EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 3.6.2010 
SEC(2010)666 final 
  
COMMISSION STAFF WORKING DOCUMENT 
Accompanying the  
  
REPORT FROM THE COMMISSION 
  
on Competition Policy 2009 
  
COM(2010)282 final  
EN 2   EN TABLE OF CONTENTS 
I – Instruments................................................................................................................ ............ 8 
A – State aid control.......................................................................................................... ......... 8 
1. Shaping and applying the rules .................................................................................... 8 1.1. State aid control – the Simplification Package .......................................................... 14 1.2. Recovery policy ......................................................................................................... 15  
1.3. State aid enforcement by national courts ................................................................... 16 1.4. Monitoring of State aid measures .............................................................................. 17 1.5. Horizontal State aid.................................................................................................... 18  
1.6. Coal ...................................................................................................................... ...... 19 
1.7. State aid in the agricultural sector.............................................................................. 19 2. Selected Court cases................................................................................................... 21 2.1. Notion of aid ............................................................................................................. . 21 
2.2. Compatibility assessment........................................................................................... 23 2.3. Procedural issues........................................................................................................ 2 4 
2.4. Recovery of aid .......................................................................................................... 2 5 
B – Antitrust – Articles 101, 102 and 106 TFEU..................................................................... 25 
1. Shaping and applying the rules .................................................................................. 25 1.1. Enforcement rules ...................................................................................................... 25 1.2. Private enforcement of the EU antitrust rules............................................................ 27 1.3. Cartels ................................................................................................................... ..... 29 
1.4. Other agreements and concerted practices................................................................. 31 1.4.1. The review of the Block Exemption Regulation on Vertical agreements.................. 31 
1.4.2. The review of the Block Exemption Re gulations on Horizontal agreements............ 32 
1.4.3. The review of the Motor Vehicl e Block Exemption Regulation ............................... 33 
1.4.4. The review of the Insurance Block Exemption Regulation ....................................... 34 1.4.5. The Review of the Consortia Block Exemption Regulation...................................... 35 1.5. Abuse of dominant positi ons (Article 102 TFEU)..................................................... 37 
1.6. State measures (Public undertakings/Undert akings with exclusive and special rights)
............................................................................................................................... ..... 38 
EN 3   EN 2. Selected Court cases................................................................................................... 39 
2.1. Case C-8/08 T-Mobile Netherlands & Others v. Raad van bestuur van der 
Nederlandse Mededingin gsautoriteit (NMa).............................................................. 39 
2.2. Case C-429/07, Inspecteur van de Belastingdienst v. X BV...................................... 40 2.3. T-301/04, Clearstream Banking AG and Clearstream International SA v. 
Commission................................................................................................................ 41 
2.4. Case C-202/07 P, France Télécom SA v. Commission ............................................. 42 2.5. Case C-125/07 P e.a., Bank Austria v Commission................................................... 43 
2.6. Case C-97/08P, Akzo Nobe l et al. v. Commission .................................................... 44 
C – Merger control ............................................................................................................. ...... 45 
1 Shaping and applying the rules .................................................................................. 45 1.1. The Merger Report..................................................................................................... 46 2. Selected Court cases................................................................................................... 47 2.1. Case C-440/07 P, Commission v. Schneider Electric SA.......................................... 47 
II – Sector Developments....................................................................................................... .. 47 
A – Financial services ......................................................................................................... ..... 47 
1. Overview of sector ..................................................................................................... 47 2. Policy developments .................................................................................................. 48 2.1. Financial services – State aid ..................................................................................... 48 2.2. Financial services – Merger control........................................................................... 54 2.3. Financial services – Antitrust..................................................................................... 54 2.3.1. Single Euro Payments Area ....................................................................................... 55 2.3.2 Payment cards ............................................................................................................ 56 
2.3.3 Financial market data distribution.............................................................................. 56 2.3.4. Securities Trading, Clearing and Settlement (C&S).................................................. 57 2.3.5. OTC Derivatives ........................................................................................................ 5 7 
2.4. Insurance sector.......................................................................................................... 58 
B – Energy and Environment ................................................................................................... 58  
1. Overview of sector ..................................................................................................... 58 2. Policy developments .................................................................................................. 58 2.1. Antitrust enforcement................................................................................................. 59 
EN 4   EN 2.1.1. Decisions............................................................................................................... ..... 60 
2.1.2. Other procedural steps................................................................................................ 61  
2.2. Merger control............................................................................................................ 62 
2.3. State aid enforcement................................................................................................. 64 
C – Electronic communications ............................................................................................... 68 
1. Overview of sector ..................................................................................................... 68 2. Policy developments .................................................................................................. 69 2.1. Application of the Regulatory Framew ork and other policy developments .............. 69 
2.2. State aid................................................................................................................. ..... 71 
D – Information technology ..................................................................................................... 73 
1. Overview of sector ..................................................................................................... 73 2. Policy developments .................................................................................................. 74 3. Main Cases................................................................................................................. 7 5 
E – Media ...................................................................................................................... ........... 77 
1. Overview of sector ..................................................................................................... 77 2. Policy developments .................................................................................................. 78 2.1. Roundtable on opportunities and barriers to on-line distribu tion of music ............... 78 
2.2. Digital broadcasting ................................................................................................... 78 2.3. Sports.................................................................................................................... ...... 79 
2.4. Public service broadcasting........................................................................................ 79 2.5. State aid for films....................................................................................................... 80 
2.6. Newspapers ................................................................................................................ 81 
F – Pharmaceutical industry & Health ..................................................................................... 81 
Pharmaceutical Industry........................................................................................................ ... 81 
1. Overview of sector ..................................................................................................... 81 2. Policy developments .................................................................................................. 82 
2.1. Pharmaceutical Sector Inquiry ................................................................................... 82 
2.1.1. Competition between originator and generic companies – The issues ...................... 83 2.1.2. Competition between originator companies – The issues.......................................... 85 2.1.3. Policy recommendations and the way forward .......................................................... 86 
EN 5   EN 2.2. Developments on Parallel Trade ................................................................................ 87 
2.3. Merger Cases in the Pharmaceutical Sector............................................................... 88 Health Care Services ........................................................................................................... ..... 88 
1. Overview of sector ..................................................................................................... 88 2. Policy developments .................................................................................................. 89 
G– Transport ................................................................................................................... ......... 91 
1. Overview of sector ..................................................................................................... 91 2. Policy developments .................................................................................................. 92 2.1. Road Transport........................................................................................................... 9 2 
2.2. Rail Transport and Combined Transport.................................................................... 94 2.3. Inland Navigation....................................................................................................... 95  
2.4. Maritime Transport .................................................................................................... 95 2.4.1. Policy developments .................................................................................................. 95 2.4.2. State aid cases ......................................................................................................... ... 96 
2.5. Aviation.................................................................................................................. .... 98 
2.5.1. Policy developments .................................................................................................. 98 2.5.2. State aid cases ......................................................................................................... . 100 
2.6. Ship Classification ................................................................................................... 101 2.7. International aviation policy – EU-US cooperation................................................. 102 
H – Postal services ............................................................................................................ ..... 103 
1. Overview of sector ................................................................................................... 103 2. Policy developments ................................................................................................ 103 2.1. State aid................................................................................................................. ... 104 
2.1.1. Deutsche Post........................................................................................................... 104 
2.1.2. Belgian Post ............................................................................................................ . 105 
2.1.3. Royal Mail.............................................................................................................. .. 105 
2.1.4. Unlimited guarantee to the French La Poste............................................................ 105 
2.2. Infringement procedures .......................................................................................... 106 2.3. Merger control.......................................................................................................... 10 6 
I – Automotive industry ........................................................................................................ . 106 
EN 6   EN 1. Overview of sector ................................................................................................... 106 
2. Policy developments ................................................................................................ 107 2.1. Antitrust and Advocacy............................................................................................ 107 2.2. State aid to the car sector ......................................................................................... 108 
J – Food industry.............................................................................................................. ...... 111 
1. Overview of sector ................................................................................................... 111 2. Policy developments ................................................................................................ 111 
III – Consumer activities ...................................................................................................... .. 112 
1. Key actions............................................................................................................... 11 2 
IV – The European Competition Network and cooperation with National Courts – Overview 
of cooperation................................................................................................................. ........ 114 
A – General overview ........................................................................................................... . 114 
1. Cooperation on policy issues ................................................................................... 114 1.1. Convergence of ECN leniency programmes............................................................ 115 1.2. Cooperation in individual cases ............................................................................... 116 1.2.1. Case allocation ......................................................................................................... 116 
1.2.2. Coherent application of the rules ............................................................................. 117 2. Application of EU Compet ition rules by National Courts  in the EU: Report on the 
implementation of Article 15 of Regulation 1/2003 ................................................ 117 
2.1. Assistance in the form of information or in the form of an opinion ........................ 117 2.1.1. The opinion requested by a Belgian court................................................................ 117 2.1.2 The opinion requested by a Lithuanian court........................................................... 118 2.1.3. The opinions requested by Spanish courts............................................................... 118 2.2. Amicus curiae  interventions under Article 15(3) of Regulation 1/2003.................. 119 
2.3. Financing the training of national judges in EU competition law ........................... 120 
V – International activities ................................................................................................... .. 120 
A – Multilateral cooperation .................................................................................................. 1 21 
1. International Competition Network ......................................................................... 121 2. OECD....................................................................................................................... 1 21 
3. UNCTAD ................................................................................................................. 122 
EN 7   EN B – Bilateral cooperation...................................................................................................... .. 122 
1. Agreements with the USA, Canada, Japan and South Korea .................................. 122 2. Cooperation with other countries and regions ......................................................... 123 
C – Enlargement................................................................................................................ ..... 124 
VI – Interinstitutional cooperation ......................................................................................... 125  
EN 8   EN I – Instruments 
1. The Lisbon Treaty entered into fo rce on 1 December 2009. Since then, the 
numbering of the articles has changed. For antitrust, Articles 81, 82 and 86 EC have 
respectively become Articles 101, 102 and 106 TFEU. The provisions are in 
substance identical. However, throughout this document, references to the old numbering have been maintained when they  relate to proceedings taken before 1 
December 2009. Similarly, old references to EC Treaty articles in the field of State 
aid (Articles 87 to 89 EC) have been mainta ined when the procedural steps referred 
to occurred before the entering into force of the Lisbon Treaty. 
2. Also, since 1 December 2009, the Court of Firs t Instance (CFI) is named the General 
Court. However, the term CFI has been ma intained in the present Communication for 
those judgments taken before that date. 
A – STATE AID CONTROL  
1. S HAPING AND APPLYING THE RULES  
3. Since the onset of the financial crisis , the Commission has adopted four major 
guidance documents specifically for State aid to financial institutions. The Banking and Recapitalisation communications
1 adopted in 2008 allowed to preserve financial 
stability and to prevent a credit crunch whils t keeping distortions of competition to a 
minimum. The Recapitalisation Communication in particular proved to be essential 
for providing systemic banks with a sufficient capital base in line with State aid rules so that they could continue to fulfil the role as a lender to the real economy. The level of remuneration for State capital, in combination with step-up mechanisms in 
schemes and individual measures, ensures that  this capital is paid back as early as 
economic circumstances permit.  
4. Between October 2008 and 31 December 2009, the Commission approved guarantee 
schemes for 12 Member States
2. Seven Member States implemented pure 
recapitalisation schemes3, whilst seven Member States designed mixed/holistic 
schemes with both instruments4.Spain, Slovenia, the Un ited Kingdom, Hungary and 
Germany also implemented other forms of support schemes. 
                                                 
1 Communication from the Commission - The application of State aid rules to measures taken in relation 
to financial institutions in the context of the current global financial crisis . (OJ C 270, 25.10.2008, p. 8); 
Commission Communication - Recapitalisation of financial institutions  in the current financial crisis: 
limitation of the aid to the minimum necessary and safeguards against undue distortions of competition. 
(OJ C 10, 15.1.2009, p. 2). 
2 Cyprus, Denmark, Finland, Ireland, Italy, Latvia, the Netherlands, Po land, Portugal, Sloven ia, Spain and Sweden . 
3 Denmark, Finland, France, Ital y Poland, Portugal and Sweden.  
4 Germany, United Kingdom, Greece, Austria , Poland,  Hungary and Slovakia.  
EN 9   EN 5. In terms of aid to i ndividual entities, in 2009 the Commission approved 
recapitalisation and other support measures to 29 entities5. 
6. The 2008 communications were compleme nted in 2009 by the Communication on 
the Treatment of Impaired Assets in the Community banking sector ("Impaired Assets Communication")
6 and by the Communication on the return to viability and 
the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (Res tructuring Communication")
7. 
7. The Impaired Assets Communication responde d to a growing consensus on the need 
to tackle the root causes of the crisis in  the form of toxic assets on banks' balance 
sheets. Thus, on 25 February 2009, the Comm ission set out in this communication 
how it would assess under State aid rules asset relief measures for financial 
institutions. The communication is based on the principles of transparency and 
disclosure, adequate burden -sharing between the State and the beneficiary, and 
prudent valuation of assets based on their r eal economic value. Given the complexity 
surrounding the appropriate va luation of the assets, th e Commission decided to call 
upon technical experts to undertake the valu ation in an independent manner. Such 
experts were chosen under a framework contract following a tender procedure. 
8. The Restructuring Communication, issued on 14 August 2009 and dealing with 
banks which are under obligation to restruct ure, reflects the Commission's thinking 
for a future beyond the current crisis. It c ontains rules for those beneficiaries that 
were not only in need of short-term re scue aid, but required aid to implement 
structural changes to their business mode ls. The Communication retains the main 
principles of the Community Guidelines on rescue and restructuring aid to companies 
in financial difficulties, but has been adapted to the extraordinary economic circumstances of the financial crisis. The main conditions that need to be complied with are the following: First, banks that are obliged to restructure need to 
demonstrate their capacity to return to long-term viability w ithout State support. 
Second, they have to contribute to the rest ructuring costs (burden-sharing) and they 
thirdly have to adopt measures to limit competition distortions.   
9. The above principles contribute  to addressing th e issue of moral h azard. In order not 
to reward the risky behaviour that occurr ed in the past, the communications require 
appropriate remuneration of the aid, a nd impose temporary restrictions on coupon 
and dividend payments to bond- and shar eholders. Tailor-made, case-specific 
measures to limit the distortions of competitions resulting from the aid, which are predominately determined by the relative/ab solute size of the aid and the position of 
the beneficiary on the relevant markets, are also necessary for the aid to be 
compatible with the Treaty.  
                                                
 
5 ING, KBC, Parex Banka, Anglo Irish Bank, Bank of Ireland, Allied Irish Bank, Fortis, Dexia, Nord LB, IKB, 
Kaupthing Bank Finland, Ethias, Sd B, Banco Privado Portugues, Hypo Real Estate, WestLB, Fionia, HSH 
Nordbank, Hypo Tirol, LBBW, Kaupt hing Luxemburg, Caisse d'Epargne/Banque Populaire, Mortgage Bank of 
Latvia, Northern Rock, Commerzba nk, Lloyds Banking Group, BAWAG, Hypo Group Alpe Adria and RBS.  
6 Communication from the Commission on the Treatment of Impaired Assets in the Community Banking 
sector  (OJ C 72, 26.3.2009, p. 1). 
7 Communication from the Commission "The return to viability and the assessment of restructuring 
measures in the financial sector in the current crisis under the State aid rules"  (OJ C 195, 19.8.2009, 
p. 9). 
EN 10   EN 10. Between October 2008 and 31 December 2009, the Commission had adopted 73 
decisions in relation to 33 schemes and 68 decisions on individual measures to 38 
banks. These 141 decisions encompass 21 Me mber States. Because of the urgency, 
some of those decisions were taken overnigh t, to avoid a domino effect and the major 
collapse of the EU's financial system. 
11. To further limit negative spill-over effects of  the financial crisis to the real economy, 
the Commission also amended the Temporary Framework8 to provide Member States 
with additional possibilities to tackle the effects of the credit squeeze on the real 
economy. The amended Framework9 takes into account different levels of 
collateralisation (in particular for low rating categories) when calculating the permissible guarantee premiums. Furthermor e, rules were clarified for guarantees 
with underlying loans exceeding a maturity of  2 years. In Oct ober, the Commission 
adopted another amendment to the Framewor k, in order to allow for a separate 
compatible limited amount of aid of EUR 15.000 for farmers
10. A technical 
modification of the Framework was introduced in December to further facilitate access to finance especially in Member Stat es with low labour costs by allowing to 
determine the maximum amount of an invest ment loan covered by a guarantee either 
on the basis of the total annual wage bill of the beneficiary or  on the basis of the 
EU27 average labour costs
11. 
12. By 31 December 2009, the Commission had approved 79 measures in 25 Member 
States aimed at stabilising compan ies and jobs in the real economy12. Out of these 
measures, 18 related to guarantees, 11 to shor t-term export credit measures, nine to 
reduced interest rate loans, six to risk cap ital measures and five to reduced interest 
rate loans for green products. A large numb er of the measures approved (30) related 
to the granting of up to EUR 500 000 per undertaking. 
13. According to the Temporary Framework, Memb er States had to provide a report to 
the Commission by 31 October, to give  feedback on the implementation of the 
Framework and on its effectiveness in the reactivation of the bank lending and in 
supporting companies13. To this end, the Commission prepared a questionnaire 
which was also published on DG Competitio n's webpage, so as to also obtain 
comments from interested parties. 
14. The Commission prolonged the validity of  the current Community Guidelines on 
State Aid for Rescuing and Restructuring Firms in Difficulty, which would have 
                                                 
8 Communication from the Commission – Temporary Community framework for State aid measures to 
support access to finance in the cu rrent financial and economic cris is (OJ C 16, 21 .1.2009, p. 1). 
9 Communication from the Commission - Temporary framework for State aid measures to support access 
to finance in the current financial and economic crisis (consolidated version) (OJ C 83, 7.4.2009, p. 1). 
10 Communication from the Commission amending the Temporary Community Framework for State aid 
measures to support access to finance in the cu rrent financial and economic crisis (OJ C 261, 
31.10.2009, p. 2). 
11 Communication from the Commission amending the Temporary Community Framework for State aid 
measures to support access to finance in the cu rrent financial and economic crisis (OJ C 303, 
15.12.2009, p. 6). 
12 Excluding temporary measures  in the agricultural sector. 
13 See point 6 of the Communication from the Commission – Temporary Community framework for State 
aid measures to support access to finance in the current financial and economic crisis (OJ C 16, 
21.1.2009, p. 1). 
EN 11   EN expired in October14. Since their adoption in 2004, th e Commission has applied these 
guidelines in numerous cases. Experience has shown that the guidelines provide a 
sound basis for the control of this type of State aid. The economic crisis has created a 
difficult and unstable economic situation. To en sure continuity and legal certainty in 
the treatment of State aid to enterprise s in financial difficulty, the Commission 
extended the validity of the existing guidelines until October 2012. 
15. In 2009 the Commission authorized, under th e Community Guidelines on State aid 
for rescuing and restructuring firms in difficulty15, State aid granted and planned by 
Poland to Gdansk Shipyard for its restructuring16. The Commission found compatible 
the aid already received by the yard sin ce 2004 in the amount of EUR 94 million as 
well as the planned aid of EUR 35 milli on. In addition, the Co mmission approved 
production guarantees for the yard for a total amount of EUR 122 million. By this 
decision the Commission finalized an in-dep th investigation launched in June 200517 
following a notification of aid to the ya rd dating from October 2004, soon after the 
Polish accession to the EU.  
16. In its decision the Commission concluded that  the restructuring plan by new private 
owner of the yard, ISD Polska, proposed a sustainable business strategy based on 
diversification of the yard's activities a nd synergies with other companies in the 
Group of ISD Polska. This restructuring plan allayed the Commission's doubts on the 
ability of the yard to restore long-term vi ability. The plan also envisaged a significant 
private contribution to finance the cost of  the restructuring, ensuring that the State 
support would be limited to the necessary minimum. 
17. Finally, the Commission took into account th at without the prolonged State support, 
the yard would long have become insolven t and bankrupt. By keeping the inefficient 
Gdansk Shipyard afloat, the aid crowded out  more efficient competitors, which could 
have benefited, in terms of increased mark et shares, from the yard's exit from the 
market. It was thus important to ensure that far-reaching and meaningful measures 
limiting the distortion of competition create d by the aid were implemented. In its 
decision the Commission concluded that th e planned reductions of the yard's 
production capacity combined with the co mmitted production cap comply with these 
requirements without jeopardiz ing the yard's viability. 
18. The Commission completed the implemen tation of the Stat e Aid Action Plan 
(SAAP)18 by adopting guidance papers on training aid19 and aid to disabled and 
disadvantaged workers20. The General Block Exem ption Regulation (GBER)21 
                                                 
14 Prolongation of Community guidelines on State aid for rescuing and restructuring firms in difficulty 
(OJ C 156, 9.7.2009, p. 3). 
15 OJ C 244, 1.10.2004, p. 2. 
16 Case C18/2005. 
17 OJ C 220, 8.9.2005, p. 7. 
18 State Aid Action Plan – Less and better targeted State aid: a roadmap for State aid reform 2005-2009 
(COM(2005)107 final, 7.6.2005).  
19 Communication from the Commission - Criteria for the compatibility analysis of training State aid 
cases subject to individual notification (OJ C 188, 11.8.2009, p. 1). 
20 Communication from the Commission - Criteria for the analysis of the compatibility of State aid for the 
employment of disadvantaged and disabled workers subject to individual notification  (OJ C 188, 11.8.2009, 
p. 6).  
EN 12   EN enables Member States to grant a large num ber of aid measures, including training 
aid and aid for the employment of disabled  or disadvantaged wo rkers, without prior 
notification to the Commission. However, as  individual aid measures involving large 
aid amounts can entail a higher risk of di storting competition, notification remains 
necessary for such measures. The guidance papers on training aid and employment aid set out the criteria for the Commission' s assessment of the compatibility of such 
individually notified aid measures. Guidan ce is provided on the information required 
and on the assessment methodology. The criteria  are based on the principles of the 
Commission's SAAP, in particul ar the balancing test that weighs the positive effects 
brought about by the aid against the negati ve impact a potential distortion of 
competition might entail. 
19. The European Commission also adopted a gui dance paper setting ou t criteria for the 
in-depth assessment of regional ai d to large investment projects
22. The Regional Aid 
Guidelines 2007-201323 foresee that large investment projects above certain 
thresholds need to be individually notif ied to the Commission. For such projects 
where the aid beneficiary has a market share of more than 25 % or where the 
production capacity created by the project ex ceeds 5 % of the market (if the market 
concerned is considered as underperformi ng), the Commission has to open a formal 
investigation. Regional aid to such large investment projects may carry a greater risk 
of distorting competition and thus require s a detailed compatibility assessment. The 
criteria for the in-depth assessment of re gional aid to large investment projects, 
which are based on the principles of the S AAP, and in particular the balancing test, 
detail how the Commission shall evaluate the positive and negative effects of such aid. Member States have to provide info rmation on the project’s contribution to 
regional development as well  as the appropriateness, proportionality and incentive 
effect of the aid. Negative effects include the crowding-out of private investment or 
effects on trade such as displacement of investments. The Dell Poland case 
(C 46/2008) was the first case where the Commission conducted the type of 
assessment detailed in the guidance pape r. The Commission concluded that the 
investment project by Dell to set up a manufacturing plant in Łódź would 
significantly contribute to regional development and that these benefits outweighed 
any potential negative effects on compet ition and loss of jobs elsewhere.  
20. A public consultation was launched on "C ommon principles for an Economic 
Assessment of the Compatibility of State aid under Article 87(3) EC". The document 
sets out the general framework underlying the economic analysis of State aid. It aims 
at providing coherence in th e application of State aid ru les. It clarifies the overall 
principles of State aid compatibility an alysis which are (and have already been) 
translated into more specific rules for particular kinds of aid. 
21. In the field of Services of General Ec onomic Interest (SGEI), the Commission 
responded to 16 questions by citizens, stakehol ders and public administrations in the 
                                                                                                                                                        
 
21 Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid 
compatible with the common market in application of Articles 87 and 88 EC (General block exemption 
Regulation) (OJ L 214, 9.8.2008, p. 3). 
22 Communication from the Commission concerning the criteria for an in-depth assessment of regional aid 
to large investment projects (OJ C 223, 16.9.2009, p. 3). 
23 Guidelines on national regional aid for 2007-2013 (OJ C 54, 4.3.2006, p. 13). 
EN 13   EN framework of the Interactive Information Service24. These answers further clarified 
several aspects of the applic ation of the SGEI Package, including the notion and the 
content of the act of entrustm ent, the margin of discretion Member States have in the 
organisation of SGEI, but also the general c onditions of application of State aid rules 
and the notion of SGEI itself. 
22. The autumn 2009 State aid Scoreboard25 shows that the overall aid volume rose in 
2008 from around 0.5% of GDP to 2.2% of GDP or EUR 279.6 billion due to the 
financial and economic crisis. Crisis-rela ted aid represented roughly 1.7% or EUR 
212.2 billion and related to aid to  financial institutions only26. Aid to the real 
economy under the Temporary Framework st arted to be implemented by Member 
States only in 2009. Crisis measures aside,  total aid amounted in 2008 to 0.5% of 
GDP or EUR 67.4 billion, a level similar to  2007 and the years before. Aid was 
mainly directed towards horizontal objectiv es of common interest (on average 88%), 
of which regional aid, research and devel opment and environmental aid represented 
around two-thirds whereas rescue and rest ructuring aid fell. Although figures for 
2009 are not yet available, we do not expe ct the volume and share of non-financial 
aid to dramatically change in 2009. 
23. Reform introduced by the SAAP continued to  bear fruit. Aid granted through block 
exemption, in particular the GBER, rose si gnificantly in terms of the aid volume and 
represented EUR 10 billion or 19% of tota l aid in 2008, compared to 2007 (EUR 6.3 
billion or 13%) and 2006 (EUR 3 billion or 6% of total aid). Another 76% of total 
aid was granted through schemes and only 5% represent individual aid. 
24. In the field of State aid in the electr onic communications sector, the Commission 
encourages State aid measures that ar e aimed at providing equitable broadband 
coverage at affordable prices for Eu ropean citizens. In 2009, the Commission 
continued to address in its decisions two major trends of public intervention on the 
broadband market: support for affordable ba sic broadband services in areas where 
such services do not exist and public intervention in s upport of very high speed 
broadband networks ("next generation" networks). 
25. On the basis of its decisional practic e, in September the Commission adopted 
Guidelines on the application of State aid rules to public funding for the rapid 
deployment of broadband networks, which also addressed  public funding to the 
deployment of so-called next ge neration access broadband networks27. In 45 
decisions the Commission had clarified the conditions under which such support 
would be compatible with the State aid provisions (inter alia, detailed mapping 
showing the need for broadband coverage, tr ansparent tendering process, technology 
neutrality of the aid, open wholesale acce ss). These conditions are incorporated in 
the Guidelines and will equally appl y to next generation access support. 
                                                 
24 http://ec.europa.eu/services_general_interest/registration/form_en.html 
25 COM(2009) 661 final, 7.12.2009. 
26 The maximum volume of Commission approved measures set up by Member States in 2008 to stabilise 
the financial markets amounted to € 3361 billion. Acco rding to the annual reports submitted by Member 
States, Member States implemented measures amounting to a nominal value of € 958 billion. According 
to first estimates, the aid elemen t of the support measures put in place in 2008 – as proxy for the 
benefits passed by the State to the benefitting financial institutions – amounted to € 212.2 billion . 
27 Community Guidelines for the application of State aid rules in relation to rapid deployment of 
broadband networks, OJ C 235, 30.9.2009, p. 7. 
EN 14   EN 26. In the media sector, the Commission a dopted on 2 July a revised Broadcasting 
Communication which aims at showing the specific mechanisms on which the 
Commission's assessment of public ly funded new media services28 is based (see 
section II.E.2.4). The new framework provide s more flexibility for the financing of 
public service broadcasters and at the sa me time clarifies the requirements for an 
effective control of the public service missi on at the national le vel. It adapts the 
framework to the fast changing market environment while maintaining the core 
principles of the Commission's policy base d on the Amsterdam Protocol (see section 
II.E.2.4) and the jurisprudence of the European Court of Justice29. A center piece of 
the new Communication is the prior evalua tion of new audiovisu al services at 
national level. Publicly funded audiovisual se rvices must perform their remits in an 
economically neutral way, i.e. satisfy the so cial, democratic and cultural needs of a 
society without distorting cross border trade and competition contrary to the common interest.  
27. In January, the Commission decided to extend the validity of the State aid 
assessment criteria of th e 2001 Cinema Communication
30 until 31 December 201231. 
Under the current criteria, State support for film production can be exempted under 
certain conditions, in particular where that support concerns cultural films, while respecting certain thresholds regarding territorial requir ements and aid intensity. A 
number of different trends have em erged since the 2001 Cinema Communication 
which will require some refinement of thes e criteria and a possible extension of the 
scope of application in due course. Thes e trends include support for aspects other 
than film and TV production (s uch as film distribution and digital projection), as well 
as competition among some Member States  to use State aid to attract inward 
investment from large-scale, mainly  US, film production companies.  
1.1. State aid control – the Simplification Package 
28. Following the SAAP, the Commission adopted a Simplification Package to 
modernise and simplify State aid proced ures. This Package (in force since 1 
September 2009) comprises a Best Practice Code
32 and a Notice on a Simplified 
Procedure33, both of which aim at improving the effectiveness, transparency and 
predictability of State aid procedures, within the existing legal context of the 
Procedural Regulation34. 
29. The Simplified Procedure aims at im proving the Commission's treatment of 
straightforward cases, such as those clear ly in line with existing Guidelines or 
                                                 
28 Communication on the application of State aid rules to public service broadcasting of 2 July 2009, 
OJ C 257, 27.10.2009. 
29 Judgment Altmark Trans, C-280/00; Judgment Chronopost, 83/01P. 
30 Communication on certain legal aspects relating to cinematographic and other audiovisual works, 
OJ C 43, 16.2.2002, p. 6. 
31 Communication concerning the State aid assessmen t criteria of the Commission communication on 
certain legal aspects relating to cinematographic and other audiovisual works (Cinema Communication) 
of 26 September 2001, OJ C 31, 7.2.2009, p. 1. 
32 Code of Best Practice for the conduct of State aid control procedures (OJ C 136, 16.6.2009, pp. 13-20). 
33 Notice from the Commission on a simplified procedur e for treatment of certain types of State aid 
(OJ C 136, 16.6.2009, pp. 3-12). 
34 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application 
of Article 93 of the EC Treaty,  OJ L 83, 27.3.1999, p. 1. 
EN 15   EN established Commission deci sion-making practice. The Co mmission wants to ensure 
that clearly compatible aid measures are a pproved within one m onth from a complete 
notification by a Member State.  This procedure requires im portant adaptations to the 
Commission's and Member States' working methods. Arrangements to this effect 
(templates, standard decisions etc.) have been put in place. A transparency provision also ensures that third parties can provide input. 
30. The Best Practices Code details how all ot her State aid procedur es should be carried 
out in practice. It includes a certain nu mber of voluntary arrangements between the 
Commission and Member States to achie ve more streamlined and predictable 
procedures at each step of  a State aid investigation. C onsequently, th e Commission 
should be able to deliver Stat e aid decisions within more business relevant deadlines. 
1.2. Recovery policy 
31. When a negative decision is taken in cas es of unlawful Stat e aid, the Commission 
shall decide that the Member State must ta ke all necessary measures to recover the 
aid from the beneficiary. Recovery has not  been conceived as a penalty, but as a 
means to restore the situation previous to th e granting of the illegal and unlawful aid. 
This objective is obtained once the aid (plu s compound interests) is repaid by the 
recipient who enjoyed an advantage over its competitors on the market. 
32. A Member State is deemed to  comply with the recovery decision when the aid (plus 
compound interests) has been fully reimbursed within the prescribed  time limit or, in 
the case of an insolvent beneficiary, wh en the company is liquidated under market 
conditions. Where the Member State concer ned has not complied with the recovery 
decision, and where it has not been able to demonstrate the existence of absolute 
impossibility, the Commission may init iate infringement proceedings: 
• The Commission may refer the matter direc tly to the Court of Justice (CoJ) in 
accordance with Article 108(2) TFEU. 
• If the Member State concerned has not co mplied with a judgment of the CoJ, the 
Commission may pursue the matter in acco rdance with Article 260(2) TFEU. If 
the CoJ recognises that the Member State did not comply with its judgment, the 
CoJ may impose the payment of penalties on the Member State. 
33. It is essential for the credibility of the Commission's State aid policy that recovery 
decisions are enforced effectively and i mmediately. However, enforcement of the 
recovery orders by the Member State is not always easy due to the obstacles existing 
in the different national legal and j udicial systems. In 2007, the Commission 
therefore adopted a Notice on the implement ation of decisions ordering Member 
States to recover unlawfu l and incompatible State aid (Recovery Notice)
35 in order to 
clarify the applicable rules and give Me mber States concrete guidance on how to 
achieve a more immediate and effective execu tion of recovery decisions. So far, the 
adopted measures have proven to be successful. 
                                                 
