBER) and Block
Exemption Regulations (BERs) functions reasonably well. In fact, out of the 30
cases in the 2011 sample, 20 did not raise specific concerns. However, compared to previous years' samples, substantive problems
or procedural issues (such as transparency, reporting, speed and quality of
answers) were identified in a growing minority of cases. That indicator may
point to issues of administrative capacity or lack of knowledge of the State
aid rules at Member State level. The cases in which no appropriate solution was
identified are still being investigated.

The volume of aid granted through approved or
block-exempted schemes has increased over time, and now represents more than
80% of the total volume of aid[17].
To ensure effective enforcement of the State aid rules, the Commission decided
that the 2011-2012 exercise, launched in October, would include a significantly
larger number of cases (i.e. 52 in total) covering all Member States. They would
cover 33% of the aid amount granted in the EU, through approved aid schemes or
block exempted measures.

Fostering a competition culture at national level
includes the Commission's powers to ask the granting Member State to recover unlawful aid which has been
declared incompatible. In 2011, further progress was made to ensure that those recovery
decisions are enforced effectively and immediately. By 31 December 2011, the
amount of illegal and incompatible aid recovered had increased from EUR 2.3
billion in December 2004 to EUR 12.3 billion (resulting in a decrease from 75%
to around 13.6% of the percentage of illegal and incompatible aid still to be
recovered as of 31 December 2011).

Recovery decisions adopted in 2011 || 6

Amount recovered in 2011 (in € million) || 230

Pending active recovery cases on 31.12.2011 || 43

When a Member State does not comply with a recovery decision and has
not been able to demonstrate the existence of absolute impossibility, the
Commission has, over the past few years, strengthened its practice of launching
infringement procedures[18]
in accordance with Article 108(2) TFEU[19]
or Article 260(2) TFEU[20].

Court rulings in 2011 for failure to implement a recovery decision || 4

Court rulings in 2011 for failure to implement a previous ruling || 1

Commission's launching of judicial actions for failure to recover in 2011 || 6

Infringement procedures have indeed proved to be efficient in ensuring
better enforcement of recovery decisions. This year, five cases were closed
after judicial actions before the Court of Justice, while 29 out the 45 open cases
are still subject to litigation.

In addition, in the follow-up to
the Notice on the Enforcement of State Aid Law by National Courts[21], advocacy efforts have
intensified. An information package was published on the Competition DG's
website[22]
and a booklet[23]
to assist judges in their daily
work was widely distributed. Specific training for national judges was also
organised[24].

Finally, in 2011, some Member States notified a general framework for aid (also
called ex ante scheme) in the interest of the efficiency of the procedure. Such
schemes make good the damages in future occurrences of one or more specific
types of natural disasters, without the need for separate notification of the aid
granted for each occurrence. The Commission has accepted ex ante schemes for
four categories of natural disasters[25]:
earthquakes, avalanches, landslides and floods (four types of disasters which
are also explicitly recognized as constituting natural disasters in the State
aid guidelines for the agriculture sector[26]).
That approach allows swifter implementation of the aid measures. It still gives
the Commission sufficient information to check compliance with the scheme and,
in case of non-compliance, to start an investigation of possible unlawful aid
measures and order recovery of incompatible aid.

Antitrust & Cartel enforcement

1. 
A sound framework for enforcement of competition
rules

The year 2011 was an important year for issues of due
process concerning the EU's institutional framework for the enforcement of competition
law. Indeed, the past years witnessed a debate
surrounding the set-up of the Commission's enforcement system in view of the
right to a fair trial under the ECHR and the respect of due process principles.
Rulings in 2011 by the European Court of Human Rights (ECtHR) in Menarini,[27]
and the Court of Justice in its Copper Industrial Tubes[28] and Copper Plumbing Tubes
judgments,[29]
confirmed that the institutional framework for the enforcement of competition
law, by which and administrative organ as the Commission takes decisions which
are subject to full judicial review, ensures an adequate protection of the
fundamental rights of the persons concerned by those decisions.

In Menarini, the ECtHR confirmed its
case law in respect of the right to a fair trial[30]. The judgment concerned a case
in which the Italian competition authority imposed a fine in relation to an
antitrust infringement regarding medical equipment. The Italian competition
authority (like the European Commission) has the power both to investigate and
to find infringements by imposing fines, subject to two-tier judicial review.
While every institutional set-up has its particularities, the system in Italy is similar to the EU system for the enforcement of competition law. The ECtHR ruled
that the system respects the f guarantees flowing from the right to a fair
trial laid down in Article 6 ECHR in particular because (i) decisions of the
competition authority are subject to judicial review on questions of fact and
law (ii) the courts can verify the proportionality of the sanction imposed and have
the power to change that sanction.

The Court of Justice has come to a similar
conclusion in its Copper Industrial Tubes and Copper Plumbing Tubes judgments
where it considered that the judicial review carried out by the General Court
in respect of Commission decisions imposing fines in competition matters
fulfils the guarantees flowing from the principle of effective judicial
protection as laid down in the Charter of Fundamental Rights of the European
Union.

2. 
Improving procedures, enhancing transparency,
safeguarding efficiency

The Commission has taken measures to reform and to
increase transparency of its antitrust and merger procedures. These measures
were based on an initiative launched in 2010, and followed extensive dialogue
with stakeholders, of which the European Parliament was kept informed. With
these measures the Commission has given a comprehensive response to the
concerns and suggestions by stakeholders with regard to the conduct of
antitrust and merger procedures.

The package, adopted in October, consists of the
following documents:

· 
a Commission Notice on Best Practices for the
Conduct of Proceedings under Article 101 and 102 TFEU[31] and

· 
a Staff Paper on Best Practices for the
Submission of Economic Evidence in antitrust and merger cases[32].

As part of this package, the President of the Commission
also adopted new Terms of Reference for the Hearing Officers[33]. The new terms of reference
include extended possibilities for the parties to call on the hearing officers in
order to safeguard the effective exercise of their procedural rights, not only
after a Statement of Objections is issued, but throughout the investigative
phase as well.

In order to further safeguard the efficiency of its antitrust
investigations, the Commission is also pursuing a number of cases for violation
of rules concerning the Commission's investigations. In that regard, on 24 May,
a fine of EUR 8 million was imposed on Suez Environment for breach of a seal
affixed by the Commission during an inspection in April 2010[34].

3. 
Private enforcement of EU competition law

In 2011, the Commission continued its initiatives to ensure
that those who have been harmed by infringements of the EU competition rules
have effective remedies in order to obtain the compensation to which they are
entitled under EU law. Following on from its 2008 White Paper on Damages Actions[35], the main initiatives in this
field in 2011 concerned the quantification of harm and collective civil
redress. The Competition DG launched a public consultation on a draft Guidance
Paper on the quantification of harm in antitrust damages actions[36], aiming at providing guidance
to courts to overcome difficulties associated with quantifying harm in
antitrust damages cases. A final version of the Guidance Paper will be published
in 2012.

Following a request by the European Parliament[37], the Commission also launched a
public consultation 'Towards a coherent European approach to collective
redress'[38].
As a follow-up, the Commission intends to define general principles of
collective redress at EU level, with a view to possibly proposing legislation.
Such legislation would aim at ensuring that victims of EU antitrust law infringements
have access in all Member States to truly effective mechanisms for obtaining
full compensation for the harm they suffered, while taking into account
confidentiality and the protection of leniency programs.

Private enforcement of the EU antitrust rules before
national courts is also an essential complement to strong public enforcement by
the Commission and National Competition Authorities (NCAs). As regards the
interaction of public and private enforcement, the question arises whether and
under which conditions information voluntary submitted to a competition
authority by undertakings in the framework of a leniency programme be disclosed
to claimants in actions for damages that relate to a previous finding of a
competition law infringement by a competition authority.

In its judgment in Pfleiderer[39], the Court of Justice held
that it is for the national courts to determine, according to national law and
on a case-by case basis, the conditions under which access to documents
relating to a leniency programme must be permitted or refused by weighing the
respective interests in favour of disclosure of the information and in favour
of the protection of that information provided voluntarily by the applicant for
leniency". Against this background, the Commission submitted observations
as amicus curiae under Article 15(3) of Regulation 1/2003 to the High
Court of England and Wales in the National Grid case.

4. 
Technology Transfer Agreements: forthcoming policy
review in light of Europe 2020 objectives

The Europe 2020 Agenda of the Commission has identified innovation
policy as one of its major pillars requiring further development. Innovation, i.e. improved or new technologies or organisational
innovation, results in productivity increases. It is acknowledged that
competition is one of the main drivers of innovation and therefore of productivity
as a source of growth. By improving – either incrementally or in breakthrough
fashion – on existing technologies and methods of production, competition
policy can make a significant contribution to innovation, efficiency and be a
driver for growth.

Licensing is an important part of the innovation process, as it facilitates dissemination
of new products and technologies and allows companies to integrate and use
complementary technologies. Licensing is therefore vital for economic
development and consumer welfare. However, in some circumstances licensing
agreements can also have a stifling effect on competition. This can be the
case, for instance, when two competitors use a licensing agreement with the aim
of dividing markets between them or when an important licensor excludes
competing technologies from the market through conditions in its licensing
agreements. How intellectual property right holders license their rights to
other market participants is crucial for achieving the right balance between
stimulating innovation and preserving a level playing field in the internal
market.

In this context the Commission announced, on 6 December, a review of the existing guidelines and the block
exemption regulation for technology transfer agreements (TTBER)[40]. The purpose of the revision
is to prepare the regime to be applied to technology transfer (i.e. patent,
know-how and software licensing) after 30 April 2014. It should ensure that it
both reflects current market realities and provides for the possibility of
non-competitors and competitors to enter into technology transfer agreements
where these contribute to economic welfare, without posing a risk to competition.
Through a questionnaire, the Commission has invited stakeholders to present
their views on their practical experience in applying the TTBER and the
accompanying Guidelines. Feedback from stakeholders, received in early 2012, is
a key element of the review.

5. 
An on-going firm stance against cartels

Cartels are known for their harmful effects on consumers
and the economy in general as they result in higher prices and less choice, as
compared to a situation where companies compete fairly and on the merits.
Therefore, the Commission continued its vigorous and relentless fight against
cartels throughout 2011. It adopted four cartel decisions imposing fines
totalling over EUR 614 million on 14 undertakings[41] and
concerning products of importance for consumers. It also launched a number of
new investigations into different sectors, including financial services
(derivatives) and car parts.

Despite the unfavourable
economic context, there was a decrease in the number of requests for fine
reduction due to inability to pay (ITP). Under this concept, in exceptional
cases, the Commission may, upon request, take account of an undertaking's
inability to pay in a specific social and economic context. The purpose of this
provision is to prevent the Commission's fines from driving financially
distressed undertakings out of the market and causing adverse social and
economic consequences. In 2011 the Commission granted a reduction of the fine
for inability to pay to one undertaking in the refrigeration compressors case.

