COMMISSION DECISION of 03/02/2000 declaring a concentration to be compatible with the common market (Case No IV/M.36 - * TXU EUROPE / EDF-LONDON INVESTMENTS) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

Brussels, 3rd February 2000

To the notifying parties

Dear Sirs,

Subject: COMP/JV.36 - TXU Europe/EDF London Investments

Notification of 4th January 2000 pursuant to Article 4 of Council Regulation No 4064/89

1. On 04.01.2000, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 4064/89 ('the Merger Regulation') by which the undertakings TXU Europe Group plc and EDF London Investments plc intend to acquire joint control of a newly created joint venture company ('the JV') within the meaning of the Merger Regulation.

2. After examination of the notification, the Commission has concluded that the notified operation falls within the scope of the Merger Regulation and does not raise serious doubts as to its compatibility with the Common Market and with the EEA Agreement.

I. The parties' activities and the operation

3. TXU Europe Group plc ('TXU Europe') is a wholly owned subsidiary of TXU Company ('TXU'), an American energy company. TXU and its subsidiaries are referred to as the 'TXU Group'. The principal activities of TXU Europe are the generation and distribution of electricity, energy trading and electricity and natural gas marketing. It operates primarily in the UK, where through its subsidiary TXU Europe Power, it generates electricity, and has interests in ten power stations in England. In addition, Eastern Electricity plc ('Eastern'), a subsidiary of TXU Europe, is one of the twelve Public Electricity Suppliers ('PES') operating in England and Wales. Eastern's principal activities are the distribution of electricity in Norfolk, Suffolk, Bedfordshire, Essex, Cambridgeshire, Hertfordshire, parts of Oxfordshire, Buckinghamshire and North London and the supply of electricity to customers in England and Wales.

4. EDF London Investments ('EDFLI') mainly distributes electricity in the London area and supplies electricity in England and Wales through its wholly owned subsidiary London Electricity plc ('LE'), one of the twelve PES operating in England and Wales [1]. It also owns the electricity supply business acquired from South Western Electricity plc, one of the twelve PES operating in England and Wales [2]. Additionally, EDFLI has interests in UK power generation, and operates a number of private distribution networks, supplies gas to end users and carries out electrical contracting work in the UK. EDFLI is ultimately controlled by Electricité de France ('EDF'), a French wholly state-owned group, whose principal activity is the generation, transmission, distribution and supply of electricity in France. EDF has operations in Italy, Portugal, Sweden and Spain, and supplies electricity to the UK.

[1] See Commission Decision of 27 January 1999, case IV/M.1346, EDF/London Electricity.

[2] See Commission Decision of 19 July 1999, case IV/M.1606, EDF/South Western Electricity.

5. The JV, the name of which still has to be found, will provide utility network asset management and operation services to utility network asset owners. On completion of the transaction, TXU Europe and EDFLI will transfer to the JV assets previously employed by each in maintaining, managing and operating their own distribution networks. The JV will be established as a limited liability company under English law, [...] [3].

[3] Business secrets

6. Each parent will, however, retain ownership of its distribution network equipment, i.e. the cables, switchgear, transformers and other associated assets which enable the distribution of electricity. Additionally, each parent will retain its PES licence and continue to have responsibility for carrying out all obligations under it. In particular, meter provision, meter maintenance services, registration services, and billing, connection charging policy (including the right to determine independently the charges for connection to and use of its own network) and the relationships with electricity suppliers will remain separate of the JV and the responsibility of the two parents. The supply businesses of the parents will also remain separate of the JV.

7. From the date of its establishment, the JV will provide services to TXU Europe and EDFLI under the terms of two [...] years Network Services Agreement, entered into with each party individually. The JV will be entitled to an annual fee, agreed in advanced and calculated on the basis of predefined criteria. In addition, the JV will also provide services in respect of private networks owned or leased by either the TXU and EDF group in the UK, with the exception of the private networks leased by EDFLI at Heathrow, Gatwick and Stanstead airports. The JV company will, however, be able to bid to provide network asset management and operation services when the airport contracts fall due for renewal.

