# Official Journal C 133/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.133.eng |
| --- | --- |
| Official Journal
  of the European Union | C 133 |
| | |
| English edition | Information and Notices | Volume 5212 June 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.133.eng

Official Journal

of the European Union

C 133

English edition

Information and Notices

Volume 5212 June 2009

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| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 133/01 | Communication in accordance with Article 12(5)(a) of Council Regulation (EEC) No 2913/92 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 133/01

Communication in accordance with Article 12(5)(a) of Council Regulation (EEC) No 2913/92 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature

1

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 133/02 | Euro exchange rates | 3 |
| 2009/C 133/03 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 425th meeting on 23 March 2007 concerning a draft decision relating to case COMP/C.37.766 — Dutch Beer Market | 4 |
| 2009/C 133/04 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 426th meeting on 13 April 2007 concerning a draft decision relating to Case COMP/C.37.766 — Dutch Beer Market | 5 |
| 2009/C 133/05 | Final report of the Hearing Officer on the procedure in case COMP/37.766 — Dutch Beer Market (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 6 |
| 2009/C 133/06 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its meeting of 5 March 2009 regarding a draft decision relating to Case COMP/C.39.402 — RWE Gas Foreclosure — Rapporteur: Sweden | 8 |
| 2009/C 133/07 | Final report of the Hearing Officer in Case COMP/39.402 — RWE Gas Foreclosure | 9 |
| 2009/C 133/08 | Summary of Commission Decision of 18 March 2009 relating to a proceeding under Article 82 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/B-1/39.402 — RWE Gas Foreclosure) (notified under document number C(2009) 1885)
   (
  1
  ) | 10 |
| | NOTICES FROM MEMBER STATES |
| 2009/C 133/09 | Commission communication pursuant to Article 16(4) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Public service obligations in respect of scheduled air services (
  1
  ) | 12 |
| 2009/C 133/10 | Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  ) | 13 |
| 2009/C 133/11 | Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  ) | 14 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 133/02

Euro exchange rates

3

2009/C 133/03

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 425th meeting on 23 March 2007 concerning a draft decision relating to case COMP/C.37.766 — Dutch Beer Market

4

2009/C 133/04

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 426th meeting on 13 April 2007 concerning a draft decision relating to Case COMP/C.37.766 — Dutch Beer Market

5

2009/C 133/05

Final report of the Hearing Officer on the procedure in case COMP/37.766 — Dutch Beer Market (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

6

2009/C 133/06

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its meeting of 5 March 2009 regarding a draft decision relating to Case COMP/C.39.402 — RWE Gas Foreclosure — Rapporteur: Sweden

8

2009/C 133/07

Final report of the Hearing Officer in Case COMP/39.402 — RWE Gas Foreclosure

9

2009/C 133/08

Summary of Commission Decision of 18 March 2009 relating to a proceeding under Article 82 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/B-1/39.402 — RWE Gas Foreclosure) (notified under document number C(2009) 1885)
   (
  1
  )

(notified under document number C(2009) 1885)

1

10

NOTICES FROM MEMBER STATES

2009/C 133/09

Commission communication pursuant to Article 16(4) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Public service obligations in respect of scheduled air services (
  1
  )

1

12

2009/C 133/10

Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  )

1

13

2009/C 133/11

Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community — Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations (
  1
  )

1

14

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY |
| | Commission |
| 2009/C 133/12 | Prior notification of a concentration — (Case COMP/M.5525 — TUI Travel/Oscrivia/JV) — Candidate case for simplified procedure (
  1
  ) | 15 |
| 2009/C 133/13 | Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/C-3/38636 — Rambus (
  1
  ) | 16 |
| 2009/C 133/14 | Prior notification of a concentration — (Case COMP/M.5517 — BNPPIP/CAAM/FUND CHANNEL) — Candidate case for simplified procedure (
  1
  ) | 18 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

2009/C 133/12

Prior notification of a concentration — (Case COMP/M.5525 — TUI Travel/Oscrivia/JV) — Candidate case for simplified procedure (
  1
  )

1

15

2009/C 133/13

Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/C-3/38636 — Rambus (
  1
  )

1

16

2009/C 133/14

Prior notification of a concentration — (Case COMP/M.5517 — BNPPIP/CAAM/FUND CHANNEL) — Candidate case for simplified procedure (
  1
  )

1

18

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 12.6.2009 | EN | Official Journal of the European Union | C 133/1 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/1

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Communication in accordance with Article 12(5)(a) of Council Regulation (EEC) No 2913/92 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature

2009/C 133/01

Binding Tariff Information ceases to be valid from this day if it becomes incompatible with the interpretation of the customs nomenclature as a result of the following international tariff measures:

Amendments to the Harmonised System Explanatory Notes and the Compendium of Classification Opinions, approved by the Customs Cooperation Council (CCC doc. NC1377) — report of the 42nd Session of the HS Committee):

AMENDMENTS TO THE EXPLANATORY NOTES TO BE DONE UNDER ARTICLE 8 PROCEDURE OF THE HS CONVENTION AND CLASSIFICATION OPINIONS EDITED BY THE HS COMMITTEE OF THE WORLD CUSTOMS ORGANISATION

(42nd SESSION OF THE HSC IN SEPTEMBER/OCTOBER 2008)

DOC. NC1377

Amendments of the Explanatory Notes of the Nomenclature annexed to the HS Convention

| 09.02 | M/15 |
| --- | --- |
| 15.02 | M/17 |
| Chapter 29 List | M/5 |
| Chapter 38 General Explanatory Note | M/14 |
| 38.24 | M/14 |
| 84.28 | M/9 |
| 84.51 | M/3 |
| 84.79 | M/3, M/9 |
| 85.09 | M/3 |