Furthermore, the Commission’s efforts focused on improving the
efficiency of the cartel proceedings through use of the settlement procedure. Once
the investigation is at a sufficiently advanced stage, cartel cases are
routinely screened as to their suitability for a settlement. In 2011, three out
of the four cartel decisions adopted were settlement decisions. This brings to
five the total number of settlement cases adopted since the procedure was
introduced in 2008. In the three 2011 cases, settlement allowed the Commission
to proceed more swiftly and efficiently compared to a normal cartel case.
Settlements also bring benefits in terms of savings of both time and resources,
but as experience has shown, a smooth settlement process also requires the
trust and the cooperation of the parties and their legal advisors. In addition
to the procedural benefits, settlements also contribute to increasing the
deterrent effect of the Commission's enforcement actions in cartels, as it frees
up resources more quickly for other cartel cases. Such efficiency-enhancing measures
have been welcomed by many stakeholders, including the European Parliament.

For example, the efficiencies produced by the settlement
procedure in the Consumer Detergents case are particularly significant, as it
took only 10 months from the first settlement meeting to the adoption of the
Commission’s Decision in which it fined the three producers of washing powder a
total of EUR 315.2 million for participating in a cartel aimed at stabilising
market positions and coordinating prices in the period from 7 January 2002
until 8 March 2005, in eight Member States (Belgium, France, Germany, Greece,
Italy, Portugal, Spain and the Netherlands). One supplier of washing powder
received immunity from fines and two others reduction of fines under the
Commission’s Leniency policy.

Cartel Decisions 2011 || € million || Settlement

Consumer Detergents || 315,2 || 1

Exotic fruit (Bananas Southern Europe) || 9,9 || 0

CRT Glass || 128 || 1

Refrigeration compressors || 161 || 1

Total || 614,1 || 3

Furthermore,
in 2011 the European Courts have confirmed and clarified a number of important
policy issues through an unusually high number of judgments in cartel cases[42]. The General Court has
confirmed the legality and the main novel principles of the current 2006 Fining
Guidelines[43]
and has reiterated that the Commission must be able to adapt the level of fines
to the needs of its enforcement policy, at any time. In another landmark case,
the Court confirmed that the Commission is entitled to ensure that only
genuine, sincere and continuous cooperation is rewarded under its leniency
program[44]. The Court of Justice has also fully upheld the existence of a rebuttable
presumption that anti-competitive
conduct by a wholly-owned or virtually wholly-owned subsidiary can be
attributed to a parent company albeit that the Commission must provide
sufficient reasoning, which will depend on the nature and content of the situation,
to justify the rejection of rebuttal attempts by companies[45].

The Court also held that since there is no provision of
EU law that would justify a refusal to grant access to leniency material to
victims of competition law violations, it is for the national courts to weigh
the interest of protecting leniency programmes against the interest of victims
to obtain compensation for damages, in deciding whether to grant access or not[46]. While observant of this
judgment, the Commission remains fully determined to protect its leniency
programme. This may include legislating on the interaction between private and
public enforcement of the EU competition law, in order to clarify the status of
information voluntarily submitted by undertakings in the framework of a leniency
programme.

6. 
Effective cooperation within the European
Competition Network and with National Courts

Both the Commission and the Member States contribute to
ensuring well-functioning markets through the enforcement of European and
national competition law. All 27 Member States have functioning competition
agencies, with which the Commission has coordinated its actions in numerous
cases. In 2011, no fewer than 88 cases were submitted by the Member States to
the Commission for consultation, increasing the total number of cases brought
since May 2004 to 555.

Informal means of cooperation exist for policy
development, both regarding industry sectors and common horizontal issues in
competition enforcement. Topics are discussed in different fora within the European
Competition Network (ECN), ranging from Director-General meetings to working
groups and subgroups. Horizontal ECN working groups discuss policy aspects of
competition enforcement, such as the operation of the ECN Model Leniency
programme or common (technical) standards for optimising the investigative
capacity of competition authorities. In addition, industry sector subgroups serve
as active platforms of discussion for enforcement practices. Subgroups active
in 2011 included sectors such as food, financial services and pharmaceuticals.

In the framework of its support to national courts
applying EU competition law, the Commission submitted three further amicus
curiae observations on different matters to courts in Austria[47], France[48] and England and Wales[49], bringing to nine the number
of this type of intervention since the entry into force of Regulation 1/2003. Cooperation
with national courts has been further supported by continued funding by the
Commission of a specific training program for national judges, in the area of competition
law[50].

7. 
The international dimension

The globalisation of the economy calls for closer
cooperation among competition authorities not only in Europe, but also across
the globe. Such cooperation is essential to ensure consistency in the outcome
of enforcement activities of different authorities, to enhance the
effectiveness of their investigations, and to secure a level playing field for
EU businesses in world markets. As in the past, and as encouraged by the
European Parliament, the Commission has engaged in a policy dialogue with the
authorities in other jurisdictions at both multilateral and bilateral level to
promote convergence on both substantive and procedural competition rules. The
Commission has also continued to cooperate closely with many competition
agencies in concrete enforcement activities.

In 2011, the Commission hosted the International
Competition Network (ICN) Cartel Workshop, held in Bruges (BE) from 10 to13
October. Attendees from around 70 jurisdictions explored
possibilities to coordinate investigations and evidence gathering and exchanged
views on leniency policy and settlements, with a view to making the fight
against cartels more effective and efficient.

The EU has
concluded agreements with the United States, Canada, Japan and Korea on
cooperation between their respective competition agencies. These agreements
include provisions on the notification of enforcement activities to the other
side, coordination of investigations (for example coordinating the timing of
dawn raids), positive and negative comity, and the establishment of a dialogue
on policy issues. These agreements also specify that the competition agencies
cannot exchange confidential information which is protected under their
respective laws. The inability to exchange confidential information severely
limits the scope of cooperation between the European Commission and foreign
competition agencies. This limitation can undermine the effectiveness of the
Commission's competition enforcement activities, especially in investigations
of competition cases that have an international dimension, such as
international cartels. This is why the Commission is trying to move beyond
these "first generation" agreements and negotiate cooperation
agreements which would also include provisions allowing the parties'
competition agencies to exchange, under certain conditions, information which
is protected under their respective rules on confidentiality. It is currently
negotiating two such "second generation" agreements, one with Switzerland and one with Canada. If these negotiations were concluded successfully, these agreements
would enhance further the efficiency and effectiveness of enforcement cooperation
activities.

To mark the 20th anniversary of its first
cooperation agreement with the US, the Commission, the US Federal Trade
Commission and the US Department of Justice adopted revised Best Practices on
cooperation in merger investigations to further optimise cooperation in merger
investigations.

A second priority for the Commission’s bilateral
relations is to foster closer relations with competition authorities in the
major emerging economies. Apart from its extensive technical cooperation
programme with the Chinese competition authorities, the Commission signed a
Memorandum of Understanding with FAS, the competition authority of Russia. Furthermore, the Commission concluded negotiations on the competition chapter with Croatia, which is scheduled to join the EU in 2013.

Merger control

1. 
Increased cooperation among Member States and
internationally

Merger control is essential in protecting consumer welfare by
preventing market structures that could lead to unjustified price increases or
reduction of choice, quality or innovation. EU merger control continues to be a
key instrument for keeping (European) markets open and competitive, also in
times of economic and financial crisis.

Enforcement under the EU Merger Regulation (EUMR) has reached a high degree of maturity
and procedural stability. The Commission and NCAs form the two pillars of EU
merger enforcement. The difference from antitrust is that there is no single
set of substantive rules being applied. While NCAs deal with national cases,
mergers reaching the turnover thresholds of the EUMR are examined by the
Commission, ensuring a "one-stop-shop" for such cases[51].

The creation of an EU Merger Working Group in 2010 was
an important step forward towards more EU cooperation and further
"soft" convergence. Drawing on agency practices and experience, the
group explores possible solutions to common problems, focusing on what is
feasible within the existing legal framework. In 2011, the group made a major
contribution to this objective, adopting a set of Best Practices on Cooperation
between EU National Competition Authorities in Merger Review. The
Best Practices are intended to facilitate cooperation among NCAs regarding
those mergers that do not benefit from the Commission's "one-stop shop
review" and require clearance in several Member States.

Cooperation also proved important with non-EU countries.
Two merger cases[52]
involved intense cooperation with various competition authorities around the
world. In both cases cooperation was particularly close with the authorities in
the United States, while for one of them the Commission also, for the first
time, worked together with China's merger control authorities.

Going forward, the Commission will continue to promote
international cooperation in merger control, which is becoming increasingly relevant
in the context of globalised markets and mergers that are reviewed by several authorities.
Ultimately, international cooperation should help to reduce the burden for
merging companies by harmonising the review of international mergers, while
maintaining effective merger control in the participating countries.

2. Rebound of merger notifications and increase in complexity of the
cases

In 2011, mergers and acquisitions were on the rise again
and with it the Commission's activity of reviewing mergers under the EUMR. 309
cases were notified to the Commission in 2011, representing an increase of 13% as
compared to 2010, slightly above the 10 year average of 305 mergers per year.

An important feature is that - in practice - notified
mergers appeared to be more complex, as in 2011 the Commission opened in-depth
investigations in eight cases in several sectors such as air transport, food,
consumer goods, basic industries, IT, financial services and pharmaceuticals.
It also concluded a prohibition in a case that had been notified in 2010[53].

II.      SECTORAL
OVERVIEW

This section provides an overview of policy developments
and enforcement actions in a number of selected sectors where the Commission's
work in the field of competition has been relevant throughout 2011. The actions
undertaken in the energy and environment, ICT and media, rail transport and pharmaceutical
industry sectors are presented here.

An overview of the Commission's actions in relation to
competition in three sectors where it has been particularly active in 2011,
namely the financial services, airline and food sectors is set out in the
Commission Communication to which this Staff Working Document is annexed.

1. Energy & Environment

The European Energy policy is built around
three pillars: sustainability, security of supply and competitiveness. Reducing
green house gas emissions is vital to combating climate change. European
consumers depend heavily on the secure and reliable provision of energy at
competitive prices. Interconnections between European gas and electricity grids
need to be substantially improved. The
"Energy
2020 - A strategy for competitive, sustainable and secure energy"
Commission Communication calls for action in areas where new challenges are
emerging. These areas are energy efficiency, infrastructure, choice and
security for consumers, energy technology and the external dimension of the
internal energy market.
Competition enforcement and advocacy, along with sector-specific legislative
proposals, constitute the main tools the Commission has at is disposal in order
to achieve these goals and creating a single European energy market by the 2020
target date. Given the strategic importance of the energy sector, the European
Parliament,  in its Resolution on the 2010 report on competition policy (the
Schwab report)[54]
requested that the Commission actively monitors the degree of competition on
the market.

Competition policy in the energy field aims
to ensure a secure flow of energy, in particular electricity and gas, at
competitive prices to EU households and businesses. An open and competitive
single EU market will also guarantee secure provision of energy in the future
by sending the necessary signals for investment and making the European market
attractive to external suppliers. Such a market should also be open to new
energy mixes and play a major role in developing and deploying new
environmentally friendly technologies. Prices that reflect costs will help
encourage energy efficiency, whilst supporting sustainability and security of
supply.