8. The parties view the emergence of a market for network asset management and operation services as a response to regulatory pressure. Utility networks in the UK are regulated by Incentive regulation. Under this approach, the regulator limits the maximum volume of revenue utility networks can earn over a given period (usually five years). Increases in revenues are limited to the Retail Price Index ("RPI") (essentially inflation), less some reductions to reflect expected increases in efficiency. This system aims at providing economic incentives to network owners to outperform the price control during the period.

9. In the electricity sector, PES licence holders, upon proposal of Director General of Electricity Supply ('DGES'), have accepted an average cut of 23.4% in the maximum distribution network revenues for the first year of the next five year control period, which is due to start on 1 April 2000. In the remaining four years, revenues will be reduced by RPI-3%. Expenditure on asset management and operation is a factor in the price controls imposed by DGES. Companies are also required to improve the quality of electricity supply. Moreover, DGES intends to introduce from April 2002 an additional quality incentive programme under which companies failing to meet standards will be penalised by up to two per cent of their revenues.

10. This regulatory framework has created a strong pressure on the PES licence holders to realise significant efficiency savings and, according to the parties, a favourable environment for the establishment of the JV. The merger of the parties' respective network asset management and operation activities is designed to enable the parties to achieve the greater efficiencies in network management and operation as required by DGES. The parties consider that economies of scale are a factor in achieving efficiency improvements. Economies arise from: sharing of best practice, better management of workflow, the spreading of fixed cost by obtaining further operations and management contracts, avoidance of duplication, the merger of procurement, control, call handling and development functions.

11. Furthermore, the parties submit that asset management and operation are optimised if planned for the whole duration of a price control period. Over this time, planning can provide savings through the timing of investment, scheduling of maintenance and proper structuring of operations. [...].

12. The parties submit that the two [...] year contracts with Eastern and LE will enable the JV to establish itself on the market and give it credibility to raise finance. Thus, they consider these contracts to be essential in order to guarantee the development of the JV during an initial start-up period of [...]. Additionally, the JV is intended to expand its activities by obtaining contracts with other utility network asset owners in the electricity, gas and water industries.

13. The parties intend the JV to be completed by 1 April 2000.

II. Community dimension

14. EDF Group and TXU Group have a combined aggregate world-wide turnover in excess of EUR 5,000 million (EDF, EUR 29,309.35 million; and TXU, EUR 15,469.13 million). Each of them has a Community-wide turnover in excess of EUR 250 million (EDF, EUR 27,949.21 million; and TXU, EUR 5,467.33 million), but they do not achieve more than two-thirds of their aggregate Community-wide turnover within one and the same Member State [4]. The notified operation therefore has a Community dimension.

[4] Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Notice on the calculation of turnover (OJ C66, 2.3.1998, p25). To the extent that figures include turnover for the period before 1.1.1999, they are calculated on the basis of average ECU exchange rates and translated into EUR on a one-for-one basis.

III. Concentration

Joint control

15. The JV company will be owned jointly on a 50/50 basis by TXU Europe and EDFLI. Each party will have the right to appoint two directors to the joint venture company's board, which will in addition have a chairman appointed by agreement between both parties. The Chairman is not entitled to a casting vote. Both parties must reach agreement on major decisions affecting the joint venture company, such as, inter alia, changes in the nature or scope of the business, set up a subsidiary, acquire shares in a company, borrow money in excess of £1,000,000, or distribute profits otherwise than in accordance with the JV's dividend policy. Additionally, the JV's business plan must be approved by both parents.

16. Accordingly, neither parent company will be in a position to determine strategic decisions of the JV without agreement of the other. The parent companies will thus share joint control within the meaning of article 3(2) of the Merger Regulation.

Full function entity

17. The parties submit that the JV is intended to exist permanently, and will have the resources necessary to enable it to carry on its activities independently of the parent companies. TXU Europe and EDFLI will transfer to it the assets required for the purpose of managing and operating utility network assets, including inter alia business contracts, plant and equipment and IT systems, rights to use intellectual property used solely in respect of or relating to the operation, management and maintenance of Eastern's and LE's distribution networks. The JV will have its own offices and its own management dedicated to day-to-day operation as well as a number of permanent employees that will be transferred from the parent companies (around 2,800 in total). The JV will be initially financed through cash contributions from each parent and by means of an initial bank loan which TXU Europe and EDFLI will assist it in obtaining. Following this, the JV will fund its activities independently of its parents.

