# C_2010278EN.01000901.xml

| 15.10.2010 | EN | Official Journal of the European Union | C 278/9 |
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15.10.2010

EN

Official Journal of the European Union

C 278/9

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Summary of Commission Decision

of 4 May 2010

relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement

(Case COMP/39.317 — E.ON Gas)

(notified under document C(2010) 2863 final)

(Only the German text is authentic)

(Text with EEA relevance)

2010/C 278/06

On 4 May 2010, the Commission adopted a decision relating to a proceeding under Article 102 of the TFEU. 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’s website at the following address:

On 4 May 2010, the Commission adopted a decision relating to a proceeding under Article 102 of the TFEU. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003

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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’s website at the following address:

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

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

| (1) | The annexed decision concerns E.ON AG, Germany, its subsidiaries E.ON Ruhrgas AG and E.ON Gastransport GmbH as well as the subsidiaries controlled by them (together ‘E.ON’). The adoption of the decision will make binding the commitments that E.ON has offered in order to remedy the competition problems arising from investigations by the Commission of the German gas markets. |
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(1)

The annexed decision concerns E.ON AG, Germany, its subsidiaries E.ON Ruhrgas AG and E.ON Gastransport GmbH as well as the subsidiaries controlled by them (together ‘E.ON’). The adoption of the decision will make binding the commitments that E.ON has offered in order to remedy the competition problems arising from investigations by the Commission of the German gas markets.

| (2) | The Commission had concerns that by foreclosing access to entry capacity into its gas transmission grid, E.ON may have abused its dominant position on the gas transport markets in its L-gas network and the H-gas market area NetConnect Germany according to Article 102 TFEU. |
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(2)

The Commission had concerns that by foreclosing access to entry capacity into its gas transmission grid, E.ON may have abused its dominant position on the gas transport markets in its L-gas network and the H-gas market area NetConnect Germany according to Article 102 TFEU.

| (3) | This could have been achieved by way of long-term bookings on E.ON's gas transmission network which foreclosed competitors from access to that network. E.ON booked large parts of the firm, freely allocable entry capacities available in its own gas network, which, according to the preliminary assessment, might have prevented competitors to transport gas in E.ON's network and to the customers connected to this grid. Thereby E.ON might have restricted competition on the downstream gas supply markets. |
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(3)

This could have been achieved by way of long-term bookings on E.ON's gas transmission network which foreclosed competitors from access to that network. E.ON booked large parts of the firm, freely allocable entry capacities available in its own gas network, which, according to the preliminary assessment, might have prevented competitors to transport gas in E.ON's network and to the customers connected to this grid. Thereby E.ON might have restricted competition on the downstream gas supply markets.

| (4) | E.ON offered commitments to the Commission in order to meet the Commission's competition concerns. In a first step, E.ON proposed to release by October 2010 a volume of 17,8 GWh/h firm, freely allocable entry capacities into its gas transmission network. In a second step, E.ON will further reduce its overall share in the bookings of firm and freely allocable entry capacity in the H-gas market area (NetConnect Germany) to 50 % by October 2015 and for the L-gas network to 64 % by October 2015. E.ON may reach these thresholds by returning capacities to the transmission system operator, by measures increasing the capacity in the respective network, or by entering into market area co-operations, which increase the total capacity volume in E.ON's respective grid. E.ON commits not to exceed these thresholds until 2025. |
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(4)

E.ON offered commitments to the Commission in order to meet the Commission's competition concerns. In a first step, E.ON proposed to release by October 2010 a volume of 17,8 GWh/h firm, freely allocable entry capacities into its gas transmission network. In a second step, E.ON will further reduce its overall share in the bookings of firm and freely allocable entry capacity in the H-gas market area (NetConnect Germany) to 50 % by October 2015 and for the L-gas network to 64 % by October 2015. E.ON may reach these thresholds by returning capacities to the transmission system operator, by measures increasing the capacity in the respective network, or by entering into market area co-operations, which increase the total capacity volume in E.ON's respective grid. E.ON commits not to exceed these thresholds until 2025.

| (5) | The final commitments are sufficient to remove the Commission's initial concerns, without being disproportionate. The final commitments are suitable to remove the Commission's competition concerns expressed in the preliminary assessment. The reduction of E.ON's shares of firm, freely allocable entry capacity and the duration of these commitments will ensure that competitors and new suppliers can rapidly and permanently become active in the downstream gas supply markets. The final commitments offered by E.ON are also necessary because no alternative measures to remove the concerns expressed by the Commission exist which would be as effective as the proposed capacity release. In fact the foreclosure from access to the necessary transport infrastructure can only be remedied by a release of transport capacity. The final commitments are in view of E.ON's high market share of entry capacity in the relevant markets and as to the long duration of the bookings also necessary in their scope. Not the least, given the large number of customers connected to E.ON's gas transmission network and the sizeable potential harm for these customers, the final commitments must be regarded as adequate and proportionate. |
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(5)

The final commitments are sufficient to remove the Commission's initial concerns, without being disproportionate. The final commitments are suitable to remove the Commission's competition concerns expressed in the preliminary assessment. The reduction of E.ON's shares of firm, freely allocable entry capacity and the duration of these commitments will ensure that competitors and new suppliers can rapidly and permanently become active in the downstream gas supply markets. The final commitments offered by E.ON are also necessary because no alternative measures to remove the concerns expressed by the Commission exist which would be as effective as the proposed capacity release. In fact the foreclosure from access to the necessary transport infrastructure can only be remedied by a release of transport capacity. The final commitments are in view of E.ON's high market share of entry capacity in the relevant markets and as to the long duration of the bookings also necessary in their scope. Not the least, given the large number of customers connected to E.ON's gas transmission network and the sizeable potential harm for these customers, the final commitments must be regarded as adequate and proportionate.

| (6) | In the light of the commitments offered, there are no longer grounds for action by the Commission and, without prejudice to Article 9(2) of Regulation (EC) No 1/2003, the proceedings in this case should therefore be brought to an end. |
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(6)

In the light of the commitments offered, there are no longer grounds for action by the Commission and, without prejudice to Article 9(2) of Regulation (EC) No 1/2003, the proceedings in this case should therefore be brought to an end.

| (7) | On 15 April 2010, the Advisory Committee on Restrictive Practices and Dominant Positions was consulted and it issued a favourable opinion. On 16 April 2010 the Hearing Officer submitted its final report. |
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(7)

On 15 April 2010, the Advisory Committee on Restrictive Practices and Dominant Positions was consulted and it issued a favourable opinion. On 16 April 2010 the Hearing Officer submitted its final report.

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(1)  OJ L 1, 4.1.2003, p. 1.

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