2011 has seen world events affecting the energy and environment
sector such as the Fukushima nuclear incident in Japan. Coupled with the
long-term trend of rising fuel prices and the high cost of renewable energy,
these have added to the challenges faced by Member States to meet the Europe
2020 Strategy and EU energy policy objectives. Strengthening and building
partnerships with key partners to the EU is also in strategic interest for
secure, safe, sustainable and competitive energy. International cooperation
with industrialised and fast growing economies is necessary to maintain Europe's position in energy research and innovation.

Competitiveness

Competition enforcement and advocacy contribute to
competitiveness by opening markets, preventing incumbents from reinforcing
their dominant positions, and creating a framework for investment that avoids
distortions and ensures the efficient allocation of public resources.

With the aim of opening up national markets and preventing
incumbents from abusing their dominant position in several Member States, 2011
saw the implementation of remedies in several of the antitrust cases that arose
from the 2007 Energy sector inquiry. The competition concerns that were
remedied in 2011 include foreclosure (ENI[55],
E.On gas[56],
GDF[57]
and RWE[58]
gas), customer tying through long-term contracts for large electricity
customers (EDF in France[59]),
and restrictions on export capacity (SVK[60]
in Sweden). The Commission also market tested measures proposed by Greece to remedy the advantage enjoyed by the State-owned electricity company Public Power
Corporation by reason of its access to lignite, which is the cheapest source of
electricity generation in Greece[61].

Consolidation appeared to be the major feature in energy
and environment-related industry. The Commission received an increasing number
of notifications for mergers in the sector, out of which six[62] related to the manufacture of
equipment to produce electricity (from small mobile generating sets[63] to the construction of
complete combined cycle power plants[64]
or major components of such plants[65]).

In its role of preserving the internal market and controlling
whether Member States use their public resources in a non-distortive manner, the
Commission opened a formal investigation in the field of environmental taxation[66]
and approved reduction of the UK Climate Change Levy (an energy tax, for
aluminium and steel recycling processes) as being compatible with the 2008
Environmental Aid Guidelines[67].

Sustainability

Sustainable development is the long term use of
resources which aims to meet human needs for energy, while preserving the
environment. Sustainability was at the heart of the measures reviewed under State aid control rules, authorising aid
that supports renewable energy sources and environmentally friendly businesses.
State aid can indeed correct market failures caused by negative external
factors where environmental costs for society cannot yet be reflected in the
production costs borne by companies.

According to the latest available figures[68], only 18% of electricity was
generated by renewable energy sources in the EU, with different values across
Member States, varying from approximately 5% in Latvia to 68% in Austria. Within that context, special attention was given to State measures in support of
energy from renewable sources under the horizontal Environmental Aid Guidelines[69]
(such as in Finland[70],
Romania[71]
and France[72])
while at the same time several Member States aimed at promoting environmentally
friendly cars and green products (Denmark[73],
United Kingdom[74],
France and Germany[75]).
Reflecting the growing demand for meeting energy requirements from sustainable
sources, the Commission authorised, under the EUMR, four cases[76] involving joint ventures in
the solar power sector (both thermal and photo-voltaic) and a further four cases[77] for the development of wind
power.

With the aim of better preserving the environment and
available resources, and within the broader objective of achieving the shift to
a low-carbon economy, the Commission ordered both Italy[78] and Austria[79]
not to implement aid earmarked for energy-intensive businesses. The Commission also
adopted a number of decisions to facilitate the closure of uncompetitive coal
mines[80],
some solely concerning aid for exceptional costs (Slovenia[81] and Poland[82]).
The Commission adopted also other decisions for the closure of uncompetitive
coal mines relating to aid covering production costs[83]. In the latter case,
a mitigation plan addressing the environmental and climate impact had to be
provided.

Waste treatment and recycling also remain important
areas of activity, as reflected in the number of cases concerned with water and
waste management[84].
A similar trend can be observed in the antitrust field, where the Commission is
looking into conduct in sectors such as waste collection, and the supply of
water and waste water services[85].

Security of supply

The EU energy sector is characterised by a high dependency
on imports, as the EU produces only 48% of its energy needs[86]. Energy dependency differs greatly
among Member States; Denmark appears to be the only net energy exporter within
the EU27, while the Baltic countries rely on a single source for their gas
imports. The EU energy sector is also characterized by a significant need for
investments – for instance in electricity generation, where there is a trend
for gas and renewables to contribute more to electricity generation in the EU.

The Commission's antitrust enforcement action in the
energy sector can contribute to resolving security of supply issues by
facilitating access to the market and encouraging investment.  In 2011, the
Commission opened proceedings against ČEZ in relation to possible abuses of
dominance on the Czech electricity market through the hindrance of  the entry
of competitors. The Commission also carried out unannounced inspections at the
premises of gas companies in Central and Eastern Europe, investigating the
existence of behaviour that might potentially exclude competitors from
providing alternative sources of gas, or that might involve the exploitation of
a dominant position in the supply of gas, for instance by charging excessive
prices.

Other tools of competition policy, such as State aid
control, can also contribute to the completion of the EU internal market for
gas. Authorisation of measures aiming at increasing security of gas supply in
Poland and construction of an interconnection and cross-border power line
between Poland and Lithuania[87]
are two good examples.

2.  Information
and Communication Technologies (ICT) and Media

As recognized in the Digital Agenda for Europe (DAE)[88], Information and Communication Technologies (ICT) play a key enabling
role for Europe to achieve its competitiveness ambitions for 2020. The ICT industry
is directly responsible for 5% of European GDP, with a market value of EUR 660
billion annually. It also employs
over eight million people representing 3.7% of total employment in the EU[89]. At the same time, ICT
contributes far more to overall productivity growth, because of the dynamism
and innovation inherent to the sector, and the enabling role it plays in
changing the way other sectors do business. The roll-out of high speed
broadband is a particularly important factor in this regard.

Latest available figures indicate that the cultural and creative
industries encompassing media accounted for 4.5% of the EU's GDP in 2008,
employing some 3.8% of its workforce[90].
Europe's cultural and creative industries are one of
the most dynamic economic sectors making a real contribution to the Europe 2020
strategy and some of its flagship initiatives such as the Innovation Union, the
Digital Agenda, the Agenda for new skills and new jobs or an industrial policy
for the globalisation era[91].Creative content is also an essential input into
the digital economy and a key driver of consumer demand for digital services.

The ICT and media sectors are characterised by rapid
technological developments. The expansion of high-speed networks and the shift
from the physical to the digital are having a revolutionary impact on ways of
doing business.

Increasing use of cloud computing is
creating the need to connect different products and applications throughout the
industry. Services offered in this sector will become ever more networked and
inter-dependent. The ICT sector
is also characterized by network and scale effects which tend to enforce the
market positions of leading players. The Commission considers that ensuring
interoperability in order to avoid anti-competitive customer lock-in and
to preserve the opportunity for innovative firms to compete is critical for
competition in the sector[92].
Intellectual Property Rights
(IPRs) and standards are also
likely to remain key issues for competition going forward. In this context, the competitive impact
of the growing strategic use of IPRs, especially patents, is an area the
Commission intends to focus on. Open
standards remain an important way to support interoperability. With the rise of
cloud computing questions of interoperability, data portability and standards
will again be at the forefront of the regulatory issues to be tackled.

The ongoing transition to next generation access networks
(NGAs) with much faster access speeds has the potential to drive growth and
stimulate prosperity. The move from traditional copper networks to NGAs should
not however be exploited to re-monopolize markets and reverse the competitive
dynamics achieved as a result of liberalisation of the e-communications sector.
Companies must therefore ensure that co-investment and cooperation agreements
for the deployment of NGAs respect both sector regulation and competition law. The
same has to be said as regards the practices of companies in a dominant
position, which should not result in the anti-competitive foreclosure of
competitors.

Too many barriers still block the free flow
of online services and entertainment across national borders. Protecting the
Single Market remains one of the Commission's top priorities when applying
competition law within the context of the digital economy. In 2011, the
European Court of Justice took a strong stance against the artificial
partitioning of the Single Market in relation to media content. In its judgment
in the Premier League/Murphy case[93],
the Court ruled that the contractual restrictions which deprived consumers from
access to cross-border broadcasts of Premier League football matches are
restrictions of competition by object, contrary to Article 101 TFEU. Such absolute
territorial protection enjoyed by broadcasters cannot be justified where right
holders could have obtained appropriate remuneration without prohibiting or
limiting cross-border access to their content.

The Commission has continued to use its enforcement
tools to ensure unrestricted competition and growth in the ICT and media sectors,
to the benefit of consumers and to support the  objectives of the DAE.

State aid policy is growing in importance for the ICT
and media sectors. On 20 June, the Commission launched a public consultation on
new rules on the State aid assessment of support for producing films and
audiovisual works[94]. In
May, an issues paper was published to initiate a first round of public
consultation, where 110 comments were received and published in October. The
publication of a draft Communication for public consultation is foreseen for
the first quarter of 2012.

The Commission is also reviewing the Broadband
Guidelines[95]
in the field of State aid for broadband networks. A public consultation was
launched in April 2011, and more than 100 comments received from stakeholders
were published in October. A further public consultation on new draft
guidelines is expected to take place in the first quarter of 2012.

Access to networks and
related digital services

As voiced by the European Parliament in the Schwab
report and by other stakeholders, access to networks remains a major concern
element for achieving a competitive market with effective development of the
Internet and of the digital economy. In June, the Commission imposed a fine exceeding
EUR 127.5 million  on the Polish incumbent telecoms operator Telekomunikacja
Polska S.A. (TP) for abusing its dominant position in the period of 2005-2009. by
deliberately seeking to limit competition on broadband markets in Poland by placing obstacles in the way of alternative operators, even if there was a change
in the approach of TP further to the Agreement signed in October 2009 with the
NRA. The Commission opened the case on its own initiative in 2009 after having
observed that Poland had one of the lowest broadband penetration rates in
Europe, that consumers suffered from lower connection speeds and that monthly
prices per advertised Mbit/s were much higher than the prices in other Member
States (and among the highest in the OECD).

State aid control has an important role to play in
accelerating the deployment of broadband networks in Europe. Pro-competitive
aid measures, which complement private investments in areas which are not profitable
on commercial terms, are necessary to achieve the objectives of the DAE. The volume
of State aid approved by the Commission under the State aid Broadband
Guidelines[96]
amounted to almost EUR 2 billion in 2011. The Commission authorized aid though 18
Commission decisions, covering countries such as France, Poland, Greece or Portugal. A similar amount of aid was approved in 2010.

An open and fully
integrated internal market

Cross-border market sharing agreements that include
non-compete clauses are one of the clearest violations of competition law. They
put in danger the full integration of the market, artificially
compartmentalising it along national borders. On these grounds,  in October the
Commission sent a statement of objections to Telefónica and to Portugal Telecom,
regarding their agreement not to compete on the Iberian telecommunications
markets.

The development of the internet has a direct effect on
the competitive development of related services, such as search engines and
online advertising platforms. The Commission is currently investigating allegations
that Google may be abusing a dominant position in online search, online search
advertising and online search advertising intermediation. It is alleged that Google
is lowering the ranking of search results of competing services (which
specialise in providing users with specific online content such as price
comparisons, so-called vertical search services) and accorded preferential
placement to the results of its own vertical search services. In addition the
Commission is investigating allegations that Google imposes exclusivity
obligations on advertising partners, preventing them from placing certain types
of competing ads on their web sites. Finally, the Commission is investigating
suspected restrictions on the portability of online advertising campaign data
to competing online advertising platforms[97].