35 Notice from the Commission – Towards an effective implementation of Commission decisions ordering 
Member States to recover unlawful and incompat ible State aid (OJ C 272, 15.11.2007, pp. 4-17). 
EN 16   EN 34. By 31 December, the amount of illegal and incompatible aid recovered had further 
increased from EUR 2.3 billion in December 2004 to EUR 10.4 billion. The 
percentage of illegal and incompatible aid still to be recovered has evolved accordingly (from 75% at the end of 2004 to 12% at 31 December 2009). The share 
of the total amount recovered has however slightly decreased between 2008 and 2009 (from 90.9% to 88%), due to seven ne w recovery decisions adopted in 2009 
and high amounts of aid identified
36 in several 2008 decisions . In order to ensure 
better enforcement of its decisions, the Co mmission initiated actions under Article 
108(2) TFEU37 in five cases, and an action under Article 260(2) TFEU38 in one case, 
thus leading to 27 cases under litigati on. DG Competition currently has 44 pending 
active recovery cases. 
 2000 –2009 
Decisions adopted 140 
Cases closed 85 
Aid amount known (in mio EUR) 11 806,5 
Amounts recovered (in mio EUR) 10 391,8 
Recovery interests 2 336,5 
Amounts outstanding 1 414,6 
% recovered 88% 
1.3. State aid enforcement by national courts 
35. The enforcement of the State aid rules by the Commission is, for the time being, the 
most important system of State aid re view in the EU. National courts could 
nevertheless play a important role in the St ate aid field, since they can offer possible 
complainants effective legal protection "close to home", including remedies unavailable at Commission level. A ccording to a recently updated study
39, more and 
more cases are brought before national cour ts, covering an increasing variety of 
issues. 
                                                 
36 This is due to the fact that the Commission cannot always quantify the aid amount to be recovered (in 
such cases, Commission decisions include informati on enabling the Member Stat e to determine the aid 
amount). 
37 Actions under Article 108(2) TFEU are aimed at condemning a Member State for non- implementation 
of a State aid r ecovery decision. 
38 Actions under Article 260(2) TFEU are infringement actions aimed at condemning a Member State for 
non-implementation of a Court judgment, and may include the payment of fines (periodic penalties and/or lump sums). 
39 2009 Study on the enfor cement of State aid law at national level. See: 
http://ec.europa.eu/competition/court/state_aid_info.html 
EN 17   EN 36. The potential of private State aid enfo rcement underlies a new Notice on State aid 
Enforcement by National Courts40 issued by the Commission in April. This new 
Notice has two key objectives: 
• To provide more detailed guidance to nati onal courts and to potential claimants on 
all aspects of private State aid enforcemen t. This guidance is based on the existing 
CoJ case law on the role of national cour ts in the State ai d field. The guidance 
covers issues such as the protection of individual rights, the recovery of illegal 
aid, interim relief and damages actions. 
• To offer national courts more practical  and user-friendly Commission support in 
their daily work. National judges would t hus be able to ask the Commission for 
information in its possession and/or for its opinion on the application of the State 
aid rules. A number of such  requests have already been received following the 
publication of the Notice. 
37. The Commission also undertook additional advocacy and public awareness efforts to 
ensure wide-spread use of th e Notice, in particular th rough web pages dedicated to 
national judges41. 
1.4. Monitoring of State aid measures 
38. To ensure effective enforcement of the St ate aid rules, in which an increasing 
number of aid measures are no longer subj ect to the notification obligation (–see 
GBER), the Commission has steppe d up ex post monitoring since 2006. 
39. Since then, the Commission has covered an important part of the main substantive 
types of aid: the SME block exemption regulation (hereinafter, "BER"), training 
BER, employment BER, regional BER, th e Research, Development and Innovation 
(R&D&I) Framework, the environmental guide lines and the rescue and restructuring 
guidelines. The Commission has also addr essed aid measures adopted by 24 of the 
27 Member States of the Community, th ereby ensuring a bala nced geographical 
coverage. Monitoring takes place both at the level of the general legislation outlining the conditions for the scheme and at the level of important i ndividual decisions 
implementing such schemes (typically cases above EUR 500 000). 
40. The analysis of the results of the first exer cises shows that, overall,  this part of the 
existing State aid architecture (schemes and BERs) functions in a satisfactory 
manner. In a minority of cases substantive problems or procedural issues (such as 
transparency, reporting, speed and quality of  answers) were identified. The cases in 
which no appropriate solution was yet identified are currently still being investigated (2 in 2006, 2 in 2007, at this stage 2 in 2008). Finally, it has to be noted that all 
Member States have cooperated with the Commission, albeit many have submitted the requested information requested with c onsiderable delay. The CFI also delivered 
a judgment
42 which confirms the legality of the monitoring exercises. 
                                                 
40 OJ C 85, 9.4.2009, p. 1. 
41 http://ec.europa.eu/competition/court/state_aid.html 
42 Judgment in Case T-376/07, Germany v Commission , 25.11.2009. 
EN 18   EN 1.5. Horizontal State aid 
41. In 2009, the Commission approved 29 aid sc hemes and adopted 4 non aid decisions 
on the basis of the Community Framework for research and development and innovation
43; 19 out of these measures were pu re R&D schemes, 2 were innovation-
oriented schemes and 12 were mixed, pursuing both R&D and innovation objectives. 
In addition, and following an in-depth economic assessment, the Commission has 
decided not to raise objections on 9 i ndividually notifiable aids to large R&D 
projects. Furthermore, it has monitored information submitted on aids to 73 other R&D projects, which exceed EUR 3 million although without falling under the duty for individual notification. 
42. As to State aid granted in favour  of R&D projects under the GBER
44, there were 51 
schemes providing aid for fundamental rese arch, 186 for industrial research and 181 
for experimental development. At the same time, the GBER was also used by Member States for measures relating to innovation, 57 of which referred to industrial 
property rights for SMEs, 26 to young i nnovative enterprises,  47 to innovation 
advisory and support services, and 23 to  the loan of highl y qualified personnel. 
43. As far as environmental aid is concerned, the Commi ssion approved 34 aid schemes 
and four individual applications, most  of them under the Environmental Aid 
Guidelines
45. Furthermore, the Commission cleared one case as not constituting State 
aid. Moreover, following a formal investig ation procedure, the Commission took two 
negative decisions, one conditional decision as well as a positive decision. At the same time the Commission decided to open fo rmal investigations in four other cases 
related to environmental aid. 
44. In the area of risk capital financing for SM Es, and in addition to  the six aid schemes 
authorised under the Temporary Framewor k, the Commission approved 25 measures 
under the Risk capital guidelines
46; 16 of these complied with the safe harbour 
provisions allowing for a light assessment . The Commission has conducted a detailed 
assessment of the compatibility of the meas ures in seven other cases, and considered 
that they did not involve State aid in the remaining two cases. Furthermore, 13 
additional aid schemes have been imp lemented in 2009 under the GBER, which 
Member States also start to use for risk capital purposes. 
45. In total the Commission received some 971 aid measures which have been 
implemented in 2009 under the GBER. Apart from the above-mentioned objectives, these exempted aid measures covered also th e fields of employment  aid, training aid, 
aid for environmental purposes
47 and regional aid. 
46. In the field of regional aid, in 2009 the Co mmission approved 45 schemes, mostly on 
the basis of the Guidelines on national regional aid for 2007-201348, as well as 12 ad 
                                                 
43 OJ C 323, 30.12.2006, p. 1. 
44 OJ L 214, 9.8.2008, p. 3. 
45 OJ C 82, 1.4.2008, p. 1. 
46 OJ C 194, 18.8.2006, p. 2. 
47 124 aid measures; more information will be available in 2010 on the basis of the national annual reports 
for 2009.  
48 OJ C 54, 4.3.2006. 
EN 19   EN hoc aid measures in favour of single ente rprises for investments in areas under the 
Regional Aid maps 2007-201349. 
47. On the basis of the same Guidelines on national regional aid for 2007-2013, the 
Commission approved Stat e aid to nine large investment projects50 and decided to 
initiate the formal investigati on procedure regarding two others51 as well as one ad 
hoc regional aid case52. The Commission also closed the formal investigation 
procedure for two other large investme nt projects with a positive decision53. 
48. Under the Temporary Framework, in 2009 the Commission a dopted 30 decisions 
approving limited amounts of compatible  aid schemes, 15 decisions approving 
measures for State aid in the form of guarantee and 9 decisions approving measures 
in the form of subsidized interest rates. 
1.6. Coal 
49. Following a sharp fall during the last qua rter of 2008, mainly due to the economic 
crisis, coal prices are now returning to the levels registered at the end of 2007 (around EUR 56 per tonne of coal equiva lent). Negotiated prices for 2010 are 
expected to be low in this range with an increasing trend. Recent forecasts until 2020 
foresee a constant rise of coal prices which should, however, remain below EUR 100 
per tonne of coal equivalent. 
50. During 2009 the Commission approved aid to the coal sector in Germany
54, 
Slovakia55 and Spain56. These aid schemes are intended to support access to coal 
reserves and to restructure the coal sector in these countries. 
51. In view of the forthcoming e xpiry of Regulation (EC) No1407/200257 (on 31 
December 2010), the Commission carried out  a public consultation on the future 
policy options with respect to the aid to the coal industry58. 
1.7. State aid in the agricultural sector 
52. The Commission assesses State aid granted to the agriculture and to the forestry 
sector on the basis of the Guidelines for State aid in the agriculture and forestry 
                                                 
49 Decisions to be found at: http://ec.europa.eu/co mpetition/state_aid/regional_aid/regional_aid.html 
50 In the energy sector: Case N538/2008 Ersol Thin  Film; Case N453/2008 Sunfilm AG; Case N539/2008 
ASI Industries/Ersol Solar Energy; Case N180/2009 EnPlus Centrale Termoelettrica di San Severo. In 
the automotive sector: Case N473/2008 Ford España; Case N671/2008 Aid to Mercedes Benz Manufacturing Hungary; Case N635/2008 Fiat Sicily; Case N674/2008 Volkswagen Slovakia. In the 
paper industry: Case N203/2008 Hamburger Spremberg GmbH. 
51 Case N113/2009 Aid to Audi Hungaria Motor Ltd andCase N588/2008 Petróleos de Portugal – Petrogal 
S.A.  
52 Case N357/2008 Fri-el Acerra s.r.l. 
53 Case C21/2008 Sovello Ag (formerly EverQ) and Case N46/2008 Aid to Dell Poland. 
54 Case N563/2008 Aid for German hard coal in 2009  (OJ C 199, 25.8.2009, p. 1). 
55 Case N347/2009 – Slovak Republic, Ba ňa Dolina a.s. 
56 Case NN20/2009, ex N647/2008 Aid for the coal sector in 2008-2010  (OJ C 234, 29.9.2009, p. 5). 
57 OJ L 205, 2.8.2002, p. 1. 
58 http://ec.europa.eu/energy/coal/consultations/2009_07_15_en.htm  
EN 20   EN sector 2007 to 201359. In 2009, the Commission regi stered 139 new State aid 
notifications and adopted 146 decisions. Stat e aid decisions adopted in relation to 
four separate issues merit a closer look.  
53. First, in the aftermath of the dioxin cont amination of pigs, cattle and pigmeat and 
beef products, first discovered in Ire land in December 2008, the Commission 
adopted three State aid schemes60 authorising Ireland and the United Kingdom 
(region of Northern Ireland) to grant compensation to processors and primary 
producers who suffered losses as a result of  the dioxin incident. In addition to the 
compensation for the losses, support woul d be granted towards the transport, 
rendering and slaughtering costs in order to en sure the safe destruc tion of the eligible 
products and animals. 
54. Second, on 28 January the Commission adopt ed a final negative decision with 
recovery concerning the contingency plans in the French fruit and vegetable sector 
designed to prevent or mitigate the potential effects of a surplus of French fruit and vegetables on the Community market
61. It was found that the sums allocated for 
financing contingency plans betw een 1992 and 2002 (between EUR 14 and 
46 million a year), constituted operating aid, likely to disturb seriously the operation 
of the common organisation of the market in  fruit and vegetables. On 8 April France 
filed an appeal62 against the negative decision of the Commission seeking the 
annulment of the decision, on the grounds  that it does not constitute State aid. 
55. Third, on 3 June the Commi ssion approved an aid scheme63 designed to compensate 
for the damages caused in North-West Fr ance by the passage of storm Klaus on 
24 January 2009. This climatic phenomenon wa s recognised by the Government as 
“natural disaster”. The es timated budget of the scheme was approximately EUR 791 
million. 
56. Finally, the Commission approved a final negative decision with recovery 
concerning an Italian aid scheme providi ng for exemptions from excises duties 
applicable to diesel used for heating greenhouses between October 2000 and the end 
of 200464. After having examined all data re ceived from Italy, the Commission 
noticed that the aids could not be justifie d in the light of th e Community guidelines 
concerning State aid in the agriculture and forestry s ector 2007-2013 (because they 
were not granted without differentiation betw een operators), nor in the light of the 
Community Guidelines on State aid for environmental protection from 1994 and 
                                                 
59 Community guidelines for State aid in the agricu lture and forestry sector 2007-2013 (OJ C 319, 
27.12.2006, p. 1). 
60 Case N643/2008 Special measures relating to meat products of animal origin from pigs following a 
dioxin contamination in Ireland (OJ C 36, 13.2.2009, p. 1), case N147/2009  Pigmeat Processors 
hardship assistance (Northern Ireland)  (OJ C 147, 27.6.2009, p. 5) and case NN44/2009 Special 
measures relating to a dioxin contamination in Ireland . 
61 Case C29/2005 'Contingency plans' in the fruit and vegetable sector implemented by France  (OJ L 127, 
26.5.2009, p. 1). 
62 Case T-139/09 France v Commission  (OJ C 141, 20.6.2009, p. 49). 
63 Case N227/2009  Régime d'aides destine à secourir les forêts de Sud-Ouest de la France sinistrées par 
la tempête Klaus du 24 janvier 2009  (OJ C 189, 12.8.2009, p. 4). 
64 Joint State aid cases C6/2004 and C5/2005 Exonération d'accises sur les carburants agricoles  
(OJ L 327, 12.12.2009, p. 6). 
EN 21   EN 2001, applicable during the above-mentioned period. Italy challenged the 
Commission's decision before the CFI. 
57. In the context of the exceptional and tran sitory financing pr oblems linked to the 
financial crisis and its impact  on the agricultural sector , the Commissi on adopted on 
28 November an amendment to the Tempor ary Community framework for State aid 
measures to support access to finance in the current financial and economic crisis, enabling the Member States to grant co mpatible limited amount of aid of EUR 
15 000 for undertakings active in the pr imary production of agricultural products
65. 
This amount can be granted once per undertaking until 31 December 2010. Any 
agricultural de-minimis  aid received si nce the beginning of 2008 by individual 
undertakings in compliance with Commission Regulation (EC) No 1535/200766 has 
to be deducted from this amount. A scheme  put in place under the newly introduced 
possibility will have to be  open to all primary producers and it will have to 
complement a general scheme put in place by the Member State concerned.  
2. S ELECTED COURT CASES  
58. In 2009, the Community Courts handed down several judgments which had 
implications for State aid control in genera l and for the areas of definition of state 
aid, compatibility of aid, procedural issues and recovery in particular.  A summary of 
the main judgments is set out below. 
2.1. Notion of aid 
59. In case Iride SpA and Iride Energia SpA v Commission67, the CFI upheld a 
Commission decision declari ng that the aid to AEM To rino for stranded costs was 
compatible subject to the effective recovery of the earlier illegal aid granted to this company. AEM Torino claimed that the stranded costs compensation did not 
constitute aid. The CFI followed the Co mmission confirming in particular the 
fulfilment of the State resources and imputability  criteria. The CFI considered that 
the resources at stake were collected from private persons but transferred to a public 
Fund under constant control of the Stat e. Furthermore, the Fund had no legal 
personality distinct from that  of the State, who should be regarded as the owner of 
the funds. 
60. The CFI also confirmed the Commission's position stating that the beneficiary 
received an economic advantage which it would not have obtained under normal 
market conditions. In fact, the alteration of the legislative framework in the 
electricity sector which occurred as a result of Directive 96/92/EC
68 has to be 
considered as part of normal market conditions. When AEM Torino made the 
                                                 
65 Communication from the Commission amending the Temporary Community Framework for State aid 
measures to support access to finance in the cu rrent financial and economic crisis (OJ C 261, 
31.12.2009, p. 2). 
66 Commission Regulation (EC) No 1535 /2007 of 21 December 2007 on th e application of Articles 87 and 
88 EC to de minimis  aid in the sector of agricultural production (OJ L 337, 21.12.2007, p. 35). 
67 Case T-25/07 – Iride SpA and Iride Energia SpA v Commission. 
68 Directive 96/92/EC of the European Parliament a nd of the Council of 19 December 1996 concerning 
common rules for the internal market in electricity, OJ L 27, 30.1.1997, pp. 20-29. 
EN 22   EN investments that gave rise to the stranded costs in question, it was taking the normal 
risks related to possible legislative amendments. 
61. As to the notion of selectivity , the CFI ruled in case  Italian Republic v 
Commission69 that the tax advantages granted by the Italian authorities to newly 
listed companies were selective, since th ey were available onl y to undertakings 
newly listed on regulated ma rkets and having obtained the listing during the brief 
period for which the aid scheme was applicable. Furthermore, the measure was not justified by the nature and the overall scheme  of the Italian tax system and in any 
case Italy did not demonstrate that it was justified by the alleged objective, i.e. to 
encourage listing on the stock exchange. 
62. In joined cases Basque tax credits
70, the CFI upheld the negative Commission’s 
decisions on the tax reductions grante d by the Basque authorities. The Court 
confirmed that the measures were selective and restricted to undertakings which have 
at their disposal significant financia l resources. The Court also noted the 
discretionary powers of the Ba sque authorities relating to the amount of the tax credit 
and the scope of the eligible  investment. The CFI also f ound that the measures were 
not justified by the nature and the internal logic of the tax system as to restrict entitlement to aid to a limited category of businesses is not symptomatic of a general intention to encourage investment and, in  any case, general objectives of economic 
policy are extraneous to the tax system.  
63. The CFI upheld in joined cases Italian Republic v Commission
71 the Commission’s 
decision stating that a three-year income ta x exemption and the possi bility to contract 
reduced-interest loans with Cassa Depositi e Prestiti granted to utilities companies 
with a majority public  shareholding, must be considered  as State aid. These measures 
had the effect of strengthening the co mpetitive position of the undertakings 
concerned vis-à-vis that of privately owned operators, Ital ian or other, and conferring 
a selective advantage . 
64. In its judgment of 15 December 200972, the General Court annulled the 
Commission’s decision declari ng aid granted in favour of EDF incompatible with the 
common market as the Commi ssion failed to assess whether the French State acted 
according to the private investor principle.  
65. The case AceaElectrabel v Commission73 provides interesting cl arifications on the 
identification of the aid beneficiary and the notion of economic entity . The CFI 
underlined that the Commission has in the co ntext of State aid broad discretionary 
powers to determine if an undertaking which forms part of a group should be considered as a single economic entity or a legally and financially autonomous unit. 
It upheld the Commission's conclusion that, based on a number of elements, the 
                                                
 
69 Case T-211/05 – Italian Republic v Commission. 
70 Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01; see similarly T-30/01 to T-32/01; T-
86/02 to T-88/02; T-230/01 to 232/01; T-267/01 to 269/01.  
71 Case T-222/04 – Italian Republic v Commission, T-189/03 – ASM Brescia SpA v Commission, T-
309/02 – Acegas-APS SpA v Commission, T-301/02 – AEM SpA v Commission, T-300/02 – Azienda 
Mediterranea Gas e Acqua SpA (AMGA) v Commission, T-297/02 – ACEA SpA v Commission, T-292/02 – Confederazione dei Servizi v Commission.  
72 T-156/04 – EDF v Commission.  
73 Case T-303/05 – AceaElectrabel v Commission.  
EN 23   EN “old” and the “new” beneficiary constituted a single economic entity, for the purpose 
of applying the Deggendorf jurisprudence (see paragraph 69 below).  
66. In the same case , the CFI also confirmed that aid in  a sector which is subject to 
liberalisation at EU level can lead by itself to a real or potential impact on 
competition and trade. The CFI thereby rejected the argument that heating through 
a municipal heating network is not in competition with any other products. 
67. The ECJ confirmed in case Commission v Italy and Wam74 the judgment of the CFI 
which had annulled the Commission’s decisi on for reasons of insufficient motivation 
on the existence of aid. The ECJ stated that in the specific circumstances of the case 
(small amounts of aid for market penetratio n targeting specifically third countries), 
the Commission did not properly motivate how the aid affected competition and 
trade between Member States. Howeve r, it confirmed the traditional EC 
jurisprudence concerning the m eaning of these two notions.  
2.2. Compatibility assessment 
68. In case FAB v Commission75, the CFI endorsed the Comm ission’s policy regarding 
the funding of digitisation of broad casting. The Court c onfirmed that the 
Commission was entitled to assess compatibility  according to the criterion of market 
failure and that the Commission had not  exceeded its discretion under Article 
87(3)(c) EC (current Article 107(3)(c) TFEU) when finding that the aid was incompatible. In fact, Germany was not able  to demonstrate that the financial support 
granted for terrestrial digital television was an appropriate and necessary means to enable the switch-over from anal ogue to digital broadcasting.  
69. In case Iride SpA and Iride Energia Spa v Commission
76, as well as in case 
AceaElectrabel v Commission77 the CFI upheld the Commission's application of the 
Deggendorf case law. It confirmed that in its compatibility assessment the 
Commission has to take acc ount of all releva nt factors, including earlier non-
recovered aid, regardless of whether the ear lier aid was granted as individual aid or 
under an incompatible aid scheme. 
70. On 9 September the CFI ruled on Case T-369/06 Holland Malt78, dismissing the four 
grounds of appeal raised by Holland Malt.  The judgment confirmed the factual 
assessment of the Commission on the existe nce of overcapacity and the lack of 
normal market outlets. In addition, the C ourt stated that a Member State has to 
provide all information necessary to enab le the Commission to verify that the 
conditions of Article 87(3)(c) EC are sati sfied and that the Commission is under no 
obligation to consider on its own moti on and on the basis of prediction, what 
information might have been submitted to it. 
                                                 
74 Case C-494/06 – Commission v Italy and Wam.  
75 Joined cases T-8/06 – FAB Fernsehen aus Berlin GmbH v Commission, T-21/06 – Germany v 
Commission, T-24/06 – MABB v Commission.  
76 Case T-25/07 – Iride SpA and Iride Energia Spa v Commission. 
77 Case T-303/05 – AceaElectrabel v Commission.  
78 Case T-369/06 Holland Malt v Commission [2009] (OJ C 256, 24.10.2009, p. 23). 
EN 24   EN 2.3. Procedural issues 
71. In case FAB v Commission , the CFI found that the ap plication of the Media 
Authority (MABB, the public body granting the aid) was not admissible. The Court 
considered that MABB was not independent but part of the State, because it was 
under budgetary and legal supervision. In addition, its resources were State resources because they came from charges imposed  by the public authorities and non-used 
resources went back to the Länder. 
72. The ECJ dismissed the Commission’s appeal to set aside the j udgment of the CFI, 
which had partially annulled the Commissi on’s decision of 9 April 2002 because the 
Commission had not sufficiently motivated why it ordered to recover jointly and 
severally from SKL-M and MTU Friedrichshafen GmbH (MTU)
 79 the amount of 
EUR 2.71 million. The Court clarified that, al though in case of lack of cooperation 
the Commission can decide on the basis of  the information available, it cannot 
presume solely on the basis of a nega tive presumption, based on a lack of 
information, that an undertaking has benef ited from aid. It must ensure that the 
information at its disposal, even if incomplete and fragmented, constitutes a sufficient basis on which to make such conclusion, in particular where the Commission orders, as in the presen t case, the recove ry of the aid.  
73. In case  NDSH AB v Commission
80, the CFI clarified that, when the examination of a 
complaint does not reveal the existence of  illegal aid, the Commission does not need 
to take a decision. This is in particular the case where the complaint concerns existing aid. In such a case, it is sufficien t to inform the complainant by an informal 
communication under Article 20( 2) of Regulation 659/1999 EC
81, which does not 
constitute an actionable measure for the pur poses of Article 230 of the EC Treaty.  
74. In the Commission  v Koninklijke FrieslandCampina NV82 case, the ECJ set aside the 
judgment of the CFI in case T-348/03, wh ich partially annulled the Commission's 
negative decision regardi ng the Dutch tax scheme for international financial 
activities insofar as it excluded transiti onal periods for certain beneficiaries and 
referred the case back to the CFI. The EC J confirmed the CFI assessment as regards 
the admissibility of an acti on by a potential beneficiary of a scheme. However, the 
Court considered that the CFI erred in law by accepting the existence of legitimate expectations also for companies which did not benefit from the scheme but merely 
submitted an application when the Commission opened the investigation procedure on the compatibility of the scheme. The Court also stated that the CFI erred in law by 
finding the Commission to have  breached the equal trea tment principle by allowing 
transitional periods only for companies al ready accepted by the scheme and not for 
those with a pending application at the date of the opening.  
75. Finally, the CFI confirmed in case Germany v Commission
83 the Commission's 
powers to request additional information on  block exempted schemes for monitoring 
                                                 
79 Case C-520/07 P – Commission v MTU Friedrichshafen GmbH. 
80 Case T-152/06 – NDSH Nya Destination Stockholm Hotell & Teaterpaket AB v Commission. 
81 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application 
of Article 93 of the EC Treaty (OJ L 83, p. 1). 
82 Case C-519 P/2007 – Commission v Koninklijke FrieslandCampina NV.  
83 Case T-376/07 – Germany v Commission. 
EN 25   EN purposes. It thus rejected Germany's ar gument that information could only be 
requested where the Commission had eviden ce raising doubts about compliance.  
2.4. Recovery of aid 
76. In Italian Republic v Commission84, the CFI upheld the Commission’s negative 
decision with recovery and confirmed that the Commission is not required to analyse 
the individual measures gran ted under an aid scheme.  
77. In Commission v Hellenic Republic85, the Court for the first time imposed penalties 
in a State aid case for non compliance with a previous 2005 judgment, which 
confirmed the non implementation of a rec overy decision. Greece was ordered to pay 
to the Commission EUR 16 000 for each day of  delay to comply with the judgment, 
as well as a lump sum of EUR 2 million. These amounts were based on the duration 
of the infringement, its degree of seriousne ss and the Member State’s ability to pay. 
B – ANTITRUST – ARTICLES 101,  102  AND 106  TFEU 
1. S HAPING AND APPLYING THE RULES  
1.1. Enforcement rules 
78. On 29 April, the Commission adopted its Report on the functi oning of Council 
Regulation 1/200386. The Regulation introduced the mo st far-reaching reform of the 
rules for enforcing the EU competition rules in  more than 40 years. It abolished the 
centralised notification and authorisation sy stem and replaced it by a system based 
on the direct application of  Articles 101 and 102 TFEU. Th e Regulation also granted 
the Commission enhanced investiga tion and decision-making powers and 
empowered national competition authorities (NCAs) and courts to apply the EU antitrust provisions in their entirety, in cluding with regard to agreements the 
assessment of the conditions  under Article 101(3) TFEU. 
79. In its Report the Commission takes stock of  how the modernisation of EU antitrust 
enforcement rules has worked since the en try into force of the Regulation on 1 May 
2004. It describes the experience in all ma jor areas covered by the Regulation and 
evaluates the progress made by introduci ng new instruments and working methods. 
80. The main conclusion of the Report is th at Regulation 1/2003 has contributed to 
stronger enforcement of an titrust rules within the EU. The change from the 
centralised notification system to one of di rect application has worked very smoothly 
in practice without any major difficulties with  the direct applica tion of Article 101(3) 
TFEU, which has been widely welcomed by stakeholders.  
81. The Report shows that EU competition rules have to a large extent become the 'law 
of the land' for the whole of the EU. This is the result of Article 3(1) of the Regulation which obliges NCAs and courts  to apply Articles  101 and 102 TFEU to 
                                                
 
84 Case T-222/04 – Italian Republic v Commission. 
85 Case C-369/07 – Commission v Hellenic Republic. 
86 COM(2009)206 final, accompanied by a Staff Working Paper, SEC(2009)574 final. 
EN 26   EN all cases within their scope. It has led to a very significant increase in the application 
of the EU antitrust provisions. At the end of March 2009 more than 1000 cases had 
been pursued by both the Commission and NC As in a wide variety of sectors, 
making a single legal standard a reality on a very large scale. 
82. The system change also supported a shift in the Commission's priorities to areas 
where it can make an important contributi on to the enforcement of Articles 101 and 
102 TFEU, such as cartels and other serious infringements, and led to an increase in 
the number of enforcement decisions a dopted. It has allowed the Commission to 
become more proactive, tackling weaknesses in the competitiveness of key sectors of the economy in a focused way by using sector inquiries as a major investigative tool. 
Accordingly, the new enforcement syst em is more focused on giving general 
guidance that can be useful to numerous unde rtakings and other enforcers instead of 
offering comfort to individual agreements. 
83. The Regulation entrusts NCAs with a key role in the effective and consistent 
enforcement of the EC antitrust rules.  The Commission had been informed by the 
end of the reporting period of more than  300 envisaged decisions by the national 
authorities on the basis of Article 11(4) of the Regulation and none of these cases 
resulted in the Commission relieving a nati onal authority of its competence for 
reasons of coherent applicat ion of the EU antitrust rules. The Report confirms that 
cooperation within the European Comp etition Network (ECN) has successfully 
contributed towards the aim of ensuring c onsistency. The ECN has proven to be an 
innovative model of governance for th e implementation of EU law by the 
Commission and Member Stat e authorities and a successful forum for discussing 
both specific cases and general policy issues. The flexible and pragmatic 
arrangements on work sharing and coopera tion within the ECN introduced by the 
Regulation have worked well over the past five years. 
84. National courts are also empowered by th e Regulation to apply both Article 101 and 
102 TFEU in full. They have used this power  in a number of sectors and have tackled 
a range of issues. By the time of the re port, the Commission had issued 18 opinions 
on questions concerning the application of the EU antitrust rules. In addition, both 
the Commission and the NCAs ha ve submitted observations as amicus curiae  under 
Article 15(3) of the Regulation. The Commission has used this power on two 
occasions during the reporting period when it c onsidered that issues arose as to the 
coherent application of th e EU competition rules. 
85. Finally, the Report highlights a number of as pects which merit further evaluation, in 
view of enabling the Commission to assess, in a next stage, whether further policy 
initiatives are deemed appropriate. The Report first mentions certain specific issues relating to the Commission's enforcement pow ers including, for example, a perceived 
lack of clarity in Article 22(2) of th e Regulation, which provides the Commission 
with the power to request NC As to carry out inspections  on its behalf. Second, the 
Report identifies the persisting substantive divergence of national laws in the area of unilateral conduct. The converg ence rule contained in Arti cle 3(2) of the Regulation 
does not cover unilateral conduct and, as a result, Member St ates remain free to enact 
and maintain stricter national rules. Th is divergence was criticised by the business 
and legal community and the Report foresees  an assessment of the extent of the 
problems caused by this divergence and of th e need for action at European level. 
EN 27   EN 86. Third, the Regulation does not formally regul ate or harmonise neither the procedural 
divergence nor the vari ety of sanctions which still ex ist when NCAs are applying 
Articles 101 and 102 TFEU. Although su ch differences do not impede the 
functioning of Regulation 1/2003 as such a nd many Member States have voluntarily 
aligned elements of their procedures with Commission procedures, there may be 
potential for further enhanc ing effective enforcement and cooperation. Fourth, in 
response to stakeholders requests for greater recourse by the Commission to amicus 
curiae  interventions the Report calls for a re flection on how to further develop this 
practice. Moreover, it propos es to explore options for ensuring effective access to 
national court judgments as the obligation for the Member States to transmit these 
judgments under Article 15(2) of the Re gulation has not functioned optimally. 
Finally, the Report considers that in the context of th ird country enforcement the 
current legal framework may benefit from further clarification to enhance existing 
levels of protection against disclosure of information from the Commission's file, as 
well as of disclosure of the Statement of  Objections (SO) and non-public version of 
the Commission Decision. 
1.2. Private enforcement of the EU antitrust rules 
87. The EU antitrust rules are enforced not  only by the Commission and NCAs (public 
enforcement). Given that these rules have  direct effect, they confer rights on 
individuals, including the ri ght to damages, that can be enforced before national 
courts (private enforcement). The Europ ean Court of Justice (ECJ) has pronounced 
that the full effectiveness of the EU antitrust rule s would be put at risk if it were not 
open to any individual to claim damages for harm caused by infringements of these 
rules87. Yet, in practice the victims, often consumers and SMEs, only rarely obtain 
compensation. 
88. The Commission has therefore launched a policy project aimed at ensuring the 
effectiveness of EU antitrust dama ges actions. The Commission's 2005 Green 
Paper88 identified the main obstacles to effective enforcement and launched a public 
debate on various options to overco me them. The Commission's 2008 White Paper89 
put forward concrete suggestions, such as: 
• clarifying what type of damages can be claimed by whom; 
• facilitating the position of consumers and other indirect victims in situations 
where an illegal overcharge has been passed on to them; 
• improving the efficiency of follow-on acti ons for damages by providing that final 
infringement decisions of NCAs constitute sufficient proof of an infringement; 
• ensuring that claimants can obtain fair access to evidence through disclosure in 
court; 
                                                 