18. The parties also submit that the JV will determine its own commercial policy and will be responsible for the commercial risk attaching to its operations and all the marketing and research and development as provided for in the JV Agreement/Shareholders' Agreement. It will have an identity and brand name which will be significantly different and separate from those of TXU Europe and EDFLI. The parent companies will no longer be directly involved in the operation of their utility networks, nor in utility network asset management or operation, although, under the terms of their PES licence, they will retain responsibility for their networks.

19. Eastern and LE will be the first customers of the JV company, which, the parties submit, will deal with them on normal commercial terms as provided for in the JV Agreement/Shareholders' Agreement. It is intended that the JV will be geared to play an active role in the market within [...] years, broadening its customer base to encompass other regional electrical companies, gas companies and water companies both within and outside the UK. The JV will therefore not rely entirely on its parent companies, except in the initial start-up period. Accordingly the presence of Eastern and LE as first customers does not put into question the full-function character of the JV.

20. The JV will accordingly perform on a lasting basis all the functions of an autonomous economic entity within the meaning of article 3(2) of the Merger Regulation.

IV. Competitive assessment

A. Relevant product markets

21. The JV will provide utility network asset management and operation services. The parent companies will no longer be active in providing utility network asset management and operation services. They will, however, remain active in the generation, distribution, trading and supply of electricity.

Utility Network Asset Management and Operation

22. The notifying parties submit that utility network asset management and operation activities constitutes a new product market. Utility network assets comprise the infrastructure by means of which electricity, gas, heating, water, telecommunications and similar network services are distributed. The management and operation of those assets comprises the construction of new assets, the maintenance of existing assets and the operation of those assets in the most efficient manner possible. Traditionally this activity has been carried out by the owners of those assets directly which considered this activity to be an integral part of its overall business, but due to imposed cost saving targets, the parties submit that there will be a demand for these services to be provided externally thus introducing competitive forces into the previously in-house run activity.

23. The parties believe that the emerging product market encompasses the management and operation not only of electricity, but also of gas and water networks, since identical management skills are required for each and the regulatory authorities set out certain criteria and standards that similarly apply to all three sectors. On the other hand the management and operation of each type of network (electricity, gas and water) might constitute a different product market due to the different nature of the services. However, the exact market definition can be left open , as in any event, the establishment of the JV will not lead to the creation or the strengthening of a dominant position.

24. The notifying parties identified the connection work in the electricity network as a separate market, although part of the activities comprising utility network asset management and operation. However, for the purposes of the present procedure, the exact market definition can be left open, as in any event, the establishment of the JV will not lead to the creation or the strengthening of a dominant position.

Electricity activities

25. The activities of the electricity industry can be divided into five different types of operations: generation, the production of electricity in power stations; transmission, its transport over high tension cables; distribution, the transport of the electricity over the low tension local cables; supply, the delivery of the electricity to the customer and trading, the purchase and resale of electricity which is not necessarily directed to final consumers.

26. In the EdF/London Electricity and the EdF/South Western Electricity decisions, the Commission concluded that each of the first four activities could be regarded as constituting a separate product market, as they require different assets and resources, and the market structures and conditions of competition are different for each.

27. In the same decisions as well as in the EdF/Louis Dreyfus decision [5], the Commission also concluded that it would be possible to distinguish at least two markets in relation to the supply of electricity, for large customers and for small ones, even when the supply to small customers is completely liberalised and they are free to source electricity from any licence supplier. Competitive conditions are different and supply to small customers if generally subject to specific rules and regulatory supervision. However, for the purpose of this case, it is not necessary to decide whether there are one or two relevant product markets, as in either case effective competition would not be significantly impeded in the Common Market or any substantial part of it.