The markets for telecommunications and digital contents
are not the only areas where the Commission has focused its antitrust actions
in 2011. The market for computer mainframe maintenance services has also been
under scrutiny. In July 2010, the Commission initiated a formal investigation
against IBM with regard to an alleged abuse of a dominant position by foreclosing
competing providers of mainframe maintenance services. As a result of the
investigation, IBM submitted formal commitments to ensure the availability of
certain spare parts and technical information on reasonable and
non-discriminatory terms over five years. These commitments were made binding
by the Commission in a decision adopted on 13 December.

2011 has been a year for further consolidation in the IT
hardware sector, where the number of global players in the Hard Disk Drives
(HDDs) sector has been reduced to three. In May, the Commission initiated
in-depth investigations into two parallel transactions in this sector, namely
the acquisition by Seagate of Samsung's HDD business and the acquisition by
Western Digital of Viviti Technologies - formerly known as Hitachi Global
Storage Technologies (HGST). On 19 October, the Commission cleared the
Seagate/Samsung transaction[98]
and on 23 November, the Commission adopted a conditional clearance decision in
the Western Digital/HGST case[99].
The parties to the latter proceedings submitted remedies to address competition
concerns in several product markets, in particular the 3.5-inch desktop market
where the proposed merger would have led to a duopoly between the merged entity
and Seagate. The parties committed to an upfront divestment to a suitable purchaser
to be approved by the Commission of HGST's 3.5-inch business (as well as some
assets of Western Digital) in order to ensure the continued presence of a third
supplier on these markets.

The impact of digitization
on content sectors

The transition from analogue to digital broadcasting
using Digital Terrestrial Television technologies by 2012 and the resulting digital
dividend (i.e. the freed spectrum) should lead to new entry and broader viewer
choice. EU law[100]
requires that such dividend be allocated subject to specific criteria and
procedures (e.g. open, transparent, non-discriminatory, etc.). The Commission
has intervened against Italy, France and Bulgaria for failing to comply with
those requirements. As a result of these interventions, Italy organised a
beauty contest for new digital frequencies (multiplexes), while France and
Bulgaria took legislative steps to address the breaches.

As the digital economy develops, so do the markets for
digital content products, such as e-books. In December, the Commission
initiated a formal investigation into possible restrictive agreements or
practices affecting the sale of e-books in the EU. The Commission's
investigation concerns possible restrictive agreements or practices between five
international publishers (Hachette, Harper Collins, Simon & Schuster,
Penguin and Georg von Holzbrinck) and Apple, as well as the character and terms
of the agency agreements for the sale of e-books.

Ensuring
interoperability

The ICT sector is characterised by digital convergence
and the concomitant growing importance of interoperability and standards. In
view of network effects that often prevail in this sector, interoperability is
an important feature for competition to take place in these markets. Although
personal computers are considered to be the main gateway to the digital world,
users are increasingly accessing data through other devices such as smart
mobile phones, which are able to communicate with each other and with computing
devices. This reinforces the need for interoperability between software
products and devices.

One example of the Commission's approach was the Intel/McAfee
case. The Commission was concerned that rival IT security products would be
excluded from the market given Intel's strong presence in computer chips and
chipsets. The merger was therefore approved subject to commitments from Intel aiming
at ensuring interoperability of the merged entity's products with those of its
competitors[101].

Another example is the clearance of Microsoft's acquisition
of Skype[102].
The Commission concluded that it was unlikely that Microsoft would degrade
Skype's interoperability, or tie its leading Windows operating system with
Skype, thereby limiting other players' ability to compete with the merged
entity. The Commission also concluded that Microsoft would not have an
incentive to degrade Skype's current level of interoperability as it needs
Skype's services to remain available on as many platforms as possible, so as to
enhance the Skype brand.

Through its review under the EUMR, the Commission
ensures that the ICT and media markets remain open for new entrants and that
access to key elements (whether content, technology or interconnection) is not
denied. The Commission also aims at ensuring that consumers do not suffer from
higher prices, less choice, poorer quality and limited innovation as a result
of mergers in that sector.

3.  Rail
transport

The transport sector is important for EU growth and
employment. In 2009[103], the value added by the transport sector reached EUR 437 billion or
3.7% of EU GDP. Around 11 million people were employed in
the transport and storage sector, which corresponds to 5.1% of total EU
employment. However, no less than
13% of household expenditure was devoted to transport services. Within transport, the largest subsectors are transport support
activities (such as the operation of warehouses and terminals) and road freight
transport. Rail transport represents around 6% of the value added in the
transport sector as a whole. It nevertheless delivers significant inputs to
many other sectors of the economy, while at the same time being close to the
end consumer.

In the last 20 years the Commission has been active in supporting
the restructuring of the European rail transport market and strengthening the position of railways vis-à-vis other
transport modes. The Commission's efforts have concentrated on three major
areas, which are crucial for developing a strong and competitive rail transport
industry: (1) opening of the rail transport market to competition, (2) improving
the interoperability and safety of
national networks, and (3) developing rail transport infrastructure.

Opening up national freight and passenger markets to
cross-border competition is a major step towards the creation of an integrated
European railway area and of a genuine EU internal market for rail. Greater
technical harmonization of rail systems and the development of key cross-border
rail routes are also helping to break down barriers to a more competitive rail
sector, along with better connections between EU and neighboring markets.

Greater competition makes for a more efficient
and customer-responsive industry. EU rail legislation has consistently
encouraged competitiveness and market opening, with the first major law in that
direction dating back to 1991. The legislation is based on a distinction
between infrastructure managers who run the network and the railway companies
that use it for transporting passengers or goods. Different organizational
entities must be set up for transport operations on the one hand and
infrastructure management on the other. Essential functions such as allocation
of rail capacity (the “train paths” that companies need to be able to operate
trains on the network), infrastructure charging and licensing must be separated
from the operation of transport services and performed in a neutral fashion to
give new rail operators fair access to the market.

Rail freight transport has been completely
liberalised in the EU since the start of 2007, for both national and
international services. Therefore any licensed EU railway company with the
necessary safety certification can apply for capacity and offer national and
international freight services by rail throughout the EU.

The market for international rail passenger
services has been liberalised in the EU from 1 January 2010. Any licensed,
certified rail company established in the EU is able to offer such services,
and in doing so has the right to pick up and set down passengers at any station
along the international route.

Towards a competitive
and resource efficient transport system

In March 2011, the Commission adopted a comprehensive
strategy setting out a roadmap towards a competitive and resource efficient transport
system[104].
The roadmap contains 40 concrete initiatives aimed at increasing mobility while reducing carbon emissions in transport by 60% by
2050. Some of those initiatives are specifically targeted at increasing
competition in rail transport.

As mentioned above, rail freight transport has been completely liberalised since the start of 2007, while the
market for international rail passenger services has been liberalised from 1
January 2010 on. The Commission initiated court actions against several Member
States that have improperly implemented EU Directives for the liberalisation of
rail freight and international passenger transport. The Commission roadmap also
foresees the extension of market opening to domestic rail passenger traffic.
Currently, domestic rail passenger transport markets have been opened up to
competition in some Member States (including Germany, Italy and the UK), but
not in others.

Effective competition in the rail sector is still weak
as reflected in the high market shares of incumbents and the limited
penetration of new entrants. Market entry has so far mainly taken the form of
acquisitions of market players in one Member State by operators in other Member
States. However, it remains difficult for new entrants to provide competitive
rail services, in particular because of the difficulty of gaining fair and
non-discriminatory access to the rail network and rail-related services. The
Commission's proposal on the recasting of the first rail package[105] aims to address such
concerns. Discussions in 2011 in Parliament and Council focused on provisions
concerning the separation of infrastructure and service facility operators from
railway undertakings. In addition, the Commission has started to use its
antitrust policy tools to ensure equal access to the rail infrastructure
network.

Finally, the Commission is seeking to ensure that
companies delivering public rail services do not receive inappropriate
compensation. The Commission regularly verifies that such companies are not
overcompensated for services delivered and so given an unfair advantage in the
market place.

Favouring market entry

Increasing competition through market entry in the rail
freight and passenger transport markets has been the main objective of the
Commission's activities in relation to merger control and antitrust
investigations in 2011.

Because of the Commission's action, there is scope for a
new high-speed service in competition with the existing monopoly service on the
Paris-Milan route, following the approval of the joint venture between Veolia
Transport and Trenitalia[106].
An alternative service on the Vienna-Salzburg route may also see the light, as
the Commission cleared the proposed joint venture between SNCF and two Austrian
investment firms[107].

In addition, the Commission has started investigations
to verify whether vertically integrated incumbents (such as Deutsche Bahn[108] and Lietuvos gelezinkeliai[109]) are in a position to abuse
their monopoly over essential rail infrastructure for the benefit of their own
rail transport operations and to the detriment of new entrants.

Since the start of the liberalisation process for freight
and passenger rail transport, the Commission has examined the incumbents'
restructuring plans in several Member States. In 2011, the Commission opened formal
investigation procedures on restructuring aid provided to the Greek and
Bulgarian railway companies Trainose[110]
and BDZ[111].
The Commission investigation of Trainose also covers the public service
contract concluded with the Greek government. The BDZ restructuring plan was
notified in May 2011, following the approval of rescue aid by the Commission in
December 2010[112].

4.  The
Pharmaceutical and health services sector

Health care remains an important economic sector,
representing about 9% of GDP in the EU, with the pharmaceutical sector for
prescription and non-prescription medicines accounting for close to 2% of EU
GDP and the health services[113]
accounting for 6.5% of EU GDP[114].
Most health costs are borne by the Member States, with patients' direct
contributions amounting to about 11% of the costs, equivalent to EUR 122
billion annually. The recent economic crisis and an ageing population have put
Member States under more pressure to scrutinise public spending, including the
health budget.

Both the pharmaceutical and health services sectors display
a number of common characteristics: those prescribing the goods or services in
question (e.g. physicians) are different from the consumers (patients). The
same applies to those who pay for the goods or services, which are usually sickness
insurance funds in the Member States. Prescribers and consumers are therefore less
price sensitive than in other markets. Furthermore, both sectors are fragmented
by national regulations regarding authorisation, pricing and reimbursement
status of the goods or services. In both areas similar competition issues
arise, including artificial barriers to entry. Keeping prices at a competitive
level is of key importance.

Looking at pharmaceuticals specifically, on average EUR 430
were spent on medicines in 2007 for each European citizen[115], a figure expected to rise in
the future, particularly in view of Europe's aging populations. The
pharmaceutical sector is highly regulated and R&D driven. On the supply
side, originator companies aim to bring innovative products to the market. The
patent system provides the legislative framework allowing the companies to reap
the benefits of their successful R&D activities. Upon loss of exclusivity
generic companies can enter the market with bio-equivalent versions of the
originator products, but at much lower prices, thereby contributing to the
control of public budgets and giving originator companies incentives to
continue their R&D for new and innovative proprietary medicines.

