# C_2008310EN.01002301.xml

| 5.12.2008 | EN | Official Journal of the European Union | C 310/23 |
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5.12.2008

EN

Official Journal of the European Union

C 310/23

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Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/B-1/39.402 — RWE Gas Foreclosure

(Text with EEA relevance)

(2008/C 310/09)

1.   INTRODUCTION

| 1. | According to Article 9 of the Council Regulation (EC) No 1/2003 (1), the Commission may decide — in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment — to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission. |
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1.

According to Article 9 of the Council Regulation (EC) No 1/2003 (1), the Commission may decide — in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment — to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

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2.   SUMMARY OF THE CASE

| 2. | On 15 October 2008, the Commission adopted a preliminary assessment pursuant to Article 9(1) of Regulation (EC) No 1/2003 concerning alleged infringements of RWE AG, Essen and its subsidiaries on the German gas markets (‘RWE’). |
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2.

On 15 October 2008, the Commission adopted a preliminary assessment pursuant to Article 9(1) of Regulation (EC) No 1/2003 concerning alleged infringements of RWE AG, Essen and its subsidiaries on the German gas markets (‘RWE’).

| 3. | According to the preliminary assessment RWE is dominant on the gas transport market(s) within its network area. The preliminary assessment expressed the concern that RWE may have abused its dominant position according to Article 82 of the EC Treaty, notably by way of a refusal to supply gas transmission services to third parties and by a behaviour aiming at lowering the margins of RWE's downstream competitors in gas supply (‘margin squeeze’). |
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3.

According to the preliminary assessment RWE is dominant on the gas transport market(s) within its network area. The preliminary assessment expressed the concern that RWE may have abused its dominant position according to Article 82 of the EC Treaty, notably by way of a refusal to supply gas transmission services to third parties and by a behaviour aiming at lowering the margins of RWE's downstream competitors in gas supply (‘margin squeeze’).

3.   THE MAIN CONTENT OF THE OFFERED COMMITMENTS

| 4. | RWE does not agree with the Commission's preliminary assessment. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission's competition concerns. The key elements of the commitments can be summarised as follows: |
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4.

RWE does not agree with the Commission's preliminary assessment. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission's competition concerns. The key elements of the commitments can be summarised as follows:

| 5. | RWE will divest its current German gas transmission system business to a suitable purchaser which must not raise prima facie competition concerns. RWE notably committed to divest:






  — | RWE's German high-pressure gas transmission network, with a total length of approx. 4 000 km. This corresponds to RWE's entire current German high-pressure gas transmission network, with the exception of some network parts in the area of Bergheim (length: approx. 100 km) (2). For parts of the network which are currently not exclusively owned by RWE but co-owned with other parties, RWE commits to divest its entire share, |
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5.

RWE will divest its current German gas transmission system business to a suitable purchaser which must not raise prima facie competition concerns. RWE notably committed to divest:

prima facie

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RWE's German high-pressure gas transmission network, with a total length of approx. 4 000 km. This corresponds to RWE's entire current German high-pressure gas transmission network, with the exception of some network parts in the area of Bergheim (length: approx. 100 km) (2). For parts of the network which are currently not exclusively owned by RWE but co-owned with other parties, RWE commits to divest its entire share,

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| — | auxiliary equipment necessary for the operation of the transmission network (such as the gas conditioning facilities in Broichweiden and Hamborn, a dispatching centre (Prozessleitsystem) etc.), |
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auxiliary equipment necessary for the operation of the transmission network (such as the gas conditioning facilities in Broichweiden and Hamborn, a dispatching centre (Prozessleitsystem) etc.),

| — | intangible assets necessary for the operation of the transmission network (such as software for the dispatching centre, contracts and licenses). |
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intangible assets necessary for the operation of the transmission network (such as software for the dispatching centre, contracts and licenses).

| 6. | RWE also commits to supply the purchaser for a limited period of up to five gas years following the closing of the divestiture with auxiliary services necessary for the operation of the transmission network, such as the provision of gas flexibility services. |
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6.

RWE also commits to supply the purchaser for a limited period of up to five gas years following the closing of the divestiture with auxiliary services necessary for the operation of the transmission network, such as the provision of gas flexibility services.

| 7. | The business will be endowed with personnel and key personnel necessary for the operation of the transmission network. |
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7.

The business will be endowed with personnel and key personnel necessary for the operation of the transmission network.

| 8. | The commitments are published in full in German on the website of the Directorate-General for Competition at:
  http://ec.europa.eu/comm/competition/index_en.html |
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8.

The commitments are published in full in German on the website of the Directorate-General for Competition at:

http://ec.europa.eu/comm/competition/index_en.html

4.   INVITATION TO MAKE COMMENTS

| 9. | The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding. |
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9.

The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding.

| 10. | In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. In this context, the Commission asks interested parties to comment on the question whether the assets and rights RWE offers to transfer to the purchaser (see in detail Schedule 1-6) are sufficient to guarantee the viability of the business and, if any elements are deemed to be missing, to describe these elements in detail. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which commercial secrets and other confidential passages are deleted and are replaced as required by a non-confidential summary or by the words ‘commercial secrets’ or ‘confidential’. Legitimate requests will be respected. |
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10.

In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. In this context, the Commission asks interested parties to comment on the question whether the assets and rights RWE offers to transfer to the purchaser (see in detail Schedule 1-6) are sufficient to guarantee the viability of the business and, if any elements are deemed to be missing, to describe these elements in detail. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which commercial secrets and other confidential passages are deleted and are replaced as required by a non-confidential summary or by the words ‘commercial secrets’ or ‘confidential’. Legitimate requests will be respected.

the Commission invites interested third parties to submit their observations on the proposed commitments

| 11. | Observations can be sent to the Commission under reference number COMP/B-1/39.402 — RWE foreclosure either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax ((32-2) 295 01 28) or by post, to the following address:





  European Commission |
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| Directorate-General for Competition |
| Antitrust Registry |
| B-1049 Brussels |

11.

Observations can be sent to the Commission under reference number COMP/B-1/39.402 — RWE foreclosure either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax ((32-2) 295 01 28) or by post, to the following address:

European Commission

Directorate-General for Competition

Antitrust Registry

B-1049 Brussels

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25).

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(2)  These 100 km of the transmission network can, according to RWE, not be economically divested to a third purchaser since there are no sufficient measurement facilities for the gas flows to downstream grid parts in this area, see Schedule 4 of the commitment text.

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