87 Joined Cases C-295/04 to C-298/04  Manfredi  [2006] ECR I-6619. See also Case C-453/99  Courage vs. 
Crehan  [2001] ECR I-6297. While the ECJ only refers to infringements of Article 81 EC, it follows 
from the Court's reasoning that the same cons iderations apply for Article 82 EC as well. 
88 COM(2005) 672 final, see http://ec.europa.e u/competition/antitrust/actionsdamages/index.html  
89 COM(2008) 165 final, see http://ec.europa.e u/competition/antitrust/actionsdamages/index.html  
EN 28   EN • providing for effective co llective redress; and 
• suggesting rules to ensure a smooth interplay between private and public 
enforcement, including protec tion of leniency programmes. 
89. On 25 March, the European Economic and Social Committee adopted an opinion on 
the White Paper90 that welcomes the White Paper and explicitly calls on the 
Commission to propose appropria te follow-up measures to achieve the White Paper's 
objectives. 
90. On 26 March, the European Parliament adopted a resolution on the White Paper91 
that welcomes the White Paper and stresse s that effective enforcement of the EU 
antitrust rules requires that victims of breach es of these rules must be able to claim 
compensation for the damage suffered. The re solution agrees with the main finding 
of the White Paper, namely that consumers as well as businesses are currently 
hampered in exercising their right to comp ensation. The resolution also agrees with 
the overall objective of the White Paper, na mely that measures are to be taken to 
ensure full compensation of the victims,  while avoiding excessive litigation, and 
broadly supports the policy suggestions of the White Paper. 
91. As regards collective redress, the Pa rliament's resolution acknowledged the 
importance of collective redress mechanisms  for the ability of victims to obtain 
compensation in cases of scattered damage , and welcomed the suggestions in the 
White Paper to set up collective redress mechanisms which are designed to include safeguards against excessive litigation. Th e resolution encourag ed the Commission 
to give careful consideration to the possibili ty of a horizontal or integrated approach 
to collective redress and to ensure consistent  treatment of damages claims in the area 
of EU competition law and in other areas,  such as consumer protection laws. It 
stressed, however, that such a horizontal or  integrated approach does not necessarily 
require a single horizontal instrument and, moreover, must not delay or avoid the 
development of proposals and measures  identified as necessary for the full 
enforcement of the EU  antitrust rules. 
92. The Commission services have started work  on the technical instruments designed to 
achieve the objectives of the White Paper, while taking due account of the 
resolutions, opinions and comments receiv ed within the public consultation. 
93. Apart from the follow-up measures to th e White Paper, the Commission services 
have started work on a non- binding guidance on quantifica tion of damages. The 2005 
Green Paper already identified the existence of a number of specific difficulties faced 
by parties as well as judges with regard to quantification of harm resulting from 
breaches of the EU antitrust rules. In th e White Paper, the Commission therefore 
committed to publishing a pragmatic, non-binding guidance paper designed to facilitate quantification of  damages. In 2008, the Commission signed a contract for 
the provision of an external study on this subject-matter. Key aspects to be addressed 
in the guidance include the conceptual framework for quantifying antitrust damages, 
                                                
 
90 Opinion of the European Economic and Social Committee on the White paper on damages actions for 
breach of the EC antitrust rules, OJ C 228, 22.9.2009, p. 40. 
91 European Parliament resolution of 26 March 2009 on the White Paper on damages actions for breach of 
the EC antitrust rules (2008/2154(INI)). 
EN 29   EN including identification of the types of harm that can be inflicted by various 
infringements of Articles 101 and 102 TF EU, concrete methods that can be 
employed in quantifying the harm, as well as any economic insights that can be useful to judges and parties when estimating the harm suffered. 
1.3. Cartels 
94. In 2009, the Commission continue d its strong enforcement record for the application 
of the antitrust rules to carte l cases by adopting six decisions
92 imposing fines 
amounting to EUR 1 623 million93, on 43 undertakings94. An important cartel case 
concerns the Commission's 2009 decisi on relating to the energy markets 
(E.ON/GDF), imposing fines of EUR 553 million on GDF Suez as well as on the 
German E.ON group for participating in a ma rket sharing arrangement relating to the 
French and German gas markets.  
95. For the first time it served a cartel decision to undertakings in Slovakia and Slovenia 
in the Calcium Carbide  case. The fight against cart els with an international 
dimension continued to be very suc cessful, epitomized by the decisions in  Marine 
Hoses (a market sharing and pr ice fixing cartel for which the EU co-operated with 
the US, UK and Japan95), as well as in Power Transformers  (a market sharing 
agreement between European and Japane se producers. The Commission has also 
underscored its policy of deterrence toward s companies that are repeat offenders96. 
96. The coordination between competition aut horities during the investigation period 
was important, particularly in  Marine Hoses  as the UK and the US also foresee 
criminal prosecution of individuals fo r cartel violations. This demanded a 
particularly sensitive and coordinated approach, ensu ring the integrity of the 
respective procedures. The case showed how well competition authorities worked together and coordinated their efforts w ithout compromising pro cedural protections 
offered under their laws, be it of admi nistrative or of criminal nature. 
97. In the case of Heat Stabilisers the Commission fined the Swiss based company AC 
Treuhand again for its active role as faci litator in a cartel. AC Treuhand already 
received a fine from the Commission in  2003 for the same function, but in the 
context of another cartel. Back in 2003 the Commission imposed a mere symbolic 
fine on AC Treuhand of EUR 1 000 as it was to a certain extent a novelty to impose a 
fine for this kind of role
97. This time, however, the Commission calculated the fine 
based on the gravity, duration and deterrent effect taking into account AC Treuhand's 
                                                 
92 Cases COMP/39406 Marine Hoses ; COMP/39401 E.on/GDF ; COMP/39396 Calcium Carbide ; 
COMP/37956 Concrete reinforcing bars  (re-adoption) ; COMP/39129 Power Transformers  and 
COMP/38589 Heat Stabilisers . 
93 In 2008 the Commission issued seven final decisions in which it fined 37 undertakings a total of EUR 
2 271 million. 
94 This figure includes those companies which receive d immunity from fines un der the Leniency Notice. 
95 See Annual Competition Report 2007, p. 43. 
96 See Case COMP/39396, Calcium carbide and COMP/38589  Heat Stabilisers . 
97 See Case COMP/37857, Organic peroxides, OJ L 110, 30.4.2005, p. 44 upheld by T-99/04 from 8 July 
2008 [2008] ECR II-1501. 
EN 30   EN involvement in the cartel activities l eading to a total am ount of EUR 348 00098. 
Apart from Treuhand, the Commission al so fined a number of EU and US 
undertakings. 
98. The Court confirmed its jurisprudence a nd thereby the Commi ssion's practice in 
relation to parental responsibility in case C-97/08P, Akzo Nobel et al. v. Commission . 
According to the Court, the Commission is  entitled to assume that the parent 
company which owns 100% of its subsidiary  forms one undertaking with the latter 
and therefore may be held responsible for the payment of the car tel fine (for more 
details see point 171 below). 
99. With Concrete Reinforcing Bars  the Commission sent, yet again99, the clear message 
that cartel participants ca nnot escape fines if, for proc edural reasons, the Court 
quashes the Commission's decision. In 2009 the Commission rea dopted its initial 
decision from 2002 after the judgment of the CFI in 2007100 and retained all eight 
undertakings, confirming an almost identical fine to them101. 
100. The Leniency policy of the Commission cont inues to prove helpful in detecting and 
investigating cartels. About 75% of cartel investigations are based on immunity 
applications. Undertakings which provide d significant added value when cooperating 
with the Commission during the investigation received substantial reductions to their respective fines for which the cartel d ecisions in 2009 are a case in point. 
101. The Commission attaches great importan ce to the protection of its leniency 
programme and more generally to the protec tion of the integrity of its enforcement 
procedure. That is why the Comm ission intervened in a US Court
102, where the 
discovery of leniency material as well as  other documents from the Commission file 
were being ordered, in a matter relating to the Commission investigation into Flat 
Glass , a case decided end of 2007. The interv ention by the Commissi on in this case 
was successful, as discovery was avoided through settlement of the parties. 
102. In order to detect and/or examine carte ls, Regulation 1/2003 gi ves the Commission 
powers of investigation, notab ly the power to conduct insp ections either at business 
premises or in private homes. During 2009, on-site inspections t ook place in a wide 
variety of sectors, such as Power Cables103, Compressors for Refrigeration104, 
Shrimps105, Special glass sector106 as well as Cement and related products107. 
                                                 
98
 http://europa.eu/rapid/pressReleasesAction.do ?reference=IP/09/1695 &format=HTML&aged=0
&language=EN&guiLanguage=en 
99 See also Case COMP/39234 Alloy surcharge readoption  (OJ L 182, 12.7.2007, pp. 31-32 and non-
confidential version of the decision on the website of DG Competition). The undertaking submitted an appeal which was fully rejected by the CFI in T-24/07 Thyssen Krupp Stainless AG/Commission  [2009]. 
The latter's judgment is currently under appeal. 
100 T–77/03 Feralpi Siderugica SpA/Commission  [2007] ECR II-139 Summ.pub. 
101 With the re-adoption decision the Commission imposed a fine of EUR 83,250 million, reducing the fine 
for one of the undertakings from EUR 16,140 million to EUR 14,350 million because of a shift in the 
latter's relative size. 
102 Flat Glass Antitrust Litigation (II) Civil Action No 08-mc-180 MDL No. 1942. 
103 Case COMP/39610. 
104 Case COMP/39600. 
105 Case COMP/39633. 
106 Case COMP/39605. 
EN 31   EN 1.4. Other agreements and concerted practices 
103. In July, the Commission adopted its fi nal report on the sect or inquiry into 
pharmaceuticals (launched in 2008) identifying serious shortcomings in the sector. 
104. Concerning the application of the antitrust rules to non-ca rtel cases, the Commission 
adopted, on 14 October, a commitment decision108 under Article 9(1) of Council 
Regulation (EC) No 1/2003 rendering lega lly binding commitments offered by the 
International Association of Classificati on Societies (IACS) to address concerns 
raised in the course of an investigation pursuant to Arti cle 81 EC and Article 53 of 
the EEA Agreement in the worldwide ship classification market.  
105. The Commission also opened proceedings in relation to the cooperation between 
certain STAR alliance and Oneworld airline companies on transatlantic routes. 
106. The Commission is presently in the pro cess of reviewing a number of Block 
Exemption Regulations and, when relevant , accompanying guideli nes relating to the 
application of Article 101 TF EU, which are due to expire in the near future. These 
reviews concern in particular  the Block Exemptions for Vertical Agreements and for 
Horizontal Agreements as well as the sector  specific Block Exemption for Insurance. 
The revisions of the Block Exemptions for Motor Vehicles and for Maritime 
Transport (liner shipping cons ortia) were concluded in 2009. 
1.4.1. The review of the Block Exempti on Regulation on Vertical agreements 
107. Vertical agreements are agreements for the sale or purchase of goods or services 
between companies operating at different levels of the dist ribution chain, for 
example between a manufacturer, a wholesaler and a retailer.  Vertical agreements 
are pervasive: indeed, the vast majority of agreements entered into between firms are vertical, as this term c overs agreements relating to  the purchase of inputs and 
distribution of outputs. 
108. In 2009, the Commission continued its review  of the current EU block exemption 
regulation applicable  to vertical agreements (the BER) and the accompanying 
guidelines on vertical restraints (the Guid elines). In 1999, this package was the first 
of a new generation of exemption regula tions and guidelines inspired by a more 
economic and effects-based approach wh ich, in the Commission's and the NCAs' 
assessment, has worked well in practice.  
109. The Commission issued draft BER and Guid elines for public consultation in July, 
where the Commission proposed to maintain, in  essence, the current rules, while at 
the same time adapting and refining them to take account of developments in the marketplace, in particular the market power  of buyers, and the continuous increase of 
on-line sales.  
110. In order to reflect the increased attenti on to buyer power issues, the Commission 
proposed that for a vertical agreement to benefit from the block exemption, not only the supplier's market share (as is currently the case) but also the buyer's market share 
                                                                                                                                                        
 
107 Case COMP/39520. 
108 Case COMP/39416  Ship Classification . 
EN 32   EN should not exceed 30% on the affected market s where the buyer resells the contract 
products. In addition, the Commission adde d in the draft Guidelines two new 
sections which provide guidance on the asse ssment of restraints which are mainly 
buyer driven, namely upfront access fees, su ch as slotting allowances, and category 
management. 
111. Regarding on-line sales, on the one hand th ere is a need to protect consumers' 
possibilities to purchase to their advantage ac ross borders, which is  greatly facilitated 
by the internet. On the other hand, certain sa les restrictions that aim at limiting or 
preventing distributors from  taking unfair advantage of marketing and brand 
promotion undertaken by others (i.e. free riding) may enable consumers to benefit 
from better services. The Commission's suggest ed approach therefor e refines, in the 
on-line context, the distinct ion, between sales made as a result of active marketing 
and sales made as a result of the consumer taking the initiative (i.e. between active and passive sales), and explains how the revised texts would deal with conditions imposed in relation to internet sales, such as a requirement imposed by a supplier that the distributor should have a "brick a nd mortar" shop before engaging in on-line 
sales. 
112. The Commission received some 160 cont ributions from a wide range of 
stakeholders, including businesses, consum er organisations, national authorities, 
academics and the legal community. The stak eholders expressed strong support to 
maintain in force a system of block ex emption and accompanying Guidelines, which 
is considered to have overall worked we ll in practice. The stakeholders commented 
extensively on the two major issues, in par ticular the extension of the market share 
threshold to buyers and the treatment of restrictions on the use of the internet. 
Beyond these issues, the Commission's proposed  approach to hard core restrictions 
was generally welcomed, in particular the clar ification that also hardcore restrictions 
may individually fulfil the condi tions of Article 101(3) TFEU. 
113. The Commission services are currently  analysing the resu lts of the public 
consultation in order to propose a final te xt for the adoption by the College. The new 
rules should enter into force upon the expiry of th e current BER in May 2010. 
1.4.2. The review of the Block Exemption Regulations on Horizontal agreements 
114. Horizontal agreements are agreements between competitors operating at the same 
level, cooperating in areas such as research and development, joint production or 
selling, information exchange, standardisa tion etc. Such agreements may lead to 
important efficiencies and increased consumer welfare. However, since they imply cooperation by competitors they also risk leading to anti-competitive effects.  
115. The Block Exemption Regulations for Specialisation agreements
109 ("Specialisation 
BER") and for Research and Development agreements110 ("R&D BER") expire on 31 
December 2010. The Commission has theref ore started the revision of these 
                                                 
109 Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) 
to categories of specialisation agreem ents, OJ L 304, 5.12.2000, p. 3. 
110 Commission Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) 
to categories of research and development agreements, OJ L 304, 5.12.2000, p. 7. 
EN 33   EN regulations and the accompanying horizontal guidelines111. The horizontal guidelines 
cover not only specialisation and R&D ag reements but also other types of 
agreements such as production, commercialis ation and joint purchasing agreements 
and aim at giving guidance on how to assess such agreements under EU competition law. 
116. The Commission is in the proc ess of examining how the Specialisation and the R&D 
BERs have been applied so far and whethe r there is a need to  amend the current 
rules. This work is done in close coopera tion with the NCAs within the European 
Competition Network. A first consultation of stakeholders took place at the turn of 
2008/2009. The Commission intends to publish th e draft block exemption regulations 
and guidelines in early 2010.  
1.4.3. The review of the Motor Vehi cle Block Exemption Regulation 
117. On 28 October, the Commission adopted a se t of draft guidelines and a draft Block 
Exemption for the motor vehicle sector ("Motor vehicle BER"). These two draft 
instruments apply to agreements for motor vehicle distribution (primary market) as 
well as to the markets for repair, mainte nance and the distribution of spare parts 
(aftermarket). They are intende d to replace the existing BER
112 as of 1 June 2010 
with regard to the afterm arket, and as of 1 June 2013 for the primary market. 
Following the Advisory Committee meeting with Member States, on 21 December 
the Commission published the two documents for public consultation until 10 February 2010. 
118. The two draft texts follow the course set in the Commission's Communication of 22 
July. That Communication identified clear differences between the primary market, 
on which competition is strong, and the markets for repair and maintenance and spare parts, on which competition is more limited due to their brand-specific nature. 
119. An in-depth market analysis
113 revealed that there are no significant competition 
shortcomings justifying distinguishing th e markets for new motor vehicles from 
other economic sectors. The markets are fair ly open, with relatively low barriers to 
entry. Technology is an increasingly importa nt factor driving competition. Model 
ranges have expanded, and manuf acturers tend to have a glob al or regional presence 
rather than simply having a strong position on their home market. This vigorous and increasing inter-brand competition has translated into highly competitive price levels. 
120. The Commission believes that car distribut ion agreements should not be treated 
differently from any similar agreements in other sectors. The draft BER therefore provides that the future general Block Exemp tion for vertical restraints will take the 
place of the current specific rules for such agreements. However, in order to protect 
                                                
 
111 Commission Notice – Guidelines on the applicability of Article 81 to horizontal cooperation 
agreements, OJ C 3, 6.1.2001, p. 2. 
112 Commission Regulation 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to 
categories of vertical agreements and concerted pr actices in the motor vehicle sector, OJ L 203, 
1.8.2002, pp 30-41. 
113 See Evaluation Report on the operation of Commission Regulation (EC) 1400/2002 of 28 May 2008 
and the Commission Communication on The Future Competition Law Framework applicable to the 
Motor Vehicle sector of 22 July 2009 (COM(2009)388 final), including an Impact Assessment Report 
(SEC(2009)1052). 
EN 34   EN investments made by car dealers under the old rules, for instance in multi-brand sites, 
it is proposed that this changeover will not occur until 31 May 2013. As to the assessment of such agreements after this da te, the draft Guidelines  give explanations 
on key issues such as the protection of cross-border trade in cars and the approach to be taken should single-branding arrangeme nts between manufacturers and dealers 
lead to competing manufacturers being shut out of a particular market. 
121. In the Communication, the Commission took the line that the application of the 
future general Block Exemption to the motor vehicle aftermarkets might prove 
insufficient to protect competition. Sector-specific provisions were needed in a number of areas, although the Communication left open the question as to what form 
they would take. 
122. The draft Guidelines adopted on 28 October de al with issues such as access to the 
franchised repair networks, the provision of technical information to independent 
repairers, and refusals to honour warranties un less all repairs have been carried out in 
the authorised networks. The Block Exemp tion was considered a more appropriate 
instrument for protecting competition as regards the supply of spare parts, in 
particular since market definition in th is area can be problematic, and contains 
specific hardcore clauses in this respect. The draft proposal fore sees that new rules 
will apply to agreements for repair and ma intenance and to the distribution of spare 
parts from 1 June 2010.  
1.4.4. The review of the Insuran ce Block Exemption Regulation 
123. The Commission has carried out a review of the functioning of the current Block 
Exemption Regulation in the insurance sector
114 ("the current Insurance BER") with 
a view to determining whether a new Insu rance BER should be adopted before the 
current one expires on 31 March 2010. 
124. Under the Implementing Regulation115, the Commission is required to submit a 
report to the European Parliament and Council on the functioning of the Insurance 
BER, six years after its entr y into force, toge ther with any propos als for amendment 
which would derive from experience.  
125. The Commission began its review of th e functioning of the Insurance Block 
Exemption Regulation (the Review) in November 2007 by consulting NCAs and in 
April 2008 it launched a public consultatio n. In addition, the Commission sent 
targeted questionnaires to certain stakeh olders, public author ities and consumer 
organisations. Following closure of the consultation, the Commission sent follow-up 
questionnaires to certain stakeholders in cluding small and medium-sized insurers, 
pools and producer federations of security devices. The NCAs we re closely involved 
in the review.  
126. The primary original objective of the current Insurance BER was to facilitate the 
Commission's task in view of the large num ber of notifications being received. Since 
                                                 
114 Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) to 
certain categories of agreements, d ecisions and concerted practices in  the insurance sector (OJ L 53, 
28.2.2003, p. 8 ). 
115 Council Regulation (EC) 1534/91,  OJ L 143, 7.6.1991, p. 1. 
EN 35   EN the adoption of Regulation 1/2003 and the c onsequent abolition of the notification 
system, such objective is no longer of relevance. To assess whether to renew the 
current Insurance BER, the Commission asked: (i) whether the business risks or other issues in the insurance sector make it  "special" and different from other sectors 
and whether this leads to an enhanced need  for cooperation; (ii) if so, whether this 
enhanced need for cooperation requires a le gal instrument such as for example, the 
BER to protect or facilitate it; and (iii) if so, whether the current BER is the most 
appropriate legal instrument (or whether partial renewal, amended renewal, or 
Guidelines would be preferable). 
Report to European Parliament and Council 
127. On 24 March, the Commission adopted its Report
116 to the European Parliament and 
Council which is accompanied by a detailed Working Document. The documents analyse in detail the Co mmission's findings during th e Review. On 2 June the 
Commission held a public event, in order to  hear further reactions on the Report and 
accompanying Working Document.  
Public Consultation on Draft New Insurance BER 
128. The Commission's conclusion on the basis of the evidence it found during the 
Review is that it is not appr opriate to renew two of the f our exemptions in the current 
Insurance BER, i.e. the exemptions for standard policy conditions ("SPCs") and 
security devices.  
129. The Commission considers that both SPCs a nd agreements on security devices are 
not specific to the insurance sector and as such do not require a sector-specific BER. 
However, the Commission is considering ad dressing both SPCs and security devices 
in the general standardisation chapter in its Horizontal Guidelines which are currently being revised. 
130. The evidence did however support renewa l of the BER for the remaining two 
categories of agreements, namely joint compilations, tables and studies as well as 
agreements on co-insurance and co-reinsur ance pools. The draft new Insurance BER 
therefore exempts both these categories. This draft was published for consultation on 
5 October for 8 weeks. 
131. The Commission plans to have the new Insu rance BER adopted and published before 
expiry of the current Insurance BER on 31 March 2010. 
1.4.5. The Review of the Consortia  Block Exemption Regulation 
132. On 28 September the Commission adopt ed Regulation (EC) No 906/2009 on the 
application of Article 81(3) EC to certain  categories of agreements, decisions and 
concerted practices between line r shipping companies (consortia)
117. This Regulation 
allows operational cooperation to provide a jo int liner shipping service between liner 
shipping carriers subject to certain condi tions. Such type of cooperation has been 
                                                 
116 COM/2009/0138. 
117 OJ L 256, 29.9.2009, p. 31. 
EN 36   EN exempted from the EU competition rules since 1995. The new Regulation enters into 
force on 25 April 2010 for a duration of five years. 
133. Liner shipping involves the transport of cargo on a regular basis to ports of a 
particular geographic route, in accordance with time tables and sailing dates advertised in advance and available to any transport user. A consortium is an 
operational cooperation agreement between tw o or more liner shipping carriers to 
provide a joint liner shipping service on a given route. Due to the high level of 
investment required to set up a service with  fixed schedules, liner  shipping is mostly 
provided by groups of shipping li nes organised in consortia. 
134. The review of the Regulation was launched w ith a general market investigation in the 
summer of 2007, followed by a public consul tation in October 2008. The aim was to 
incorporate amendments necessary due to th e repeal of the liner conference Block 
Exemption Regulation 4056/86
118 and the adoption of Regulation 1/2003, as well as 
to better reflect current market practices and to bring the cons ortia block exemption 
in line with other block exemption regul ations for horizontal cooperation between 
companies. 
135. The new Regulation has reduced the market share threshold to 30% from previously 
35% or 30% depending on whether a consor tium operated within or outside a liner 
shipping conference. Furthermore the Regul ation clarified that for assessing the 
market share threshold the sum of the ma rket shares of the individual consortium 
members in the relevant market needs to be  taken into account.  For that purpose not 
only the volumes the consortium member transports within the consortium in 
question is relevant, but also  all volumes carried by it outsi de the consortium need to 
be taken in to account. Such volumes might  either be carried by the member, on the 
basis of a parallel individual service, or by another carrier on behalf of that member, 
on the basis of a slot charter arrangeme nt or another consortium agreement. 
136. In view of the increasing cross-linking of consortia and their members, the 
Regulation clarifies in its recitals that the Commission may wit hdraw the benefit of 
the block exemption if a consortium agreement has effects incompatible with Article 81(3) EC that may derive from the existe nce of links between the consortium and/or 
its members and other consorti a and/or liner carriers on the same relevant market. 
137. Finally the scope of the Regulation was wide ned to include all li ner shipping services 
transporting cargo, whether containerised or  not. The list of ex empted activities was 
revised to better reflect current market practices. The new Regulation simplifies the 
conditions which a consortium agreement has to comply with in order to benefit from the Block Exemption Regulation. In particul ar, it sets the maxi mum duration of the 
so-called exit clauses and lock-in provision s in case a member wants to withdraw 
from the consortium. 
                                                
 
118 Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of 
Articles 85 and 86 EC to maritime transport, OJ L 378, 31.12.1986, p. 4. 
EN 37   EN 1.5. Abuse of dominant positions (Article 102 TFEU) 
138. The "Commission's Guidance on its enforcement priorities in appl ying Article 82 EC 
of the Treaty to abusive exclusiona ry conduct by dominant undertakings" was 
published in the Official Journal (OJ)119. 
139. On 13 May, the Commission adopted a prohibition decision in the Intel case120 
finding that Intel had infringed Article 82 EC by engaging in illegal anticompetitive 
practices with the aim of excluding comp etitors from the market for x86 Central 
Processing Units (CPU). These practices harmed consumers throughout the EEA. By 
undermining its competitors' ab ility to compete on the merits  of their products, Intel's 
actions undermined competition, reduced consumer choice and hindered innovation.  
140. In the Microsoft  case, the commitments offered by Microsoft provide for a timely 
and satisfactory solution to the competiti on concerns raised by the Commission in a 
Statement of Objections in January 2009 re lated to the tying of Microsoft's web 
browser Internet Explorer to its domina nt client PC operating system Windows. 
Microsoft committed (a) to distribute a Choi ce Screen software update to users of 
Windows client PC operating systems with in the EEA by means of Windows Update 
that will offer users an unbias ed choice between the most widely used web browsers 
in the EEA, and (b) to make available a mechanism in Windows 7 and subsequent versions of Windows in the EEA enabling PC manufacturers and end users to turn 
Internet Explorer on and off. The commitm ents were made binding on Microsoft by 
a Decision of 16 December 2009
121. 
141. In the Rambus  case, the Commission had expressed concerns that Rambus was 
imposing unreasonable royalties for the use of certain patents for DRAM chips used 
in virtually all PCs. The Commission a dopted a decision on 9 December 2009 that 
renders legally binding commitments offered by Rambus that in particular put a cap 
on its royalty rates122. In 2008, worldwide DRAM sales exceeded US$ 34 billion 
(more than EUR 23 billion). Rambus committed to put a worldwide cap on its 
royalty rates for five years. Rambus agreed  to charge zero royalties for the earlier 
generations of chips concerne d in combination with a maximum royalty rate of 1.5% 
for the later generations of chips concerned. This is substantially lower than the 3.5% 
Rambus was previously charging. The cas e shows once more that an effective 
standard-setting process should take place in a non-discriminatory, open and 
transparent way to ensure competition on the merits and to allow consumers to benefit from technical development and innovation
123.  
142. In the field of energy, the Commission a dopted a further decision as part of the 
follow-up of the energy sector inquir y in 2007. In March 2009, the Commission 
adopted a decision rendering binding divest iture commitments from the German gas 
                                                 
119 OJ C 45, 24.2.2009, p. 7. 
120 Case COMP/37990 Intel (OJ C 227, 22.9.2009, p. 13). 
121 The Decision is published on the website of the Directorate-General for Competition under "Antitrust 
cases".  
122 A non-confidential version of the Decision and the commitments is available on the Commission's 
website at: http://ec.europa.eu/comm/competition/antitrust/cases . 
123 The decision and the commitments are publishe d on the website of the Directorate-General for 
Competition under "Antitrust cases".  
EN 38   EN incumbent RWE which committed to divesti ng its Western German gas transmission 
network124. 
143. The Commission also initiated proceedi ngs against the Polish and Slovakian 
incumbents in the broadband market125 and against Svenska Kraftnät concerning the 
Swedish electricity transmission market126. 
144. Lastly, in the field of fina ncial services, the Commission sent a SO to Standard & 
Poor's (S&P) in October, outlining the pr eliminary view that S&P infringed its 
dominant position in relation to issuance and licensing of securities identifier codes called ISINs
127. The Commission also opened formal proceedings against Thomson 
Reuters concerning the use of RICs128. 
1.6. State measures (Public undertakings/Und ertakings with exclusive and special 
rights) 
145. In 2009, the Commission was also active  in the area of Article 106 TFEU.  
146. On 2 February, following up on the infringeme nt proceedings initiated in the course 
of 2008129, the Commission sent a Reasoned Opinion130 to the Slovak Republic 
requesting it to bring the Slovak Competition Act in conformity with EU law. The Reasoned Opinion concerned in particular  Section 2(6) of the Slovak Competition 
Act, which excluded the applicability of th e Act in situations where the conduct of 
the undertakings is at the same time subject  to sector specific  ex-ante regulatory 
obligations (such as in the electronic comm unications, energy or postal sectors), thus 
limiting the ability of the NCA to effectively apply Articles 81 and 82 EC to anticompetitive behaviour which would also fall within the competence of regulatory 
authorities. In the Reasoned Opinion the Commission considered this provision of 
the Competition Act to be incompatible with Article 10 EC and Regulation 1/2003 
and enjoined the Slovak Republic to take the necessary measures to put an end to the infringement. Following the Reasoned Op inion, the Slovak Republic repealed the 
contested provision in its en tirety with effect from 1 June. On 25 June the 
Commission therefore adopted  a decision to close the infringement procedure
131. 
                                                 