09.02

M/15

15.02

M/17

Chapter 29 List

M/5

Chapter 38 General Explanatory Note

M/14

38.24

M/14

84.28

M/9

84.51

M/3

84.79

M/3, M/9

85.09

M/3

Classification Opinions approved by the HS Committee

| 1212.99/1 | M/6 |
| --- | --- |
| 2202.90/6 | M/7 |
| 3824.90/17 | M/8 |
| 8536.69/1 | M/10 |
| 9018.90/1 | M/11 |
| 9503.00/5 (Amendment of the legal basis) | M/12 |
| 9504.10/2 | M/18 |

1212.99/1

M/6

2202.90/6

M/7

3824.90/17

M/8

8536.69/1

M/10

9018.90/1

M/11

9503.00/5 (Amendment of the legal basis)

M/12

9504.10/2

M/18

Information regarding the contents of these measures can be obtained from the Directorate-General for Taxation and Customs Union of the European Commission (rue de la Loi/Wetstraat 200, B-1049 Brussels) or can be downloaded from the Internet site of this Directorate-General:

http://ec.europa.eu/comm/taxation_customs/customs/customs_duties/tariff_aspects/harmonised_system/index_en.htm

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 12.6.2009 | EN | Official Journal of the European Union | C 133/3 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/3

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Euro exchange rates (1)

11 June 2009

2009/C 133/02

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3969 |
| JPY | Japanese yen | 137,39 |
| DKK | Danish krone | 7,4464 |
| GBP | Pound sterling | 0,85070 |
| SEK | Swedish krona | 10,8025 |
| CHF | Swiss franc | 1,5120 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 8,9140 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 26,745 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 280,20 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,6975 |
| PLN | Polish zloty | 4,4815 |
| RON | Romanian leu | 4,1970 |
| TRY | Turkish lira | 2,1600 |
| AUD | Australian dollar | 1,7209 |
| CAD | Canadian dollar | 1,5428 |
| HKD | Hong Kong dollar | 10,8276 |
| NZD | New Zealand dollar | 2,1835 |
| SGD | Singapore dollar | 2,0296 |
| KRW | South Korean won | 1 758,01 |
| ZAR | South African rand | 11,2580 |
| CNY | Chinese yuan renminbi | 9,5475 |
| HRK | Croatian kuna | 7,2600 |
| IDR | Indonesian rupiah | 14 150,14 |
| MYR | Malaysian ringgit | 4,8996 |
| PHP | Philippine peso | 66,746 |
| RUB | Russian rouble | 43,2630 |
| THB | Thai baht | 47,676 |
| BRL | Brazilian real | 2,7250 |
| MXN | Mexican peso | 19,0474 |
| INR | Indian rupee | 66,5130 |

Currency

Exchange rate

USD

US dollar

1,3969

JPY

Japanese yen

137,39

DKK

Danish krone

7,4464

GBP

Pound sterling

0,85070

SEK

Swedish krona

10,8025

CHF

Swiss franc

1,5120

ISK

Iceland króna

NOK

Norwegian krone

8,9140

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

26,745

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

280,20

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,6975

PLN

Polish zloty

4,4815

RON

Romanian leu

4,1970

TRY

Turkish lira

2,1600

AUD

Australian dollar

1,7209

CAD

Canadian dollar

1,5428

HKD

Hong Kong dollar

10,8276

NZD

New Zealand dollar

2,1835

SGD

Singapore dollar

2,0296

KRW

South Korean won

1 758,01

ZAR

South African rand

11,2580

CNY

Chinese yuan renminbi

9,5475

HRK

Croatian kuna

7,2600

IDR

Indonesian rupiah

14 150,14

MYR

Malaysian ringgit

4,8996

PHP

Philippine peso

66,746

RUB

Russian rouble

43,2630

THB

Thai baht

47,676

BRL

Brazilian real

2,7250

MXN

Mexican peso

19,0474

INR

Indian rupee

66,5130

---

(1)  Source: reference exchange rate published by the ECB.

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/4 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/4

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Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 425th meeting on 23 March 2007 concerning a draft decision relating to case COMP/C.37.766 — Dutch Beer Market

2009/C 133/03

| 1. | The Advisory Committee agrees with the European Commission assessment of the facts as agreements and/or concerted practices within the meaning of Article 81 of the Treaty. |
| --- | --- |

1.

The Advisory Committee agrees with the European Commission assessment of the facts as agreements and/or concerted practices within the meaning of Article 81 of the Treaty.

| 2. | The Advisory Committee agrees that the complex of agreements and/or concerted practices constitutes a single and continuous infringement for the time frame in which it existed. |
| --- | --- |

2.

The Advisory Committee agrees that the complex of agreements and/or concerted practices constitutes a single and continuous infringement for the time frame in which it existed.

| 3. | The Advisory Committee agrees with the Commission that the agreements and/or concerted practices have as object a restriction of competition. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission that the agreements and/or concerted practices have as object a restriction of competition.

| 4. | The Advisory Committee agrees with the European Commission assessment on the duration of the infringement, as being from 27 February 1996 until 3 November 1999. |
| --- | --- |

4.

The Advisory Committee agrees with the European Commission assessment on the duration of the infringement, as being from 27 February 1996 until 3 November 1999.

| 5. | The Advisory Committee agrees with the European Commission draft decision as regards the conclusion that the agreements and concerted practices between the brewers were liable to affect trade between Member States. |
| --- | --- |

5.

The Advisory Committee agrees with the European Commission draft decision as regards the conclusion that the agreements and concerted practices between the brewers were liable to affect trade between Member States.

| 6. | The Advisory Committee agrees with the European Commission draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned. |
| --- | --- |

6.

The Advisory Committee agrees with the European Commission draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned.

| 7. | The Advisory Committee agrees with the Commission as regards the lack of evidence of an infringement of the rights of defence that would prevent the finding of an infringement. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission as regards the lack of evidence of an infringement of the rights of defence that would prevent the finding of an infringement.

| 8. | The Advisory Committee agrees with the assessment on the nature of the infringement, classifying it as ‘very serious’ by nature. |
| --- | --- |

8.

