EN Official Journal of the European Union C 57/13

Summary of Commission Decision

of 3 December 2009

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/39.316 — GDF)

(notified under document C(2009) 9375 final)

(Only the French text is authentic)

(Text with EEA relevance)

2010/C 57/09

On 3 December 2009, the Commission adopted a decision relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) (1). In accordance with Article 30 of Council Regulation (EC) No 1/2003 (2), the Commission is here publishing 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/competition/antitrust/cases/index/by_nr_78.html#i39_316

1. INTRODUCTION

(1) This Decision is addressed to GDF Suez SA, its subsidiaries, in particular GRTgaz SA and Elengy SA, and the companies controlled by them (together referred to as GDF Suez). GDF Suez offered commitments to meet the competition concerns expressed by the Commission in a preliminary assessment, and this Decision makes the commitments binding.

2. PROCEDURE

(2) The case arose out of surprise inspections carried out on 16 May 2006 at the premises of GDF. On 16 May 2008, the Commission initiated proceedings under Article 11(6) of Regulation (EC) No 1/2003 (3) and Article 2(1) of Regulation (EC) No 773/2004 (4). On 22 June 2008, the Commission adopted a preliminary assessment setting out its competition concerns, of the kind referred to in Article 9(1) of Regulation (EC) No 1/2003. On 24 June 2009, GDF Suez proposed commitments, in accordance with Article 9 of Regulation (EC) No 1/2003, to address the competition concerns identified by the Commission in the preliminary assessment. On 9 July 2009, a notice was published in the Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003 summarising the Commission's concerns and the proposed commitments, and inviting interested third parties to give their observations on the commitments within one month following publication (5). GDF Suez submitted a revised proposal for commitments on 21 October 2009, which took account of the comments received from interested third parties. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 9 November 2009 (6). The Hearing Officer presented her final report on 17 November 2009 (7).

3. CONCERNS IDENTIFIED IN THE PRELIMINARY ASSESSMENT

(3) The Commission's preliminary assessment took the view that GDF Suez was a dominant player on the gas importation and supply markets in the two balancing zones (North and South) of the GRTgaz transport network. The Commission's preliminary assessment concluded that GDF Suez might have abused its dominant position within the meaning of Article 102 of the Treaty on the Functioning of the European Union by foreclosing access to gas import capacities in France, thereby restricting competition on the supply markets. The Commission argued that this foreclosure was a result of the long-term reservation of most gas import capacity in France, the determination of reception capacity and the procedures for allocating long-term capacity at the new Fos Cavaou LNG terminal, and the strategic limitation of investment in additional import capacity at the Montoir de Bretagne LNG terminal.

4. COMMITMENTS

(4) GDF Suez's commitments provide for the rapid release of significant firm long-term import capacities in both North and South balancing zones of the GRTgaz transport network. From 1 October 2014 at the latest, and for a period of ten years, GDF Suez will also limit its capacity reservations to under 50 % of total firm long-term import capacity in France.

(5) GDF Suez's commitments are sufficient to address the initial concerns identified by the Commission in its preliminary assessment, without being disproportionate.

(6) The final commitments are sufficient to effectively remove the competition concerns identified in the preliminary assessment. Reducing GDF Suez's share of capacity reservations compared with total firm long-term import capacities in France (as a result of the release in the near future of significant capacities and the limitation to less than 50 % for ten years from 2014) will enable third-party shippers to reinforce rapidly their foothold on the downstream gas supply markets in France, thus increasing the competitive pressure on GDF Suez in the long term. The final commitments are also both proportionate and necessary considering the large share of capacity reserved by GDF Suez compared with total gas import capacity in France and the average length of its capacity reservations.

5. CONCLUSION

(7) In the light of the commitments offered, the Decision finds that there are no longer grounds for action on the part of 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.

(1) With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102 respectively of the TFEU. The substance of the two Articles has not changed. For the purposes of this Decision, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 respectively of the EC Treaty, where appropriate.

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

(3) See footnote 2.

(4) OJ L 123, 27.4.2004, p. 18.

(5) OJ C 156, 9.7.2009, p. 25.

(6) See page 11 of this issue of the Official Journal.

(7) See page 12 of this issue of the Official Journal.