The competitive
importance of generic products and innovative medicines

The main issues of concern under competition law are
practices which, for instance, unduly delay or block generic entry or the
development and launch of innovative medicines. The existence of such practices
was analysed in general terms in the sector inquiry and highlighted in the final
report in 2009[116].
They include the potential misuse of patent rights and patent settlement
agreements. The Commission particularly addressed these issues via antitrust
enforcement action. These enforcement actions complement the Commission's
recent work on the possible revision of Council Directive 89/10/EEC (also known
as the Transparency Directive)[117],
which was also triggered by the results of the sector inquiry, when additional
reasons for market entry delay of medicines were identified within the regulatory
framework.

The organisation of the health care sector is primarily
the responsibility of Member States under Article 168 TFEU. However, to the
extent that the activities in question involve offering goods or services on
the market[118],
the provision of health care goods or services is subject to EU competition
rules, as emphasised by the 2010 Commission antitrust decision sanctioning the
French Association of Pharmacists (ONP)[119].

Competition-related
actions taken to improve the functioning of the market

Within the pharmaceutical sector, the delay of generic
market entry (through agreements and contractual arrangements) is the focus of
the two cases opened during the year, Cephalon[120] and Fentanyl[121]. In addition, the Commission
is currently conducting a number of investigations into cases of generic delay
where cases have not yet been formally opened[122].

Further, the Commission continues to monitor the market
and obstacles to generic entry with particular emphasis on patent settlements. In
2011, it undertook a second monitoring exercise which showed a significant
decrease in the number of potentially problematic patent settlements. In fact
the overall number of settlements decreased to 3% in the period of 2010,
compared to 10% in the period between July 2008 and December 2009 (first
monitoring exercise) and 22% in the period between January 2000 and June 2008
(sector inquiry)[123].
At the same time, the Commission saw a generalised increase in the use of unproblematic
patent settlements. The Commission will continue monitoring patent settlements in
2012.

The Commission also closed an investigation into an
alleged misuse of the patent system (i.e. alleged application for unmeritous
patents) as regards innovative medicines in the Boehringer case. This
case was closed, as the undertakings concerned had reached an agreement, which
also addressed the Commission's competition concerns[124]. In the agreement, Boehringer
removed its blocking positions, thereby lifting the obstacles for its
competitor, Almirall, to launch its innovative medicine.

The Commission continues to monitor activities in the
health care markets. The decision against the French ONP of December 2010, sanctioning
ONP for its attempts to fix minimum prices in the French clinical laboratory testing
services market as well as for restricting the development of groups of
laboratories in the market, was appealed before the General Court in February
2011. Further, the French Parliament adopted a new statute on 13 July 2011 that
would have led, inter alia, to limiting the creation of groups of clinical
laboratories in the French market, thus going against the purpose of the
Commission's Decision. The problematic sections of the statute were, however,
subsequently declared invalid by the French Constitutional Council, on
procedural grounds[125].

III.    COMPETITION
DIALOGUE WITH OTHER INSTITUTIONS

Structured dialogue with
the European Parliament

While the Commission has full competence for the
enforcement of the EU competition rules, subject to the control of the European
courts, the Commissioner for Competition and his services hold a continuous
dialogue on competition issues with the European Parliament. The Commission appreciates
Parliament's timely contribution to debates on competition policy and regularly
informs it about competition policy initiatives.

In addition to the presence of Commissioner for
Competition at meetings and hearings of the ECON committee, the Competition DG keeps
Parliament informed about upcoming and announced public consultations, gives
briefing sessions to MEPs and staff on a range of current issues, and holds numerous
bilateral meetings and discussions on specific topics.

The Commissioner for Competition visited the ECON committee
for a structured dialogue three times in 2011; in March to present the
Commission Work Programme for 2011 in July to present the Annual Report on
Competition Policy; and in November to present the Commission Work Programme
for 2012. He also attended a hearing on collective redress and a meeting with
the competition working group.

The Commissioner for Competition chose to launch the
Commission's public consultation on SGEIs in a speech to ECON, underlining the
importance he attaches to Parliament's involvement in that dossier, and
specifically asking for Parliament's input.

Follow-up to
Parliament's Resolution on the 2009 Report on Competition Policy

Parliament adopted its Resolution on the 2009 report on
competition policy on 20 January 2011. In a letter to the ECON Chair on 15
March 2011, the Commissioner for Competition responded to key points made in
the Resolution. Parliament was particularly interested in the Commission's
activities linked to the financial and economic crisis, and asked the
Commission to carry out an evaluation of the temporary State aid measures
introduced during the crisis.

In response, the Competition DG prepared a Staff Working
Document on the temporary State aid rules during the financial and economic
crisis[126]
which the Commissioner for Competition sent to the Chair of ECON on 28
September 2011. The Working Document was more extensive than the Parliament's
study on the same topic, although both reached similar conclusions: the aid
granted to the financial sector had been justified and helped stabilise the
financial markets and maintain credit flows to the real economy. One important
aspect of the Commission's action, which was not mentioned in the Parliament
report, was the restructuring conditions resulting from the Commission's
decisions for all the major beneficiaries of State aid. That restructuring
minimised the distortions of competition that the aid could have created, and
ensured burden-sharing among stakeholders.

In its Resolution, Parliament recalled its 2007 and 2009
Resolutions calling for the Commission to propose legislation to facilitate individual
and collective claims for effective compensation for damages resulting from
breaches of antitrust law. In response to Parliament's call in the 2009
Resolution for a coherent approach across sectors, the Commission launched a
public consultation on collective redress in March 2011. The 2012 Commission
Work Programme lists a proposal on antitrust damages actions, which the
Commissioner for Competition hopes to present to the College in 2012.

In addition to the official response by the Commission
to Parliament's Resolution, in March the Competition DG also sent the ECON
committee a detailed response to all of the points made in the Eppink report[127]. Competition DG officials
also met members of the ECON committee who had expressed an interest in
specific areas, for example tax competition, fining policy, financial services
and the investigations into the CDS market.

Taking Parliament's
views into account

Competition DG engagement with Parliament's ECON
committee

The Competition DG organised two seminars for ECON
assistants and political advisers of the members of the ECON committee in 2011.
The first, in February, covered the main themes in the 2011 Competition Work
Programme (SGEIs; the Rescue and Restructuring Guidelines; the Commission's
public consultation on Collective Redress) and on fines, given Parliament's
interest in this subject. The seminar gave staff the opportunity to ask
detailed questions to Competition DG desk officer experts.

A second seminar was organised to coincide with the
presentation by the Commissioner for Competition of the 2010 Annual Competition
Report, in July 2011. A follow-up briefing for members of the ECON competition
working group was offered for September by the Competition DG.

The Director-General of the Competition DG spoke at an
Open Coordinators meeting of the ECON committee in May. Senior Competition DG officials
also had a number of bilateral meetings with MEPs from ECON and other
committees in 2011, on a range of subjects.

Information on Competition DG activities

All information on current and previous public
consultations and Impact Assessments are published on the Competition DG's website[128]. The Competition DG also sends
information on the launch of public consultations to the secretariat of the ECON
committee. All timely contributions to those consultations by the European
Parliament are welcomed, and Competition DG staff can brief MEPs on aspects of
particular interest.

All responses to public consultations are published on
the internet, as well as any background studies commissioned, together with the
Commission's Impact Assessment, and any related Staff Working Papers. It is not
common practice to summarise the results of public consultations.

Services of General Economic Interest

The Commissioner for Competition and Competition DG
officials participated in meetings of the Public Services Intergroup on SGEI in
the months before the launch of the March 2011 public consultation. The
Commissioner for Competition presented the Commission's initial thinking to
ECON on 22 March, and reported back to the committee in July and again in
November, at which time he stated that he would be able to take into account a
number of the concerns raised by Parliament in its Resolution on the SIMON
report.

Other subjects of interest to Parliament

Fines

Members of the ECON committee have expressed a range of
concerns about the Commission's fining policy. The services have explained the
fining methodology in seminars, and in a detailed reply to an MEP letter, and
was pleased to participate in a short seminar on fines in November 2011. The Competition
DG also published a factsheet on fines, which seeks to explain the reasons for
fines and how they are calculated.

Compliance is another theme raised by Parliament. The
Schwab report on the 2010 Commission's Report on Competition mentioned the
importance of encouraging compliance, as well as ensuring effective deterrence.
The Competition DG published a brochure on compliance for companies in November
2011, which directly addresses both points[129].
It helps companies to develop a proactive compliance strategy, summarises the
key competition rules companies should respect and generally sets out basic
methods to help companies ensure compliance with EU competition rules,
particularly small and medium-sized companies.  . The brochure also confirms
the Commission's position that implementing a compliance programme does not
have any negative implications for companies, nor will it be recognised as a
mitigating factor when calculating the level of fines.

The Commission published its revised Best Practices package
in October 2011. As well as strengthening the role of the Hearing Officer, and
clarifying the role of economic evidence, that package outlined measures to
improve the experience of parties to an antitrust investigation. In particular,
statements of objection, which set out the Commission's arguments at an early
stage in the case, and to which parties can respond in detail, will include an
indication of the parameters of any future fine.

Cases and investigative work

MEPs often ask the Commission questions about individual
ongoing competition cases, to which the Commission is unable to reply due to
the confidentiality requirement of the investigative procedures. However,
Competition DG staff regularly meet MEPs at their request, to explain the
procedural steps in an investigation, and to have a general discussion on a
particular sector, as far as is possible.

The Commission has a range of tools at its disposal for
the enforcement of EU competition rules. They include investigations in
individual cases, sector inquiries, and working with other Directorates-General
on regulatory measures. The Parliament has repeatedly called for sector
inquiries in a number of areas, which the Commission has noted. However, sector
inquiries are very resource-intensive, and sometimes the same objectives can be
achieved as effectively through other types of investigation.

Competition DG contact
with Parliament in other policy areas

A number of committees follow issues relating to
competition policy. Competition DG officials at all levels have held a series
of bilateral meetings with MEPs from other Parliamentary committees, including
IMCO, ITRE (where the mid-term review on R&D&I was presented), TRAN,
LIBE, JURI, and BUDG. Two files were of particular interest to the Competition DG
in 2011.

Regulation 1049 – Access to documents

The report of the committee on Civil Liberties (LIBE) on
access to documents proposes to delete the Commission's proposed exemption for
documents in the area of competition enforcement (investigations). The Competition
DG is concerned that unrestricted access to documents could be damaging to its
enforcement activity, particularly in the context of the protection of its leniency
programme. The Commission will continue to follow that matter closely through
Council and during trilogue discussions.

Competition DG engagement
with the European Economic and Social Committee

The Commission also keeps the European Economic and
Social Committee (EESC) informed about major policy initiatives, and
participates in study group and section meetings.Moreover, on 4 October the
Commissioner for Competition attended the Section for the Single Market,
Production and Consumption, where he presented the Staff Working Document on
the temporary State aid rules during the financial and economic crisis. On 7
December, the EESC adopted an opinion on the Report on Competition Policy 2010[130].