[5] See Commission Decision of 28 September 1999, case IV/M.1557, EDF/Louis Dreyfus

28. In the same EdF/Louis Dreyfus decision, the trading of energy products was identified as a separate market from the other four main activities described above. Whether the trading of electricity is a separate market from the general trading of energy products was left open in that decision. For the purpose of this case, it is not necessary to decide on this question either, as in either case effective competition would not be significantly impeded in the Common Market or any substantial part of it.

B. Relevant geographic markets

Utility Network Asset Management and Operation

29. As regards Utility Network Asset Management and Operation, the parties consider that the relevant geographic market will be England, Wales and Scotland, since the same conditions of competition apply throughout this area. They do not exclude that, as the markets develop and the regulatory regimes across Europe converge, the geographic market could be wider to cover the EEA. However, it is not necessary to define this geographic market, as in all alternative market definitions considered, the operation will not give rise to any competition concerns as explained below.

Electricity activities.

30. In the EdF/London Electricity and in the EdF/South Western Electricity decisions, the Commission left the exact definition of the geographic market for generation open, though it was suggested that this geographic market could be England and Wales. In the present case, the exact definition of the geographic market for generation can equally be left open.

31. As neither of the parent companies is engaged in the transmission of electricity, it is not necessary to consider the geographical market for this operation.

32. As regards distribution, it was found in the EdF/London electricity case that each of the twelve Authorised Areas in which the distribution of electricity was divided in England and Wales constitute a different geographical market. There is no substitution between networks, although access to these networks is available to any other electricity supplier selling electricity to customers located in the Authorised Area covered by a given PES's distribution network.

33. In the same EdF/London Electricity decision, further confirmed by the EdF/ South Western Electricity the Commission concluded that the geographic market for the supply of customers with a demand over 100 kW was England and Wales.

34. With respect to the supply to small customers, the Commission suggested in the EdF/South Western Electricity decision that the geographic market for the supply to small customers would still remain limited to the distribution areas (as previously maintained in the EdF/London Electricity decision) in spite of the full liberalisation of supply as completed on 24 May 1999, although it finally left the exact geographic scope open. This position can also be maintained in the present case, where it is not necessary to decide whether the relevant geographic market for the supply of electricity to the small customers is England and Wales or the individual Authorised Areas of the PES as effective competition would not be significantly impeded in the Common Market or any substantial part of it in either case.

35. Finally, as regards trading of energy products (including electricity), the EdF/Louis Dreyfus decision left open the question of whether the trading of electricity is a Community wide market or not. For the purpose of the present case, there is no need either of deciding on the exact definition.

C. Assessment

Dominance

36. There is no indication that the proposed operation would create or strengthen any dominant position in the utility network asset management and operation (including connection works) market.

37. It appears that the creation of the JV is the first arrangement of its type proposed in the UK, whether one considers the market for utility network assets management and operation services to cover the water, gas and electricity sectors or merely the electricity sector alone. In that sense, the creation of the JV also implies the creation of a new market. However, this new market, yet to be developed, is expected to grow rapidly. In the electricity sector, network management and operation services has traditionally been done in-house, but it is expected that the move done by TXU Europe and EDFLI will be followed by other distribution licence holders.

38. Since the JV is the first supplier of utility network asset management and operation services, the initial market share of the JV will encompass the totality of the market. However, the market in question remains open to future competition and, the first entrant's strong position is consequently only temporary.

39. There are numerous potential competitors to the JV among which are companies disposing of similar know-how and financial strength such as existing in-house network management and operation businesses of other electricity distribution companies, the gas network operator Transco, or companies from the water sector, which are likely to dispose of know-how in this sector (even if not necessarily related to electricity). These companies can easily enter the market and compete effectively with the JV.

40. Consequently, the proposed concentration will not lead to the creation of a dominant position on the market of utility network asset management and operation services.