The Advisory Committee agrees with the assessment on the nature of the infringement, classifying it as ‘very serious’ by nature.

| 9. | The Advisory Committee agrees with the Commission that a fine should be imposed on the addressees of the draft decision. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission that a fine should be imposed on the addressees of the draft decision.

| 10. | The Advisory Committee agrees with the Commission’s reasoning on the basic amount of the fines. |
| --- | --- |

10.

The Advisory Committee agrees with the Commission’s reasoning on the basic amount of the fines.

| 11. | The Advisory Committee agrees with the Commission assessment of the mitigating and aggravating circumstances. |
| --- | --- |

11.

The Advisory Committee agrees with the Commission assessment of the mitigating and aggravating circumstances.

| 12. | The Advisory Committee agrees with the Commission on the application of the Commission Notice on the non-imposition or reduction of fines in cartel cases. |
| --- | --- |

12.

The Advisory Committee agrees with the Commission on the application of the Commission Notice on the non-imposition or reduction of fines in cartel cases.

| 13. | The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union. |
| --- | --- |

13.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/5 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/5

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| 1. | The Advisory Committee agrees with the Commission on the basic amounts of the fines as regards the infringement on the beer market in the Netherlands. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission on the basic amounts of the fines as regards the infringement on the beer market in the Netherlands.

| 2. | The Advisory Committee agrees with the Commission, as regards the infringement on the beer market in the Netherlands, on the amount of reduction of the fines based on the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission, as regards the infringement on the beer market in the Netherlands, on the amount of reduction of the fines based on the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases.

| 3. | The Advisory Committee agrees with the Commission, as regards the infringement on the beer market in the Netherlands, on the exceptional reduction of the amount of the fines in view of the length of the procedure. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission, as regards the infringement on the beer market in the Netherlands, on the exceptional reduction of the amount of the fines in view of the length of the procedure.

| 4. | The Advisory Committee agrees with the Commission on the final amounts of the fines for the infringement on the beer market in the Netherlands. |
| --- | --- |

4.

The Advisory Committee agrees with the Commission on the final amounts of the fines for the infringement on the beer market in the Netherlands.

| 5. | The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union. |
| --- | --- |

5.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/6 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/6

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Final report of the Hearing Officer on the procedure in case COMP/37.766 — Dutch Beer Market

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

2009/C 133/05

This case originated in 1999, when the Commission carried out investigations at Interbrew NV (now InBev NV) in Case 37.409 PO/Interbrew, following which a second case, 37.614 Interbrew/Alken-Maes, was initiated. A request for information was sent to Interbrew on 11 November 1999, in response to which Interbrew provided information in January and February 2000 about anticompetitive practices in the Dutch beer market and applied for leniency.

Statement of Objections and time to respond

On 30 August 2005, the Commission issued a Statement of Objections (‘SO’) which was sent to the addressees of the draft Decision, describing a complex of agreements and concerted practices restrictive of competition between four undertakings, covering the entire territory of the Netherlands for the period between 10 February 1995 and 3 November 1999.

The parties were given two months to respond to the SO, until 3 November 2005. All the parties except for Inbev requested several extensions.

In view of issues that arose relating to access to file and confidentiality of certain documents, I subsequently extended the deadline to 10 November, in letters to all the parties (including Inbev), then until 24 November 2005. I consider that the total three-week extension of the deadline for responding to the SO was ample to ensure that all parties had sufficient time to prepare their defence once the confidentiality and access to file issues had been resolved.

Three letters of facts were sent to some or all of the parties subsequent to the SO, because more facts were intended to be used to substantiate the objections. The first one was sent on 26 January 2006, to Heineken. Heineken made known its views on 2 February 2006. On 7 March 2006 a letter of fact was sent to all parties, which communicated some extra information received by the Commission services in January and February 2006. This merely strengthened factual points made in specific paragraphs of the SO. The parties were given two weeks to make known their views on these facts. The final letter was sent to Heineken on 6 April 2006; this letter informed Heineken that a particular document found on Heineken's premises would be used as support for existing objections. The same document was sent to the other parties on 8 May 2006. Both Heineken and Grolsch responded in writing to this letter of facts.

Access to File

With regard to access to file that was requested in particular by Bavaria, the Directorate-General for Competition considered that the confidential information requested (losses and gains of horeca outlets by the other parties) was not indispensable for Bavaria's defence, and having examined the documents myself, I supported this view. Confidentiality had been claimed for that information by the parties (including Bavaria); it was not exculpatory for Bavaria, nor was it used in the Statement of Objections.

The parties also requested access to each others’ replies to the SO. I did not grant these requests, on the basis that current Commission policy is not to do so unless a reply contains exculpatory evidence for another party, or if a reply contains inculpatory evidence that the Commission relies on in the final Decision. The Court also has held (judgment in Case T-42/02 of 27 September 2006, Jungbunzlauer AG v Commission, paragraph 342 and subsequent) that the Commission is under no duty to provide the answers to the SO to all the parties, unless it intends to rely on part of the replies as evidence. I did, however, point out that the parties were free to exchange their replies among themselves if they chose to do so.

Oral Hearing

The parties did not request an oral hearing, although this would have been the occasion for them to know the main content of the replies to the SO, for which they had been asking. Bavaria specifically made the point that in absence of communication of the written replies, such a hearing did not seem to be useful for the defence. In fact, it would have given the parties a chance to react to any allegations by other parties on the spot, to present their cases to a wider audience, including Member States representatives and members of other Commission services than those directly involved in the case, and to raise issues in the presence of many of those who are consulted before a final decision is reached. Moreover, if issues arise on disputed facts, something that happens regularly in oral hearings, the investigation can be extended on those issues. However, it clearly remains up to the addressees of the SO to request an oral hearing as part of their rights of defence if they so wish.

