EN Official Journal of the European Union C 237/28

Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Cases AT.39678 Deutsche Bahn I, AT.39731 Deutsche Bahn II and AT.39915 Deutsche Bahn III

2013/C 237/05

1. INTRODUCTION

1. According to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty (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. Prior to the adoption of a decision pursuant to Article 9 of Regulation (EC) No 1/2003, 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 6 June 2013, the Commission adopted a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003 addressed to Deutsche Bahn AG and its subsidiaries DB Energie GmbH (DB Energie), DB Mobility Logistics AG, DB Fernverkehr AG and DB Schenker Rail Deutschland AG (2).

3. In its preliminary assessment, the Commission expressed concerns that the DB Group may have abused its dominant position on the market for the provision of traction current in Germany by charging prices of traction current to competitors that created a margin squeeze on the long-distance passenger rail transport and rail freight markets, in violation of Article 102 of the TFEU.

4. The Commission preliminarily considers that DB Energie is dominant on the market for the supply of traction current to railway undertakings active in Germany. Traction current is an indispensable input for railway undertakings to compete on the German rail transport markets. Since 2003, DB Energie markets traction current to railway undertakings under an all-inclusive offer regrouping the price for the electricity consumed (electricity price) and the price for using the traction current network (grid access fee).

5. In its preliminary assessment, the Commission took the view that this pricing system, and in particular its discounts that benefitted railway operators of the DB Group more than their competitors, may have hampered the development of competition on the markets for rail freight and long-distance passenger transport. In these markets, the Commission has concerns that the traction current pricing system used by DB Energie may entail a spread between the price of traction current charged to competitors and the price of rail transport services charged to consumers by DB transport companies that prevents their equally efficient competitors from trading profitably or artificially reduces their profit margin. The Commission's investigation preliminarily concluded that this situation raises competition concerns on the long-distance passenger rail transport and rail freight markets.

6. In November 2010, the German Federal Court of Justice ruled that the traction current network shall be regarded as an energy network and that its access conditions and fees are regulated according to the German energy sector law (Energiewirtschaftsgesetz — EnWG) (3). As a consequence, DB Energie should charge separately the grid access fee, so that third party electricity providers (i.e. not belonging to the DB Group) can also compete with DB Energie to supply electricity to railway undertakings (4).

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

7. The DB Group does not agree with the Commission’s preliminary assessment that it may have abused its dominant position on the market for the provision of traction current to German railway undertakings. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns. The key elements of the commitments are described below.

8. At the latest three months after the notification of the Commission's decision making such commitments binding on the DB Group and at the earliest on 1 January 2014, DB Energie will introduce a new pricing system for traction current with separate supply prices for electricity and separate grid access fees as approved by the relevant German Regulatory Authority (Bundesnetzagentur). This new pricing system is designed to ensure entry from third party electricity providers on the market for supplying electricity to railway undertakings (5).

9. In this new system, DB Energie will charge the same price for electricity to all railway undertakings without volume- or duration-based discounts.

10. DB Energie will pay back to railway undertakings in Germany not belonging to the DB Group a one-time retroactive refund of 4 % of their traction current invoice for the period of one year before the entry into force of the new pricing system.

11. DB Energie and DB Mobility and Logistics AG will provide each year data to the Commission to assess if the price levels for traction current and transport services charged by the DB Group could lead to a margin squeeze. DB Energie will also notify the Commission in advance of any changes to its electricity price.

12. The commitments will enter into force at the latest three months after the notification of the Commission's decision. They will last for five years (6) after the notification of the Commission's decision or until 20 % of traction current volumes purchased by competitors of the DB Group are sourced from third party electricity providers. The DB Group will also appoint a trustee who will monitor its compliance with the commitments.

13. The commitments are published on the website of the Directorate-General for Competition at: http://ec.europa.eu/competition/index_en.html

4. INVITATION TO MAKE COMMENTS

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

15. 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 no 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 any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’. Pursuant to Article 16 of Regulation (EC) No 773/2004, any such claim for confidentiality should be duly substantiated, in particular by giving reasons as to why the disclosure of the information in question could cause serious harm.

16. Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would invite you to suggest a possible solution.

17. Observations can be sent to the Commission under reference number AT.39678/AT.39731/AT.39915 Deutsche Bahn I/II/III, either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address: European Commission Directorate-General for Competition Antitrust Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË

(1) OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the Treaty on the Functioning of the European Union (TFEU). The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.

(2) Deutsche Bahn AG and all its subsidiaries as a whole will in the following be called ‘the DB Group’.

(3) Bundesgerichtshof, judgement of 9 November 2010, Case EnVR 1/10.

(4) More information on this change of pricing system and the conditions of the new system can be found on the website of DB Energie (in German only): http://www.dbenergie.de/dbenergie-de/netzbetreiber/netzbetreiber_bahnstromnetz/2500898/bahnstromnetz_konsultation.html

(5) In addition, the introduction of the new system will be complemented by an obligation of accounting and information separation between the activities of DB Energie as the traction current network manager and as provider of electricity.

(6) The commitment by DB Energie not to grant duration-based discount for its electricity supply offer will only last for three years.