124 See IP/09/410, 18.3.2009. 
125 MEMO/09/203, 27.4.2009. 
126 Status October 2009 (commitments Microsoft and Svenska Kraftnät being market tested). 
127 ISIN are the global identifiers for securities an d are governed by International Standardisation 
Organisation (ISO) standard 6166. They are indispensable for a number of operations that financial institutions carry out (for instance, reporting to au thorities or clearing and settlement) and cannot be 
substituted by other identifiers for securities. See also MEMO/09/508. 
128 RICs are short, alphanum erical codes that identify securities and their trading locations. They are used 
to retrieve information from Thomson Reuters' real -time datafeeds, for exam ple real-time information 
on stock prices at a cer tain exchange. See also IP/09/1692 of 10.11.2009. 
129 The Commission sent a letter of formal notice to the Slovak Republic on 6 June 2008. The Slovak 
Government replied to the letter of formal notice on 14 August 2008.  
130 See Press Release IP/09/200, 2.2.2009. 
131 See Press Release IP/09/1182, 23.7.2009.  The successful resolution of this case follows a previous 
infringement procedure against the Czech Republic where similar problematic legislation was also 
repealed in 2007.  
EN 39   EN 147. In August, the Commission adopted a deci sion pursuant to Article 86(3) EC by 
which it has accepted commitments made by Greece to ensure fair access to Greek 
lignite deposits132. 
148. On 10 May 2007, the Commission adopted a d ecision on the basis of Article 86(3) 
EC finding that the exclusive right for the distribution of a savings book product 
(Livret A) granted by France to three banks  (Banque Postale, Caisses d’Epargne and 
Crédit Mutuel) constituted an infringement of Article 86(1) EC  in conjunction with 
the freedom of establishment and the freedom  to provide services (Articles 43 and 49 
EC) due to the resulting obstacles for French and foreign competitors to enter and develop the market for liquid savings in Fr ance. The decision also set a deadline to 
amend the legislation within nine mont hs. As no such amendment was adopted 
within the prescribed peri od, the Commission sent a Letter  of Formal Notice on 5 
June 2008 with a view to obliging France to  ending the infringement. As a result of 
the infringement proceedings, France opene d up the distribution of Livret A on 1 
January 2009. Since then, a sign ificant number of new "livre t A" accounts have been 
opened in banks which are now enabled to distribute these accounts and the 
brokerage fees have been cu t by nearly half. On 8 Octobe r the European Commission 
therefore decided to close the infringement procedure. 
149. The Commission pursued its infringement pr oceedings under Article 226 EC against 
the Slovak Republic for the non-implement ation of the 2008 Commission decision 
on the Slovakian postal Law
133. 
2. S ELECTED COURT CASES  
2.1. Case C-8/08 T-Mobile Netherlands & Others v. Raad van bestuur van der 
Nederlandse Mededingingsautoriteit (NMa) 
Criteria for establishing a concerted practice 
150. The background to this case is a refere nce for a preliminary ruling under Article 234 
EC from a Dutch court in the proceedings  between five mobile  telephone network 
operators134 and the Dutch competition authority (NMa). The NMa imposed a fine on 
the mobile telephone operators active in th e Netherlands for exchanging information 
and agreeing, during a meeting, on the reductio n and "standardisation" of the fees for 
postpaid subscriptions required by dealer s who sell to final consumers those 
subscriptions on behalf of th e telecom operators. This decision was appealed before 
the referring court which referred to the ECJ several questions related to the interpretation of Article 81 EC. 
151. On 4 June, the ECJ clarified, in accordan ce with existing jurisprudence, when a 
concerted practice, in particular an exch ange of information between competitors, 
restricts competition by object. According to  the ECJ, the criteria laid down in the 
                                                
 
132 OJ C 243, 10.10.2009, p. 5.  
133 Case COMP/39562 Slovakian postal Law  (OJ C 322, 17.12.2008, p. 10 ). See also Press Release 
IP/08/1467 , 7.10.2008. 
134 T-Mobile Netherlands BV (previously Ben Nederland BV); Orange Nederland NV (previously 
Dutchtone NV); KPN Mobile NV; Telfort BV (previ ously O2 Netherlands BV) and Vodafone Libertel 
NV. 
EN 40   EN Court’s case-law for the purpose of determ ining whether an agreement has as its 
object a restriction of competition are applicable mutatis mutandis  to a concerted 
practice. Accordingly, there is no need to c onsider the effects of  a concerted practice 
where its anti-competitive object is established. A concerted practice pursues an anti-competitive object where, according to  its content and objectives and having 
regard to its legal and econom ic context, it is capable in an individual case of 
resulting in the prevention, restriction or distortion of competition within the 
common market. It is not neces sary for there to be actual prevention, restriction or 
distortion of competition or a direct link between the concerted practice and 
consumer prices. The prohibi tion in Article 81 EC is not limited to concerted 
practices which
 have a direct effect on the prices paid by end users, since Article 81 
EC, like the other competition rules of the Treaty, is designed to protect not only the 
immediate interests of individual competitors  or consumers but also to protect the 
structure of the market and thus competition as such. An exchange of information between competitors is tainted with an an ti-competitive object if the exchange is 
capable of removing uncertainties concerning the intended conduct of the participating undertakings. 
152. In addition, contrary  to the opinion of its  Advocate General, the ECJ held that the 
presumption of a causal connection between  the "concertation" and the conduct of 
the undertakings on the market  established in the case law does not constitute a 
procedural rule, but rather stems from Artic le 81(1) EC, and it consequently forms an 
integral part of the applicable Community law, which has to be followed by the national enforcers. The ECJ finally ruled th at the presumption of  a causal connection 
between "concertation" and market conduct can  be established even if the concerted 
practice is an isolated event, one meeti ng of the undertakings being enough for this 
presumption to apply. The ruling of the ECJ therefore strengthens the enforcement of 
Article 81 EC since the presumption established in the case law facilitates 
considerably the bringing of ev idence of a concerted practice. 
2.2. Case C-429/07, Inspecteur van de Belastingdienst v. X BV  
Deductability of fines for tax purposes and the effectiveness of EU competition 
law 
153. The background to this case is a refere nce for a preliminary ruling under Article 234 
EC from a Dutch court (the referring cour t) in the proceedings between the Dutch 
Tax authorities and a company, X BV who was trying to partially deduct the amount 
of the fine imposed by the Commission fr om the amount of its taxable profits. 
154. This ruling of the ECJ of 11 June relates to the interpretation of Article 15(3) of 
Regulation 1/2003, which provides that th e Commission may submit on its own 
initiative written observ ations (intervention as amicus curiae ) to national courts 
applying Articles 81 and 82 EC where "the coherent applicati on of Articles 81 or 82 
EC so requires" . The ECJ ruled that the option for the Commission, acting on its 
own initiative, to submit written observati ons to courts of the Member States is 
subject to the sole condition that the cohere nt application of Ar ticles 81 or 82 EC so 
requires. That condition may be fulfilled ev en if the proceedings concerned to not 
pertain to issues relating to the application of Article 81 or Article 82 EC. The ECJ stated further that the eff ectiveness of the fines imposed by the Commission relates 
to the coherent application of Articles  81 and 82 EC. The effectiveness of the 
EN 41   EN Commission’s decision by which it impos ed a fine on a company might be 
significantly reduced if the undertaking concerned wa s allowed to partially deduct 
the amount of that fine from the amount of  its taxable profits. The ECJ concluded on 
this basis that the Commission was entitled to submit its written observations in this case. The ruling of the ECJ, by an extens ive interpretation of the Commission's 
possibilities to intervene as amicus curiae  in national proceedings, strengthens the 
Commission's role in ensuring uniform and e ffective application of  competition rules 
by national courts in the EU. The Commissi on has subsequently submitted its written 
observations opposing tax deductibility of competition fines. 
2.3. T-301/04, Clearstream Banking AG a nd Clearstream International SA v. 
Commission  
Refusal to supply certain post-trading services in the financial sector 
155. The case concerns an appeal before th e CFI launched agains t the Commission's 
decision COMP/38096 Clearstream (Clearing and Settlement) . The Commission 
found in its decision that Clearstream Banking AG (CBF), the German Central 
Securities Depository, and Clearstream SA , its 100% shareholder, had infringed 
Article 82 EC by refusing to supply certain clearing and settlement services
135 to one 
of its customers, Euroclear Bank SA (EB)  as well as by applying discriminatory 
prices to the same customer. 
156. In their appeal, the appli cants contested the definition of the product market and 
hence the dominant position held by CBF. Th e applicants claimed also that their 
conduct was not abusive with regard to the refusal to supply as the difficulties resulting in the delay of linking EB to CBF's settlement processing system were 
attributable to EB. Furthermore, the a pplicants argued that the pricing was not 
discriminatory, as foreign central securi ties depositories (CSDs) and international 
central securities depositories (ICSDs) like EB received different service packages 
involving different costs. 
157. On 9 September, the CFI dismissed the appe al in its entirety. The judgment of the 
CFI confirming the Commission's decision  is particularly important since 
competition in the post-trading arena is  still limited and national monopolies of 
historic incumbents are often rein forced by various state measures. 
158. First, as regards market definition the Comm ission argued that a distinction had to be 
made between primary and secondary clear ing and settlement services. The CFI 
confirmed this definition by rejecting the applicants' argument that the persons requesting post-trading clearing and settlement  services are the sellers and the buyers 
of the security transa ction and that theref ore there should be one general market for 
clearing and settlement services in which th ose seeking services are the parties to the 
securities transaction. The CFI reached the conclusion that CBF's custody monopoly 
in respect of securities issued under Germ an law results in a monopoly of primary 
                                                
 
135 Clearing and settlement are post-trading processes in relation to the transactions  in securities. Clearing 
ensures that the seller and the buyer have agreed on an identical transaction and that the seller is entitled to sell the securities in question. Settlement refers to the final transfer of the ownership of the securities 
from seller to buyer and the final transfer of the funds from buyer to seller as well as the relevant 
annotations in securities accounts. 
EN 42   EN clearing and settlement for those securities.  This market definition proposed by the 
Commission and the differentiation betw een primary and secondary clearing and 
settlement services constitutes a good basis for future cases. 
159. Secondly, the case was the first major case relating to the technically complex and 
evolving sector of cross-bor der post trading services for securities. Cross-border 
arrangements in the EU on clearing and sett lement are still considered to be complex 
and fragmented, imposing costs, risks and ine fficiencies on investors, institutions and 
issuers. 
2.4. Case C-202/07 P, France Télécom SA v. Commission 
Criteria for establishing an abuse in the form of predatory pricing 
160. On 2 April the ECJ dismissed in its en tirety France Télécom's appeal of a 2007 
judgment of the CFI136. The 2007 judgment had confirmed the Commission decision 
of 2003 imposing a fine of EUR 10.35 million on Wanadoo Interactive S.A. 
(Wanadoo), at the time a subs idiary of France Télécom137, for an abuse of a 
dominant position in the fo rm of predatory pricing.  
161. The judgment of the ECJ confirms the Commission's finding that Wanadoo abused 
its dominant position on the French market for high-speed internet access for residential customers by charging below cost prices for its Pack eXtense and 
Wanadoo ADSL services. The Commission also found that Wanadoo had developed 
a plan aimed at excluding competitors from the market for high speed internet access, restricted market entry by competi ng internet providers and thus harmed 
consumers.  
162. In 2007, the CFI dismissed France Téléco m's action for annulment against the 
Commission decision, holding that the Commission correctly concluded that 
Wanadoo had abused its dominant position in the French market for high-speed 
internet access. The CFI uphe ld all aspects of the Comm ission decision including the 
amount of the fine imposed on Wanadoo. 
163. In its judgment the ECJ approved the CFI's and Commission's defi nition of predatory 
pricing as it results from the previ ous case law such as AKZO v. Commission
138, and 
Tetra Pak v. Commission139. The ECJ confirmed, first, that price below average 
variable costs must always be consider ed abusive and, second, that prices below 
average total costs but above average variable costs are only to be considered abusive 
if an intention to eliminate competitors can be shown. 
164. In addition, the ECJ held that the CFI was right in confirming that for a finding of 
predatory pricing the Commission was not re quired to prove that Wanadoo had the 
possibility of recouping  its losses. The ECJ also stated  that this interpretation does 
not preclude the Commission from finding that the possi bility of recoupment of 
                                                 
136 Case T-340/03. 
137 Wanadoo merged with France Télécom on 1 September 2004. 
138 Case C-62/86 AKZO v. Commission . 
139 Case C-333/94 P Tetra Pak v. Commission . 
EN 43   EN losses may be a relevant factor in assessi ng whether or not the practice concerned is 
abusive. 
165. In addition, the Court held that demonstratin g that it is possible to recoup losses is 
not a necessary precondition for finding a predat ory pricing. It stated that the lack of 
any possibility of recoupment  is not sufficient to prev ent the undertaking concerned 
reinforcing its dominant position, so that the degree of competi tion existing on the 
market is further reduced and customers suff er loss as a result of the limitation of the 
choices available to them. Neve rtheless, the Court stated th at this does not preclude 
the Commission from finding such a possibility  of recoupment to be a relevant factor 
in assessing whether or not the practice concerned is abusive, for example to assist in excluding economic justificati ons other than the eliminatio n of a competitor or in 
establishing that a plan to eliminate a competitor exists. 
2.5. Case C-125/07 P e.a., Bank Austria v Commission 
Burden of proof as regards effects of price fixing cartels 
166. In a judgment rendered on 24 September
140, the ECJ clarified the Commission's 
burden of proof in qualifying price fixing carte ls as "very serious" due to restrictive 
effects on the market141. 
167. In 2002, the Commission qualified a price fixing cartel on the Austrian banking 
market (the "Lombard Club")142 for several reasons as "v ery serious" amongst others 
because it led to effects on the market  concerned. Indeed, the Commission could 
prove that the banks had implemented th eir agreements. The banks had claimed, 
based on an economic study, that the cartel  had had no effects on the Austrian 
banking market. The Commission rejected the c onclusion in the st udy that the cartel 
had not affected the business strategies of  the banks involved. The possibility that 
interest rates and bank profit margins in Au stria developed more or less similarly to 
those in a neighbouring country  cannot prove that the carte l did not produce effects 
on the Austrian market. In the Commission' s view, it was only relevant whether and 
to which extent the cartel influenced the ba nks' business strategies and decisions, i.e.: 
whether the agreed interest rates we re also implemented. The Commission 
demonstrated that this was indeed the case, based on ample evidence in the file. 
168. The CFI in 2006 upheld the Commission's conclusion143. 
                                                 
140 Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P. 
141 The Commission's then Guidelines on Fines provided, at Section 1, that, for the purpose of calculating 
the amount of fines, the basic amount is to be dete rmined according to the cr iteria set out in Article 
15(2) of Regulation No 17, namely the gravity and duration of the infringement. In assessing the gravity 
of the infringement, account must be taken of its nature, its actual impact on the market, where this can 
be measured, and the size of the relevant geographic market. Infringements will thus be put into one of 
three categories: minor infringements, serious infringements and very serious  infringements.  
142 Commission Decision of 11.6.2002 (OJ L 56, 24.2.2004, p. 1) 
143 T-257/02 e.a. Bank Austria v Commission , 14.12.2006. For finding that a cartel is very serious due to 
effects on the market, it was not necessary for the Commission to demonstrate that the agreement had 
actually led to higher transaction prices than thos e which would have prevailed in the absence of the 
cartel. Such burden of proof would in  fact absorb considerable resour ces, given that it would necessitate 
hypothetical calculations based on economic models  whose accuracy it would be  difficult for the Court 
to verify. 
EN 44   EN 169. However, on appeal, Advocate General ( AG) Bot recommended that the ECJ set 
aside the CFI's ruling on this point and c onsequently that the fines be reduced144. AG 
Bot found that a fine distinction s hould have been drawn between the 
implementation of a cartel and its effects on the market . The Commission could not 
derive effects on the market from the mere  implementation of the cartel. Rather, the 
Commission should have inves tigated transacti on prices before the infringement 
started and after it was implemented. The AG did not further consider the CFI's view 
that such burden of proof was disproportionate145. Advocate General Bot also upheld 
the appellants' arguments regarding the attr ibution to central institutions of market 
shares held by banks operating in decentralised sectors. 
170. On 24 September, the ECJ finally did not follow the opinion of its AG on these two 
points, and upheld the CFI judgm ent in all respects.  Like the CFI, the ECJ found that 
the Commission had sufficiently demonstrated  effects on the mark et by proving the 
implementation of the cartel. The cartel me mbers had announced the agreed prices to 
their customers, they gave instructions to employees to use them as a basis for 
negotiations and they monitored their appli cation by competitors' and their own sales 
departments146. The ECJ also upheld the attribution to central institutions of market 
shares held by banks in the decentralised sector. The ECJ noted that the Commission 
had thereby sought to ensure that the leve l of fines imposed on central institutions 
appropriately reflects the gravity of their own unlawful conduct. The central 
institutions had played an essential role  within their respective networks through 
exchanges of information and as representa tives of the decentralised sectors within 
the cartel.  
2.6. Case C-97/08P, Akzo Nobel et al. v. Commission 
Liability of a parent company for the behaviour of a subsidiary 
                                                 
144 Opinion of AG Bot delivered on 26.3.2009 in Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-
137/07 P. AG Bot considered that the fact that the Commission did no t demonstrate the alleged effects 
of the infringement on the market called in question the assessment of the starting amount of the fine fixed by reference to the gr avity of the infringement.  
145 T-257/02 e.a. Bank Austria v Commission , of 14.12.2006 ("Moreover, it would be disproportionate to 
require such proof …"). Indeed, demonstrating a causal link between a cartel agreement and final 
consumer prices presupposes the use of highly abstract hypothetical models which would have to 
eliminate external factors influencing final consumer prices such as, for instance, inflation or the 
collapse of the stock market as a consequence of the financial crisis in 2008.  
146 C-125/07 e.a. Bank Austria v Commission , of 24.9.2009 and T-257/02 e.a. Bank Austria v Commission , 
of 14.12.2006. Both Courts also dismissed as irreleva nt the fact that some members of the cartel had (as 
it so often happens) cheated on their competitors by offering prices under/above the agreed upon interest rate. See also Case C-534/07 Prym and Prym Consumer  v Commission , of 3.9.2009, paragraphs 
79-83. 
EN 45   EN 171. On 10 September the ECJ confirmed its ju risprudence and the judgment of the CFI147 
on the question if a parent company may be held liable for the payment of the fine 
imposed resulting from the involvement of the subsidiary in an infringement. The 
judgment confirmed that in case a parent company holds – direc tly or indirectly - 
100% of the capital of the subsidiary which infringe d competition rules, the 
Commission may apply the rebuttable pres umption that the parent company did 
exercise decisive influence over the conduct of the subsidia ry and thus infer that both 
constitute a single undertaking within th e meaning of Article  81 EC In these 
circumstances, it is for the parent company to show that the subsidiary was able to determine its business policy autonomousl y, having regard in particular to the 
economic and legal links betw een them such as a unitary  organisation of personal, 
tangible and intangible elements pursuing a specific economic aim on a long-term 
basis. In case the parent company fails to rebut the presumpt ion the Commission may 
hold the parent company liable for the paymen t of the fine as imposed on the directly 
involved subsidiary.  
C – MERGER CONTROL  
1 S HAPING AND APPLYING THE RULES  
172. In 2009 the number of mergers notified was below the record levels of previous 
years. In total, 259 transactions were  notified to the Commission and 243 final 
decisions were adopted. Of these final de cisions, 225 transactions were approved 
without conditions during Phase I, 82 decisions were approved without conditions under the normal procedure and 143 (or 63.6%) were cleared using the simplified procedure. A total of 13 tr ansactions were cleared in Phase I subject to conditions. 
173. Furthermore, the Commission initiated five Phase II proceedings, with three 
decisions adopted subject to conditions. Tw o cases were withdrawn in Phase II and 
six cases in Phase I. No prohibition decisions were taken during the year. 
174. The legal powers provided for in Article 21(4) of the EC Merger Regulation allow 
the Commission to intervene in order to deter and ultimately prevent Member States from preventing or restricting the takeove r of domestic companies by companies 
from other Member States on unjustified grounds. This provision also provides a 
procedural framework to exchange views in  a timely manner with Member States to 
distinguish interventions with a "protecti onist" motivation from a genuine pursuit of 
legitimate public interests (other than co mpetition). From its inception, there have 
been fewer than 20 cases in application of Article 21. After a period of more frequent 
                                                
 
147 Case T-405/06, Arcelor Mittal et al. v Commission , judgment of 31.3.2009, paragraph 89; Case T-
85/06, General Quimica,SA et al. v Commission , judgment of 18.12.2008, paragraph 62; Case T-69/04 
Schunk et al. v Commission , judgment of 8.10.2008, paragraph 56; Case T-112/05, Akzo et al. v 
Commission  [2007] ECR II-5049, paragraph 60; Joined Cases T-71/03 etc, Tokai Carbon and Others v 
Commission  [2005] ECR II-10, paragraph 60; Case T-354/94, Stora Kopparbergs Bergslags v 
Commission  [1998] ECR II-2111, paragraph 80, upheld in case C-286/98P, Stora Kopparbergs 
Bergslags v Commission , [2000] ECR I-9925, paragraphs 27, 28 and 29; Case 107/82, AEG v 
Commission , [1983] ECR 3151, paragraph 50. See also the Opinion of AG Kokott in case C-97/08 - the 
appeal to the Akzo judgment in case T-112/05 paragraphs 46-76. 
EN 46   EN application of Article 21, in 2009 no new proceeding was opened under this 
provision. 
1.1. The Merger Report 
175. On 18 June the Commission presented a re port to the Council on the application of 
the European Community Merger Regulation (ECMR)148. The Commission had an 
obligation to repor t to the Council on the application of the ECMR five  years after its 
entry into force. In preparation for th is report, the Commission launched a public 
consultation which focused, in particular, on the application of the jurisdictional 
thresholds and the referral mechanisms, but  also on general issu es relating to the 
application of the ECMR. 
176. The report concludes that overall, the jurisdictional thresholds and the referral 
mechanisms have provided the appropriate legal framework for a flexible allocation 
and re-allocation of cases between the Commission and the NCAs. In fact, the 
jurisdictional thresholds, including the "two -thirds rule", have in most cases been 
effective in distinguishing cas es that have Community re levance from those with a 
primarily national nexus. Als o, the pre-notification referr al mechanisms introduced 
in 2004 have significantly contributed to the efficient allocation of  merger cases to 
the authority which is more appropriately placed to carry out a review and have 
avoided unnecessary parallel pr oceedings. For example, it is  estimated that during 
the period 2004 to 2008, these referral mechanisms reduced the number of potential parallel proceedings from around 1 000 to about 150. During the same period 40 cases were referred from the Commission to  NCAs. The report also finds that the 
post-notification mechanisms in the hands of the Member States provided by the 
ECMR have proven to continue to be usef ul in re-allocating cases notwithstanding 
the introduction of the pre-notif ication referral mechanisms. 
177. The report nevertheless highlights areas wh ere there may be potential room for 
improvement: For example there were a sma ll number of cases which potentially had 
cross-border effects across the Community  which nevertheless were assessed by 
NCAs as a result of the operation of the "two-thirds rule". Also, in some cases, 
companies continue to notify mergers to th ree or more NCAs rather than make a 
single notification to the Commission (a bout 100 cases in 2007). There may therefore 
be further scope to achieve a "one-stop-s hop" review for such cases, e.g. through the 
increased use of referral mechanisms. Conve rsely, there may also be scope for more 
referrals in the direction of the Member St ates. In this regard, some concerns were 
raised by stakeholders regarding the cumb ersomeness and the lengt h of the pre- and 
post-merger referral procedures. The public consultation also suggested that efforts 
towards further convergence of  the various national rules governing merger control 
and their relation to Community rules would be  beneficial to alle viate any difficulties 
encountered in connection with multiple filings. 
                                                
 
148 Communication from the Commission to the Council of 18 June 2009, Report on the functioning of 
Regulation No 139/2004 (COM(2009)281 final) , and the accompanying Commission staff working 
paper (SEC(2009)808 final/2). 
EN 47   EN 2. S ELECTED COURT CASES  
2.1. Case C-440/07 P, Commission v. Schneider Electric SA 
Causal link between an infr ingement of the rights of  defence by the Commission 
and the loss suffered by a notifying party in the context of non-contractual liability 
178. By its appeal, the Commission requested th e ECJ to set aside the judgment of the 
CFI in which the CFI found the Community liable in damages as a result of the 
infringement by the Commission of the rights of the defence of the notifying undertaking (Schneider) in th e merger case COMP/M.2283 Schneider/Legrand . The 
ECJ partially annulled the CFI judgment. Th e ECJ upheld the CFI's finding that, in 
the present case, the violation of the rights  of the defence resulted in a sufficiently 
serious breach of Community law capable of engaging the non-c ontractual liability 
of the Community. 
179. However, the ECJ ruled that the CFI incorrect ly held there to be a direct causal link 
between the Commission's illegality and the loss suffered by Schneider as a result of 
the reduction in the transfer price of the target company (Legrand). The ECJ 
considered that the direct cause of the damage claimed by Schneider was Schneider's 
decision to allow the transfer of Legrand to  take effect, which it was not obliged to 
take following the annulment by the CFI of  the Commission deci sions declaring its 
proposed acquisition of Legrand incompatib le with the common market and ordering 
it to separate itself from Legrand. 
180. The ECJ nevertheless upheld the judgment of the CFI in so far as it ordered the 
Community to make good the loss repres ented by the expenses incurred by 
Schneider as a result of its participation in the resumed merger control procedure following the annulment by the CFI of the Commission's incompatibility and separation decisions. 
II – Sector Developments 
A – FINANCIAL SERVICES  
1. O VERVIEW OF SECTOR  
181. Financial markets continue to be crucial to the functioning of modern economies. 
They are the lifeblood of the real economy as they provide and facilitate businesses' 
and consumers' access to finance. The more integrated and the more competitive they are, the more efficient the allocation of capital and long-run economic performance 
will be. With the financial and economic crisis continuing into 2009, the year has 
been another extremely difficult one for the financial sector and EU governments 
have continued to take a series of emergency measures. 
182. Therefore, in the field of State aid, the Commission has played a leading role by 
providing legal certainty as regards Member States' m easures. Building on its 2008 
Communications on Banking and Recapital isation, the Commission issued an 
EN 48   EN Impaired Assets Communication on 25 February149 and a Restructuring 
Communication on 22 July150. 
183. The Commission also ensured that nati onal measures did not exported problems 
across borders. The Commission approved, subject to conditions, a number of 
restructuring measures in respect of banks  that have received state support which 
should lead to the restoration of long-term viability in the sect or and a return to 
normal market conditions . In 2008 and 2009, the Commission authorised over 30 
rescue schemes in 19 countries and a large num ber of measures in favour of specific 
credit institutions. The overall au thorised aid amounts to more than 
EUR 3.630 billion or approximately 29% of the EU-27 GDP151. 
184. The Commission's actions contributed to maintaining financial stability whilst 
ensuring that a level playing field to th e benefit of consumers and competition. 
185. In 2009 merger activity in the financial sector  declined as a result of the financial 
crisis. However, cases notified in 2009 a nd the implementation of remedies from 
earlier cases often raised difficult ju risdictional and procedural questions. 
2. P OLICY DEVELOPMENTS  
2.1. Financial services – State aid 
The financial crisis 
186. Since the beginning of the fina ncial crisis, the role of the Commission in the field of 
competition policy was twofold: (i) to suppo rt financial stability by rapidly giving 
legal certainty to measures taken by Member  States and (ii) to maintain a level 
playing field and ensure that national aid measures would not simply export 
problems to other Member States.  
187. In 2009, the restructuring of many European banks became the biggest challenge. 
Restoring the viability of the EU banking  sector as a whole includes restoring 
viability of individual financial institutions. Restructuring is a prerequisite for the 
return to viability of credit institutions, le nding to the real econo my, re-establishing a 
level playing field across inst itutions, and for the smooth functioning of the European 
internal market. 
188. The restructuring process of banks is based on the crisis-related Stat e aid rules as laid 
down in the Restructuring Communicati on of 22 July 2009. The communication 
provides guidance on the conditions under whic h restructuring aid for banks in need 
of financial assistance beyond an emergenc y rescue can be authorised. The first 
principle is the return to long-term viability  without State aid, based on a sound 
restructuring plan (including stress-testing of the bank's financial projections). The 
second principle is burden sharing  between the bank/its stak eholders and the State. 
Shareholders and other capital holders must  adequately contribu te to bearing the 
                                                 
149 OJ C 72, 26.3.2009. 
150 OJ C 195, 19.8.2009. 
151 EU-27 GDP of 2008. See also Stat e aid Scoreboard Autumn 2009 at: 
http://ec.europa.eu/competition/state_aid/studies_reports/studies_reports.html 
EN 49   EN costs of financial, organisational and othe r necessary restructuring measures. Finally, 
the third principle requires measures to limit competition distortions . These usually 
comprise structural measures (divesti tures) and behavioural measures (e.g. 
acquisition bans, limitations to aggressive  commercial behaviour financed by State 
aid). The measures are decided on a case-by-case basis. 
189. The Commission requests de tailed regular reports on the implementation of the 
restructuring plans. Moreover, separate ma nagers, monitoring trus tees and divestiture 
trustees can be appointed to ascertain that  the approved restructuring plans are being 
implemented properly. 
190. In the course of 2009, the discussion began on how to return to market discipline in 
the financial sector. While it seemed too early to withdraw s upport measures to the 
economy and the financial sector, a debate  about how to incentivise banks to 
progressively return to the markets began. 
191. Discussions on a gradual phasing out of fina ncial support to banks when the situation 
allows it took place with Member States  and the European Central Bank in the 
context of the wider policy debate on how to best pave the way for a return to normal 
market conditions.  
Restructuring cases 
192. In 2009, the Commission approved, subject to specific conditions, a number of 
restructuring measures in respect of banks that received State support. The 
restructuring aims at restoring long-term viability of the institutions concerned without the need for further State aid and at en couraging the return  to normal market 
conditions in the financial sector. 
Commerzbank AG (DE) 
193. Commerzbank is a credit institution with a total group balance sheet of 
approximately EUR 1 100 billion. It is the second biggest private credit institution in 
Germany since its acquisition of Dres dner Bank AG ("Dresdner Bank") in 2008.  
194. In December 2008 and January 2009, Commerz bank received capital injections l 
amounting to EUR 18.2 billion from SoFFin
152 under the German bank rescue 
scheme. The capital was granted in the form of  ordinary shares (25% plus one share) 
and silent participations. In addition, So FFin provided a guarantee for bond issuances 
worth EUR 15 billion.  
195. On 7 May, the Commission approved that  recapitalisation of  Commerzbank (The 
total amount corresponds to 8.2% of risk weighted asse ts). It was one of the 
Commission's first decisions on a restructuring case origin ating from the financial 
crisis.  
196. The main element of Commerzbank's viab ility plan is the focus on its core 
businesses, namely retail and corporate ba nking. To achieve that, Commerzbank will 
                                                 