Draft Final Decision

The duration of the cartel has been shortened in the draft final Decision as compared to the SO, from the period between 10 February 1995 to 3 November 1999 to the period between 27 February 1996 to 3 November 1999. Following the replies to the SO, it was apparent that the duration of the infringement as expressed in the SO could not be established to a satisfactory level of proof.

I am of the opinion that the draft Decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views. I consider that the rights of the parties to be heard have been respected.

Brussels, 26 March 2007.

Serge DURANDE

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/8 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/8

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Opinion of the Advisory Committee on restrictive practices and dominant positions given at its meeting of 5 March 2009 regarding a draft decision relating to Case COMP/C.39.402 — RWE Gas Foreclosure

Rapporteur: Sweden

2009/C 133/06

| 1. | The Advisory Committee shares the Commission's concerns expressed in its draft Decision as communicated to the Advisory Committee on 19 February 2009 under Article 82 of the Treaty and Article 54 of the EEA Agreement. |
| --- | --- |

1.

The Advisory Committee shares the Commission's concerns expressed in its draft Decision as communicated to the Advisory Committee on 19 February 2009 under Article 82 of the Treaty and Article 54 of the EEA Agreement.

| 2. | The majority of the Advisory Committee agrees with the Commission that the proceedings can be concluded by means of a decision pursuant to Article 9(1) of Regulation (EC) No 1/2003. A minority disagrees. |
| --- | --- |

2.

The majority of the Advisory Committee agrees with the Commission that the proceedings can be concluded by means of a decision pursuant to Article 9(1) of Regulation (EC) No 1/2003. A minority disagrees.

| 3. | The majority of the Advisory Committee agrees with the Commission that the commitments offered by RWE AG are suitable, necessary and proportionate, in particular with regard to the impact of the current national regulatory regime. A minority disagrees and a minority abstains. |
| --- | --- |

3.

The majority of the Advisory Committee agrees with the Commission that the commitments offered by RWE AG are suitable, necessary and proportionate, in particular with regard to the impact of the current national regulatory regime. A minority disagrees and a minority abstains.

| 4. | The majority of the Advisory Committee agrees with the Commission that, in light of the commitments offered by RWE AG, there are no longer grounds for action by the Commission, without prejudice to Article 9(2) of Regulation (EC) No 1/2003. A minority disagrees. |
| --- | --- |

4.

The majority of the Advisory Committee agrees with the Commission that, in light of the commitments offered by RWE AG, there are no longer grounds for action by the Commission, without prejudice to Article 9(2) of Regulation (EC) No 1/2003. A minority disagrees.

| 5. | The Advisory Committee asks the Commission to take into account any other points raised during the discussion. |
| --- | --- |

5.

The Advisory Committee asks the Commission to take into account any other points raised during the discussion.

| 6. | The Advisory Committee recommends the publication of its Opinion in the Official Journal of the European Union. |
| --- | --- |

6.

The Advisory Committee recommends the publication of its Opinion in the Official Journal of the European Union.

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/9 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/9

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Final report of the Hearing Officer in Case COMP/39.402 — RWE Gas Foreclosure (1)

2009/C 133/07

The draft Decision presented to the Commission under Article 9 of Regulation (EC) No 1/2003 (2) relates to certain practices of RWE. The allegations concern (i) inefficient capacity management of RWE's network and hoarding/understatement of capacity on RWE's network and (ii) margin squeeze.

The Commission opened proceedings with a view to taking a decision under chapter III on 20 April 2007 and adopted a preliminary assessment as referred to in Article 9(1) on 15 October 2008. Ensuing discussions with the Commission services led RWE to submit commitments on 26 November 2008. The commitments essentially consist of the divestiture of RWE's current German gas transmission system business as well as auxiliary equipment and intangible assets necessary for the operation of the transmission network.

On 5 December 2008, the Commission published a notice in the Official Journal of the European Union, pursuant to Article 27(4), summarizing the concerns and the commitments and inviting interested third parties to transmit observations on this notification within one month of its publication. The market test confirmed the appropriateness and proportionality of the proposed commitments. Several comments suggested improvements of technical details. RWE submitted revised commitments on 2 February 2009 which took into account all the suggested improvements.

The Commission has now come to the conclusion that, in view of the commitments proposed by RWE, and without prejudice to Article 9(2), the proceedings should be brought to an end.

On 2 February 2009, RWE has submitted a declaration to the Commission that it has received sufficient access to the information it considered necessary to propose commitments in order to meet the concerns expressed by the Commission.

In the light of the above, I consider that the right to be heard has been respected in this case.

Brussels, 6 March 2009.

Michael ALBERS

---

(1)  Pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.

1

(2)  In the following, all Articles and chapters referred to are those of Regulation (EC) No 1/2003.

2

---

| 12.6.2009 | EN | Official Journal of the European Union | C 133/10 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/10

---

Summary of Commission Decision

of 18 March 2009

relating to a proceeding under Article 82 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/B-1/39.402 — RWE Gas Foreclosure)

(notified under document number C(2009) 1885)

(Only the German text is authentic)

(Text with EEA relevance)

2009/C 133/08

On 18 March 2009, the Commission adopted a decision relating to a proceeding under Article 82 of the EC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003
   (1), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the decision is available on the Directorate-General for Competition website at the following address:

http://ec.europa.eu/comm/competition/antitrust/cases/index/

| (1) | The decision is addressed to RWE AG, Germany (‘RWE’). It makes commitments binding which were offered by RWE to address competition concerns identified by the Commission's investigation in the German gas sector. In the light of the commitments offered, the Commission considers that there are no longer grounds for action on its part. |
| --- | --- |

(1)

The decision is addressed to RWE AG, Germany (‘RWE’). It makes commitments binding which were offered by RWE to address competition concerns identified by the Commission's investigation in the German gas sector. In the light of the commitments offered, the Commission considers that there are no longer grounds for action on its part.

| (2) | The concern of the Commission was that RWE may have abused its dominant position on German gas markets by different types of anti-competitive behaviour, notably the refusal to supply gas transmission services to third parties and a behaviour aiming at lowering the margins of RWE’s downstream competitors in gas supply (‘margin squeeze’). |
| --- | --- |