Co-ordination of competition behaviour

41. Pursuant to Article 2(4) of the Merger Regulation, a joint venture" having as its object or effect the co-ordination of the competitive behaviour of undertakings that remain independent" has to be appraised in accordance with the criteria of Article 81(1) and 81(3) of the EC Treaty. In order to establish a restriction of competition in the meaning of Article 81(1), it is necessary that the co-ordination of the parent companies' competitive behaviour is likely and appreciable and that it results from the creation of the joint venture, be it as its object or its effect.

42. In making this appraisal, the Commission must take into account in particular whether the two parent companies retain to a significant extent activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighboring market closely related to the market of the JV. Additionally, the Commission must check whether the coordination is the direct consequence of the creation of the joint venture and affords the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products or services in question.

Candidate markets for co-ordination

43. The parents do not retain any activity in the same market as the joint venture.

44. As to the upstream, downstream and neighbouring markets, these relate to the 'electricity activities' corresponding to the market definitions given above. In the market for distribution of electricity, the parent companies are not competitors, since each of the PES areas is a separate market. As a result, distribution of electricity is not a candidate market for co-ordination. Thus, the assessment under article 2(4) will be limited to the markets where a horizontal overlap could appear: i.e. generation, trading and supply of electricity.

Assessment under Article 2(4)

45. There is no evidence that the JV has the object of coordinating the competitive behavior of the parent companies in the candidate markets for coordination. However, it might have an effect of that kind.

46. As regards generation, both EDF and TXU are present in the England and Wales generation market, which is the smallest possible geographic market. As a general principle, generators cannot contract directly with suppliers for the physical delivery of electricity and all trading between suppliers and generators has to be conducted through the electricity pool, where the price is set nationally according to the bids presented by all the generators. The largest generators are, according to the parties, National Power with 21% of the output in England and Wales, PowerGen with 18% and British Energy with 17%. Independent power producers account for 20% of the production. Eastern's production accounts for about 8%, while LE has non-controlling interest in two small power stations. EDF's share of 4% is therefore mostly due to the electricity supplied through the England-France interconnector, which is already being used at full capacity. Thus the parent companies combined sales in this market do not exceed 13%. Considering this market share, the presence of major competitors it is unlikely that the parent companies could co-ordinate their behaviour successfully.

47. Trading activities in the electricity sector must equally be conducted through the pool. Currently, these activities mainly consist in bilateral contracts, arbitrage contracts or futures contracts. These contracts allow players to 'hedge' themselves against fluctuations in the pool price, which can be volatile or to trade for profit. These players include generators, suppliers and traders. The parent companies have combined market shares of [not more than 25%]. Other important competitors are [...] and [...] with shares between [...] and [...], and [...],[...] and [...] with shares between [...] and [...]. The presence of only low entry barriers in this growing market are demonstrated by the entry of financial institutions and energy traders, such as [...]. Considering the position of the parties and of its major competitors in this emerging market, it is unlikely that the parent companies could co-ordinate their behaviour successfully.

48. As regards supply of electricity to customers over 100 kW, Eastern supplied electricity in 1998/99 to around 16% of the large customers, while LE supplied 4%. Supply to large customers is fully open to competition since 1990 for customers with a maximum demand over 1 MW and since 1994 for customers with a maximum demand over 100 kW. There is competitive pressure from other suppliers. In 1997/98 for instance, 64 per cent of over 1 MW customers in England and Wales and 42 per cent of 100 kW to 1MW customers were supplied from another company than their local PES. Yorkshire has a share of around 9%, Northern around 6%, Norweb 5%, Southern 4%, to name some of the PES licence holders. In addition to the 12 PES licences in England and Wales, there is a number of second tier licences, by which licensees are able to supply electricity in all PES distribution areas. Generators such as British Energy, National Power and PowerGen are also supplying to large customers and have shares of around 4%, 8% and 14% respectively. Major customers are understood to be vigilant about prices. Thus any attempt to co-ordinate in raising prices to large customers above the competitive level would be unlikely to succeed, as significant numbers of customers could be expected to rapidly change their supplier.