152 The Sonderfonds Finanzmarktstabilisierung , created by the German government for dealing with the 
banking aid measures. 
EN 50   EN sell a significant amount of ownership stak es and other assets, amounting to roughly 
45% of its current balance sheet total.  
197. The plan also includes a number of measur es which are aimed at keeping the aid to 
the minimum necessary and which, at the same time, limit its potential to distort competition. These measures include dive stments by Commerzbank of activities and 
the sale of subsidiaries (including the sale  of its subsidiary Eurohypo) to address the 
Commission's concerns regardi ng possible distortions of co mpetition due to the large 
size of the aid granted. 
198. The Commission found that the large-scal e divestments and the suspension of 
payments of dividends and in terest provided for in the plan limit the aid to the 
minimum necessary and ensure an adequate  contribution of the bank and its owners 
to the restructuring.  
199. In addition, behavioural measures in th e Commission's Decision limit organic and 
external growth at the expense of competitors that have not received State support, which have become a standard of other restructuring decisions in the meantime. 
Commerzbank is subject to a ban of acqui sitions of financial institutions and is 
furthermore not allowed to do business unde r more favourable price conditions than 
its top three competitors in markets/products  where it has a market share above 5%. 
Commerzbank must not pay out dividends  and coupons on own funds instruments 
for the business years 2009 and 2010 unless th ere is a binding legal obligation to do 
so. Moreover, Commerzbank must not liquidate  any reserves in order to make such 
payments possible. 
ING (NL) 
200. Based in the Netherlands, ING operates in  more than 50 countries, with a balance 
sheet of EUR 1.332 billion in 2008.  
201. In November 2008 the Dutch authorities gran ted a recapitalisation for the benefit of 
ING amounting to EUR 10 billion. On 26 January 2009, the Dutch government 
provided ING with an impaired asset meas ure of USD 39 billion. In October 2009, 
the Netherlands have provided a detailed co mmitment to bring the measure fully in 
line with the Impaired Asse ts Communication of 25 Febr uary 2009 in particular by 
raising the guarantee fee, lowering the funding fee and re ducing the management fee. 
In addition, ING had received guarantees  on medium-term liabilities amounting to 
about EUR 12 billion under the Dutch gua rantee scheme. The total aid amount 
corresponds to 5% of risk weighted assets. 
202. On 18 November 2009, the Commission a pproved ING's restructuring plan and 
illiquid asset back-up facility. Actions in the plan include the reduction of the risk 
profile of ING's balance sheet and the divestment of activities amounting to 45 % of the balance sheet, including ING's insuran ce and asset management. The Netherlands 
also committed that ING adheres to a temporary acquisition ban of other firms. 
203. The plan also envisages additional guar antees of up to EUR 10 billion provided by 
the Netherlands to make this carve-out po ssible. In addition to regular monitoring 
reports, trustees will be a ppointed, subject to the Comm ission approval, to monitor 
the implementation of various commitments foreseen in the restructuring plan. The 
Netherlands committed to a clear timetable for implementing the restructuring plan. 
EN 51   EN 204. The Commission considered the proposed m easures sufficient in respect to burden-
sharing, and appropriate and proportional to offset the competiti on-distorting effects 
of the aid measures in question, namely  the recapitalisation, the impaired asset 
measure, the already granted liability guarantees and the liability guarantees foreseen in the restructuring plan. Also, the Commission considered that additional aid deriving from the modified terms of the re payment conditions for the capital from the 
Netherlands was sufficiently taken into account with the presented measures foreseen in the restructuring plan  and can therefore be considered compatible. 
205. In particular the structural and behavi oural commitments as described above are 
sufficient to mitigate the distortions of  competition stemming from such a large 
amount of aid. The use of trustees fo r monitoring the implementation of the 
restructuring plan is also viewed positively. 
Royal Bank of Scotland (UK) 
206. RBS has been particularly hit by the financ ial crisis, because of  its risky lending 
activities, its aggressive ac quisition policy and its very leveraged balance sheet. As a 
consequence, RBS has received the larges t aid by a Member State with GBP 45.5 
billion of recapitalis ation, a GBP 8 billion of continge nt capital and participation in 
the UK asset protection scheme for a portfolio  of GBP 281 billion of impaired assets 
(total restructuring aid be tween 11.3% and 19.6% of risk weighted assets). As a 
consequence, the State is now the controlling shareholder with an economic ownership of 84% of the capital of the bank. 
207. The restructuring plan was submitted to the Commission on 2 June 2009 and is based 
on the run-off of a risky and funding-cons uming loan portfolio. These actions are 
necessary to restore the bank's long-term vi ability. Following the discussion with the 
Commission, the plan also c ontains some material dive stments as well as some 
behavioral commitments in order to address issues of viability, burden-sharing and 
limitations of distortions of competition. In addition, following a detailed evaluation 
of the expected losses of the assets c overed by the asset protection scheme, it was 
decided to increase the first loss tranche – the amount of credit losses borne by RBS - 
from GBP 43 billion to GBP 60 billion. This means that the State will only 
indemnify the bank for the losses exceeding that amount. This significant adjustment 
put the measure in line with the Impair ed Assets Communication of 25 February 
2009.  
208. The divestments proposed consist of: (i) a di vestment of 318 branches and associated 
customers in the SME and mid-corporate ba nking market; (ii) the sale of Global 
Merchant Services, a transaction service busin ess; (iii) the sale of the RBS insurance 
business, which is the leading UK general insurance company; (iv) the sale of a 
business active in commodities trading; and v)  the sale of a contingent divestment 
representing in the event its core Tier 1 capital ratio declines to below 5% or RBS 
falls short of its balance sheet reduction targets. 
209. RBS will respect an acquisition ban for at least three years. RBS will pay an 
adequate remuneration for its capital injecti on which is in line with the Commission's 
Recapitalisation Communication, as well as  for its guarantees on medium-term 
liabilities in line with the UK guarantee sche me which, in turn, is in line with the 
Banking Communication. Except when it is legally compulsory, RBS will not pay 
EN 52   EN dividends or coupons on existing hybrid capital instruments for a period of two 
years.  
210. The bank also committed to a cap in its overall annual position in the Global Debt 
League Table, to be in the leading edge of implementing the G20 principles and the 
UK Financial Services Authority (FSA) c ode on remuneration practices and bonuses, 
as well as not to make any reference to State support in its marketing.  
211. The Commission considered that RBS' restruct uring plan entails sufficient structural 
and behavioural measures to address the di stortion of competition created by the aid 
and that the restructuring measures are ap t to enable RBS to restore its long-term 
viability. Therefore, the Co mmission approved under EU State aid rules the impaired 
asset relief measure and the restructuri ng plan of Royal Bank of Scotland on 14 
December 2009.  
212. The restructuring plan has a number of provi sions with regards to the monitoring of 
the plan (monitoring trustee), the enforcemen t of divestments (div estiture trustee if 
divestments not completed by the deadlines) and the preservation of the value of the 
businesses (hold separate manager). 
Lloyds Banking Group (UK) 
213. The Lloyds Banking Group ("LBG") was formed  through the acquisition of Halifax 
Bank of Scotland (HBOS) by Lloyds TSB a nnounced in September 2008. It rapidly 
turned out that the situation of HBOS was much worse than expected. Therefore, this 
acquisition, while allowing th e group to consolidate its leading position on the UK 
retail market, contributed to LBG's difficulties which lead to the need for State intervention in the bank.  
214. In its decision of 13 October 2008, the Comm ission approved a package of financial 
support measures to the banking industry in the UK. On the basis of that scheme 
LBG received a capital injection of GBP 17 billion, of which GBP 2.3 billion was 
repaid in June 2009.  
215. In addition, the State participated in LBG's rights issue of November 2009, 
amounting to a State participation of GBP 5.9 billion to maintain its 43.5% 
shareholding. In total, the recapitalisati ons by the State corres ponds to 4.1% of the 
risk weighted assets of the bank at the end of 2008. 
216. LBG submitted a restructuring plan on 16 Ju ly 2009. After discussions with the UK 
authorities, the Commission approved a m odified plan on 18 November 2009. The 
measures described in the approved restructur ing plan will result in the disposal or 
run-down of non-core businesse s and activities resulting in an asset reduction of 
around GBP 181 billion by the end of 2014. In  order to limit the distortion of 
competition created by the aid LBG will divest part of its UK retail banking activities 
by selling more than 600 branches accounting for a market share of 4.6% in the current account segment. In addition, LBG will respect a number of behavioural commitments such as an acquisition ban for at least three years.  
217. LBG will pay an adequate remuneration for its  capital injection which is in line with 
the Recapitalisation Communication. LBG will also pay an adequate remuneration for its guarantees on medium-term liabilitie s in line with the UK guarantee scheme 
EN 53   EN which, in turn, is in line with the Bank ing Communication. Finally, LBG will comply 
with the Commission's policy on Tier 1 and Ti er 2 capital instruments, i.e. during 
two years LBG will not pay investors any coupon on existing hybrid capital 
instruments (issued before 3 November 2009) unless there is a lega l obligation to do 
so. 
218. The Commission concluded that the restruct uring plan enables LBG to restore its 
long-term viability, is sufficient in resp ect to burden-sharing requirements and 
contains sufficient structural and behavioural measures to offset the distorting effects 
of the aid measures in question. The Comm ission has therefore concluded that the 
aid was compatible pursuan t to Article 87(3)(b) EC. 
KBC 
219. KBC is a Belgium-based bank with a total balance sheet of EUR 355 billion (as per 
December 2008), which got into difficulties largely because of the substantial 
downward revaluation of its portfolio of Collateralised Debt Obligations (CDOs). 
220. In December 2008, KBC received a recapitalis ation of EUR 3.5 billion. This measure 
was approved for a period of six months a nd subject to the submission of a plan 
showing how KBC would return to viability within this period.  
221. On 22 January 2009, a second recapitalisation of EUR 3.5 billion was announced by 
the Belgian authorities. On 14 May 2009, an a sset relief measure, covering the losses 
on a CDO portfolio with a notional va lue of EUR 20 billion was announced by 
Belgium. Consequently, the total aid amount  corresponds to at l east 4.1% of risk 
weighted assets. On 30 June 2009, the Commis sion initiated the formal investigation 
procedure with regard to several aspects of that asset relief measure, while it 
approved the second recapitalis ation as rescue aid for a period of six months and 
subject to the submission of a restructuring plan. The Belgian authorities submitted a restructuring plan on 30 September 2009. 
222. On 18 November 2009, the Commission approv ed the restructuring plan, concluding 
that it met the criteria of the Restru cturing Communication. The Commission found 
that the restructuring measures proposed by the Belgian authorities were appropriate 
to enable KBC to restore its long-term vi ability through the run-off of KBC Financial 
Products, the unit that origin ated the CDOs which were the cause of most of its 
problems, and the divestment of subsidiari es that either cannot  operate on a stand-
alone basis or do not fit in th e refocused KBC business model. 
223. The restructuring plan furthermore provi ded for sufficient own contribution and 
burden-sharing through the listing of two fully-owned subsidiaries in the Czech 
Republic and Hungary on local stock exch anges and the divestment of KBC’s 
European Private Banking business unit. Th e Commission also c oncluded that KBC 
pays a remuneration for the aid which is hi gher than the minimum required in the 
Recapitalisation Communication.  
224. Finally, the Commission concluded that ap propriate and proporti onal measures to 
offset the market-distorting effects of the ai d measures in question have been put into 
place amounting to around 17% of KBC's total balance sheet. More specifically, this 
includes the sale of Centea (bank) and Fi dea (insurer) in Belgium, businesses in 
Central and Eastern Europe (CEE) as well as various me rchant banking and leasing 
EN 54   EN operations. These divestments should, amongst others, help stimulate competition on 
the concentrated Belgian market. KBC is al so subject to behavi oural constraints, 
including an acquisition ban a nd a price leadership ban in countries where the market 
share is higher than 5% (except Belgium) . Moreover, KBC will not pay investors any 
coupon on hybrid capital instruments during 3 years, unless there is  a legal obligation 
to do so. KBC will also refrain fr om calling hybrids during this period. 
2.2. Financial services – Merger control 
225. In 2009 merger activity in the financial sector  declined as a result of the financial 
crisis. However, cases notified in 2009 a nd the implementation of remedies from 
earlier cases often raised difficult jurisd ictional and procedural questions. Two main 
points should be noted about th e merger activity in the fina ncial sector in the past 
year. 
226. Firstly, the acquisition of majority stakes in financial institutions by Member States 
raised jurisdictional questions, in particul ar, whether nationalisa tions of financial 
institutions were notifi able under the Merger Regul ation. This re quired an 
assessment of whether or not the nationa lised entity would continue to act 
independently in the market post-nationalisation, or whether the nationalised entity should be considered as part  of a single economic entity with other state-controlled 
undertakings. In most cases, the Commission wa s satisfied that the arrangements put 
in place by the Member States ensured the independence of the nationalized banks and thus that no concentration took place.  However, in one case the facts were 
different and a concentration was subsequently notified
153. 
227. Secondly, divestiture commitments had to be closely monitored in a number of cases 
and the implementation of commitments was made more difficult by market 
circumstances. In the Fortis/ABN AMRO Assets154 case, dating from 2007, Fortis had 
committed to the Commission not to merge the Dutch activities of ABN Amro and 
Fortis without prior divestments. During th e financial crisis the Dutch State acquired 
control of the Dutch parts of both banks  and took over Fortis’ position in the 
Consortium Agreement. The Commission extended the deadline for divestiture 
several times.  The Parties finally signed a Sales and Purchase Agreement on 23 
December 2009 which remains subject to a certain number of closing conditions 
2.3. Financial services – Antitrust  
228. Whilst in some fields of the financial services sector like payment systems and 
payment cards, the Commission has been ve ry active in the past, the Commission is 
only starting to intensify its work in antitrust  in other sectors like  banking, securities, 
trading, clearing & settlement infrastructur e, insurance and financial market data 
distribution. 
                                                 
153 Case COMP/M.5528 SOFFIN/Hypo Real Estate . The nationalisation of Hypo Real Estate Bank by the 
Federal Republic of Germany. 
154 Case COMP/M.4844 Fortis/ABM AMRO Assets . 
EN 55   EN 2.3.1. Single Euro Payments Area 
229. SEPA (Single Euro Payments Area) was an  important focus of antitrust advocacy in 
the field of financial services  in 2009. SEPA is a self regulatory initiative launched 
by the European Banking Industry and led by the European Paym ents Council (EPC) 
to move to an integrated Euro payments area, ensuring that cross border payments 
become as easy and efficient as domestic payments. Once fully implemented, SEPA will cover credit transfers, payment cards and direct debits. SEPA, whilst primarily devised by the industry itself, is strongl y supported by the European Central Bank 
(ECB) and the Commission. Since it is ba sed on decisions of and agreements 
between undertakings that are (potential)  competitors it deserves close competition 
scrutiny. It also needs to be implemente d in accordance with th e existing Community 
framework for payment services. 
230. As a result of the inform al dialogue ("the Dialogue")  with the EPC launched in 
October 2007, a number of competition concerns were addressed. For instance the SEPA Card framework (SCF) was clarified to  the extent that SEPA compliant card 
schemes do not need to cover all 32 states of the SEPA territory. New schemes stand 
a real chance of entering th e market. In the course of 2009, informal discussions with 
potential new entrants – Payfair and Monnet in particular – were held, notably to 
clarify the compatibility of their envisaged financing mechanisms with competition rules and to encourage the creation of a competitive SEPA-wide payment cards 
market. 
231. The Dialogue continued in 2009, with a focu s on interchange fees for SEPA Direct 
Debit (SDD), governance of the EPC and of the schemes as well as standardisation. 
With SEPA Direct Debit launched on 2 N ovember 2009, it was urgent to provide the 
necessary incentives for banks to migrate.  As SEPA involves agreements between 
competing parties, collective financing a rrangements for SDD must comply with the 
EC Treaty competition rules. As a result, the Commission and the ECB clarified in 
September 2008 that a transitional default multilateral interchange fee (MIF) for cross border SDD transactions, as well as maintaining the same interchange fees as domestic  legacy direct debit for domestic  SEPA transactions c ould be envisaged for a 
short and well defined transition period. This  was taken on board in the discussions 
on and incorporated in Regulation 924/2009 which applies from 1 November 2009. 
In addition, the joint Commissi on and ECB statement of March 2009
155 clarified 
financing principles. On the basis of th e information available, the Commission's 
preliminary assessment was that there appeared to be no clear and convincing reasons for per transaction MIFs to exis t after 31 December 2012. This provided the 
industry with the clarity needed to agree on the launch of this scheme. The EPC took 
a decision to this effect at the end of March. 
232. In addition, the joint statemen t said that the Commission expected to be in a position 
to provide further guidance by November  2009 (provided that the Commission will 
have received the necessary contributions  by relevant market actors). Even though no 
submissions have been received, a Commi ssion working document that aims to 
consult on further guidance to participan ts in the SDD scheme as regards the 
assessment of collective fi nancing mechanisms under European competition rules 
                                                
 
155 Joint statement by the Europ ean Commission and the European Central Bank clarifying certain 
principles underlying a future SEPA direct debit (SDD) business model , SEC(2009)397. 
EN 56   EN was released and a public consultation la unched on 3 November, for contributions to 
be received by 14 December. The Commission will then decide on next steps and it may, if appropriate, decide to adopt fina l guidance to provide greater clarity and 
predictability on the general framework of analysis. 
233. The momentum created in the earlier stages of the Dialogue should help to tackle the 
remaining obstacles to the achievement of a truly competitive European payment cards market. Reinforcing and strengthening the competition dimension of SEPA will in turn help to achieve better services at a better price for retailers and consumers. 
2.3.2 Payment cards 
234. Following its decision prohibiting MasterCard 's cross border Multilateral Interchange 
Fees (MIFs) in 2007
156, the Commission continued to closely monitor MasterCard's 
implementation of the Decision. In June 2008, MasterCard withdrew its cross border 
MIFs. However, on 1 October 2008 it increa sed certain acquirer fees. This led to 
negotiations with the Comm ission's services on comp liance, which, in April 2009, 
resulted in a decision by MasterCard to reintroduce substantially lower cross-border 
MIFs157 to repeal the scheme fee increases, and to change its system rules as of July 
2009 in order to increase transparency and competition in the payment cards market
158. These changes were considered by Th e Commissioner for Competition to 
be sufficient in order to conc lude that it was not approp riate to pursue MasterCard 
for non-compliance with the Decision of 19 December 2007 or for infringing the antitrust rules. Implementation of these undertakings is closely monitored by an 
independent trustee. 
235. Further to the Commission’s opening of i nvestigations in March 2008 regarding 
VISA Europe's cross border MIFs, a SO wa s sent in April 2009. A hearing took place 
in this case on 30 November and 1 Decem ber 2009.The investigation is on-going. 
236. In addition, in May the Co mmission has commissioned a study comparing the costs 
of payments by cash and by cards, which is carried out by an ex ternal consultant 
2.3.3 Financial market data distribution 
237. The financial sector is highly dependent on the delivery of highly precise market data 
in relation to prices and st ructures of securities. A la rge number of internal and 
external banking applications rely upon enc oded standards and iden tifiers that permit 
to recognise securities and interoperate. Th e sector of market data distribution in 
general is characterised by a high degree of concentration, as well as by competition issues related to standard setting, IP right s and interoperability  or possibility to 
switch providers. 
238. In 2009 the Commission opened formal pro ceedings against Standard & Poors' for 
allegedly abusing its dominant position related to the issuance and licensing of 
                                                
 
156 COMP/34579 ; http://ec.europa.eu/competition/antitrust/cases/decisions/34579/en.pdf The decision is 
currently under appeal be fore the General court of the European Union. 
157 Following the new methodology, the maximum weighted average MIF per transaction is now reduced 
to 0.30% for consumer credit cards and to 0.20% for consumer debit cards. 
158 See IP/09/515  and MEMO/09/143 . 
EN 57   EN securities identifier codes called ISINs159. The Commission also opened formal 
proceedings against Thomson Reut ers concerning the use of RICs160. The 
Commission will investigate Thomson Reuter 's practices in the area of real-time 
market datafeeds and in particular, whether customers or competitors are prevented from mapping RICs to alternative identifiers  of other datafeed providers and whether 
this potentially creates a "lock-in"-effect fo r customers as the replacement of RICs in 
customers' applications may be a long and costly procedure. Such a practice may 
potentially constitute an infr ingement of Article 102 TFEU. 
2.3.4. Securities Trading, Clearing and Settlement (C&S) 
239. The implementation of the Markets in Fina ncial Instruments Directive (MiFID) has 
contributed to opening up these markets. Significant changes to market structures 
were observed, especially with the entry of new players like Multilateral Trading Facilities (MTFs) on the trading layers and new Central Counter parties (CCPs) on 
the clearing layer. On the post-trading layer, the Code of Conduct which was signed 
by the post-trade infrastructu re providers ensured positiv e developments on the level 
of unbundling the services and increasing the level of pr ice transparency. But the 
progress in the implementation of interopera bility links with the competitors that 
operate or will operate behind the same trading venue is slow. From a competition policy perspective, a closer scrutiny of the sector and the market practices that 
determine slow progress in opening up these markets might be required. 
240. While each case has to be assessed indivi dually, the Clearstream judgment (see 
paragraphs 155 to 159) brought some clarif ication with regard  to the market 
definition and the differentiation betw een primary and secondary clearing and 
settlement services, which will serve as a good basis for future cases. Furthermore, 
the judgment clearly illu strates special obligations of in cumbent infrastructures in the 
area of Clearing and Settlement (C&S) th at enjoy dominant positions in a given 
market when dealing with market access requests from other infrastructures wishing 
to compete. 
2.3.5. OTC Derivatives 
241. In the area of derivativ es, on 20 October, the Commi ssion adopted a Communication 
on ensuring efficient, safe and sound deriva tives markets that sets out the future 
policy actions to increase transparency of the derivatives market and reduce counterparty and operational risks. In res ponse to the Commission's call for central 
clearing of credit default swaps (CDS), ten major dealers committed to clear CDS on European reference entities through central  counterparties (CCPs) established and 
regulated in the European Union. The high degree of concentration in CDS markets 
both on the level of market data and transac tional levels as well as possibly emerging 
                                                
 
159 ISIN are the global identifiers for securities an d are governed by International Standardisation 
Organisation (ISO) standard 6166. They are indispensable for a number of operations that financial institutions carry out (for instance, reporting to au thorities or clearing and settlement) and cannot be 
substituted by other identifiers for securities . See also MEMO/09/508
. 
160 RICs are short, alphanum erical codes that identify securities and their trading locations. They are used 
to retrieve information from Thomson Reuters' real -time datafeeds, for exam ple real-time information 
on stock prices at a certain exchange. See also IP/09/1692  of 10.11.2009. 
EN 58   EN concentration on the clearing layer require  closer market monitoring from the 
competition policy point of view. 
2.4. Insurance sector 
242. In the field of insurance, the current Insurance Block Exemption Regulation (BER) 
expires on 31 March 2010 (see Section I.B.1.4.4. above). 
B – ENERGY AND ENVIRONMENT  
1. O VERVIEW OF SECTOR  
243. European energy policy is built around three pi llars: sustainabilit y, security of supply 
and competitiveness. Reducing greenhouse gases is vital to combating climate change, and all European consumers ( households as well as commercial and 
industrial users) depend heavily on the s ecure and reliable provision of energy at 
competitive prices. Interconnections between European gas and electricity grids need 
to be substantially improved. These objectiv es can only be met effectively through a 
properly functioning and competitive European energy market which sends the right signals to investors and policy makers. Th is requires continued efforts to open up 
Europe’s gas and electricity markets to co mpetition and to create a single European 
energy market. 
244. Competition policy in the energy field aims at ensuring a secure flow and supply of 
energy at competitive prices to the EU’s households and businesses. An open and competitive single EU market will guarant ee a secure provision of energy in the 
future by sending the necessary signals fo r investment and making it attractive to 
suppliers. Such a market will also be open to new energy mixes and will play a major 
role in developing and depl oying new environmentally frie ndly technologies. Prices 
that reflect costs will help encour age energy efficiency, thereby supporting 
sustainability and security of supply. 
2. P
OLICY DEVELOPMENTS  
245. The Internal Energy Market package pr oposed by the Commission on 19 September 
2007 was adopted in 2009. It is  recalled that the Commission's Final Report on the 
energy sector inquiry161 was a key element in the Commission's resolve to propose an 
improved regulatory framewor k for electricity and gas.  Subsequent to the conclusion 
of the first reading on 9 January 2009162, the European Parlia ment, the Council and 
the Commission entered into intensified di scussions ("trilogue")  with a view to 
reaching agreement on the package in the second reading. These discussions 
succeeded163 and the package was adopted on 13 July164. 
                                                 
161 Communication from the Commission: Inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 
into the European gas and electricity sectors (Fin al report) (COM(2006)851 final, 10.1.2007), and DG 
Competition report on energy sector inquiry (SEC(2006)1724, 10.1.2007). 
162 Adoption of the Council's Common Position on 9 January 2009. 
163 Cf Position of the European Parliament of 22 Ap ril 2009 and Council Decision of 25 June 2009. 
EN 59   EN 246. On 6 April the European Parliament a nd the Council adopted the climate-energy 
legislative package containing measures to fight climate change and promote 
renewable energy that had been proposed  by the Commission in January 2008. This 
package is designed to achieve the EU's un ilateral commitment of a 20% reduction in 
greenhouse gases compared to 1990 and a 20% share of renewable energy in the 
EU's total energy consumption by 2020. The package contains a directive on 
renewable energy establishing sustainability criteria for biofuels and bioliquids165 
which are also relevant for the assessment of State aid in that area. Moreover, as part 
of the package, the Council adopted a Directive revising the EU Emissions Trading System (ETS) for greenhouse gases
166. Under the revised directive up to 300 million 
emission allowances (at current EUA price worth some EUR 4 billion) will be set aside for the financing of clean technologi es. They will contribute to the funding of 
up to twelve demonstration projects in  carbon capture and storage and also 
innovative renewable energy projects. 
247. Furthermore, on 13 July the European Pa rliament Council adopted a regulation
167, 
which had been proposed by the Commission in November 2008 as a response to the 
financial crisis with the aim of reinforc ing the EU's energy supply. The projects in 
the field of energy supporte d under the regulation will contribute to achieving the 
objectives of security of energy supply and reducing greenhouse gas emissions. A financial envelope of nearly  EUR 4 billion is foreseen in the following 3 areas: gas 
and electricity interconnec tion, offshore wind technol ogy and Carbon Capture and 
Storage. 
248. After adoption of a second Stra tegic Energy Review in 2008
168 and endorsement of 
its main conclusions by the European Council in March 2009, the Commission adopted on 16 July a proposal for a Regula tion concerning measures to safeguard 
security of gas supply and repealing Directive 2004/67/EC
169. 
2.1. Antitrust enforcement 
249. The work in 2009 concentrated on carryi ng forward existing Article 102 and 101 
TFEU cases. 
                                                                                                                                                         
164 OJ L 211, 14.8.2009. 
165 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the 
promotion of the use of energy from renewable sources and amending and subsequently repealing 
Directives 2001/77/EC and 2003/30/EC (OJ L 140, 5.6.2009, p. 16). 
166 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending 
Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading 
scheme of the Community (OJ L 140, 5.6.2009, p. 63). 
167 Regulation (EC) No 663/2009 of the European Parliament and of the Council of 13 July 2009 
establishing a programme to aid economic recovery by granting Community financial assistance to 
projects in the field of energy (OJ L 200, 31.7.2009, p. 31). 
168 See Press release IP/08/1696, 13.11.2008 
169 COM(2009)363; see also IP 09/1153, 16.7.2009. The Commission also adopted a proposal for a 
regulation concerning the notification to the Commission of investment projects in energy infrastructure 
within the European Community and repealing Regulation (EC) No 736/96, COM(2009) 361; see also 
IP/ 09/1152, 16.7.2009. 
EN 60   EN 2.1.1. Decisions 
250. In RWE Gas Foreclosure170, the Commission adopted on 18 March a decision171 
under Article 9 of Regulation 1/2003 rende ring commitments previously proposed by 
RWE legally binding upon RWE and closing its investigation. The Commission had concerns that RWE may have abused the dominant position on its gas transmission 
network to restrict its competitors' access to  the network, thereby violating Article 82 
EC. The Commission's suspicion related to a possible refusal to supply gas 
transmission services to other companies and to network-relate d behaviour aiming at 
lowering the margins of RWE's downstream competitors in gas supply ("margin squeeze"). In reaction to the Commission's c oncerns, RWE offered to divest its entire 
Western German high-pressure  gas transmission network
172. On 5 December 2008, 
the Commission had consulted interested parties on the commitments proposed by 
RWE173. The respondents confirmed that the commitments were necessary and 
proportionate to remedy the concerns. The divestment constitutes a clear-cut and lasting solution to the concerns the Co mmission raised, ensuring that RWE will no 
longer be able to use the control of its ne twork to favour its own gas supply affiliate 
over its competitors. 
251. In E.ON/GDF
174 the Commission adopted on 8 July  a decision under Article 7 of 
Regulation 1/2003, imposing toal fines of EUR 1 106 million on E.ON and GDF Suez for market sharing in breach of EC Treaty rules on cartels and restrictive 
business practices (Article 81 EC)
175. After conducting surpri se inspections in 
2006176 and formally opening proceedings in July 2007177, the Commission had 
issued a SO to E.ON and GDF Suez in June 2008178 and both companies had the 
opportunity to fully exercise their rights of defence. The infringement took the form of an agreement between E.ON and GDF, acco rding to which they would not sell gas 
transported via the MEGAL pipeline in the other party's home market. The 
agreement was concluded in 1975, when the parties concerned decided to jointly 
build the MEGAL pipeline across Germany to import Russian gas into Germany and France. It was maintained after European  gas markets were liberalised, and only 
abandoned definitely in 2005.  The fines in this case were the first Commission fines 
imposed for an antitrust infringement in th e energy sector and constitute the highest 
fines imposed in 2009. 
252. The Gaz de France Foreclosure
179 case addresses suspected abusive behaviour by 
the French incumbent GDF Suez. The Commi ssion was concerned in particular that 
GDF Suez might be closing off competitors from access to gas import capacity into France and that it thereby might have in fringed EC Treaty rules on abuse of a 
dominant market position (Article 82 EC ) in the gas sector. GDF Suez proposed to 
address the Commission's concerns through a major structural reduction in its long-
                                                
 
170 Case COMP/39402 on the initiation of proceedings see MEMO/07/186, 11.5.2007. 
171 See IP/09/410, 18.3.2009. 
172 See MEMO/08/355, 31.5.2008. 
173 See MEMO/08/768, 5.12.2008. 
174 Case COMP/39401. 
175 See IP/09/1099, 8.7.2009. 
176 See MEMO/06/205, 17.5.2006. 
177 See MEMO/07/316, 30.7.2007. 
178 See MEMO/08/394. 
179 Case COMP/39316.  
EN 61   EN term reservations of gas import capacity in to France. The proposed remedies foresee 
a very significant immediate reduction of the long-term capacities held by GDF and a 
reduction to below 50% within 4-5 years.  The Commission received commitments 
offered by GDF Suez to remedy these concerns and reviewed the commitments in close cooperation with the French energy regulator. On 8 July, the Commission 
invited interested parties to present th eir comments on the commitments offered by 
GDF Suez. On 2 December, the Commissi on adopted a decision under Article 9 of 
Regulation 1/2003 making the commitments  legally binding on GDF Suez. The 
commitments will make it easier for competito rs to enter the French gas market and 
so contribute to delivering the benefits  of the Single Market to French energy 
consumers in terms of greater choice of gas supplier and more competition on prices. 
253. On 6 August, the European Commission accepted commitments made by Greece to 
ensure fair access to Greek lignite deposits
180. The commitments were made to 
comply with a decision adopted by the European Commission on 5 March 2008181 
which found that Greece had infringed co mpetition rules (Artic les 82 and 86 EC) by 
maintaining rights giving the state-owned electricity incumbent Public Power Corporation (PPC) privileged access to lignite. In particular, Greece has committed 
to granting exploitation rights to four lignite de posits through public tenders 
excluding PPC, to ensure that competitors of PPC in the Greek electricity market 
obtain access to lignite and to lignite-fir ed generation. The Co mmission's decision 
makes the proposals legally binding on Gree ce and requires the commitments to be 
implemented within one year. The Commission's decision makes sure that competitors of PPC will get fair access to  lignite, which is crucial to allow new 
entrants into the Greek el ectricity generation market. This should ensure greater 
choice of electricity supplier for Greek c onsumers and increase the security of 
supply. 
2.1.2. Other procedural steps 
254. The Commission addressed a SO to ENI S.p.A. on 6 March
182. The SO sets out the 
Commission's preliminary view that the management and operation of natural gas 
transmission pipelines by ENI may be in breach of EC Treaty rules on abuse of a 
dominant market position (A rticle 82 EC). This behaviour concerns an alleged 
refusal to grant access to capacity avai lable on the transport network (capacity 
hoarding), the granting of access in an al legedly less useful manner (capacity 
degradation) and an alle ged strategic limitation of investment (strategic 
underinvestment) in ENI's international transmission pipeline system. These 
practices allegedly took place  despite very significant s hort- and long-term demand 
from third party shippers. The SO indicates  that these practices may have weakened 
competitors on the market, and harmed custom ers in Italy. In the interest of ENI's 
exercise of its rights of defence, a he aring took place in this case on 27 November. 
255. In the Svenska Kraftnät183 case the Commission opened proceedings on 23 April184. 
On 6 October, the Commission launched a market test185 inviting comments from 
                                                 
180 See IP/09/1226, 6.8.2009. 
181 See IP/08/386, 5.3.2008. 
182 Case COMP/39315. See MEMO/09/120 , 19.3.2009. 
183 Case COMP/39351. 
184 See MEMO/09/191, 23.4.2009. 
EN 62   EN interested parties on the commitments offered by Svenska Kraftnät (SvK), the 
Swedish transmission system operator, fo llowing the Commission's concerns that 
SvK might have breached EC Treaty antitr ust rules on the abuse of a dominant 
market position (Article 82 EC). The Comm ission's concerns relate to the Swedish 
electricity transmission market, and in part icular that SvK is limiting the amount of 
export transmission capacity available on el ectricity interconnectors situated along 
Sweden's borders, with the objective of re lieving internal congestion on its network. 
This would appear to favour consumers in Sweden over consumers in neighbouring 
EU and EEA Member States by reserving domestically produced electricity for 
domestic consumption. To alleviate these c oncerns, SvK has offered to subdivide the 
Swedish transmission system into two or more bidding zones and to manage 
congestion in the Swedish transmission sy stem without limiting trading capacity on 
interconnectors. If the result  of the market test is positive, the Commission may 
adopt a decision under Article 9 of Re gulation 1/2003, making the commitments 
legally binding on SvK. 
256. In the EDF Customer Foreclosure case186, in which a SO was sent  to the party 
concerned in December 2008187, the Commission launched a market test on 4 
November. The European Commission thereb y invited comments from interested 
parties on commitments offered by the French energy company EDF. These 
commitments seek to address the Commissi on's concerns that EDF may be abusing 
its dominant position in France. Under the proposed commitments, EDF would 
ensure that competitors could compete fo r on average 65% of the electricity it 
contracts with large industrial users in  France each year during the period of the 
commitments . Should EDF's market share fall, this  percentage would be reduced but 
the volumes which EDF could contract for more than one year would be capped. In 
addition, the duration of any new contract  concluded with large industrial users 
would not exceed five years. Therefore, the proposed commitments have the 
potential to provide actual and potential competitors with  a regular op portunity to 
acquire EDF customers. If the market te st indicates that EDF's proposals would 
remedy the Commission's competition c oncerns, the Commission may adopt a 
decision under article 9 of Regulation 1/2003 making the commitments legally 
binding on EDF. Together with the reform of  the regulated electricity market being 
implemented by the French government188, the commitments in this case have the 
potential to constitute an important st ep towards a fully competitive electricity 
market in France. 
257. Furthermore, on 11 March, the Commission car ried out surprise inspections in the 
French electricity sector189. 
2.2. Merger control 
258. In 2009 the European Commission cleared th ree transactions concerning the supply 
of gas and electricity with remedies: Vattenfall's acquisition of Nuon Energy190, 
                                                                                                                                                         