(2)

The concern of the Commission was that RWE may have abused its dominant position on German gas markets by different types of anti-competitive behaviour, notably the refusal to supply gas transmission services to third parties and a behaviour aiming at lowering the margins of RWE’s downstream competitors in gas supply (‘margin squeeze’).

| (3) | As regards a possible refusal to supply gas transmission services to third parties, the Commission had concerns that RWE may have pursued a strategy according to which it tried to systematically keep the transport capacities on its own network for itself. There are indications that in order to achieve this goal, RWE TSO may not have implemented an effective congestion management system to manage the scarce capacities on its network, which could have avoided many of the refused and delayed capacity requests. |
| --- | --- |

(3)

As regards a possible refusal to supply gas transmission services to third parties, the Commission had concerns that RWE may have pursued a strategy according to which it tried to systematically keep the transport capacities on its own network for itself. There are indications that in order to achieve this goal, RWE TSO may not have implemented an effective congestion management system to manage the scarce capacities on its network, which could have avoided many of the refused and delayed capacity requests.

| (4) | As regards a possible margin squeeze strategy, there were indications that RWE may have intentionally set its transmission tariffs at an artificially high level in order to squeeze RWE’s competitors’ margins. Such a behaviour has the effect of preventing even an as efficient competitor to compete effectively on the downstream gas supply markets or limiting competitors’ or potential entrants’ ability to remain in or enter the market. |
| --- | --- |

(4)

As regards a possible margin squeeze strategy, there were indications that RWE may have intentionally set its transmission tariffs at an artificially high level in order to squeeze RWE’s competitors’ margins. Such a behaviour has the effect of preventing even an as efficient competitor to compete effectively on the downstream gas supply markets or limiting competitors’ or potential entrants’ ability to remain in or enter the market.

| (5) | RWE proposed commitments to address the Commission's concerns on the German gas markets. Essentially, RWE committed to divest its entire current German high-pressure gas transmission network (2) to a suitable purchaser which must not raise prima facie competition concerns. The divestment offer also comprises auxiliary equipment, personnel and services necessary for the operation of the transmission network. |
| --- | --- |

(5)

RWE proposed commitments to address the Commission's concerns on the German gas markets. Essentially, RWE committed to divest its entire current German high-pressure gas transmission network (2) to a suitable purchaser which must not raise prima facie competition concerns. The divestment offer also comprises auxiliary equipment, personnel and services necessary for the operation of the transmission network.

| (6) | The Commission considers that the commitments are sufficient to address the initial concerns identified by the Commission, without being disproportionate. |
| --- | --- |

(6)

The Commission considers that the commitments are sufficient to address the initial concerns identified by the Commission, without being disproportionate.

| (7) | The divestiture of RWE's gas transmission network can be considered as a structural remedy, as it does not only oblige RWE to behave in a certain manner, but consists in the divestment of its gas transmission activities, which effectively removes the possibility for RWE to engage in infringements of the same type. |
| --- | --- |

(7)

The divestiture of RWE's gas transmission network can be considered as a structural remedy, as it does not only oblige RWE to behave in a certain manner, but consists in the divestment of its gas transmission activities, which effectively removes the possibility for RWE to engage in infringements of the same type.

| (8) | The commitments are suitable to remove the Commission's competition concerns. The sale of RWE's transmission business will ensure that RWE has no control over the gas transmission network and that RWE cannot engage in anti-competitive practices relating to the access to its network anymore. The commitments proposed by RWE are also necessary, since there is no equally effective remedy as a divestment of RWE's transmission network to address the Commission's concerns. Finally, the commitments must be regarded as adequate and proportionate to the identified competition concerns, not the least with a view to the large number of customers connected to RWE's gas transmission network and the important potential harm for these customers. |
| --- | --- |

(8)

The commitments are suitable to remove the Commission's competition concerns. The sale of RWE's transmission business will ensure that RWE has no control over the gas transmission network and that RWE cannot engage in anti-competitive practices relating to the access to its network anymore. The commitments proposed by RWE are also necessary, since there is no equally effective remedy as a divestment of RWE's transmission network to address the Commission's concerns. Finally, the commitments must be regarded as adequate and proportionate to the identified competition concerns, not the least with a view to the large number of customers connected to RWE's gas transmission network and the important potential harm for these customers.

| (9) | The decision finds that in view of the commitments there are no longer grounds for action by the Commission. |
| --- | --- |

(9)

The decision finds that in view of the commitments there are no longer grounds for action by the Commission.

| (10) | The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 5 March 2009. |
| --- | --- |

(10)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 5 March 2009.

---

(1)  OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2)  It may be noted that some network parts in the area of Bergheim (length: approx. 100 km) will be exempted from the divestment. 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.

---

NOTICES FROM MEMBER STATES

| 12.6.2009 | EN | Official Journal of the European Union | C 133/12 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/12

---

Commission communication pursuant to Article 16(4) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community

Public service obligations in respect of scheduled air services

(Text with EEA relevance)

2009/C 133/09

| Member State | Germany |
| --- | --- |
| Concerned route | Hof–Frankfurt |
| Date of entry into force of the public service obligations | Date of publication of this notice |
| Address where the text and any relevant information and/or documentation related to the public service obligation can be obtained | Bayerisches Staatsministerium für Wirtschaft, Infrastruktur, Verkehr und Technologie |
| Prinzregentenstraße 28 |
| 80538 München |
| DEUTSCHLAND |
| Tel. +49 892162-2392 or +49 892162-2350 |
| Fax +49 892162-2588 |
| e-mail: oststelle@stmwivt.bayern.de |
| or |
| dieter.wedemeyer@stmwivt.bayern.de |

Member State

Germany

Concerned route

Hof–Frankfurt

Date of entry into force of the public service obligations

Date of publication of this notice

Address where the text and any relevant information and/or documentation related to the public service obligation can be obtained