IV.     ANNEXES

(1) 
List of Competition DG initiatives adopted under
CWP 2011

(2) 
List of Banking cases (State aid)

ANNEX 1: List of Competition DG initiatives
adopted under CWP 2011

Communication on the Reform of State Aid Rules on Services of
  General Economic Interest – COM(2011) 146 final
 Report on Competition Policy  2010 – COM(2011) 328 final*
 State aid Scoreboard: Spring 2011 update – COM(2011) 356 final*
 Best practices in Antitrust proceedings*:

– 
Commission notice on best practices for the
conduct of proceedings concerning Articles 101 and 102 TFEU (2011/C 308/06)

– 
Decision of the President of the European
Commission of 13 October 2011 on the function and terms of reference of the
hearing officer in certain competition proceedings (2011/695/EU)

– 
Best practices for the submission of economic
evidence and data collection in cases concerning the application of Articles
101 and 102 TFEU and in merger cases (Staff Working Paper)

State aid Scoreboard: Autumn 2011 update – COM(2011) 848 final*
 Communication on the application, from 1 January 2012, of State
  aid rules to support measures in favour of banks in the context of the
  financial crisis – C(2011) 8744 final
 Review of the Framework on State aid to shipbuilding – (2011/C
  364/06)
 SGEI package:

– 
Commission Decision of 20 December 2011 on the
application of Article 106(2) TFEU to State aid in the form of public service
compensation granted to certain undertakings entrusted with the operation of
services of general economic interest - C(2011) 9380

– 
Communication from the Commission on the
application of the European Union State aid rules to compensation granted for
the provision of services of general economic interest - (2012/C 8/02)

– 
Communication on the European Union framework
for State aid in the form of public service compensation (2011) – (2012/C 8/03)

- relates to other measures not included in the CWP 2011

ANNEX 2: List of State aid banking cases

State aid cases - situation – 31/12/2011

Decisions adopted
by the Commission in 2011

Austria

Type of measure / Beneficiary || Type of Decision || Date of adoption

SA.32745 – Restructuring of Kommunalkredit || Decision not to raise objections IP/11/389 || 31 March 2011

SA.32172 and SA.32554 – Temporary approval of aid for Hypo Group Alpe Adria [decision replaced – see below] || Decision not to raise objections IP/11/636 || 24 May 2011

SA.32172 and SA.32554 – Replacement decision: Temporary approval of aid for Hypo Group Alpe Adria || Decision not to raise objections || 19 July 2011

SA.31883 – Restructuring of Österreichische Volksbanken AG || Decision to open an in-depth procedure IP/11/1522 || 9 December 2011

SA.31189 – BAWAG Amendment Decision || Decision not to raise objections - || 19 December 2011

Belgium

Belgium

SA.29833 – Monitoring of KBC: Amendment of certain measures in the Restructuring Plan || || 27 July 2011

SA.30962 – Monitoring of Ethias || || 12 September 2011

SA.33751 – Temporary approval of rescue aid for Dexia Bank Belgium || IP/11/1203 || 17 October 2011

SA.29833 – Monitoring of KBC: extension of the target date of certain divestments by KBC and amendment of restructuring commitments || - || 22 December 2011

Belgium/France/Luxembourg

SA.33760, SA.33763, SA.33764 – Temporary approval of guarantees on the refinancing of Dexia and DCL and opening of in-depth investigation || Opening decision IP/11/1592 || 21 December 2011

Denmark

SA.31867 – Amendments to liquidation aid for Roskilde bank || Decision not to raise objections EXME 11 / 24.05 || 24 May 2011

SA.33001 – Prolongation || EXME/11/28.06 || 28 June 2011

SA.33001 – Amendment of winding-up scheme for credit institutions in Denmark || Decision not to raise objections EXME/11/01.08 || 1 August 2011

SA. 33757 – Extension of the winding-up scheme for credit institutions in Denmark || Decision not to raise objections IP/11/1523 || 9 December 2011

SA.32634 – Temporary approval of rescue aid for Amagerbanken || Decision not to raise objections IP/11/676 || 6 June 2011

SA.31945 – Liquidation aid for Eik Banken || Decision not to raise objections IP/11/677 || 6 June 2011

SA.33117 – Aid for the liquidation of Fionia Bank - revised commitments || - || 18 July 2011

SA.33639 – Temporary approval of rescue aid for Max Bank || IP/11/1172 || 10 October 2011

Germany

MC 15/2009 – Landesbank Baden Württemberg "LBBW" – Deka divestment || - || 14 January 2011

SA.31646 – Monitoring of Sparkasse Köln-Bonn - Prolongation of the deadline for certain divestments || - || 30 March 2011

SA.28264 (C15/2009) – Restructuring aid for Hypo Real Estate || Final decision IP/11/898 || 18 July 2011

SA.29338 (C29/2009) – Restructuring of HSH Nordbank || Final conditional decision IP/11/1047 || 20 September 2011

SA.29590 (C40/2009) – Approval of split-up of WestLB || Final decision IP/11/1576 || 20 December 2011

SA.33571 – Temporary approval of the recapitalisation of NordLB || Decision not to raise objections EXME/11/22.12 || 22 December 2011

Greece

SA.32767 – Amendment || EXME 11/04.04 || 4 April 2011

SA.33153 – Prolongation || EXME 11/27.06 || 27 June 2011

SA.33154 – Prolongation || EXME 11/27.06 || 27 June 2011

SA.31154 – Restructuring of Agricultural Bank of Greece (ATE) || Decision not to raise objections IP/11/626 || 23 May 2011

SA.34064 – Temporary approval of second rescue recapitalisation of National Bank of Greece under the Greek recapitalisation scheme || Decision not to raise objections EXME/11/22.12 || 22 December 2011

Hungary

SA.32995 – Prolongation || EXME/11/23.06 || 23 June 2011

SA.32993 – Prolongation || EXME 11/09.06 || 9 June 2011

SA.32994 – Prolongation || EXME/11/23.06 || 23 June 2011

Ireland

SA.33006 – Prolongation (including guarantees on short-term liabilities) || Decision not to raise objections IP/11/673 || 1 June 2011

SA.33740 – Prolongation (including guarantees on short-term liabilities) || Decision not to raise objections EXME/11/08.12 || 8 December 2011

SA.29907 and SA.32504 - Resolution of Anglo Irish Banks and Irish Nationwide Building Society || Final Decision IP/11/801 || 29 June 2011

SA.33216 – Second rescue recapitalisation of Bank of Ireland || Decision not to raise objections IP/11/854 || 11 July 2011

SA.33144 – Temporary approval of rescue aid for merged entity Allied Irish Banks/Educational Building Society || Decision not to raise objections IP/11/892 || 15 July 2011

SA.33311 – Temporary approval of rescue aid for Irish Life & Permanent Group Holdings || Decision not to raise objections IP/11/913 || 20 July 2011

SA.33023 – Restructuring of Quinn Insurance Limited || Decision not to raise objections IP/11/1187 || 12 October 2011

SA.33443 – Second Restructuring Plan of Bank of Ireland || Decision not to raise objections IP/11/1572 || 20 December 2011

SA.33170 – Resolution scheme for credit unions in Ireland || Decision not to raise objections IP/11/1574 || 20 December 2011

Italy

SA.34032 – Reintroduction of the Italian Guarantee scheme || EXME/11/15.12 || 15 December 2011

Latvia

SA.30704 – Temporary approval of support to Latvian Mortgage and Land Bank and opening of in-depth procedure into the measures for the bank's transformation || Opening decision IP/12/77 || 26 January 2011

Lithuania

SA.32188 – Extension || EXME/11/21.1 || 21 January 2011

SA.33135 – Prolongation || EXME 11/27.06 || 27 June 2011

Netherlands

SA.26674 – Restructuring of ABN Amro Group || Final conditional decision IP/11/406 || 5 April 2011

SA.33303 – Additional commitments by SNS Reaal to ensure proper remuneration of a capital injection || Decision not to raise objections EXME/11/19.12 || 19 December 2011

Poland

SA.33008 and 32946 – Prolongation || EXME/11/28.6 || 28 June 2011

SA.33007 – Prolongation || EXME/11/28.6 || 28 June 2011

Portugal

SA.32158 – Third prolongation || EXME/11/21.1 || 21 January 2011

SA.33178 – Fourth prolongation || EXME/11/30.06 || 30 June 2011

SA.34034 – Amendment || EXME/11/21.12 || 21 December 2011

SA.32157 – Third extension || EXME/11/21.1 || 21 January 2011 ||

SA.33177 – Fourth prolongation || EXME/11/30.06 || 30 June 2011 ||

SA.26909 – Banco Português de Negócios – opening of in-depth procedure || Opening decision IP/11/1235 || 24 October 2011 ||

Slovenia

SA.32261 – Temporary approval of rescue recapitalisation of Nova Ljubljanska Banka || IP/11/264 || 7 March 2011

Spain

SA.32990 – Prolongation || IP/11/673 || 1 June 2011

SA.33402 – Capital injection for Caja de Ahorros de Mediterraneo (CAM) || Decision not to raise objections EXME 11/25.07 || 24 July 2011

SA.33096 – Temporary approval of rescue aid for NCG Banco || Decision not to raise objections IP/11/1143 || 30 September 2011

SA.33095 – Temporary approval of rescue aid for Unnim Banc || Decision not to raise objections IP/11/1143 || 30 September 2011

SA.33103 – Temporary approval of rescue aid for Catalunya Banc || Decision not to raise objections IP/11/1143 || 30 September 2011

SA.33917 (2011/N) – Temporary approval of the recapitalisation and liquidity support for Banco de Valencia || Decision not to raise objections IP/11/1388 || 21 November 2011

[1] Available at http://ec.europa.eu/competition/consumers/why_en.html

[2] Communication from the Commission on the
application, from 1 January 2012, of State aid rules to support measures in
favour of banks in the context of the financial crisis, OJ C 356, 6.12.2011, p.
7-10.

[3] See http://ec.europa.eu/competition/publications/reports/temporary_stateaid_rules_en.html

[4] Case SA.31945 Aid for the liquidation of Eik Banki P/F and Eik
Bank Denmark A/S, decision of 6
June 2011, OJ C 274 17.9.2011, p. 3-6; IP/11/677.

[5] Case SA.32745, Restructuring of Kommunalkredit Austria AG,
decision of 23 June 2011, OJ C 239, 17.8.2011, p. 1-3; IP/11/389.

[6] Case SA.26674 Restructuring aid to ABN AMRO, decision of 5 April 2011, OJ L 133, 20.5.2011,
p.1-46; IP/11/406.

[7] Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of
general economic interest, OJ C 8, 11.1.2012, p. 4-14.

Commission Decision of 20 December
2011 on the application of Article 106(2) of the Treaty on the Functioning of
the European Union to State aid in the form of public service compensation
granted to certain undertakings entrusted with the operation of services of
general economic interest (notified under document C(2011) 9380), OJ L 7,
11.1.2012, p. 3-10.

Communication from the Commission –
European Union framework for State aid in the form of public service
compensation (2011), OJ C 8, 11.1.2012, p. 15-22.

Available at: http://ec.europa.eu/competition/state_aid/legislation/sgei.html

[8] Texts adopted: P7_TA(2011)0494 Available at
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2011-0371&language=EN

[9] Case C-280/00 Altmark
Trans GmbH, Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark
GmbH, judgment of 24 July 2003, [2003] ECR I-7747.