49. The final step in the introduction of competition to the supply of electricity to small customers began in September 1998 and since May 1999 all small customers become eligible to choose their supplier of electricity. If one takes into consideration the total England and Wales area, TXU (Eastern) and EDFLI (LE and South Western Electricity [6]) supplied in 1998/99 15% each. Other PES licence holders such as Manweb, Midlands, Northern, Seaboard, Southern and Swalec have significant shares between 5 and 10% of the England and Wales total supplies to small customers. East Midlands is achieving 12%. If, on the other hand, one takes into consideration each of the PES Authorised Areas individually, it appears that the average share of PES holders in their own Authorised Area is decreasing and presently is close to 90%. While these shares may appear to be high, it must be taken into consideration that the complete liberalisation has only occurred recently and supplies to small customers are now subject to increasing competitive forces.

[6] South Western Electricity has been owned by EDFLI only since September 1999.

Under both possible market definitions, the market shares of the parent companies are currently decreasing, and competition comes not only from the different PES holders, but also from new competitors which are entering this market which is expected to grow. British Gas, for instance, has been particularly active and it is considered to be a major competitor in electricity supply given its country-wide presence: in a survey conducted by Offer (now Ofgem) it was stated that it managed to contract with more than 50% of the domestic customers switching supplier. It would appear that in its starting year (1998), it managed to achieve a 3% of domestic electricity supplies (more than 850,000 contracts signed).

50. Given the structure of the generation, trading and supply markets, the existing conditions of competition, the market position of the parents and of their competitors, the possibility of new entry and the regulatory scrutiny and control, there is no likelihood that the creation of the JV will have as its object or effect the co-ordination of the competitive behaviour of the parent companies in these markets.

V. Ancillary restraints

Conduct of business prior to the completion of the transaction

51. TXU Europe and EDFLI have entered into a number of covenants relating to the period between signing the sale contract and completion of the transaction. These clauses essentially provide for each other's consent before carrying out major business transactions that may affect the creation of the JV (such as incurring major capital expenditures, disposals of parts of the business etc.).

These clauses do not appear to amount to restrictions of competition. However, in the event that the measures concerned lead to such restrictions, they can be considered directly related and necessary to the transaction.

Non Competition

52. The parties have agreed that, for the duration of their shareholding, and for two years thereafter, they and their respective groups:

(1) will not be concerned in any business which competes with the JV's business in the UK (except the services provided by LE to BAA in connection with the Heathrow, Gatwick and Stanstead airports);

(2) will not provide or seek to provide services similar to those being provided by the JV to any JV customer;

(3) will not induce any director or senior/key employee of the JV to leave the JV's employment, nor employ that person.

53. The first two of these clauses aim at the protection of the parties' investment in the JV. However their scope exceeds what is necessary for the operation, as in case one of the parents pulls out of the JV, it would be prevented from competing with the JV for two years after the end of its shareholding. Consequently, these clauses only can be considered as directly related and necessary to the operation in so far as it is limited to the duration of the parties' shareholding. Moreover, the first clause can be considered directly related and necessary to the operation only to the extent that the parents have controlling interests in the competing businesses concerned.

54. The third clause can be considered directly related and necessary to the operation only in so far as it concerns the initial start-up period of the JV in the market, which according to the views of the parties would be of [...] after completion of the concentration [...].

Exclusivity of network services

55. The Network Service Agreement with each party will be exclusive to the JV, which will be therefore the exclusive provider of services to that party (the JV is not bound however to provide services only to the parties and it intends to obtain contracts from third parties). The Commission in principle considers this clause in the present exceptional circumstances as directly related and necessary to the operation. Indeed before the creation of the JV, no market existed for utilities network management. Thus the creation of the JV can be seen as a first step in order to set up a new market. The Commission however considers that the scope of this clause exceeds what is necessary for the operation, as it would apply indefinitely, while the premises to enforce the exclusivity seem to be of transitional duration. This clause is directly related and necessary to the operation only in so far as it concerns the initial start-up period of the JV in the market, which according to the views of the parties would be of [...] after completion of the concentration [...].

VI. Conclusion

56. For the above reasons, the Commission has decided not to oppose the notified operation and to declare it compatible with the common market and with the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of Council Regulation (EC) No 4064/89.

(Signed by Mr Monti)

For the Commission,