185 See IP/09/1425, 6.10.2009. 
186 Case COMP/39386 Long term electricity contracts in France .  
187 See MEMO/08/809, 29.12.2008. 
188 See below (State aid section). See MEMO/09/394. 
189 Case COMP/39442. See MEMO/09/104, 11.3.2009. 
190 Case COMP/M.5496 Vattenfall/Nuon decision. 
EN 63   EN RWE's purchase of Essent191 and Segebel's acquisition by EDF192. In all of these 
three cases the Commission identified competition problems and the parties offered remedies that resolved these issues. Furthermore, the Commission cleared unconditionally two cases
193 arising from the remedies given by E.ON antitrust 
proceedings194. 
Vattenfall/Nuon 
259. Vattenfall, which is ultimate ly controlled by the Swedis h State, operates along the 
entire energy chain. Its main activities are in Sweden, Germany, Finland, France, 
Denmark and Poland. Nuon Energy is also active across the entire energy chain, in the production and supply of electricity and gas, and in the supply of heating and 
cooling services. It is mainly active in The Netherlands but also has activities in 
Belgium and Germany. 
260. When assessing the Vattenfall/Nuon case, the Commission's inve stigation revealed 
that the proposed transaction would not raise competition concerns on most relevant markets due to the minor horizontal overl aps between the parties' activities. 
However, the Commission found that the two firms' retail operations in Germany and 
in particular the supply of electricity to small commercia l and domestic customers in 
Berlin and Hamburg raised competition issu es. Vattenfall was the incumbent supplier 
and Nuon the strongest new entrant in these cities. Consequently the proposed transaction would have further strengthene d the position of Vattenfall, reversing a 
substantial part of the gain s of market liberalisation. 
261. To resolve these competition concerns, Vattenfall proposed to divest Nuon 
Deutschland GmbH, Nuon Energy's electric ity retail business in Germany. This 
divestiture will ensure that effective competition is maintained. 
RWE/Essent 
262. RWE is active on both electricity and natura l gas markets in most EU Member States 
and in particular in Germany, the UK, th e Czech Republic and Hungary. Essent is 
active in the electricity and natural gas markets, mainly in The Netherlands and to a 
lesser extent in Germany and Belgium. The two companies' activities overlap in the electricity and gas markets in bo th The Netherlands and Germany. 
263. In this case the Commission's investiga tion found that the proposed transaction 
would have raised competiti on concerns in the German wh olesale electricity and gas 
markets. At the time of the proposed transaction, Essent had a controlling shareholding in Stadtwerke Bremen AG (SWB ), which, like RWE, is active in these 
markets. On the wholesale electricity market, the Commission found that the 
proposed transaction would have strength ened RWE's current collective dominant 
position (together with at least E.ON) by removing SWB as an actual competitor while at the same time increasing RWE's incentives to withdraw generation capacity 
to raise prices. 
                                                
 
191 Case COMP/M.5467 RWE/Essent. 
192 Case COMP/M.5549 EDF/Segebel. 
193 Case COMP/M.5512 Electrabel/E.ON (certain asse ts) and M.5519 E.ON/Electrabel acquired assets. 
194 Cases COMP/39388 and COMP/39389 E.ON electricity. 
EN 64   EN 264. On the gas wholesale mark et the Commission was conc erned that the proposed 
transaction would have given rise to a vert ical relationship, resulting in closing off 
supplies to customers, between the upstream  market for gas short-distance wholesale 
supply and the downstream markets for ga s retail sales in RWE's TSO area. 
265. To resolve these competition concerns, RWE proposed to divest Essent's controlling 
shareholding of 51% in SWB and thus transferring swb's gas and electricity 
operations to an independent third party. 
EDF/Segebel 
266. On 23 September, EDF notified a propos ed concentration whereby EDF would 
obtain 51% stake in SPE by acquiring Segebel.  EDF is active, in France and other 
countries, in the generation and wholesal e trading of electricity and in the 
transmission, distribution and retail supply of electricity, as well as in the provision 
of other electricity-related services. Its presence in Belgium had been relatively 
limited, although it was the thir d largest operator. SPE is  a Belgian company active 
in the production of electricity  and in the trading and suppl y of electricity and gas in 
Belgium. It is the second largest electricity operator in Belgium, after the incumbent operator GDF SUEZ (Electrabel).  
267. Although the Commission's investigation reve aled that the transaction would not 
significantly affect competition on most rele vant markets, competition concerns were 
identified, in particular with regard to the Belgian wholesale electricity market. These arose because the transaction removed EDF as a significant potential entrant in 
this market. The incentives of the merged entity to develop ne w generation capacity 
in Belgium would be significantly re duced because of the concentration.  
268. To remove the Commission's concerns, ED F proposed the immediate divestment of 
the assets of the company responsible for th e development of one of the two sites and 
the divestment of the assets  of the other company if, by a later date, EDF had not 
taken a final investment deci sion or had decided not to de velop the remaining site.  
269. On 14 October, the Belgian NCA requested th e partial referral of the transaction to 
allow it to assess the Belgia n electricity markets under Belgian competition law. As 
the Commission was the better placed auth ority to review the transaction and 
because the commitments solved the identified competition concerns, the Commission, on 12 November, refused th e referral request and approved the 
transaction subject to commitments. 
2.3. State aid enforcement 
270. In the area of State aid c ontrol the Commission has made  progress with regard to 
French  regulated electricity tariffs
195. These tariffs are lower than market prices and 
provide French companies with an economic advantage. They also contribute to the 
foreclosure of the French elec tricity market since mainly EDF was entitled to provide 
such tariffs. The Commission had opened a State aid procedure against regulated 
electricity tariffs for French companie s in 2007. On 19 the Commission welcomed 
the French government's announcement of a reform plan providing for a phasing-out 
                                                 
195 Case C17/2007 (ex NN19/07) Regulated electricity tariffs in France (OJ C 96, 25.4.2009, p. 18). 
EN 65   EN of the tariffs and a mechanism aimed at s timulating competition on the electricity 
market by ensuring access to competitors to  a certain percentage of EDF nuclear 
generation capacity at a regulated price. The adoption of the Fr ench legislation is 
required before the Commission can take a final decision196. In addition, a similar 
State aid procedure against Spanish regulated tariffs is still pending197. 
271. A distinction can be made be tween regulated tariffs and preferential tariffs. While 
regulated tariffs usually apply to the w hole of the economy of a Member State, 
preferential tariffs apply only to certain sectors or indivi dual companies. So far, the 
Commission has taken decisi ons only on preferential ta riffs. In particular, the 
Commission adopted on 18 November a ne gative decision with recovery in the 
preferential tariffs for Alcoa plants in Veneto and Sardinia198, reaffirming the 
negative approach already taken in the Te rni case in 2007 towards this type of 
operating aid given for competitiveness reas ons and distorting competition in the 
Single market199. Following the opening of the formal investigation procedure200, 
Italy decided to withdraw a notification fo r a preferential tariff for selected energy-
intensive industries in Sardinia on 30 September. In the meantime the Commission is assessing a notification from Germany con cerning electricity tariffs for certain 
energy intensive industries
201. 
272. In the area of renewable energies the Commission authorised a Cypriot scheme202, 
three Danish schemes203 and an Austrian scheme subsidising feed-in tariffs in favour 
of producers of renewable energies204. Concurrently the Commission opened an in-
depth investigation in certai n provisions of the Austrian scheme which seem to 
favour large energy consumers205. The Commission expressed doubts with regard to 
the compatibility of the scheme with Stat e aid rules since the partial exemption of 
energy intensive industries from the feed-in tariffs may provide these industries with 
an unfair competitive advantage that does not seem justified by the logic of the 
system. 
273. At the same time the Commission clea red a Danish project to grant CO 2 tax 
exemptions to companies covered by the EU’s Emissions Trading Scheme (EU ETS), subject to conditions
206. After an in-depth investig ation, opened in September 
2006, the Commission concluded on 17 June 2009 that if the proposed full tax exemption would be implemented, some of th e environmental object ives inherent to 
a tax on energy products would be lost. Th e Commission also had concerns that a 
                                                
 
196 MEMO/09/394, 15.9.2009.  
197 Case C3/2007 Regulated electricity tariffs in Spain (OJ C 43, 27.2.2007, p. 9). 
198 Case C36b/2006 Preferential electricity tariff – Alcoa . 
199 Case C36a/2006 Preferential electricity tariff - Terni companies (OJ L 144, 4.6.2008, p. 37). 
200 Case C36/2008 State aid in favour of the Sulcis integrated power plant (OJ C 240, 19.9.2008, p. 14). 
201 Case N452/2009 Aid for the production of non-ferrous metals.  
202 Case N143/2009 Aid scheme to encourage electricity genera tion from large commercial wind, solar, 
photovoltaic systems and biomass  (OJ C 247, 15.10.2009, p. 2).   
203 Case N359/2008 Supplement for electricity generated by incinerating biomass  (OJ C 179, 1.8.2009, 
p. 1); Case N354/2008 Supplement for electricity from new wind turbines  (OJ C 143, 24.6.2009, p. 6); 
Case N356/2008 Supplement for electricity generated with bio gas  (OJ C 151, 3.7.2009, p.16).  
204 Case N446/2008 Second amendment of the Green Electricity Act 2008  (OJ C 217, 11.9.2009, p.12). 
205 C24/2009 (ex N446/2008) Second amendment of the Green Electricity Act 2008  (OJ C 217, 11.9.2009, 
p. 12).  
206 Case C41/2006 Modification of the CO 2 tax for quota-regulated fuel consumption in the industry  (the 
public version is not yet available). 
EN 66   EN full tax exemption would distort competition by increasing tax differentiations in an 
area where the EU has harmonised taxes and set tax minima to create a level playing 
field between companies. The Commission therefore approved the measure on the 
condition that it is amended, so that all the companies concerned pay an energy tax and thus respect at leas t the harmonised minima tax levels. Furthermore the 
Commission approved NOx tax reductions fo r the Danish cement industry which was 
the first of such cases to be approved under the new rules for aid in the form of 
reductions of environmental taxes in the Environmental Aid Guidelines
207. Another 
case of waste tax reductions for the Danish cement industry has been made subject to 
an in-depth investigation because of doubts with regard to the necessity and 
proportionality of the measure208. In a similar Dutch case on tax exemptions for the 
ceramic industry the Commission concluded on 15 December 2009 after an in-depth investigation that the measure was incompat ible with the internal market since the 
tax exemptions could not be found necessary or proportional
209. 
274. On the other hand the Commission author ised under State aid rules a scheme 
proposed by the United Kingdom intr oducing a trading system for CO 2 emissions 
related to energy consumption210. The scheme does not fall under the rules for 
exemptions from environmental taxes of the Environmental Aid Guidelines, because 
of its innovative character and because of  the specific objective it pursues. The 
national system, called "the  Carbon Reduction Commitme nt" (CRC), applies to non 
energy intensive sectors of economy e.g. hospi tals, hotels, banks, not covered by the 
EU ETS. In these sectors, energy costs are so minor that the additional costs related 
to the introduction of the system would not be enough to trigger a change in behaviour of the companies. Therefore in addition to all allowances in the CRC system being sold by auction, participan ts’ environmental performance would be 
ranked in a performance league table and th e auction revenue woul d be paid back to 
participants as a subsidy. Participants ranked on the top of the Performance League 
Table would benefit the most from the recy cling mechanism. The measure is in line 
with Article 87(3)(c) EC because it pursu es an objective of common interest in a 
necessary and proportionate way. 
275. Furthermore, the Commission has approved a Polish
211, a Lithuanian212 and a 
Bulgarian213 scheme providing for tax reduction to stimulate the production of 
certain forms of biofuels. In the Polish case the tax reductions were accompanied by supply obligations and in the Bulgarian and L ithuanian cases such type of obligations 
are not in force but were about to be  implemented. The coexistence of supply 
obligations and tax reductions  may raise the question of the need for aid since both 
instruments pursue the same goal of bringing biofuels to the market. However, in all 
of these cases the duration of the schemes was limited to less than three years. This timeframe should enable the Member States to collect sufficient data to assess the 
                                                
 
207 Case N327/2008 NOx tax reductions for large polluters and companies reducing pollution, and tax 
reductions for biogas and biomass  (the public version is not yet available). 
208 Case C30/2009 (ex N328/2008) Tax exemption for pollution from companies' own cement production  
(the public version is not yet available). 
209 Case C5/2009 (ex N210/2008) Exemption from environmental taxes for ceramic producers (the public 
version is not yet available). 
210 Case N629/2008 Carbon Reduction Committment (CRC) . 
211 Case N57/2008 Operating aid for biofuels – Poland (OJ C 247, 15.10.2009, p. 1). 
212 Case N372/2007 Support for biofuel (OJ C 106, 8.5.2009, p. 14). 
213 Case N607/2008 Tax reductions for biofuels . 
EN 67   EN long term effects of the co existence of these two instruments in the market for 
biofuels. Also, in the Polish case the incentiv e effect was justified as being temporary 
because the functioning of the obligation was expected to drive the demand for biofuels up to a level when it was not excluded that for a limited time companies subject to the obligation will rather pay a fine than comply with the obligation. In 
such a case, the environmental effect  would not be reached by applying the 
obligation alone. 
276. Furthermore the Commission dealt with a num ber of measures promoting electricity 
and heat generation and distribution infras tructure. With regard to Austria, the 
Commission approved a scheme supporting th e construction of combined heat and 
power plants (CHP plants)
214 under the Environmental Aid Guidelines as well as a 
scheme promoting the construction of di strict heating and cooling installations215 
which was approved partly under the Envir onmental Aid Guidelines and partly under 
Article 87(3)(c) EC. Moreover, the Commi ssion authorised three Polish schemes on 
heating distribution networks216, on electricity connection networks for renewable 
energies217 and on modernisation of electricity distribution networks218 directly under 
Article 87(3)(c) EC. Also, in the United Kingdom the Commission cleared a scheme 
for a tender to conduct two front end engi neering and feasibility studies (FEED 
studies) on two industrial-sc ale carbon capture and stor age (CCS) demonstration 
projects. The FEED studies s hould reduce the technical, environmental and financial 
risks of the construction of a commercial sc ale coal-fired power plant equipped with 
post-combustion CCS technology219. 
277. Finally, on the basis of the Temporary Framework220 the Commission approved 
national aid schemes from France, Unite d Kingdom, Spain, Germany and Italy221. 
The Temporary Framework had been introdu ced in 2009 in order to give Member 
States additional possibilities for provi ding businesses with improved access to 
financing during the economic and financial crisis. Since the schemes fulfilled the 
conditions set out in the Temporary Fram ework, they were found compatible with 
Article 87(3)(b) EC, which permits aid inte nded to remedy a serious disturbance in 
the economy of a Member State. The a pproved schemes support businesses faced 
with financing problems because of the credit squeeze, while at the same time preserving investments in products with an environmental benefit (i.e. green 
products). The schemes were dealt with in an accelerated procedure as compared to 
standard cases. 
                                                
 
214 Case N461/2008 Law on Combined Heat and Power Stations (CHP)  (OJ C 109, 13.5.2009, p. 1). 
215 Case N485/2008 Aid Scheme for District Heating and Cooling Infrastructure and Cooling Installations 
(AT) (OJ C 191, 14.8.2009, p. 1). 
216 Case N54/2009 Aid for modernisation of heating distribution networks in Poland  (OJ C 204, 29.8.2009, 
p. 2). 
217 Case N55/2009 Aid for constructing and modernisation of electricity connection networks for 
renewable energies in Poland (OJ C 206, 1.9.2009, p. 3). 
218 Case N56/2009 Aid for modernisation and replacement of electricity distribution networks in Poland  
(OJ C 206, 1.9.2008, p. 4). 
219 Case N74/2009 CCS Demonstration Competition – FEED  (OJ C 203, 28.8.2009, p. 2). 
220 Temporary Framework for State aid measures to su pport access to finance in the current financial and 
economic crisis (OJ C 83, 7.4.2009, p. 1). 
221 N11/2009 (France), N72/2009 (United Kingdom), N140/2009 (Spain), N426/2009 (Germany), 
N542/2009 (Italy). 
EN 68   EN C – ELECTRONIC COMMUNICATIONS  
1. O VERVIEW OF SECTOR  
278. In 2009, it is estimated that growth in th e electronic communications sector was 
close to zero. The sector however remained  relatively resilient to the current 
economic crisis. More effective competition due to competition law enforcement, sector regulation, technological developmen ts and new business models has resulted 
in lower prices for electronic communicati on services, investment in new network 
infrastructure and innovative service offers . Business and retail costumers have both 
benefited from a broad choice of electronic communications services in the fixed and 
mobile markets. 
279. As regards retail competition, the trend of lower prices for electronic 
communications services persisted. In th e light of the steady rise of Voice over 
Internet Protocol (VoIP) a nd fixed mobile convergence, the market for traditional 
fixed voice telephony continued to decline. In th e mobile voice markets, penetration 
increased again, while growth of reve nues slowed down. The broadband service 
market showed a slight increase of broadba nd penetration and an increase of average 
download speeds. 
280. In the mobile market, decreasing prices for mobile voice services resulted in lower 
revenues for operators. This development wa s partially offset by increasing use of 
mobile data services. In addition, an in creasing number of consumers decided to 
replace fixed access with mobile access only. This trend also reflected the advanced 
acceptance of mobile broadband by the cons umers, even if prices and product 
characteristics widely differ throughout th e EU. The trend towards fixed-mobile 
integration could also advance further, wh en mobile network operators will upgrade 
their networks to new transmission technol ogies that will allow download speeds up 
to 100 MBit/s. However, increased data  traffic may only produce limited revenue 
growth given that retail offerings ar e increasingly based on flat rates. 
281. In some Member States the fixed network operators have started the deployment of 
optical fibre networks to provide very hi gh bandwidth broadband internet services, 
although these deployments have so far been very limited. In addition, many cable operators have also been upgrad ing their networks to delive r internet services up to 
100 MBit/s. The upgrade of the existing infr astructure for electronic communications 
may bring large growth opportunities for th e IT and content industries and for the 
European economy as a whole. Gradual av ailability of very  high bandwidth will 
allow content providers to market ne w broadband applications and services. 
Consumers will not only benefit from higher download speeds and the availability of 
services, both for entertainment (on-line gaming, high-definition TV, etc.) and daily 
life (interactive applications, e-health, e-government, etc.) but  also from wider choice 
and enhanced competition between operators. 
282. Since the beginning of the Internet, networ k capacity and availability of bandwidth 
have influenced the offer of certain types of content/services on- line (the move from 
text based to image based websites; from web 1.0 to web 2.0 et c). The emergence of 
new content/services also creates a societal  need for further increase in bandwidth, 
EN 69   EN even where it is not profitable for market ope rators to offer access, e.g. in remote and 
sparsely population areas. This often tr iggers use of public funding, and therefore 
numerous aid schemes have been motivated in the past by the need to follow the 
above evolution. Public intervention in some Member States is now gradually 
shifting towards support for very high speed broadband networks, the so-called "next generation access" (NGA) networks. 
2. P
OLICY DEVELOPMENTS  
2.1. Application of the Regulatory Framework and other policy developments 
283. Providers of electronic comm unications services continued to operate within the 
confines of the EU regulatory fr amework for electronic communications222, which is 
designed to facilitate access to legacy infras tructure, foster investment in alternative 
network infrastructure and bring choi ce and lower prices for consumers. 
284. Ex ante regulation under the Regulatory Framework builds on competition law 
principles. This approach has been a dopted by National Regul atory Authorities 
(NRAs) in their assessmen t of electronic communica tion markets. National 
regulators concluding that a market is not effectively competitive must identify operators with significant market pow er and impose appropriate regulatory 
obligations. Regulators are required to ma ke accessible to the Commission and other 
regulators their proposals under a cons ultation mechanism provided by the 
Framework Directive (the so -called "Article 7 procedur e"). These can comment on 
the regulator's draft measures. The Co mmission may also, following in-depth 
investigation, ask the regulator  to withdraw a draft meas ure which concerns market 
definition or the assessment of the significa nt market power if it does not comply 
with EU law. In its new Recommendation on relevant product and service markets 
within the electronic communications s ector the Commission identified seven 
specific product and services markets, susceptible to ex ante  regulation
223, both at 
wholesale and at retail level. 
285. In 2009 the Commission received 161 notif ications from NRAs and adopted 87 
comments letters and 59 no-comments letters within the Community consultation mechanism under Article 7 of the Framewor k Directive. Five notifications were 
                                                
 
222 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory framework for electroni c communications networks and serv ices (Framework Directive) (OJ 
L 108, 24.4.2002, p. 33 ), Directive 2002/19/EC of the European Parliament and of the Council of 
7 March 2002 on access to, and interconnection of, electronic communications networks and associated 
facilities (Access Directive) (O J L 108, 24.4.2002, p. 7 ), Directive 2002/20/EC of the European 
Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications 
networks and services (Authorisation Directive) (OJ L 108, 24.4.2002 p. 21 ), Directive 2002/22/EC of 
the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 
24.4.2002, p. 51 ), Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 
concerning the processing of personal data and the protection of privacy in the electronic 
communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, 
p. 37 ). 
223 Commission recommendation of 17.12.2007 on relevant product and service markets within the 
electronic communications sector (OJ L 344, 28.12.2007, p. 65 ), replacing Commission 
Recommendation 2003/311/EC (2). 
EN 70   EN withdrawn by the notifying NRA, whereas 9 cases were still open at the end of the 
year. In one of these cases224, the Commission raised serious doubts as to the 
compatibility of the notified measures with EU law and opened a second phase investigation under Article 7(4) of the Framework Directive. 
286. On 7 May the Commission issued a Recommendation on termination rates
225 in view 
of the fact that termination rates of mob ile operators as well as of fixed network 
operators are not consistent ly regulated in the EU, and the rates feature wide 
differences which cannot be explained solely by national circumstances. The 
Recommendation sets out a methodology for re gulating termination rates, aiming at 
ensuring consistency of regulatory approaches and promoting competition. It indicates specifically th at termination rates at  national level should be set at the level 
of the real costs that an efficient operato r incurs when receiving (terminating) a call 
in its network. This implies that the same (symmetric) terminati on rate will apply to 
all operators. The Commission expects that  eliminating price distortions between 
phone operators across the EU will lower cons umer prices for voice calls within and 
between Member States. All EU national regulators should apply the recommended 
approach to termination rates by the end of 2012. However, national regulators with 
limited resources may use different approaches  for a limited further period as long as 
the resulting termination rates do not exceed the average level calculated according to the recommended cost methodology. 
287. On 1 July a new EU Regulation on intra- community roaming became applicable. The 
new rules further reduce price caps for mob ile roaming calls to EUR 0.43 for calls 
made abroad and EUR 0.19 for calls received abroad (per minute and excluding VAT) as from July 2009 with further yearly reductions, limit the price that consumers can be charged for sending a te xt message while abroad to EUR 0.11 
excluding VAT (compared to a previous average of EUR 0.28) and reduce the cost of 
downloading data with a mobile phone wh ile abroad by introducing a wholesale cap 
of EUR 1 per MB downloaded which will also  be reduced on a yearly basis. The new 
roaming rules build on the first EU Ro aming Regulation of 2007, which introduced 
the "Euro tariff" caps for calls made and r eceived while travelling in the EU. As a 
result, Euro tariff roaming consumers saved on average 70% compared to 2005, before the EU acted. The new roaming rule s will apply until the summer of 2012. 
The European Parliament and Council ha ve asked the Commission to prepare an 
Interim report on the new rules and the developments of roaming services in the Community by June 2010. In addition, the Commission will review the functioning of the EU Roaming Regulation by June 2011 and would then propose the appropriate 
actions if required. 
288. On 18 December new rules for the EU te lecoms markets were published in the 
Official Journal of the European Union (the Telecoms package)
226. The EU telecoms 
                                                 
224 Case AT/2009/970 concer ning the Austrian Wholes ale broadband access market. 
225 Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and 
mobile termination rates in the EU, OJ L 124, 20.5.2009. Termination rates are wholesale tariffs 
charged by the operator of a called party to the operator of the calling party's network. Operators have 
both the incentive and the ability to charge excessively high termination. The termination tariffs have a 
considerable impact on consumers' phone bills and are therefore subject to price regulation by the 
national regulatory authorities. 
226 The Telecoms package consists (i) of the Directive of the European Parliament and of the Council 
amending Directives 2002/21/EC on a common regulatory framework for electronic communications 
EN 71   EN reform comprises two Directives amending five different EU Directives of the 
European regulatory framework (Framework Directive, Access Directive, Authorisation Directive, Universal Servi ce Directive and the e- Privacy Directive) 
and a new Regulation setting up the Eur opean Body of Telecoms Regulators BEREC 
(Body of European Regulators for Electronic Communications). 
289. The new telecoms rules comprise inter alia the following prominent reforms: 
• The Commission acquires additional pow er to oversee regulatory remedies 
proposed by national regulators (e.g. the conditions on which network operators 
with significant market power have to gr ant access to the network; or concerning 
termination rates). The objective is to a void inconsistent re gulation that could 
distort competition in th e single telecoms market. 
• The creation of the new European Tel ecoms Authority (BEREC). BEREC will 
provide opinions in the context of the Co mmission's analysis of remedies notified 
by national regulators, and will also  advise, support and complement the 
independent work of nationa l telecoms regulators, especially when it comes to 
regulatory decisions with cross-border relevance. 
• The introduction of the a dditional tool of functiona l separation that enables 
national telecoms regulators to oblige telecoms operators to separate communication networks from  their service branches. 
• With regard to "net neutrality", i.e. the differentiation between the various data 
transmissions or data users on the internet , national telecoms authorities will have 
the power to set minimum quality levels for network transmission services. Furthermore network operators will be required to inform end-users – before 
signing a contract – about the nature of th e service to which th ey are subscribing, 
including traffic management technique s and their impact on service quality. 
290. The Member States are required to transpos e the two Directives of the package into 
national legislation by 26 May 2011. BEREC is foreseen to be established in spring 
2010. 
2.2. State aid 
291. There is widespread consensus about th e crucial importance of investments in 
broadband infrastructures for the countries' economic and social development. The 
Commission actively supports the widespread availability of broadband services for 
all European citizens as laid down in  the Lisbon strategy and the subsequent 
                                                                                                                                                        
 
networks and services, 2002/19/EC on access to, and interconnection of, electronic communications 
networks and associated facilities and 2002/20/EC on the authorisation of electronic communications 
networks and services; (ii) of the Directive of th e European Parliament and of the Council amending 
Directive 2002/22/EC on universal service and users' rights relating to electronic communications 
networks, Directive 2002/58/EC concerning the processing of personal data and the protection of 
privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enfor cement of consumer protection laws; and (iii) of 
the Regulation (EC) of the European Parliament and of the Council establishing the Body of European 
Regulators for Electronic Communica tions and the Office (BEREC). 
EN 72   EN Communications227. The importance of broadband i nvestments has been further 
stressed by President Barroso in the European Economic Recovery Plan (the 
"Recovery Plan")228, where the Commission decided to earmark part of EUR 1.02 
billion from the European Agricultural F und for Rural Development (EAFRD) to be 
invested in the roll-out of broadband networks in rural and remote areas. 
292. The Commission encourages aid measures having the objective to provide adequate 
broadband coverage at affordable prices fo r all European citizens. In its assessment 
of public funding schemes under the State aid rules, the Commission acknowledges 
that, due to the economic or technological restrictions of broadband networks, private 
operators may not have sufficient market in centives to provide adequate broadband 
services, typically in rural and remote areas. The Commission has built up a clear 
and consistent State aid polic y in the last years and e ndorses properly justified and 
proportionate broadband schemes if the di stortion of competition and the effect on 
trade is limited229. Until 2009, the Commission has assessed and approved the use of 
State aid and other types of public f unding of approximately EUR 2 billion230 in 
Europe that generated total investments in  broadband networks of more than EUR 3 
billion. 
293. Building on the Commission's practice in this ar ea, in order to help Member States to 
design State aid measures compatible with the Treaty, the Commission has adopted a horizontal document that lays down the detailed rules and c onditions for public 
support of broadband infrastructure. Followi ng consultation with all interested 
stakeholders, the "Community Guidelines fo r the application of State aid rules in 
relation to rapid deployment of broa dband networks" (hereafter: Broadband 
Guidelines) were adopted in September
231. 
294. The Broadband Guidelines address not onl y aid to basic broadband networks (such 
as ADSL, cable, mobile, wireless or satell ite broadband services) but also support to 
very high speed NGA networks (fibre-based  or advanced upgraded cable networks, 
at the current stage). 
295. The section on public funding of basic broa dband networks outlines the Commission 
current case practice in this field. To gran t State aid for broadband development, the 
granting authorities have to clearly iden tify the targeted areas requiring public 
support through a thorough market  research and consultati on with existing operators. 
Furthermore, a number of safeguards are included to limit distortion of competition and to minimise the use of public funds; fo r example, aid shall be granted via an 
open tender procedure, effective wholesale access shall be provided on the 
                                                
 
227 See for instance “i2010 – A European Inform ation Society for growth and employment, 
COM(2005)229 final, 1 June 2005; “ eEurope 2005: An information society for all ” COM(2002)263 
final, "Bridging the broadband gap", COM(2006)129. 
228 Communication from the Commission to the European Council, COM(2008)800. 
229 See cases N238/2008 Broadband infrastructure development , OJ C 154, 7.7.2009; N153/2009 
Amendment of the State aid broadband scheme N266/2008 , OJ C 284, 25.11.2009;  N183/2009 RAIN 
project, OJ C 216, 10.9.2009; N243/09 Extension of broadband coverage in Niedersachsen , OJ C 219, 
12.9.2009; N172/2009 Broadband developm ent in Slovenia , OJ C 264, 6.11.2009;, N418/2009 - UK - 
Northern Ireland . 
230 Out of which EUR 1.5 billion constituted as Stat e aid within the meaning of Article 107 TFEU. 
231 OJ C 235, 30.9.2009, p. 7.  
EN 73   EN subsidised networks to other operators, th e measure shall be neutral as regards the 
technology and adequate monitoring of the use of public funds shall be implemented 
by the granting authorities. 
296. Concerning public funding of NGA networks , the main objective of the Commission 
is to accelerate the deployment  of such networks, in orde r to avoid the creation of a 
new digital divide in the area of NGA networks. The Commission's policy in this 
field builds on the experience with "traditi onal" broadband networks  and adds certain 
new specific safeguards to promote competition and limit crowding out of private investment. Since investments to NGA ne tworks are just starting and are not 
completed yet, when a public authority in tends to support the ro ll-out of an NGA 
network, it needs to take into account al so the investments plans of the private 
operators for the next 3 years. Furthermore,  in order to help existing basic broadband 
operators to upgrade their serv ices, the new infrastructure  shall support effective and 
full unbundling and satisfy all different types of network access that operators may seek. 
297. For the cases in which a member State qualifies the operation of a broadband 
network as a service of general economic interest (SGEI), the Guidelines provide 
additional explanation about the way the ex isting case law applie s in the broadband 
sector. In this context, the Commission approved public financing worth EUR 59 
million for an NGA project in the Fr ench department of Hauts-de-Seine
232. The 
Commission concluded that the public funding constituted a compensation for 
complying with the obligations of a SGEI according to the Altmark criteria, and did 
not constitute State aid. The network will cover the entire French department of Hauts-de-Seine, including the non-profitable areas with a passive, neutral and open 
broadband network that will further stimulate competition and the provision of innovative services. 
D – INFORMATION TECHNOLOGY  
1. O VERVIEW OF SECTOR  
298. The recent economic crisis negatively affected the global information and 
communications technology (ICT) industr y during 2009, but a sudden upturn in 
global sales of ICT goods in May and June  suggested that the industry may have 
reached a turning point and ma y be on the road to recovery233. 
299. The ICT sector is of particular importan ce for driving innova tion and realizing the 
potential of the digital economy. Informa tion technology markets are frequently 
prone to network effects, as illustrated by the Commission's 2004 Microsoft  case234. 
These effects may result in customer lock-in as well as in the emergence of dominant 
                                                 