Bayerisches Staatsministerium für Wirtschaft, Infrastruktur, Verkehr und Technologie

Prinzregentenstraße 28

80538 München

DEUTSCHLAND

Tel. +49 892162-2392 or +49 892162-2350

Fax +49 892162-2588

e-mail: oststelle@stmwivt.bayern.de

or

dieter.wedemeyer@stmwivt.bayern.de

---

| 12.6.2009 | EN | Official Journal of the European Union | C 133/13 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/13

---

Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community

Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations

(Text with EEA relevance)

2009/C 133/10

| Member State | Germany |
| --- | --- |
| Concerned route | Hof–Frankfurt |
| Period of validity of the contract | 1 April 2010-31 March 2013 |
| Deadline for submission of tenders | 2 months after the date of publication of this notice |
| Address where the text of the invitation to tender and any relevant information and/or documentation related to the public tender and the public service obligation can be obtained | Bayerisches Staatsministerium für Wirtschaft, Infrastruktur, Verkehr und Technologie |
| Prinzregentenstraße 28 |
| 80538 München |
| DEUTSCHLAND |
| Tel. +49 892162-2392 or +49 892162-2350 |
| Fax +49 892162-2588 |
| e-mail: oststelle@stmwivt.bayern.de |
| or |
| dieter.wedemeyer@stmwivt.bayern.de |

Member State

Germany

Concerned route

Hof–Frankfurt

Period of validity of the contract

1 April 2010-31 March 2013

Deadline for submission of tenders

2 months after the date of publication of this notice

Address where the text of the invitation to tender and any relevant information and/or documentation related to the public tender and the public service obligation can be obtained

Bayerisches Staatsministerium für Wirtschaft, Infrastruktur, Verkehr und Technologie

Prinzregentenstraße 28

80538 München

DEUTSCHLAND

Tel. +49 892162-2392 or +49 892162-2350

Fax +49 892162-2588

e-mail: oststelle@stmwivt.bayern.de

or

dieter.wedemeyer@stmwivt.bayern.de

---

| 12.6.2009 | EN | Official Journal of the European Union | C 133/14 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/14

---

Commission communication pursuant to Article 17(5) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community

Invitation to tender in respect of the operation of scheduled air services in accordance with public service obligations

(Text with EEA relevance)

2009/C 133/11

| Member State | Spain |
| --- | --- |
| Concerned route | Almería–Sevilla |
| Period of validity of the contract | 30.10.2009-29.10.2013 |
| Deadline for submission of tenders | 4 months and half after the date of publication of this notice |
| Address where the text of the invitation to tender and any relevant information and/or documentation related to the public tender and the public service obligation can be obtained | Dirección General de Aviación Civil |
| Subdirección General de Transporte Aéreo Area de Explotación |
| Tel. +34 915977505 |
| Fax +34 915978643 |
| E-mail: mmederos@fomento.es |

Member State

Spain

Concerned route

Almería–Sevilla

Period of validity of the contract

30.10.2009-29.10.2013

Deadline for submission of tenders

4 months and half after the date of publication of this notice

Address where the text of the invitation to tender and any relevant information and/or documentation related to the public tender and the public service obligation can be obtained

Dirección General de Aviación Civil

Subdirección General de Transporte Aéreo Area de Explotación

Tel. +34 915977505

Fax +34 915978643

E-mail: mmederos@fomento.es

---

V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

| 12.6.2009 | EN | Official Journal of the European Union | C 133/15 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/15

---

Prior notification of a concentration

(Case COMP/M.5525 — TUI Travel/Oscrivia/JV)

Candidate case for simplified procedure

(Text with EEA relevance)

2009/C 133/12

| 1. | On 4 June 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings TUI Travel Holdings (‘TUI Travel’, UK) and Oscrivia Limited (‘Oscrivia’, Cyprus) controlled by S-Group Direct Investment Limited (‘S Group’, Russia) acquire within the meaning of Article 3(1)(b) of the Council Regulation joint control of Voyage Kiev (‘Voyage Kiev’, Ukraine) and VKO Moscow (‘VKO’, Russia) by way of purchase of shares. |
| --- | --- |

1.

On 4 June 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings TUI Travel Holdings (‘TUI Travel’, UK) and Oscrivia Limited (‘Oscrivia’, Cyprus) controlled by S-Group Direct Investment Limited (‘S Group’, Russia) acquire within the meaning of Article 3(1)(b) of the Council Regulation joint control of Voyage Kiev (‘Voyage Kiev’, Ukraine) and VKO Moscow (‘VKO’, Russia) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for TUI Travel: leisure travel products, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for TUI Travel: leisure travel products,

| — | for Oscrivia: diversified asset holding, |
| --- | --- |

—

for Oscrivia: diversified asset holding,

| — | for Voyage Kiev: leisure travel products, |
| --- | --- |

—

for Voyage Kiev: leisure travel products,

| — | for VKO: leisure travel products. |
| --- | --- |

—

for VKO: leisure travel products.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 2 2964301 or 2967244) or by post, under reference number COMP/M.5525 — TUI Travel/Oscrivia/JV, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 2 2964301 or 2967244) or by post, under reference number COMP/M.5525 — TUI Travel/Oscrivia/JV, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

---

| 12.6.2009 | EN | Official Journal of the European Union | C 133/16 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/16

---

Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/C-3/38636 — Rambus

(Text with EEA relevance)

2009/C 133/13

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. Such a decision would not conclude whether or not there has been or still is an infringement. 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. |
| --- | --- |

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. Such a decision would not conclude whether or not there has been or still is an infringement. 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.

2.   SUMMARY OF THE CASE

| 2. | On 30 July 2007, the European Commission adopted a Statement of Objections thereby initiating proceedings against Rambus, a company incorporated in Delaware, USA. The Statement of Objections, which constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003, outlines the Commission’s preliminary view that Rambus has infringed EC Treaty rules on abuse of a dominant position (Article 82) by claiming unreasonable royalties for the use of certain patents for ‘Dynamic Random Access Memory’ chips subsequent to a so-called ‘patent ambush’. |
| --- | --- |

2.