[10] A Digital Agenda for Europe, COM(2010) 245 final/2, 26.8.2010.

[11] (i) To bring basic broadband to all
Europeans by 2013 and (ii) ensure that by 2020 all Europeans have access to
much higher internet speeds of above 30 Mbps and 50% or more of European households
should subscribe to internet connections above 100 Mbps.

[12] Guidelines for the application of State aid rules in relation to
rapid deployment of broadband networks, OJ C 235, 30.9.2009, p. 7.

[13] Available at http://ec.europa.eu/regional_policy/thefunds/instruments/index_en.cfm

[14] The Communication of 19 October 2011 on "A new framework for
the next generation of innovative financial instruments – the EU equity and
debt platforms" (COM(2011)622 final).

[15] Case SA.32835 Northwest Urban Investment Fund
(JESSICA), decision of 13 July 2011, OJ C 281 24.9.2011, p. 6-8; IP/11/876
and Case SA.32147 Andalucía Jessica Holding Fund, decision of 19 October
2011, OJ C 79, 17.3.2012, p. 1.

[16] Commission Regulation (EC) No 800/2008 of
6 August 2008 declaring certain categories of aid compatible with the common
market in application of Article 87 and 88 of the Treaty (General Block Exemption Regulation), OJ L 214, 9.8.2008,
p. 3.

[17] Available
at http://ec.europa.eu/competition/state_aid/studies_reports/2011_autumn_en.pdf

[18] Section 4, Notice from the Commission – Towards an effective implementation
of Commission decisions ordering Member States to recover unlawful and
incompatible State aid, OJ C 272, 15.11.2007, p. 4.

[19] Actions under Article 108(2) are
aimed at condemning a Member State for non-implementation of a State aid
recovery decision.

[20] Actions under Article 260(2) are
infringement actions aimed at condemning a Member State for non-implementation
of a Court judgment, and may include the payment of fines.

[21] Commission Notice on the enforcement of State aid law by National
courts, OJ 85, 9.4.2009, p. 1.

[22] http://ec.europa.eu/competition/court/state_aid.html

[23] http://ec.europa.eu/competition/publications/state_aid/national_courts_booklet_en.pdf

[24] Through the contact point, ec-amicus-state-aid@ec.europa.eu
several requests for information and opinions by national judges have been
dealt with.

[25] Cases SA.31151 (N 274b/2010) Germany Disaster Aid Scheme
"Bayerischer Härtefonds Finanzhilfen" (beneficiaries in
manufacturing and other sectors); Commission decision of 23 November 2011 on
State aid case SA.33425 Framework Scheme Disaster Aid Saxony (manufacturing
and other sectors) decision of 23 November 2011, OJ C 2, 5.1.2012, p. 7-9.

[26] Commission Community guidelines for State aid in the agriculture
and forestry sector 2007 to 2013, OJ C 319, 27.12.2006, p. 1-33.

[27] Judgment of the ECtHR of 27 September 2011, A. Menarini Diagnostics
S.R.L. v. Italy, Application No 43509/08, paras. 57-67.

[28] Case C-272/09 P KME Germany AG v Commission, judgment of 8
December 2011.

[29] Cases C-386/10 P Chalkor AE Epexergasias Metallon v Commission
and C-389/10 P KME Germany AG and Others v Commission, judgments of 8
December 2011.

[30] Judgment of 21 May 2003, Janosevic v Sweden, Application No 34619/97,
para. 81.

[31] Commission Notice on Best Practices for the
conduct of proceedings
concerning Articles 101 and 102 TFEU, OJ C 308, 20.10.2011, p.6-32.

[32] Best Practices for the submission of economic evidence and data collection in cases
concerning the application of Articles 101 and 102 TFEU and in merger cases,
available at http://ec.europa.eu/competition/antitrust/legislation/legislation.html

[33] Decision of the President of the European Commission of 13 October 2011 on the function and
terms of reference of the Hearing Officer in certain competition proceedings, OJ
L275, 20.10.2011, p.69.

[34] Case COMP/39796 Suez Environnement breach of seal,
decision on procedural fines of 27 August 2011; IP/11/632.

[35] White Paper on Damages actions for breach of the EC antitrust rules
of 2.4.2008 (COM(2008)165 final), together with Commission Staff Working Paper
(SEC(2008) 404).

[36] The text of this document, together with the written responses
received and material from a workshop with economists can be accessed at http://ec.europa.eu/competition/antitrust/actionsdamages/index.html

[37] European Parliament resolution of 26 March 2009 on the White Paper
on damages actions for breach of the EC antitrust rules (2008/2154(INI)). Texts adopted: P6_TA(2009)0187.

[38] Commission Staff Working Document Public
Consultation: Towards a Coherent European Approach to Collective Redress, 4
February 2011, SEC(2011)173 final; IP/11/132. Available at: http://ec.europa.eu/competition/consultations/2011_collective_redress/index_en.html

[39] Case C-360/09 Pfleiderer AG v Bundeskartellamt, judgment of 14
June 2011.

[40] Regulation (EC) No 772/2004 on the
application of Article 81(3) of the Treaty [now Article 101(3) TFEU], OJ L 123,
27.4.2004, p. 11-17 and Commission Notice Guidelines on the applicability of
Article 81 of the EC Treaty to technology transfer agreements., OJ C 101, 27.4.2004, p. 2-42.

[41] Cases COMP/39579 Consumer Detergents, decision of 13 April 2011, OJ
C 193, 2.7.2011, p 14-16, COMP/39482 Exotic Fruit, decision of 12 October 2011,
COMP/39605 CRT Glass, decision of 19 October 2011; IP/11/1214 and COMP/39600 Refrigeration
compressors, decision of 7 December 2011.

[42] The European Court of Justice and the General Court during 2011
rendered more than 80 judgments concerning almost 20 different cartel
decisions.

[43] Cases T-343/08 Arkema France v European Commission and
T-299/08 Elf Aquitaine v European Commission, judgments of 17 May 2011,
Case T-348/08 Aragonesas Industrias y Energia v European Commission,
judgment of 25 October 2011 and Cases T-211/08 Putters
International NV v European Commission, joined cases T-208/08 Gosselin Group NV and T-209/08 Stichting Administratiekantoor Portielje v
European Commission, T-204/08 Team Relocations NV and T-212/08 Amertranseuro International Holdings Ltd, Trans Euro Ltd et Team
Relocations Ltd v European Commission, judgments of
16 June 2011.

[44] T-12/06 Deltafina v European
Commission, judgment of 9 September 2011.

[45] Case C-404/11 P Elf Aquitaine v European  Commission,
order of the Court of 2 February 2012,; Cases T-185/06 Air Liquide v European
Commission, judgment of 16 June 2011 and T-196/06 Edison v European Commission,
judgment of 16 June 2011.

[46] Case C-360/09 P Pfleiderer AG v
Bundeskartellamt, judgment of 14 June 2011.

[47] In its
observations, the Commission argued that the effective enforcement of Article
101 TFEU would be hindered if a judgment would have as its subject matter
solely national law and be entirely silent on the (non)-applicability of EU
law, as this could be deemed as an assurance for undertakings that a cartel
does not infringe Article 101(1) TFEU.

[48] The Commission's observations relate to
the interpretation of the Guidelines on the effect on trade concept and the way
in which the appreciable effect on trade between Member States principle is
applied when conduct affects trade only in part of a Member State.

[49] In its observations the Commission outlined its policy for securing
both the integrity of leniency programs and the effectiveness of damages
actions.

[50] In 2011, the Commission funded 24 training programs.

[51] A comprehensive review of this aspect was carried out by the
Commission in 2009. See Communication from the Commission to the Council, Report from the Commission to the Council on the operation of
Regulation No 139/2004, 18 June 2009,
COM(2009)281 final.

[52] Cases COMP/M.6203 Western Digital Ireland, Ltd/Viviti
Technologies, decision of 23 November 2011; IP/11/1395 and COMP/M.5984 INTEL
/ MCAFEE, decision of 26 January 2011, OJ C 98, 30.3.2011, p. 1; IP/11/70.

[53] Case COMP/M.5830 Olympic/Aegean Airlines,
decision of 26 January 2011; IP/11/68.

[54] Texts adopted: P7_TA(2012)0031 available at
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2011-0424&language=EN

[55] Case COMP/39315 ENI, decision of 29 September 2010, OJ C
352, 23.12.2010, p. 8-10; IP/10/1197.

[56] Case COMP/39317 E.ON gas foreclosure, decision of 4 May
2010, OJ C 278, 15.10.2010, p. 9-10; IP/10/494.

[57] Case COMP/39316 GDF foreclosure, decision of 3 December
2009, OJ C 57, 9.3.2010, p. 13-14; IP/09/1872.

[58] Case COMP/39402 RWE gas foreclosure, decision of 18 March
2009, OJ C 133, 12.6.2009, p. 10-11; IP/09/410.

[59] Case COMP/39386 Long term electricity contracts in France, decision of 17 March 2010, OJ C 133, 22.5.2010, p. 5-6; IP/10/290.

[60] Case COMP/39351 Swedish Interconnectors, decision of 14
April 2010, OJ C 142, 1.6.2010, p. 28-29.

[61] Case COMP/38700 Greek lignite and electricity markets; IP/11/34,
14.1.2011.

[62] Cases COMP/M.6039 GE/Dresser, decision of 4 January 2011, OJ
C 29, 29.1.2011, p. 7; IP/11/5, COMP/M.6106 Caterpillar/MWM, decision of
19 October 2011; IP/11/1212 , COMP/M.6172 Daimler/Rolls Royce/Tognum/Bergen,
decision of 25 July 2011, OJ C 275, 20.9.2011, p. 2; IP/11/924, COMP/M.6222 GE
Energy/Converteam, decision of 25 July 2011, OJ C 255, 31.8.2011, p. 2;
IP/11/922, COMP/M.6350 Siemens/NEM Holding, decision of 28 October 2011,
OJ C 23, 28.01.2012, p. 10; IP/11/1300 and  COMP/M.6356 GE/IR/UEC/JV,
decision of 27 October 2011, OJ C 321, 4.11.2011, p. 1.

[63] COMP/M.6039 GE/Dresser, decision of 4 January 2011, OJ C 29,
29.1.2011, p. 7; IP/11/5.

[64] COMP/M.6356 GE/IR/UEC/JV, decision of 27 October 2011, OJ C
321, 4.11.2011, p. 1.

[65] COMP/M.6350 Siemens/NEM Holding,
decision of 28 October 2011, OJ C 23, 28.01.2012, p. 10; IP/11/1300.

[66] Case SA.18859 — 11/C (ex NN 65/10) Relief from aggregates levy
in Northern Ireland (ex N 2/04), OJ C 245, 24.8.2011, p. 10 with
corrigendum published in OJ C 328, 11.11.2011, p. 11.

[67] Case
SA.31349 (N1/2011) Climate Change Levy reduction for metal recycling
activities, decision of 23 November 2011.

[68] Market Observatory for Energy, June 2011.

[69] Community guidelines on State aid for environmental protection, OJ
C 82, 1.4.2008, p.1-33.