232 Commission decision of 30 September 2009 on N331/2008 " Réseau à très haut débit en Hauts-de-
Seine ". 
233 See OECD report of August 2009 on "The impact of the crisis on ICTs and their role in the discovery"  
(http://www.oecd.org/dataoecd/33/20/43404360.pdf ) and the summary on the OECD website at 
http://www.oecd.org/document/21/0,3343,en_2649_34223_43410005_1_1_1_1,00.html  
234 Case COMP/37.792 Microsoft (OJ L 32, 6.2.2007, p. 23). 
EN 74   EN market positions, which are not in and of themselves problematic, but may 
necessitate timely competition law enforcem ent to ensure competition on the merits 
in the markets concerned or in related mark ets. In this context, interoperability and 
standards are key recurri ng issues in an increasingly inter-connected world. 
300. The main features of the ICT sector as it stands today remain digital convergence and 
the growing importance of inte roperability and standards. 
301. Given that network effects ar e one of the major characte ristics of the ICT sector, 
interoperability steadily growing in im portance in the market. Although personal 
computers (PCs) are considered to be the ma in gateway to the digital world, users are 
increasingly accessing data through other de vices such as smart-phones, which are 
able to communicate with each other and with computing devices. This reinforces the need for interoperability between  software products and devices. 
302. Also standards play an increasingly im portant role in the rapidly changing 
information society. Against this backgr ound, it is of utmost importance that 
standard-setting organisations establish rules which ensure fair, transparent 
procedures and early disclosure of  relevant intellectual property. 
2. P
OLICY DEVELOPMENTS  
303. In the field of standard-set ting, a number of developments  occurred, particularly in 
relation to intellectual property rights (IPR) . The Commission is currently reviewing 
the regime for the assessment of horizontal cooperation agreements under EU antitrust rules. To this en d, it held a public consultati on from 4 December 2008 to 30 
January 2009
235. The review also covers standard -setting with a view to providing 
more guidance on this topic. Furthermore, from  3 July to 15 September, a public 
consultation took place on the Commission White Paper on Modernising ICT 
Standardisation in the EU236. 
304. The issue of ex ante  disclosure came to the fore in these public consultations. To 
obtain more complete information about proposed licensing te rms earlier in the 
standards development process, some sta ndards development orga nizations consider 
adopting IPR policies that require or perm it early disclosure of actual licensing 
terms. Some participants in standards development favour the adoption of such 
policies because they believe they pr omote competition between technological 
alternatives before a particular alternativ e is selected for inclusion in a standard. 
305. The US standards development organizati on VITA already adopted an IPR policy 
including ex ante  disclosure in 2006, while the di scussion in the EU ensued in 2009. 
VITA adopted an IPR policy under which each  member of a working group must not 
                                                 
235 The Commission's questionnaire and the replies to the consultation on the "Review of the current 
regime for the assessment of horizontal cooperation agreements under EU antitrust rules"  can be found 
on the website of the Directorate-General for Competition under "Public consultations"  
(http://ec.europa.eu/competition/consultatio ns/2009_horizontal_agreements/index.html ). 
236 The Commission's questionnaire and related documents can be found on the website of the Directorate-
General for Enterprise and Industry under "Public consultations"  
(http://ec.europa.eu/enterprise/newsroom/cf/news bytheme.cfm?lang=en&displayType=consultation&fo
T=pa ). 
EN 75   EN only identify all patents or patent applica tions of which the member that knowledge 
and that the member believes may become essential to the implementation of the 
future standard, but in addition the member  must declare the maximum royalty rates 
and most restrictive non-royalty terms.  A working group member who fails to 
disclose this information is obliged to li cense the essential claims of the undisclosed 
patent for implementation of the VITA standa rd to all interested parties on a royalty-
free basis237. 
306. Under the current European Tele communications Standards Institute  (ETSI) IPR 
policy, any public and unilateral ex ante  disclosure of licensing terms by licensors of 
essential IPRs in ETSI is fully voluntar y and for the sole purpose of assisting 
members in making informed decisions in re lation to whether solutions best meet the 
technical objectives238. 
307. At present, the Commission does not pres cribe specific schemes to industry and 
standard setting bodies, but rath er sets the limits within wh ich these are free to adopt 
the policies of their choice. The upcomi ng guidelines on horizontal cooperation 
agreements will address various issues with  respect to standardisation (i.e. ex-ante 
disclosure). 
3. M AIN CASES  
Intel 308. On 13 May 2009, the Commission adopted a pr ohibition decision against Intel. The 
Commission found that between October 2002 and December 2007 Intel had abused 
its dominant position on the market for x86 CPUs by engaging in two specific forms of illegal practice. First, Intel gave wholly  or partially hidden rebates to computer 
manufacturers conditional upon (quasi) exclusiv ity for its x86 CPU. Intel also made 
direct payments to a major retailer to sell only computers with its x86 CPUs. Second, 
Intel made direct payments to computer manufacturers to halt or delay the launch of 
specific products containing competitors' x86 CPUs and/or to limit the sales channels 
available to these products. The Co mmission ordered Intel to cease its 
anticompetitive practices and refrain from  engaging in similar or equivalent 
practices. The Decision also imposes on Inte l a fine of EUR 1.06 billion, which is the 
highest fine ever imposed on a single company by the Commission. A provisional 
non-confidential version of the decisi on was published on 21 September on the 
website of the Directorate-General for Competition
239. Intel lodged an appeal against 
the decision with the CFI on 22 July240. 
Microsoft 
309. In the Microsoft  case, the Commission sent a SO to Microsoft in January 2009, 
outlining the preliminary view that Microsoft infringed its dominant position in the client PC operating system market by tyi ng its web browser Inte rnet Explorer to 
                                                
 
237 See Vita's homepage under "Disclosure/Licensing"  (http://www.vita.com/disclosure/).  
238 See ETSI's homepage at http://www.etsi.org/W ebSite/AboutETSI/IPRsInETSI/IPRsinETSI.aspx  
239 The provisional non-confidential version of the decision is published on the website of DG Competition 
under "Key Issues – Intel Antitrust Case" . 
240 T-286/09 Intel v Commission  (OJ C 220, 12.9.2009, p. 41). 
EN 76   EN Windows. The Commission was concerned that  the tying distorte d competition on 
the merits between competing web browsers insofar as it provided Internet Explorer 
with an artificial distribution advantage which other web browse rs were unable to 
match. The Commission also took the prel iminary view that, through the tying, 
Microsoft shielded Internet Explorer from head to head competition with other browsers which was detrimental to the p ace of product innovation and to the quality 
of products which consumers ultimatel y obtain. In addition, the Commission 
preliminarily concluded that the ubiquity of Internet E xplorer created artificial 
incentives for content providers and soft ware developers to design websites or 
software primarily for Internet Explorer, which ultimately risks undermining competition and innovation in the provision of services to consumers. 
310. In October, Microsoft proposed commitme nts in order to solve the competition 
concerns raised by the Commission in its SO. The Commission decided to put these 
proposals to a formal market test. Mi crosoft proposed to make available a 
mechanism in Windows client PC operating systems within the EEA that enables 
computer manufacturers (OEMs)  and end users to turn o ff Internet Explorer in 
Windows 7 and subsequent versions of  Windows. Under Microsoft's proposal, 
OEMs would be free to pre-install any we b browser(s) of their choice on PCs they 
ship and set it as default web browser. Microsoft would distribute a Choice Screen 
software update to users of Windows client  PC operating systems within the EEA by 
means of Windows Update. Users who have Internet Explorer se t as their default 
web browser would be prompted with this  Choice Screen. The Choice Screen would 
give users an opportunity to  choose whether and which co mpeting web browser(s) to 
install. The Choice Screen w ould display icons of and basic identifying information 
on the most widely-used web browsers. Fo llowing the result of the market test, 
Microsoft improved the design of the Choice Screen and agreed regular review. An 
Article 9(1) decision adopted on 16 December 2009 made these commitments 
binding on Microsoft for a period of 5 years
241. 
Rambus 
311. In the Rambus  case, the Commission sent a SO to  Rambus on 30 July 2007, in which 
it came to the preliminary conclusion th at Rambus had infringed Article 82 EC by 
claiming unreasonable royalties for the use of certain patents for “Dynamic Random 
Access Memory”  chips subsequent to a so-called " patent ambush ." Whilst 
disagreeing with the Commission's provision al findings, Rambus eventually decided 
to offer commitments to the Commission on 8 June242. On 12 June, the Commission 
published a notice in the OJ pursuant to Ar ticle 27(4) of Regulation 1/2003, outlining 
its intention to adopt a d ecision under Article 9(1) of Regulation 1/2003 declaring the 
commitments to be binding on Ramb us, subject to market testing243. 
312. In light of the comments received, the Commission asked Rambus to clarify a 
number of issues, such as th at all relevant current and future standards are covered 
and that the sale of patents to a third pa rty would not affect the commitments. The 
Commission then concluded that the commitme nts in their final form, as modified by 
Rambus, were adequate to meet the co mpetition concerns expressed in the SO. 
                                                 
241 The commitments are published on the website of DG Competition under "Antitrust cases" . 
242 The commitments are published on the website of DG Competition under "Antitrust cases".  
243 Case COMP/38636 Rambus  (OJ C 133, 12.6.2009, p. 16). 
EN 77   EN 313. Therefore, on 9 December 2009, the Com mission adopted a decision based on 
Article 9 of Regulation 1/ 2003 ("commitment decision"). This decision, which does 
not come to a finding on an infringement, legally binds Rambus to the commitments 
it offered244.  
314. The Commission clarified in the decision th at an effective standard-setting process 
should take place in a non-discriminatory, open and transparent way to ensure competition on the merits and to allow consumers to benefit from technical development and innovation. Abusive prac tices in standard setting can harm 
innovation and lead to higher prices for co mpanies and consumers. For its part, the 
Commission will vigorously enforce the competition rules in this area, for the benefit of technical progress and European consumers. 
E – MEDIA  
1. O VERVIEW OF SECTOR  
315. Two general trends in the media sector can  be identified. Firstly, the multiplication of 
distribution platforms and ongoing tec hnological development and changing 
consumption patterns are breaking down ba rriers between broadcasters and other 
media operators and will lead to increased competition between traditional actors like broadcasters and new player s. Secondly, media convergence
245 will demand new 
business models and the production of more content. Competition issues resulting 
from these trends affect both businesses and consumers. They generally fall into 
three categories: (i) availab ility of attractive content,  (ii) access and digitisation 
issues (including "copyright" bottleneck s), and (iii) challenges posed by new 
revenue-generating models (a "monetisation" issue) as well as the limitations of State 
financed intervention in this sector. 
316. Regarding State aid policy, private media ope rators continue to be concerned about 
State aid for public service broadcasters, with whom they compete for audience 
share, especially for what they consider to be purely commercial offers. They also 
allege that the State funding for public service broadcasters may exceed what is 
necessary for their public service mission, allowing them to subsidise commercial 
activities and to engage in anti-competitive practices. Private operators claim that the 
public funding of public service broadcas ters' new media acti vities distorts 
competition and discourages private initiatives to develop new and innovative services. 
317. The switch from analogue to digital broad casting, which Member States are due to 
complete by the beginning of 2012
246, is increasingly providing consumers with a 
greater number of TV cha nnels and radio stations, and better sound and picture 
quality. The digital switchover concerns  all commonly available broadcasting 
                                                 
244 The decision and the commitments are published on the website of DG Competition under "Antitrust 
cases" . 
245 The term media convergence relates to the consumer's  ability to receive multiple  services on a single 
device. 
246 Commission Communication on accelerating the transi tion from analogue to  digital broadcasting 
(COM(2005)204 final, 24.5.2005). 
EN 78   EN transmission platforms such as satellite, cable and terrestrial, and obliges 
broadcasters and network operators to update their transmission equipment and 
viewers to install digital decoders. The Commission is committed to support the switch off of analogue terrestrial TV broa dcasting and recognises that the process 
may be delayed if left enti rely to market forces. A number of Member States are 
providing public funding to encourage broadc asters and consumers to facilitate the 
switchover. The Commission has no general obj ection to the granting of State aid in 
this area. However, Member States have to  demonstrate that th e aid is a necessary 
and appropriate instrument, is limited to  the minimum necessary and does not unduly 
distort competition. 
2. P
OLICY DEVELOPMENTS  
318. The Commission's main objective from a comp etition perspective is to ensure that 
there is a level playing field in the media sector, whethe r between different 
commercial operators or between comm ercial operators and publicly-funded 
operators. 
2.1. Roundtable on opportunities and barrier s to on-line distribution of music 
319. In 2009, the Commissioner for Competition continued discussions with senior 
consumer and industry representatives a bout the business opportunities created by 
the Internet and the existing barriers to, in particular, increased on- line distribution of 
music in Europe. In such context, a repor t on opportunities and barriers to on-line 
retailing was published in May 2009 and tw o further meetings of the Roundtable 
were held in September and October 2009 under the aegis of the Commissioner for 
Competition. These meetings were attended not only by the initial participants (iTunes, EMI and the French collecting soci ety SACEM), but also by other important 
market players (Nokia, Amazon, the UK's  PRS for Music and Sweden's STIM 
collecting societies and Univ ersal Music Publishing). Consumers' interests were 
represented by the European Consumers'  Organisation (BEUC). The Roundtable 
initiative resulted in two joint statements: a Joint Statement by the Roundtable 
participants on "General principles for the on-line distribution of music" and a 
statement from some Roundtable partic ipants on a "Working Group on a Common 
Framework for Rights Ownership Informa tion". Following the Roundtable, a number 
of participants announced concrete steps and commitments that should result in 
improved access of European consumers to music online
247. 
2.2. Digital broadcasting 
320. In 2009, the Commission continued to closel y monitor the transition from analogue 
to digital terrestrial broadcasting in Italy in  the context of the in fringement procedure 
that it had started in 2006 concerning the Italian broadcasting legislation. Following 
close contacts with the Commissioners for Competition and Information Society248, 
the Italian authorities adopt ed new criteria for the "d igitization" of terrestrial 
television networks in Italy aimed at en suring that more frequencies would be 
available to newcomers and to smaller ex isting broadcasters. The Italian Authority 
                                                 
247 All the documents are available at http://ec.euro pa.eu/competition/sectors/media/online_commerce.html 
248 The Commission had sent to Italy a Reas oned Opinion in this case on 18.7.2007. 
EN 79   EN for Communications (AGCom) conducted a public consultation on draft tendering 
rules for the allocation of the frequencies at the end of 2009 and the tender is 
expected to be launched in early 2010. 
321. As regards State aid, the Co mmission continued to monitor the transition (switch-
over) from analogue to digital terrestrial br oadcasting in the EU Member States. The 
CFI confirmed on 6 October a negati ve decision concerning Germany249, also based 
on a lack of technology ne utrality of the scheme250. 
2.3. Sports 
322. On 12 October, the Commission issued a rejection decision for the lack of 
Community interest in the case Certain joueur de tennis professionnel v. World Anti-
Doping Agency, ATP Tour Inc. and Inter national Council of Arbitration for Sport251. 
The case concerned a professional tennis play er who complained against the alleged 
excessive scope of the international anti- doping rules and their application in his 
case. The complainant questioned the proportio nality of the anti-doping rules applied 
by the three bodies – the World Anti-D oping Agency, the international tennis 
federation (ATP Tour Inc.) and the Intern ational Council of Arbitration for Sport 
(ICAS) and claimed that they together or separately breach ed Articles 81 and/or 82 
EC. The Commission examined the complaint a nd rejected it for lack of Community 
interest, as the rules did not  appear to be applied in a disproportionate manner. The 
Commission also noted that in the context of the application of legitimate anti-
doping rules by the relevant sporting bodies, it s role is not to act as an appeals body 
in individual cases. 
2.4. Public service broadcasting 
323. In line with the interpretative Protocol to the Treaty of Amsterdam on the system of 
public service broadcasting (the Amsterdam Protocol) and the jurisprudence of the 
European Court of Justice mentioned above , the Commission recogni ses that it is the 
prerogative of Member States to organi se the functioning and funding of public 
service broadcasting. The objective of the Commission's policy is to ensure that 
public funding does not exceed what is necessary for public broadcasters to fulfil their public service mission and does not lead to unnecessary distortions of 
competition. 
324. On 2 July, the Commission adopted a re vised Broadcasting Communication which 
aims at demonstrating the specific mechanisms on which the Commission's 
assessment of publicly funded new media services is based
252. The new framework 
provides more flexibility for the financing of  public service broadcasters and at the 
same time clarifies the requirements for an effective control of the public service mission at the national level. It adapts the framework to the fast changing market environment while maintaining the core pr inciples of the Commission's policy based 
                                                
 
249 Case C-25/2004 DVB-T Berlin Brandenburg . 
250 Cases T-8/06, T-21/06, T-24/06. 
251 Case COMP/39471 Certain joueur de tennis professionnel / Agence mondiale antidopage + ATP + 
CIAS. 
252 Communication on the application of State aid rules to public service broadcasting of 2 July 2009, OJ 
C 257, 27.10.2009. 
EN 80   EN on the Amsterdam Protocol (see section 2.4)  and the jurisprudence of the European 
Court of Justice253. A centerpiece of the new Communication is the prior evaluation 
of new audiovisual services at national le vel. Publicly funded audiovisual services 
must satisfy the social, democratic and cu ltural needs of a society without distorting 
cross border trade and competition contrary to the common interest of the European Union. 
325. The Commission continued to approve State financing for public service 
broadcasters where both the public service re mit and the financing are determined in 
full transparency and where the State fundi ng does not exceed what is necessary to 
fulfil the public service mission. In 2009, the Commission also adopted a number of 
positive individual decisions concerning the financing of public service broadcasting systems in France, Spain, Austria and Denm ark. Regarding the financing of Austria's 
public service broadcaster ORF, the Commissi on applied for the first time the revised 
Broadcasting Communication. The decision of 28 October accepts a number of commitments to modify Austria's existing aid scheme for ORF. This decision
254 
closed an investigation which starte d in January 2008 and was triggered by 
complaints from newspaper publishers and commercial television operators. On 1 September, the Commission also opened a fo rmal investigation into the new system 
of financing the public service broadcaster France Télévisions in  view of the phasing 
out of advertising by this chain. The openi ng decision raises preliminary concerns 
regarding a potential overcompensation by  the envisaged measures and the way 
France Télévisions' funding will in the futu re be financed from taxes on telecom 
operators and on commercia l television companies
255. On 2 December the 
Commission opened for similar reasons the formal procedure to investigate the new 
financing of Spain's public broadcaster RT VE which is likewise triggered by the 
phasing out of advertising256. In July 2009 the Commi ssion opened an in depth 
investigation regarding the restructuri ng plan for the Danish public service 
broadcaster TV2 Denmark257. Having agreed to rescue ai d in favor of TV 2 in 2008, 
the Commission will now assess whether th e restructuring suppor t is necessary and 
whether the compensatory measures proposed by Denmark for mitigating the 
competition distortions, e.g. not to launch ne w pay channels, are proportionate to the 
strength of TV2 on the Danish market. 
2.5. State aid for films 
326. In January the Commission extended the vali dity of the State aid assessment criteria 
in the 2001 Cinema Communication, until 31 December 2012 at the latest. As in 
previous years, there were several St ate aid decisions approving film support 
schemes. The most notable of these in 2009 were the second package of Italian film 
tax incentives258, the French tax credit for foreign films259 and the Irish film support 
scheme260. The Commission also opened a formal  investigation in to the proposed 
                                                 
253 Judgment Altmark Trans, C-280/00; Judgment Chronopost, 83/01P. 
254 Case E2/2008. 
255 Case C27/2009. 
256 Case C38/2009. 
257 Case C19/2009. 
258 Case N595/2008. 
259 Case N106/2009. 
260 Case NN10/2009. 
EN 81   EN Italian tax credit for digitisation of cinemas, the outcome of which is likely to set a 
precedent for the Commission’s State aid a ssessment criteria for this type of 
support261. 
2.6. Newspapers 
327. In June, the Commission adopted a proposal for appropriate measures necessary to 
make the Swedish press aid to high circulation metropolitan newspapers compatible with the State aid rules
262. 
F – PHARMACEUTICAL INDUSTRY & HEALTH  
PHARMACEUTICAL INDUSTRY  
1. O VERVIEW OF SECTOR  
328. In 2009 the Commission concluded its sect or inquiry into th e EU pharmaceutical 
sector. This inquiry dealt with the comp etitive relationship between originator and 
generic companies as well as between orig inator companies. It made important 
policy recommendations to improve the func tioning of the sector. The Commission 
stepped up its antitrust enforcement and adopted a number of merger decisions. 
Finally, the ECJ adopted its long awaite d judgment on the application of EU 
competition law to dual pricing mechanisms (parallel trade). 
329. The pharmaceutical sector is essential for the health of Europe 's citizens who need 
access to innovative, safe and affordable me dicines. The sector is highly regulated 
and R&D driven. On the supply side, orig inator companies aim to bring innovative 
products to the market. The patent syst em provides the legislative framework 
allowing the companies to reap the benef its of their research and development 
activities. At the same time, public health  systems are under financial constraints. 
Generic companies, which bring generic ve rsions of previously  patent protected 
products to the market, help to keep public budgets under control, as their products 
are much cheaper than the originator pr oduct whilst having the same therapeutic 
effects. 
330. An intensified consolidation has been observed in the pharmaceutical sector in recent 
years. The consolidation concerns acquisiti on of generic and orig inator companies by 
other originator companies, as well as mergers between generic companies creating 
large multinationals. 
331. On the demand side, the pharmaceutical sector is unusual in that, for prescription 
medicines, the ultimate consumer (the patien t) is not the decisi on maker. Decisions 
are generally made by the prescribing doctors . The patient does not directly bear the 
costs either, as these are generally cove red and/or reimbursed largely, or even 
wholly, by national health (insurance) schemes. 
                                                 
261 Case C25/2009. 
262 Case E4/2008. 
EN 82   EN 2. P OLICY DEVELOPMENTS  
2.1. Pharmaceutical Sector Inquiry 
332. Given the importance of a well-functioning pharmaceutical sector and the presence 
of indications that competition in the pha rmaceutical market in the European Union 
may not be working well, the Commi ssion launched a sector inquiry into 
pharmaceuticals on 15 January 2008263. After the presentation of the Preliminary 
Report in November 2008264 and a subsequent public consultation involving all 
interested stakeholders, the Commissi on published its Final Report on 8 July 2009265. 
333. The Final Report confirmed the preliminary fi ndings of the sector inquiry suggesting 
that the behaviour of originator companies contributes to generic delay and is among 
the reasons for the difficulties encount ered in bringing ne w medicines onto the 
market. The report also confirmed the impor tant role of the legislative framework 
and called upon all stakeholde rs to ensure a proper impl ementation of the existing 
framework and to take the necessary measures adapting the framework in the areas 
of patent law, marke ting authorisation and pricing and reimbursement. 
334. The sector inquiry was part of well-esta blished Commission policies and initiatives 
relevant to the pharmaceutical sect or including the Lisbon Strategy, the 
Commission's Industrial Property Rights Strategy266, the Communication on a 
Renewed Vision of the Pharmaceutical Sector267 and the Innovative Medicines 
Initiative268. 
335. Within this context, the pha rmaceutical sector inquiry s ought to examine the reasons 
for observed delays in the entry of generic medicines to the market and the apparent 
decline in innovation as measured by th e number of novel medicines reaching the 
market. Taking into account that sector inquiries are a tool under EU competition 
law, the inquiry's main focus was compa ny behaviour. The inquiry concentrated on 
those practices which origin ator companies may use to  block or delay generic 
competition as well as to block or delay the development of competing originator 
products. 
                                                 
263 Commission decision of 15 January 2008 initiating an inquiry into th e pharmaceutical sector pursuant 
to Article 17 of Council Regulation (EC) No 1/2003. 
264 Pharmaceutical Sector Inquiry, Preliminary Report , DG Competition Staff Work ing Paper, 28.11.2008, 
available at: http://ec.europa.eu/competition/ sectors/pharmaceuticals /inquiry/index.html 
265 Commission Communication of 8 July on the Executive Summary of th e Pharmaceutical Sector Inquiry 
Report, press release IP/09/1098, available at: http://ec.europa.eu/competition/sect ors/pharmaceuticals /inquiry/index.html
 
266 Commission Communication of 16 July 2008 on an Industrial Property Rights Strategy for Europe, 
COM(2008)465 final. 
267 See, in particular, Commission Communication of 10 December 2008 (COM(2008)666 of 10.12.2008: 
Safe, Innovative and Accessible Medicines: A Re newed Vision for the Pharmaceutical Sector). 
268 The Innovative Medicines Initiative is a Public-Pri vate Partnership (PPP) between the pharmaceutical 
industry represented by the European Federation of Pharmaceutical Indust ries and Associations 
(EFPIA) and the European Communities represented by the European Commission. 
EN 83   EN 2.1.1. Competition between originator and generic companies – The issues 
336. The results of the sector i nquiry indicate that originator  companies use a variety of 
instruments (referred to as "tool-box") to  extend the commercial life of their 
medicines and suggest that the behaviour of  companies contributes to generic delay. 
Patent filing strategies 
337. A strategy commonly applied by originator companies is to seek to extend the 
breadth and duration of patent protectio n by filing numerous patents for the same 
medicine (forming so-called "patent clus ters" or "patent th ickets"). Documents 
gathered in the course of the inquiry c onfirm that an important objective of this 
approach is to delay or block the market entry of generic medicines269. In some 
cases, individual blockbuste r medicines can be protect ed by up to nearly 100 
product-specific patent families, which can  lead to up to 1 300 patents and/or 
pending patent applications across the Member  States This can cause uncertainty for 
generic competitors affecting thei r ability to enter the market. 
Patent-related exchanges and litigation 
338. Enforcing patent rights in court is legiti mate and a fundamental right guaranteed by 
the European Convention on Human Rights. Li ke in any other industry the inquiry's 
findings show, however, that litigation can also be an efficient means of creating 
obstacles for generic companie s, in particular for smaller ones. In certain instances 
originator companies may consider litigation not so much on its merits, but rather as a signal to deter generic entrants. 
339. According to the conclusions of the pha rmaceutical sector inquiry, between 2000 and 
2007, originator and generic companies en gaged in at leas t 1.300 patent-related 
contacts and disputes out-of -court concerning the launch of generic products for the 
219 molecules in the sample under investig ation. The number of patent litigation 
cases between originator and generic co mpanies increased fourfold between 2000 
and 2007. Whilst the originator  companies initiated the majority of the 700 court 
cases reported to the Commission, generi c companies won 62% of cases where a 
final judgment was given. Patent litig ation took on average 2.8 years with 
considerable variations acr oss EU Member States. Of the cases, in which the 
originator companies originally obtained interim injunctions, approximately 50% ultimately ended with an outcome that was favourable to the generic company (i.e. they won the main proceedings or a settleme nt was concluded that  was beneficial for 
the generic allowing immediate entry or forese eing a value transfer). The total cost of 
patent litigation in the EU in the cases reported is estimated to exceed EUR 420 
million. In 11% of the final judgments re ported, courts in different EU Member 
States gave conflicting fina l judgments on the same issue of patent validity or 
infringement. 
Oppositions and appeals before th e European patent office (EPO) 
                                                
 
269 Under patent legislation, all patent applications do , however, need to be evaluated on the basis of the 
statutory patentability criteria by the patent offices, not on the basis of underlying intentions of the 
applicant. 
EN 84   EN 340. The sector inquiry confirmed that the oppos ition rate (i.e. the number of oppositions 
filed per 100 granted patents) before the EPO is consistently higher for the 
pharmaceutical sector than across all other se ctors. In the cases where they opposed a 
patent, generic companies prevailed in approximately 60% of final decisions rendered by the EPO (including appeal) in  the period 2000 to 2007. The scope of the 
originator patent was restri cted in another 15 % of the cases. However, it took more 
than two years on average to obtain 80% of the final decisions which can limit 
generic companies' ability to clarify the pa tent situation of potential generic products 
in a timely manner. 
Patent settlements and other agreements 
341. The inquiry established that  between 2000 and June 2008, mo re than 200 settlement 
agreements were concluded between originator and generic companies with nearly 
50% restricting the generic company's ability  to market its medicine. A significant 
proportion of these settlements contained – in addition to the re striction – a value 
transfer from the originator company to the generic company (e.g. direct payment, a 
licence, distribution agreement or a "side-deal"). Direct payments from originator companies to generic companies occurred in more than 20 settlement agreements and exceeded EUR 200 million. The latter type of  agreements has attracted antitrust 
scrutiny in the USA. 
Other practices affecting generic entry 
342. The sector inquiry found that originator  companies intervene before national 
marketing authorisation and/or pricing a nd reimbursement authorities claiming that 
generic medicines are less safe, less effective and of inferi or quality or will violate 
their patent rights even though marketing au thorisation bodies mu st not take this 
argument into account according to EU legi slation. However, originator companies 
were rarely successful in challenging the d ecisions of national authorities in court, 
e.g. the success rate against marketing authorisations was only 2%. The sector 
inquiry estimated that in cases, in which interventions by origin ator companies took 
place, the duration of the authorisation procedures takes four months longer. The sector inquiry also observed information campaigns by originator companies against 
individual generic medicines and generic medicines in general. 
Lifecycle strategies for second generation products 
343. Incremental research is important as it can lead to signifi cant improvements of 
existing products, also from the perspec tive of the patients. However, generic 
companies and consumer associations some times questioned the actual improvement 
of certain medicines in terms of therapeuti c benefits. For 40% of the medicines in the 
sample selected, which had lost excl usivity between 2000 and 2007, originator 
companies launched second generation pr oducts, undertaking intensive marketing 
efforts with the aim of switching a substa ntial number of the patients to the new 
medicine prior to the market entry of a generic version of the first generation 
product. When the launch of a second ge neration product took place prior to the 
launch of the generic version of the firs t generation product the switching rates are 
reported to be significantly higher. 
EN 85   EN 344. Patent and other strategies/instruments described above may sometimes be used 
cumulatively with a view to prolonging the life cycle of medicines depending on 
their commercial importance. The sector  inquiry shows that more life cycle 
instruments are used for best-selling medicines. 
Impact of generic entry 
345. The sector inquiry confirmed that, in ma ny instances, generic entry takes place later 
than might be expected. For the sample of medicines facing loss of exclusivity in the 
period 2000 to 2007, the average time to enter after loss of excl usivity was almost 
eight months (on a weighted average basis) , and still around four months for the most 
valuable medicines. Delays are important as the price at which generic companies 
enter the market was, on average, 25% lower than the price of the originator medicines prior to the loss of exclusivity. Two years after entry, prices of generic 
medicines were on average 40% below the former originator price leading to 
important savings for the national health sy stems. Econometric analysis suggests that 
a number of factors have an influence on th e observed pattern a nd speed of generic 
entry, e.g. the turnover of the originator me dicines before the expiry of the patent, 
data exclusivity or the regulatory environment. 
346. In relation to the sample of medicines anal ysed, the report estimates that savings due 
to generic entry could have been 20% highe r than they actually were if entry had 
taken place immediately following loss of exclusivity. Hence, the aggregate 
expenditure on the sample of EUR 50 bill ion would have been about EUR 15 billion 
higher without generic entry (evaluated at constant vo lumes). However, additional 
savings of some EUR 3 bil lion could have be en attained, had entry taken place 
immediately. This is a very conservative estimate as volume developments and other factors were not taken into account in the calculations. 
2.1.2. Competition between originator companies – The issues 
347. The inquiry also sought to examine whether the behaviour  of originator companies 
might be among the reasons for the difficulties to bring new medicines to the market
270. 
Patent strategies and litigation 
348. While patent strategies to protect innovative efforts are le gitimate, in certain cases, 
however, these strategies may interfer e with the development of competing 
medicines. They are calle d by some originator comp anies "defensive patent 
strategies"271. The inquiry unearthed  a significant number of strategy documents 
confirming that originator companies engage in defensive patenting.  
                                                 