On 30 July 2007, the European Commission adopted a Statement of Objections thereby initiating proceedings against Rambus, a company incorporated in Delaware, USA. The Statement of Objections, which constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003, outlines the Commission’s preliminary view that Rambus has infringed EC Treaty rules on abuse of a dominant position (Article 82) by claiming unreasonable royalties for the use of certain patents for ‘Dynamic Random Access Memory’ chips subsequent to a so-called ‘patent ambush’.

| 3. | Dynamic Random Access Memory chips (DRAMs) are a type of electronic memory primarily used in computer systems, but also used in a wide range of other products which need to temporarily store data, including servers, workstations, printers, PDAs and cameras. |
| --- | --- |

3.

Dynamic Random Access Memory chips (DRAMs) are a type of electronic memory primarily used in computer systems, but also used in a wide range of other products which need to temporarily store data, including servers, workstations, printers, PDAs and cameras.

| 4. | DRAMs have been standardised by an industry-wide US based standard setting organisation — JEDEC. Rambus owns and is asserting patents which it claims cover the technology included in these JEDEC standards. Therefore, every manufacturer wishing to produce synchronous DRAM chips or chipsets complying with these JEDEC standards must consequently either acquire a licence from Rambus or litigate its asserted patent rights. |
| --- | --- |

4.

DRAMs have been standardised by an industry-wide US based standard setting organisation — JEDEC. Rambus owns and is asserting patents which it claims cover the technology included in these JEDEC standards. Therefore, every manufacturer wishing to produce synchronous DRAM chips or chipsets complying with these JEDEC standards must consequently either acquire a licence from Rambus or litigate its asserted patent rights.

| 5. | The Statement of Objections outlines the Commission’s preliminary view that Rambus engaged in intentional deceptive conduct in the context of the standard-setting process, for example by not disclosing the existence of the patents and patent applications which it later claimed were relevant to the adopted standard. This type of behaviour is known as a ‘patent ambush’. |
| --- | --- |

5.

The Statement of Objections outlines the Commission’s preliminary view that Rambus engaged in intentional deceptive conduct in the context of the standard-setting process, for example by not disclosing the existence of the patents and patent applications which it later claimed were relevant to the adopted standard. This type of behaviour is known as a ‘patent ambush’.

| 6. | Against this background, the Commission provisionally considers that Rambus is abusing its dominant position by claiming unreasonable royalties for the use of its patents against the JEDEC-compliant DRAM manufacturers at a level which absent its conduct, it would not have been able to charge. The Commission provisionally considers that claiming unreasonable royalties in such circumstances amounts to an abuse of dominant position under Article 82. |
| --- | --- |

6.

Against this background, the Commission provisionally considers that Rambus is abusing its dominant position by claiming unreasonable royalties for the use of its patents against the JEDEC-compliant DRAM manufacturers at a level which absent its conduct, it would not have been able to charge. The Commission provisionally considers that claiming unreasonable royalties in such circumstances amounts to an abuse of dominant position under Article 82.

| 7. | The Commission provisionally considers in particular that the reasonableness of the royalties claimed by Rambus must be assessed in the light of its previous conduct consisting of an intentional deceptive capture of a standard incorporating technologies protected by those patents. The Commission's preliminary view is that without its ‘patent ambush’, Rambus would not have been able to charge the royalty rates it currently does. |
| --- | --- |

7.

The Commission provisionally considers in particular that the reasonableness of the royalties claimed by Rambus must be assessed in the light of its previous conduct consisting of an intentional deceptive capture of a standard incorporating technologies protected by those patents. The Commission's preliminary view is that without its ‘patent ambush’, Rambus would not have been able to charge the royalty rates it currently does.

| 8. | Furthermore, the Commission provisionally considers that behaviour such as that carried out by Rambus undermines confidence in the standard-setting process, whereas an effective standard-setting process is, in the sector relevant to the present case, a precondition to technical development and the development of the market in general to the benefit of consumers. |
| --- | --- |

8.

Furthermore, the Commission provisionally considers that behaviour such as that carried out by Rambus undermines confidence in the standard-setting process, whereas an effective standard-setting process is, in the sector relevant to the present case, a precondition to technical development and the development of the market in general to the benefit of consumers.

3.   THE MAIN CONTENT OF THE OFFERED COMMITMENTS

| 9. | Rambus, the party subject to the proceedings, does not agree with the Commission’s preliminary assessment as regards both the factual and legal elements, but has notwithstanding this disagreement nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns. |
| --- | --- |

9.

Rambus, the party subject to the proceedings, does not agree with the Commission’s preliminary assessment as regards both the factual and legal elements, but has notwithstanding this disagreement nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns.

| 10. | The commitments are briefly summarised below and published in full in English on the website of the Directorate-General for Competition at:
  http://ec.europa.eu/comm/competition/index_en.html |
| --- | --- |

10.

The commitments are briefly summarised below and published in full in English on the website of the Directorate-General for Competition at:

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

| 11. | Rambus's 13 May proposal offers a bundled five-year worldwide licence for future DRAM products for all of its patents for SDRAM, DDR, DDR 2 and DDR 3, whereby it commits not to charge for SDRAM and DDR. The offer does not cover past royalties. |
| --- | --- |

11.

Rambus's 13 May proposal offers a bundled five-year worldwide licence for future DRAM products for all of its patents for SDRAM, DDR, DDR 2 and DDR 3, whereby it commits not to charge for SDRAM and DDR. The offer does not cover past royalties.

| 12. | For chips, the following would be the maximum royalty rates:






  (a) | SDR DRAMs — subject to compliance by the licensee with the terms of the license, the licensee will be granted a royalty holiday during the term of the license on SDR DRAM devices; |
| --- | --- | --- |

12.