[70] Cases SA.31204 Operating aid for small wood fired CHP-plants and
forest chips fired power plants, decision of 22 March 2011, OJ C153,
24.05.2011, p.1, SA.31107 Operating aid for wind power and bio gas
electricity, decision of 15 March 2011, OJ C 180, 21.6.2011, p. 1-4, SA.32470
Forest chips, wind power, hydro power and bio gas electricity, decision of 22 March 2011, OJ C
180, 21.06.2011, p. 1and SA.32470 Fixed operating aid for power plants
using renewable energy sources, decision
of 22 March 2011, OJ C 189, 29.06.2011, p.1.

[71] Case
SA 33134 Romania's green certificates scheme, OJ C 244,
23.08.2011, p. 2.

[72] Case SA 30113 Geothermal heat boiler for the industrial site of
Beinheim.

[73] Case SA.31527 (N 386/2010) Pilot schemes for the purchase of
electric vehicles, decision of 8 March 2011,OJ C 149, 20.05.2011, p. 3;
IP/11/266.

[74] Case SA.30741 Aid to purchase of  ultra low-emission vehicles,
decision of 19 October 2011.

[75] Cases SA.32206 Prolongation
du régime temporaire de prêts bonifiés pour les entreprises fabriquant des
produits verts, decision
of 12 October 2011, OJ C 330, 12.11.2011, p. 1 and SA.32029 Extension for 2011
of the French and German aid schemes providing support for green products,
decision of 3 October 2011, OJ C 361, 10.12.2011, p. 1-5.

[76] COMP/M.6112 Good Energies/NEIF/Newco, decision of 13 April
2011, OJ C 122, 20.4.2011, p.6 , COMP/M.6238 RREEF/SMAG/OHL/Arenales,
decision of 10 August 2011, OJ C 255, 31.8.2011, p. 1, COMP/M.6303 Antin/RREEF/Andasol
1&2, decision of 22 August 2011, OJ C 253, 30.8.2011, p.1, COMP/M.6273
Samsung/Korea Development Bank/KNS Solar, decision of 3 August 2011, OJ
C 236, 12.8.2011, p. 6.

[77] COMP/M.6233 FOEW/Dong Energy/Novasion/Aalborg
Universitet/Universal Foundation, decision of 27 July 2011, OJ C 228,
03.08.2011, p. 4, COMP/M.6176 Mitsubishi Corp/Barclays Bank/ Walney Topco
I&II/SheringhamsShoal Topco, decision of 29 August 2011, OJ C 261,
03.09.2011, p. 1, COMP/M.6155 GEM/DEME/Electrawinds
Offshore/SRIWE/Z-Kracht/Power@sea/Rent a Port Energy, decision of 6 June
2011, COMP/M.6206 Iberdrola/Caja Rural de Navarra/Renovables de la Ribera,
decision of 30 June 2011, OJ C 198, 06.07.2011, p. 1.

[78] Cases C38/B/2004 (ex NN58/2004) Preferential electricity tariffs
for the benefit of three energy-intensive businesses located in Sardinia
and C13/2006 (ex N587/2005) and Green Electricity Act, OJ L 309,
24.11.2011, p.1.

[79] Case C24/2009 (ex N446/2008) State aid
for energy-intensive businesses under the Green Electricity Act in Austria,
OJ L 235, 10.09.2011, p. 42.

[80]As provided for by Council Decision No 2010/787/EU of 10 December
2010 on State aid to facilitate the closure of uncompetitive coal mines, OJ L
336, 21.12.2010, p. 24.

[81] Case SA.30907 (N175/2010) Closure of mine Trbovlje Hrastnik Ltd
until 2015, OJ C 294, 6.10.2011, p. 3.

[82] Case SA.33013 Coal plan for the period 2011-2015, decision
of 23 November 2011.

[83] See German case SA.24642 (N708/2007) Coal mine closure plan
2008-2018, decision of 7 December 2011 and Romanian case SA.33033 National
Hard Coal Company Petroşan, decision of 22 February 2012; IP/12/157.

[84] Cases COMP/M.6088 HIG Capital/Der Grune Punkt-Duales System
Deutschland, decision of 7 February 2011, OJ C 43, 11.2.2011, p. 2, COMP/M.6105
Veolia/EDF:SEEG, decision of 24 January 2011, OJ C 26, 28.1.2011, p. 1, Case
COMP/M.6345 Cheung Kong/Northumbrian Water Group, decision of 22
September 2011, OJ C 285, 29.9.2011, p. 1, COMP/M.6253 Talis International
Holdings/ Raphael Valves Industries, decision of 12 July 2011, OJ C 209,
15.7.2011, p. 16.

[85] For example, proceedings were opened against ARA in Austria and an investigation into conduct by French water companies continued throughout
2011.

[86] Market Observatory for Energy, June 2011.

[87] Cases SA.31953 Construction of a LNG Terminal in Swinoujsciu,
decision of 5 October 2011, OJ C 361, 10.12.2011, p. 1-5 and SA.30980 (N 542/2010)
Construction of interconnection and cross-border power line between Poland
and Lithuania, decision of 6 January 2011, OJ C 79, 12.03.2011, p.1 with
corrigendum in OJ C 92, 24.03.2011, p.22.

[88] A Digital Agenda for Europe, COM(2010) 245 final/2.

[89]The 2011 Report on R&D in ICT in the European Union, European Commission’s Joint Research
Centre - Institute for Prospective Technological Studies (JRC 65175 EUR 24842
EN).

[90] Building a Digital Economy: The importance of saving jobs in the
EU’s creative industries, TERA Consultants, March 2010.

[91] Commission Green Paper Unlocking the
potential of cultural and creative industries. 27 April 2010, COM(2010)183.

[92] Cf. Case COMP/37792 Microsoft (OJ L 32,
6.2.2007, p. 23); see judgment T-201/04, Microsoft Corp. v. Commission [2007]
E.C.R. II-3601.

[93] Joined Cases C-403/08 and C-429/08 Football Association Premier
League and Others v QC Leisure and Others Karen Murphy v Media Protection
Services Ltd., judgment of 4 October 2011.

[94] To review the assessment criteria set out in the Commission communication on certain legal aspects relating to
cinematographic and other audiovisual works (Cinema Communication) of 26
September 2001, OJ C 43, 16.2.2002, p. 6. See also the Issues Paper available
at http://ec.europa.eu/competition/consultations/2011_state_aid_films/issues_paper_en.pdf

[95] Community Guidelines for the application of State aid rules in
relation to rapid deployment of broadband networks, OJ C 235, 30.9.2009, p.
7.

[96] Community Guidelines for the application of State aid rules in
relation to rapid deployment of broadband networks, OJ C 235, 30.9.2009, p.
7.

[97] Case COMP/39740 Foundem/Google and related cases.

[98] Case COMP/M.6214 Seagate Technology / the HDD business of
Samsung Electronics, decision of 19 October 2011; IP/11/1213.

[99] COMP/M.6203 Western Digital Ireland / Viviti Technologies,
decision of 23 November 2011, IP/11/1395,.

[100] Including Commission Directive 2002/77/EC of 16 September 2002 on
competition in the markets for electronic communications networks and services,
OJ L 249, 17.9.2002, p. 21-26.

[101] COMP/M.5984 INTEL / MCAFEE, decision of 26 January 2011, OJ
C 98, 30.3.2011, p. 1; IP/11/70.

[102] Case COMP/M.6281, Microsoft / Skype, decision of 7 October
2011, OJ C 341, 22.11.2011, p. 2; IP/11/1164.

[103] Most data at the sectoral level is available up until 2009 only.
Where possible, reference is made to developments in the following years.

[104]    Roadmap to a Single European
Transport Area – Towards a competitive and resource efficient transport system,
European Commission White Paper, COM(2011)144 final, 28.3.2011.

[105]    Directive establishing a single European
railway area (Recast), European Commission Proposal, COM(2010) 475 final, 17.9.2010.

[106]    Case COMP/M.6150 Veolia Transport/Trenitalia/JV, decision
of 20 July 2011, OJ C 249, 26.8.2011, p.3;IP/11/917.

[107]    Case COMP/M.6269
SNCF/HFPS/Wehinger GmbH/Rail Holding, decision of 20 July 2011, OJ C
222, 28.7.2011, p. 1.

[108]    See MEMO/11/208, 31.3.2011.

[109]    See MEMO/11/152, 10.3.2011.

[110]    Case SA.32544, Restructuring of the Greek Railway Group -
TRAINOSE S.A., decision of 13 July 2011;IP/11/866.

[111]    Case SA.31250, Restructuring aid to BDZ, decision of 9
November 2011; IP/11/1321.

[112]    Case N402/2010, Rescue aid for the Bulgarian State Railways BDZ EAD (BDZ), decision of 15 December 2010, OJ C 187, 28.6.2011, p. 6-9;
IP/10/1733.

[113]Excluding medicines, government investment on education, health
prevention and other therapeutical appliances.

[114]All figures in this section are Competition DG
estimates based on data from the OECD 2008 Health database.

[115]  See Commission Communication on the final report on the
pharmaceutical Sector Inquiry, p.1, and Final Report (technical annex),
available at the website of DG Competition: http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/index.html

[116] See the Competition DG's website: http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/index.html

[117] Council Directive 89/105/EEC of 21 December 1988 relating to the
transparency of measures regulating the prices of medicinal products for human
use and their inclusion in the scope of public health insurance systems, OJ L 40,
11.2.1989, p.8-11.

[118]Cases C-118/85 Commission v Italy [1987] ECR 2599, paragraph
7; C-35/96, Commission v Italy [1998] ECR I-3851, paragraph 36; Joined Cases
C-180/98 to C-184/98 Pavlov, [2000] ECR I-6451.

[119] Case COMP/39510Ordre National des
Pharmaciens, decision of 8 December 2010; IP/10/1683.

[120] Case COMP/39686 Cephalon; IP/11/511,opening of proceedings on
19.04.2011.

[121] Case COMP/39685 Fentanyl; IP/11/1228. opening of proceedings
on 18.10.2011.

[122]  MEMO/10/647 of 3 December 2010;  MEMO/09/435 of 6 October 2009.

[123] For further information on patent settlement monitoring see: http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/index.html

[124] Case COMP/39246 Boehringer, closure
of proceedings of 6 July 2011; IP/11/842.

[125]
Conseil Constitutionnel − Décision n° 2011−640 DC du 04 août 2011.

[126] SEC(2011)1126 final (5.10.2011):  Commission Staff Working Paper on
the effects of temporary State aid rules adopted in the context of the
financial and economic crisis economic crisis.

[127] Texts adopted: P7_TA(2011)0023, available at http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2010-0374&language=EN

[128] Available at http://ec.europa.eu/competition/index_en.html

[129] Available at http://ec.europa.eu/competition/antitrust/compliance/index_en.html

[130] Opinion of the European Economic and Social Committee on the
'Report from the Commission – Report on Competition Policy 2010', 7 December
2011, OJ C 43, 15.2.2012, p. 25 – 29. Available at http://www.eesc.europa.eu/?i=portal.en.int-opinions.19680

INT/594 – CESE 1850/2011.