For chips, the following would be the maximum royalty rates:

(a)

SDR DRAMs — subject to compliance by the licensee with the terms of the license, the licensee will be granted a royalty holiday during the term of the license on SDR DRAM devices;

| (b) | DDR DRAMs — subject to compliance by the licensee with the terms of the license, the licensee will be granted a royalty holiday during the term of the license on DDR DRAM devices; |
| --- | --- |

(b)

DDR DRAMs — subject to compliance by the licensee with the terms of the license, the licensee will be granted a royalty holiday during the term of the license on DDR DRAM devices;

| (c) | DDR 2, GDDR3 and GDDR4: 1,5 %; |
| --- | --- |

(c)

DDR 2, GDDR3 and GDDR4: 1,5 %;

| (d) | DDR 3: 1,5 %. |
| --- | --- |

(d)

DDR 3: 1,5 %.

| 13. | For Memory Controllers, the following would be the maximum royalty rates:






  (a) | SDR Memory Controllers: 1,5 % per unit of selling price until April 2010, then dropping to 1,0 % (2); |
| --- | --- | --- |

13.

For Memory Controllers, the following would be the maximum royalty rates:

(a)

SDR Memory Controllers: 1,5 % per unit of selling price until April 2010, then dropping to 1,0 % (2);

| (b) | DDR, DDR2, DDR3, GDDR3 and GDDR4 Memory Controllers: 2,65 % per unit of selling price until April 2010, then dropping to 2,0 %. |
| --- | --- |

(b)

DDR, DDR2, DDR3, GDDR3 and GDDR4 Memory Controllers: 2,65 % per unit of selling price until April 2010, then dropping to 2,0 %.

| 14. | The commitment will be valid for a period of five years from the adoption date of the Article 9 Decision. The licence grant will expire at the end of this five-year period, irrespective of the signing date of the licensing agreement. Licensees will have, after a one year minimum licence period, an unconditional opt-out to the licenses before expiry of the duration of the contract. |
| --- | --- |

14.

The commitment will be valid for a period of five years from the adoption date of the Article 9 Decision. The licence grant will expire at the end of this five-year period, irrespective of the signing date of the licensing agreement. Licensees will have, after a one year minimum licence period, an unconditional opt-out to the licenses before expiry of the duration of the contract.

4.   INVITATION TO SUBMIT COMMENTS

| 15. | The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding on Rambus. |
| --- | --- |

15.

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

| 16. | 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. 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. |
| --- | --- |

16.

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. 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.

| 17. | Observations can be sent to the Commission under reference number COMP/C-3/38636 — Rambus,
  either by e-mail COMP-GREFFE-ANTITRUST@ec.europa.eu
  by fax +32 2 2950128
  or by post, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Antitrust Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

17.

Observations can be sent to the Commission under reference number COMP/C-3/38636 — Rambus,

either by e-mail COMP-GREFFE-ANTITRUST@ec.europa.eu

by fax +32 2 2950128

or by post, to the following address:

European Commission

Directorate-General for Competition

Antitrust Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(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).

(2)  Unless Rambus has no remaining patents which read on SDR Memory Controllers, in which case there will be no royalty on SDR Memory Controllers.

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| 12.6.2009 | EN | Official Journal of the European Union | C 133/18 |
| --- | --- | --- | --- |

12.6.2009

EN

Official Journal of the European Union

C 133/18

---

Prior notification of a concentration

(Case COMP/M.5517 — BNPPIP/CAAM/FUND CHANNEL)

Candidate case for simplified procedure

(Text with EEA relevance)

2009/C 133/14

| 1. | On 8 June 2009 the Commission received a notification of a proposed concentration pursuant to Article 4 and following a referral pursuant to Article 4(5) of Council Regulation (EC) No 139/2004 (1), by which the undertakings BNP Paribas Investment Partners S.A (‘BNPPIP’, France), belonging to the BNP Paribas Group (‘BNPP’, France) and Crédit Agricole Asset Management Luxembourg S.A. (‘CAAM’, France), belonging to the Crédit Agricole Group (‘GCA’, France), acquire within the meaning of Article 3(1)(b) of the Council Regulation joint control of the undertaking Fund Channel (‘Fund Channel’, Luxembourg), previously owned exclusively by CAAM, by way of purchase of shares. |
| --- | --- |

1.

On 8 June 2009 the Commission received a notification of a proposed concentration pursuant to Article 4 and following a referral pursuant to Article 4(5) of Council Regulation (EC) No 139/2004 (1), by which the undertakings BNP Paribas Investment Partners S.A (‘BNPPIP’, France), belonging to the BNP Paribas Group (‘BNPP’, France) and Crédit Agricole Asset Management Luxembourg S.A. (‘CAAM’, France), belonging to the Crédit Agricole Group (‘GCA’, France), acquire within the meaning of Article 3(1)(b) of the Council Regulation joint control of the undertaking Fund Channel (‘Fund Channel’, Luxembourg), previously owned exclusively by CAAM, by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | BNPPIP: asset management, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

BNPPIP: asset management,

| — | BNPP: multinational banking and financial services group operating in 85 countries, |
| --- | --- |

—

BNPP: multinational banking and financial services group operating in 85 countries,

| — | CAAM: asset management, |
| --- | --- |

—

CAAM: asset management,

| — | GCA: multinational banking and financial services group operating in 66 countries, |
| --- | --- |

—

GCA: multinational banking and financial services group operating in 66 countries,

| — | Fund Channel: logistic platform for the distribution of UCITS products. |
| --- | --- |

—

Fund Channel: logistic platform for the distribution of UCITS products.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 2 2964301 or 2967244) or by post, under reference number COMP/M.5517 — BNPPIP/CAAM/FUND CHANNEL, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 2 2964301 or 2967244) or by post, under reference number COMP/M.5517 — BNPPIP/CAAM/FUND CHANNEL, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

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