270 Other factors were cited by the originator indust ry for the decline in innovation such as increased 
scientific complexities, high attrition rates in late stage development and uncertainty about the financial 
rewards. These factors were not subject of the inquiry. 
271 The term “defensive” patents cannot be found in patent law and under such law all patent applications 
need to be evaluated on the basis of the statutory patentability criteria, not on the basis of underlying 
intentions by the applicant. Also, it is an inherent feature of a patent system to grant exclusive rights. 
The notion of “defensive patents” should therefore not be understood to mean that these patents are of a 
lower quality or value, but it tries to capture a cla ssification made in industry for this type of patents 
from a commercial perspective. 
EN 86   EN 349. The inquiry also found that or iginator companies engaged in litigation against other 
originator companies. 66 patent-related litigations were reported concerning 18 
medicines. In 64% of the cases, litigat ion was concluded by means of settlement 
agreements. 
Opposition and appeal before the EPO 
350. Originator companies mainly opposed each other's secondary patents. The opposing 
originator companies were very successful when challe nging the patents of other 
originator companies prevailing in nearly  70% of final decisi ons rendered by the 
EPO (including on appeal). In  addition, the scope of th e patents was reduced in 
another 19% of the cases. 
2.1.3. Policy recommendations and the way forward 
351. In the final report of the sector inquir y, the Commission invi ted all interested 
stakeholders to bring potential compe tition concerns to the attention of the 
competition authorities. 
352. The Commission will address the issues identif ied in the course of the sector inquiry 
by applying increased scrutiny under EU competition law to the sector and by 
bringing specific cases, wher e appropriate. The first enforcement action is already 
under way272. This case investigates amongst othe rs patent settlement agreements 
concluded by Servier and a number of generic operators, which might be anti-
competitive. This investigation does not fo rm part of the sector inquiry, but the 
knowledge acquired during the sector inquiry has allowe d the Commission to draw 
conclusions on the areas where Commission action based on competition law could be appropriate and effective. 
353. In addition a number of surprise  inspections were carried out.  
354. With regard to the regulatory framework, the Final Report highlights three main 
areas of concerns: patents, marketing au thorisation and pricing and reimbursement. 
With respect to patents the Commission reaffirms – on the basis of its findings – the 
urgent need for the establishment of a Comm unity patent and of a unified specialised 
patent litigation system in Europe. The sector inquiry also fully confirms the 
relevance of the recent initiatives of the European Patent Office to ensure a high 
quality standard of patents granted and to accelerate procedures ("raising the bar"). 
355. With respect to marketing authorisation, the Commission will focus on the full 
implementation and effective enforcement of the regulatory framework, e.g. regarding the deadlines foreseen for mark eting authorisation processes. Further 
analysis will be carried out looking in to the cooperation betw een authorities and 
building up capacities/expert ise throughout the EU. The Commission also reminded 
stakeholders of the prohibition of patent  linkage and the need to stop unwarranted 
interventions.  
                                                
 
272 Case COMP/39612 Servier  (perindopril), opening of proceeding on 2 July: 
http://ec.europa.eu/competition/antitrust/cases/decisions/39612/opening_proceedings.pdf  
EN 87   EN 356. Concerning pricing and reimbursement, th e Commission invites Member States to 
consider provisions that would grant pric ing and reimbursement status to generic 
products automatically where the correspond ing originator product already benefits 
from such a status and consider policies facilitating rapid generic uptake and/or 
generic competition. This might also include  tender procedures, but stakeholders are 
reminded to consider not only the short te rm effects. Depending on the outcome of 
the various initiatives the Commission will examine the potential need for a review 
of existing EU rules in the area of pricing and reimbursement (Transparency 
Directive 89/105/EEC). 
357. Based on the objectives outlined in this Communication, the Commission will 
continue to pursue a construc tive dialogue with all stakehol ders to ensure that the 
innovative potential of the Community's pha rmaceutical industry can fully develop 
and that patients' benefit from better access to safe and innovative medicines at 
affordable prices without undue delays. 
2.2. Developments on Parallel Trade 
358. Parallel trade in medicines in the EU takes place because of the existing price 
differences between EU Member States. Th e long awaited judgment of the ECJ of 
6 October 2009 in the case Glaxo Wellcome (hereafter GSK) provides important clarifications on restrictions of parallel  trade in the pharmaceutical sector, in 
particular regarding so called dual pricing systems
273. 
359. The origin of the case is a Commission decision of 2001274, rejecting GSK's request 
for exemption under Article 81(3) EC regard ing its dual pricing policy in Spain. The 
Commission found that dual pricing mechanisms  was a restriction of competition “by 
object” and maintained that GSK had not es tablished the positive effects of its dual 
pricing scheme for consumers in order to benefit from an exemption under Article 
81(3) EC. 
360. GSK lodged an appeal against the Commission decision before the CFI275 which held 
in 2006 that the dual pricing agreement at stake was not a restriction by object, but 
“by effect”. The CFI annulled the Commi ssion decision as the Commission had not 
taken into account all the factual arguments and relevant economic evidence submitted by GSK when evaluating whether the agreement could have benefited from an individual exemption. 
361. In its judgment of 6 October 2009, following appeals by both GSK and the 
Commission, the ECJ held that the dual pric ing scheme at stake is a "restriction by 
                                                
 
273 See Case C-501/06 GlaxoSmithKline v. Commission  (2009), available at: http://eur-lex.europa.eu . In 
March 1998, GSK notified to the Commission its pricing policy for 82 medicines in Spain applicable to Spanish wholesalers. According to the notified policy GSK charged a different price to wholesalers 
depending on the final destination of the product, i.e. if the product was intended for consumption in 
Spain a lower price would apply, and if exported, a higher price was charged. A number of wholesalers 
and wholesaler associations lodged complaints against this policy with the Commission, which in May 
2001, adopted a decision declaring that GSK had infringed Article 81(1) EC. 
274 See Commission decision 2001/791/EC relating to a proceeding pursuant to Article 81 EC in Case 
COMP/36957 Glaxo Wellcome , OJ L 302, 17.11.2001.  
275 Case T-168/01 GlaxoSmithKline v. Commission  (2006), available at: http://eur-lex.europa.eu  
EN 88   EN object" which infringes Article 81(1) EC276. However, the ECJ found no error in the 
assessment of the CFI regarding the loss in e fficiency associated with parallel trade.. 
2.3. Merger Cases in the Pharmaceutical Sector 
362. In 2009 a number of large mergers in pharmaceuticals took place, confirming the 
trend of consolidation in the industry. Thre e categories of cases can be identified. 
Firstly, mergers between originator companies whereby the rationale for the acquisition of another originator compa ny appears to lie particularly in the 
broadening of R&D activities into further therapeutic areas and in the filling up of 
the R&D pipeline
277. Secondly, mergers between generic companies278, which are 
leading to very significant players in ge nerics markets. Thir dly, mergers between 
originator and generic companies279, whereby originators wish to pursue additionally 
a generics medicines business. All cases were cleared in the first phase either with or 
without commitments. Given that pharmaceutical companies are often active worldwide, the procedure involves coopera tion with the US competition authority 
(the FTC) and other competition authorities outside Europe. 
363. The assessment of pharmaceutical mergers has shown that animal health markets 
have generally become quite concentrated. Th erefore, in order to allow the new entry 
of a purchaser into the field of animal hea lth vaccines, the divestiture package in the 
Pfizer/Wyeth
280 case included for the firs t time a production facility. 
HEALTH CARE SERVICES  
1. O VERVIEW OF SECTOR  
364. Health care is a very impor tant economic sector, repres enting about 9% of GDP in 
the EU, within which health services281 account for the largest share with 6.5% of 
GDP. Member States bear direct ly or indirectly the larges t share of the costs for the 
provision of health care, whereas consumers/ patients pay directly out of their pockets 
over 11% of the costs,  equivalent to EUR 122 billion per annum282. In addition, price 
increases for health services are often pa id for directly by patients inter alia via 
higher co-payments. This has potentially ne gative effects on consumer welfare and 
even possibly health status, an issue which has triggered a number of NCA-led 
initiatives283. 
                                                 
276 Case C-501/06 GlaxoSmithKline v. Commission  (2009), available at: http://eur-lex.europa.eu  
277 See Cases COMP/M.5476 Pfizer/Wyeth ; COMP/M.5502 Merck/Schering-Plough , and COMP/M.5530 
Glaxo Smith Kline/Stiefel . 
278 See Case COMP/M.5295 Teva/Barr . 
279 See Cases COMP/M.5253  Sanofi-Aventis / Zentiva  and COMP/M.5555 Novartis/Ebewe.  
280 See Case COMP/M.5476 Pfizer/Wyeth . 
281 Excluding medicines, government investment on education, health prevention and other therapeuticals. 
282 DG Competition estimate based on data from the OECD 2008 Health database. 
283 Including the Italian NCA ongoing inquiry in hospital markets, Dutch NCA report on health insurance 
(2007) and ongoing inquiry on hospital service prices, Irish NCA inquiry on dentists (2007), health insurance (2007) and physician services (2008), Polish and Portuguese NCAs reports on pharmacists 
(2004 and 2005), OFT survey on the private dentistry market (2003, Swedish NCA report on consumer 
welfare in health (2008). 
EN 89   EN 365. The organisation of the health  care sector is primarily the responsibility of Member 
States under Article 168 TFEU. However, to th e extent that the ac tivities in question 
involve offering goods and/or services on the market284, the provision of health care 
services is generally subject to EU competition rules. 
366. In its mid-term review of the Community Lisbon Programme285, the Commission 
identified as a priority for action to ensu re healthy and open competition in services 
markets alongside the need to modernize health care systems. The importance of 
effective competition in services markets w ith a view to strengthening the Single 
Market remains a key priority in the Community Lisbon Program for 2008-2010286. 
2. P OLICY DEVELOPMENTS  
367. The provision of most health care servi ces requires public support. Such support may 
not be considered State aid, provided that the strict conditions defined by the ECJ's 
case law are rigorously complied with287. Furthermore, should such financial support 
measure nevertheless constitute State aid, they can be declared compatible with the Treaty if they are necessary  and proportionate to fulfil an appropriately entrusted 
public service mission, under certain conditions
288. 
368. In the field of State aid control regard ing hospitals, compensations for SGEI are 
normally covered by the 2005 Commission Decision289, exempting them from 
notification without any predetermined cei lings, other than the costs incurred. 
369. It is clear both from the case-law of the Court and from Article 168(5) that 
Community law does not detract from the power  of the Member States to organize 
their social security and h ealth care systems and to adopt, in particular, legal 
requirements intended to govern the provision of health services and medical care. 
Pursuant to case law, Member States en joy a wide margin of discretion not only 
regarding the definition and entrustmen t of SGEI, but also as regards the 
determination of the cost compensation.  
370. Over the past year, the Commission has received a number of complaints from 
private hospitals against allegedly unfair treatment or excessive compensation towards publicly-owned hospitals in various  Member States, the latter often being 
subject to allegations of cross-subsidizing commercial activities from public 
                                                
 
284 Cases 118/85 Commission v Italy  [1987] ECR 2599, paragraph 7; C-35/96 Commission v Italy  [1998] 
ECR I-3851, paragraph 36; Jointed cases C- 180/98 to C-184/98, Rec.2000, p.I-6451. 
285 COM(2005)24. 
286 COM(2007)804. 
287 C-280/00, Altmark Trans , 24 July 2003, [2003] ECR I-7747. 
288 In particular, the Commission has explained the manner in which it intends to apply Article 106(2) 
TFEU within the Community framework for State aid in the form of public service compensation  (OJ C 
297, 29.11.2005, p. 4-7) and the Commission Decision of 28 November 2005 on the application of 
Article 86(2) EC to State aid in the form of public  service compensation grante d to certain undertakings 
entrusted with the operation of serv ices of general economic interest  (notified under document number 
C(2005) 2673; OJ L 312, 29.11.2005, p. 67-73). 
289 Commission Decision of 28 November 2005 on the application of Article 86(2) EC to State aid in the 
form of public service compensation granted to certain undertakings entrusted with the operation of 
services of general economic interest (notified under document number C(2005) 2673) OJ L 312, 
29.11.2005, p. 67-73. 
EN 90   EN financing. Regarding State aid, in the area of health services, most of the complaints 
concerning subsidies for hospitals came fr om Member States who have already 
opened up their markets to competition (e.g. Germany and Belgium). 
371. The constant contacts and cooperation between the Commission and the Member 
States have shown that some of the main  challenges for national authorities have 
been to establish transparent entrustment acts which precisely define public services 
and their public funding, and to design an  accurate separation of accounts between 
public and commercial services in order to ensure that public funds are not used to 
cross-subsidize other commercial activities. 
372. In particular, the Commission has recently finalised its examination in a complex 
case concerning Belgium, where two Belgian associations representing the leading 
private hospitals operating in the Brusse ls Region complained about State aid 
received by the public hospitals operating w ithin the same region. These public funds 
were granted for the provision of health and social services identified as SGEIs by 
the Member State. Consequently, the Commission assessed whether the 
corresponding activities qualified as econom ic or non-economic, and examined the 
definition and entrustment of the respectiv e public service missions and the necessity 
and proportionality of the compensation re ceived by the concerned public hospitals 
in respect thereof, as well as the absence of cross-subsidisati on and compliance with 
EU transparency requirements. On 28 October, the Commission concluded its examination by adopting a positive decisi on which found that the public financing 
granted in favour of the public hospitals concerned for the provision of the public 
service missions entrusted to them was in  line with the requirements set out under 
Article 86(2) EC
290. 
373. The Commission has also examined a case of particular interest in relation to State 
aid for health insurance in Ireland. The tax funded public health care system in 
Ireland has a very limited capacity and t hus more than 50 % of the population has 
private medical insurance. Due to their importance in the overall health system, 
private insurers are subject to special regulation, which is designed to promote 
intergenerational solidarity291. As insurers lack the ab ility to apply risk rated 
premiums, differences between their risk pr ofiles can develop. Thus as a corollary to 
these regulations Ireland a dopted the Risk Equalisation Scheme (RES), which 
involved financial transfers from insurers wi th a better risk prof ile to those with a 
worse one. The RES was authorised by the Commission under State aid rules292, a 
decision upheld by the CFI in February 2008293, but subsequently struck down by the 
Irish Supreme Court under national law. The Iri sh authorities then devised an interim 
scheme of levies and tax relief  in the health insurance sector that worked in a similar 
                                                 
290 Case NN54/2009 Association bruxelloise des institutions des soins de santé privées asbl (ABISSP) vs. 
Belgique.  The public version of this decision is not yet available. It will be displayed as soon as it has 
been cleansed of any co nfidential information. 
291 For example insurers cannot reject customers seek ing coverage, are obliged to provide a minimum of 
coverage and have to apply the same premium regardless of age, gender and health status. 
292 Case N46/2003 of 13 May 2003 Risk equalisation scheme in the Irish health insurance market,  (OJ 
C 186, 6.8.2003). 
293 Case T-289/03 BUPA and Others v Commission , 12.2.2008 (OJ C 79, 29.3.2008, p. 25). The judgment 
was notable for clarifying certain aspects of the Stat e aid treatment of public services but above all for 
relaxing the strict Altmark criteria that had thus far determined the conditions under which public 
service compensation does not constitute aid. 
EN 91   EN way to the RES. The objective of the scheme is to promote intergenerational 
solidarity by decreasing the risk differen tials for health insurers between old and 
young customers. In its decision of 17 J une the Commission approved the new 
scheme, concluding that the measure was in  line with the EU Framework for State 
aid in the form of public service compensa tion and as such compatible with Article 
86(2) EC294. 
374. In the area of antitrust, in October th e Commission adopted a SO for a suspected 
infringement of Article 81 EC by the Fren ch Association of Pharmacists (i.e., Ordre 
National des Pharmaciens, C onseil National de l'Ordre de s Pharmaciens, Section G 
de l'Ordre National des Pharmaciens and Cons eil Central de la Section G de l'Ordre 
des Pharmaciens)295. In the SO, the Commission set out its preliminary conclusions 
concerning the market behaviour of ONP in th e French market for clinical laboratory 
testing services, that may be contrary to EC Treaty competition rules. In particular, 
the Commission was concerned that ONP may be imposing minimum prices for 
clinical analysis and restricting the devel opment of some market players with a view 
to protecting the economic interests of its members, the French pharmacists. The Commission considered that such be haviour may undermine competition and 
innovation in the provision of clinical anal ysis services to c onsumers. Moreover, 
ONP may be using the powers of  public authority, delegated to it by the state for the 
supervision of professional deontology in the market, to champion private 
commercial interests. 
G– TRANSPORT  
1. O VERVIEW OF SECTOR  
375. Transport is an essential component of  the European economy. The transport 
industry as a whole accounts for 7% of GDP and for over 5% of total employment in 
the EU. Competition policy in the transport sector aims to ensure an efficient functioning of markets which have recently  been liberalised or which are in the 
process of liberalisation. To  this end, the regulatory framework continued to be 
modernised, bringing transport sector w ithin the generally applicable competition 
rules. The regulatory work was compleme nted by investigation and enforcement 
actions.  
376. The economic downturn in 2009 had a signif icant impact on almost all transport 
sectors, whether for freight or for passe ngers. Faced with the aftermath of the 
economic crisis, the airline industry con tinued to undergo a restructuring which 
included multiple mergers and financial difficulties/bankruptcies of both network and low-cost carriers. The Commission assessed a number of mergers and ensured that 
such consolidation was not to the detrimen t of consumers. Airport congestion also 
remained a critical issue. 
                                                
 
294 Case N582/08 Health Insurance intergenerational solidarity relief  (Ireland). Final decision 
C(2009)3572 final (OJ C 186, 8.8.2009). 
295 Case COMP/39510 LABCO/ONP . 
EN 92   EN 377. The maritime transport was also severely a ffected by the crisis, trying to cope with 
overcapacity, falling demand and tight credit leading to sharp decreases in rates. The 
Commission remained vigilant to any signs of crisis cartels, protect ionist measures or 
other forms of anticompetitive behaviour.  
378. The Commission's enforcement activity was al so complemented by that of NCAs, in 
particular in areas where an investigation at  national level is appropriate, such as in 
the case of airport infrastructure (degree of concentration with regard to London 
airports for instance). 
2. P OLICY DEVELOPMENTS  
2.1. Road Transport 
379. The new Regulation on public passenger transport services296 entered into force on 
3 December. The regulation lays down the rules applicable to the compensation of 
public service obligations in inland traffic. Until the entering into force of the new rules, the Commission has continued to a pply the existing State aid rules to public 
service contracts and public  service obligations, clarif ied in the Altmark Judgment
297. 
380. On the basis of these rules, the Commission concluded that the new Danish system of 
reduced tariffs in favour of certain cat egories of passengers travelling in long-
distance bus services involved State aid, compatible with the common market298. The 
aim of the scheme is to ensu re adequate transport servic es to low-income groups of 
the population and overall to boost public tran sport. The scheme will also help to 
create harmonised conditions for compe tition between railway undertakings, which 
already receive compensation for giving si milar or higher discounts, and long-
distance bus operators. 
381. As in previous years, the Commission rece ived several notifications of subsidised 
regional bus services. In conformity with the Altm ark ruling, the Commission 
declared as non-aid the compensations granted by Landkreis Sachsen-Anhalt in 
Germany for the public bus transport299. Similarly, the Commission concluded that 
the extension of the compensation for public services in the district of Wittenberg 
linked to supplementing the existing bus lines did not constitute State aid300.  
382. The in-depth assessment star ted in March 2005 in relation to the restructuring aid in 
the form of capital injections granted to  the Danish bus transport company Combus 
was concluded. Following the CFI's partial annulment in March 2004301 of its 
previous decision adopted in March 2001, the Commission concluded that the aid 
                                                 
296 Regulation (EC) No. 1370/2007 of the European Parliament and the Council of 23 October 2007 on 
public passenger services by rail and road and repealing Council regulations (EEC) No. 1191/69 and 
No. 1107/70 (OJ L 315, 3.12.2007). 
297 Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft 
Altmark GmbH  ("Altmark") [2003] ECR I-7747. 
298 Case N332/2008 (OJ C 46, 25.2.2009). 
299 Case N206/2009 (OJ C 255, 24.10.2009). 
300 Case N207/2009 (OJ C 255, 24.10.2009). 
301 Case T-157/01 Danske Busvognmænd/Commission  [2004] ECR II-917. 
EN 93   EN was incompatible with the common mark et and should be recovered from the 
company which received it302. 
383. In the field of urban transport, the Co mmission closed the formal investigation 
procedure regarding the State aid for reform  of the financing method for the special 
pension scheme for the staff of the Fren ch public transport company RATP. The 
Commission considered that the reform notified by the French authorities constituted State aid benefiting the RATP but concluded that this refo rm was necessary to create 
equal conditions with regard to contri butions for compulsory old-age pension 
insurance and to place the Ile-de-France tran sport company on an equal footing with 
its competitors
303. 
384. In line with the wider Community objectives of the common transport policy and 
environmental protection, the Commission authorised a regime promoting the 
purchase of more environmentally-frie ndly heavy goods vehi cles in Slovenia304. 
Such vehicles use exhaust emission control equipment in anticipation of the deadline 
for the start of its mandatory use. As  such, the Commission concluded that the 
measure was in line with the Environm ental Guidelines. The Commission also 
authorised a German aid scheme aiming at supporting market acceptance of available 
highly efficient vehicle technologies305 and an aid scheme supporting the purchase of 
low-carbon buses in England. The main objectiv e of the UK scheme is to reduce the 
CO 2 emissions produced by public buses thro ugh the introduction of a 'Green Bus 
Fund'306. 
385. As regards the improvement of the public transport infrastructure, the Commission 
authorised several major projects. Among thes e, it declared the public financing of 
the construction and maintenance of the motorway A1307 and A2308 in Poland to be 
compatible State aid. 
386. The Commission also adopted a non-aid d ecision concerning the financing of the 
planning phase of the Fehmarn Belt fixed link309. The Fehmarn Belt fixed link 
project will involve the cons truction and the exploitation of either a bridge or a 
tunnel to form a fixed road and rail link spanning the 19 km-wide Fehmarn Strait between the north of Germany and the sout h of Denmark. It is considered a key 
element for the completion of the main No rth-South route connecting central Europe 
and the Nordic countries and is regarded as contributing to the development of the 
trans-European transport network. 
387. Finally, the Commission authorised the prolongation by one year of certain 
motorway concession contracts in France
310. 
                                                 
302 Case C10/2005 (OJ L 345, 23.12.2009). 
303 Case C42/2007 (OJ L 327, 12.12.2009). 
304 Case N395/2008 (OJ C 125, 5.6.2009). 
305 N457/2009. 
306 Case N517/2009. 
307 Cases N151/2009, N152/2009 (OJ C 164, 16.7.2009). 
308 Case N462/2009. 
309 Case N157/2009 (OJ C 202, 27.8.2009). 
310 Case N362/2009 (OJ C 264, 6.11.2009). 
EN 94   EN 2.2. Rail Transport and Combined Transport 
388. Despite full liberalisation in 2007, European  rail freight transpor t markets are still 
characterised by limited competition and st rong incumbents co-operating for cross-
border rail freight transpor t. Since 2007, the Commission has assessed a number of 
merger cases in the railway sector. On 12 June, the Commission approved the 
acquisition of the Polish ra ilway company PCC Logist ics by Deutsche Bahn AG311. 
It is the Commission's policy to ensure that  in line with the EC MR, mergers in the 
rail sector do not lead to a weakening of  competitive constraints, for example, by 
reducing potential competition. 
389. International rail passenger transport will be  liberalised only as of 1 January 2010. In 
October, the Commission referred to Fran ce the assessment of a concentration by 
which SNCF would notably take joint cont rol of Keolis, an undertaking active in 
passenger public transport312. 
390. As in previous years, the Commission adopt ed several aid decisions to promote rail 
transport and combined transport. The Co mmission authorised the public funding for 
the construction and the upgrading of private sidings in order to increase rail freight 
traffic in Germany313 and the prolongation of an aid sc heme to support the costs 
associated with the installation of the Eu ropean Train Control System (ETCS) on the 
railway line connecting the port of Rotterd am and Germany, exclusively used for 
freight transport314.  
391. Further aid measures were approved for th e acquisition and modernisation of rolling 
stock in Bulgaria315 and the Czech Republic316. The Commission authorised a Czech 
regime aiming to ensure a gradual techni cal and operational in terconnection of the 
Czech and the neighbouring railway syst ems, as well as amongst the individual 
entities involved in railway transport317. The Commission also  approved a German 
scheme providing for public funding for measures of noise reduction for existing 
railway freight wagons under the framework of  the pilot project "Silent Rhein". The 
retrofitting of railway freight wagons which ar e mainly used in the Rhine valley with 
less noisy brake systems is envisaged in order to enhance noise-reduction318. 
392. The Commission also approved State aid for the high-speed rail link service between 
London and the Channel Tunnel as well as the restructuring of Eurostar (UK)319. The 
measure was approved as restructuring aid a nd aid to promote a project of significant 
European interest. 
393. In addition, the Commission authorised the prolongation or the setting up of several 
aid measures to promote combined transport and to achieve a traffic shift of freight 
                                                 
311 Case COMP/M.5480 (OJ C 185, 7.8.2009). 
312 Case COMP/M.5557 SNCF/CDPQ/Keolis/Effia . 
313 Case N184/2009 (OJ C 246, 14.10.2009). 
314 Case N474/2009 (OJ C 264, 6.11.2009). 
315 Case N175/2009 (OJ C 246, 14.10.2009). 
316 Cases N409/2008, N410/2008 and N411/2008 (OJ C 106, 8.5.2009). 
317 Case N469/2008 (OJ C 53, 6.3.2009). 
318 Case N324/2009 (OJ C 299, 9.12.2009). 
319 Case N420/2008 (OJ C 183, 5.8.2009). 
EN 95   EN from road transport to other modes of transport in Belgium320, Austria321, 
Germany322, UK323, Italy324, Poland325 and Hungary326.  
394. A positive decision was adopted concerning an  amendment to a Dutch regime for the 
construction of inland transhipment terminal s in order to shift more freight traffic 
from road to inland waterway and rail transport327. Along the same lines, the 
Commission authorised a Stat e aid measure designed to shift traffic from road and 
increasing the efficiency and safety of fr eight transport by means of establishing a 
rail based combined transport between the Port of Naples and the Interporto di 
Nola328.  
395. The Commission also authorised a Dutch aid scheme entailing the development and 
application of environmentally friendly tec hniques in the field of traffic and water 
management329.  
2.3. Inland Navigation 
396. In February, the Council adopted a codified  version of the 1968 Regulation applying 
competition rules to transport by rail, road and inland waterway alike330. 
2.4. Maritime Transport 
2.4.1. Policy developments 397. In June a Communication on State ai d to ship management companies
331 was 
adopted. The Communication lays down th e criteria for elig ibility of ship 
management companies for the reduction of corporate tax or the application of the 
tonnage tax under the Guidelines on State aid to maritime transport332. 
398. On 28 September the Commission adopt ed Commission Regulation (EC) No 
906/2009 on the application of Article 81(3) EC to certain  categories of agreements, 
decisions and concerted practices between  liner shipping companies (consortia)333. 
The revised consortia block exemption regulation will enter into force on 25 April 2010 and is part of the European Commission's effort to review transport regulations 
for the maritime transport sector (see section I.B.1.4.5). 
                                                
 
320 Case N571/2008 (OJ C 160, 14.7.2009). 
321 Case N415/2008 (OJ C 53, 6.3.2009). 
322 Case N304/2008 (OJ C 106, 8.5.2009). 
323 Case N247/2009 (OJ C 255, 24.10.2009). 
324 Case N483/2009 (OJ C 280, 20.11.2009); case N259/2008 (OJ C 280, 20.11.2009). 
325 Case N546/2008 (OJ C 203, 28.8.2009). 
326 Case N316/2008 (OJ C 232, 26.9.2009). 
327 Case N60/2009 (OJ C 125, 5.6.2009). 
328 Case N449/2008 (OJ C 196, 20.8.2009) 
329 Case N456/2008 (OJ C 188, 11.8.2009). 
330 Council Regulation (EC) No 169/2009 of 26 February 2009 applying rules of competition to transport 
by rail, road and inland waterway (Codified version) (OJ L 61, 5.3.2009).  
331 Communication from the Commission providing guidance on State aid to ship management companies 
(OJ C 132, 11.6.2009). 
332 Commission Communication C(2004) 43 Community guidelines on State aid to maritime transport 
(OJ C 13, 17.1.2004, p. 3). 
333 OJ L 256, 29.9.2009, p. 31; See also Press Release IP/09/1367 , 28.9.2009 and MEMO/09/420 , 
28.9.2009. 
EN 96   EN 399. The abolition of the liner conference block exemption in 2008 forced major container 
shipping firms to adjust to the new regime. In non-containerised markets, the world's 
largest shipping conglomerate,  Maersk, acquired Broström334 in 2009. 
2.4.2. State aid cases 
400. The Commission adopted positive decisions with  regard to aid to seafarers in Italy335 
and Finland336.  
401. The Commission concluded the formal procedure opened in 2007 regarding the 
extension to dredging and cable-laying activities of the regime exempting maritime transport companies from the payment of the income tax and social contributions of seafarers ("DIS regime") in Denmar k. The Commission had expressed doubts 
whether such activities constituted or could be assimilated to maritime transport. In 
the end, the Commission concluded that all dredging activities can be assimilated to 
maritime transport except for sailing at the places of extraction. In addition, it 
accepted the
 extension of the DIS regime to cab le-laying vessels by applying by 
analogy the Maritime Guidelines337. 
402. In addition, the Commission concluded seve ral investigation procedures regarding 
tonnage tax schemes. Firstly, it finalised the in-depth assessment initiated in 2008 
regarding amendments to the Irish tonnage  tax scheme. In the opening decision, the 
Commission expressed doubts as to the re moval of the time charter limit. The 
Commission concluded in the final decision th at such amendments can contribute to 
the Community's interests in the field of  maritime policy when, for a given tonnage 
tax company, each of the chartered-in vessels is either registered in a Community or 
EEA maritime register or it s crew and technical manageme nt are carried out on the 
territory of the Community or the EEA338. 
403. Moreover, the Commission concluded the in vestigation procedur e initiated in 2007 
regarding amendments to the Danish tonna ge tax scheme. In line with the doubts 
expressed in the opening decision, the Commission found that the alleviation of 
information obligation for tonnage tax comp anies which carry out transactions with 
foreign (non-Danish) affiliates was not compatible with the common market. It was therefore not authorised
339. 
404. The Commission also approved an amendm ent to the Dutch tonnage tax scheme 
which reduces the tonnage tax base for large vessels and to ship management companies which exercise simultaneous ly crew management and technical 
management of vessels
340 and the introduction of a tonnage tax scheme in 
Slovenia341 and Poland342. 
                                                 
334 Case COMP/M.5346 APMM/Broström . 
335 Case N219/2009 (OJ C 196, 20.8.2009). 
336 Cases N120/2009 (OJ C 232, 26.9.2009), N67/2009 (OJ C 232, 26.9.2009) and N300/2009 (OJ C 299, 
9.12.2009). 
337 Case C22/2007 (OJ L 119, 15.5.2009). 
338 Case C2/2008 (OJ L 228, 1.9.2009). 
339 Case C5/2007 (OJ L 315, 2.12.2009). 
340 Case N457/2008 (OJ C 106, 8.5.2009). 
341 Case N325/2007 (OJ C 53, 6.3.2009). 
342 Case C34/2007. 
EN 97   EN 405. As regards port infrastructure developmen t projects, the Commi ssion authorised the 
co-financing of the constructi on of a pedestrian bridge a nd of jetties in the passenger 
section of the Port of Piraeus. Howeve r, it expressed doubts regarding the public 
funding of the construction of a jetty and the acquisition of different types of 
equipment in the container terminal secti on of the same port, and opened the formal 
investigation proce dure in their respect343. 
406. The Commission subsequently separated its assessment of the public financing of the 
construction of the jetty from the acquisiti on of equipment elements and decided that 
the public financing for the construction of the jetty is compatible with State aid rules
344.  
407. The Commission also raised doubts as to  whether the granting of the 35-year 
concession for the operation of a dry bulk terminal and two berths in Ventspils port involves aid at the level of the concession hol ders. The concession fees to be paid by 
the respective port service providers have  been established on the basis of an 
independent valuation. The Commission has do ubts that in this case the concession 
fee represents a market price
345.  
408. The Commission initiated a formal investig ation procedure regarding certain fiscal 
measures in favour of the port sector in France346. The Commission also confirmed 
its view that, in the lack of an open, tr ansparent and non discriminatory tendering 
procedure, a sale transacti on carried out by the State does not involve aid elements to 
the buyer only if the market price is pa id for the assets acquired thereafter.  
409. The Commission concluded the formal inve stigation procedure initiated in 2008 
regarding the public financing of ferry shipping services between the Scottish 
mainland and the islands off the west and north coasts of Scotland347. With the 
exception of one route in the western isla nds, these services ar e currently provided 
under public service contracts, which follo wed open public tender procedures. After 
an in-depth investigation, the Commissi on confirmed that the public service 
obligations for the western and northern islands were legitimately defined and entrusted on the operators, with the excep tion of the Gourock-Dunoon route. In the 
case of this route, the national authorities have committed to take the necessary steps to launch a public tender for its operation be fore the end of 2009. On the basis of the 
commitment from the national authorities to  launch a public tender for the operation 
of the Gourock-Dunoon route, the Commission decided to close the procedure with a 
positive decision.  
410. In line with the wider commun ity objectives in the field of  transport, the Commission 
authorised the prolongation of a UK aid scheme supporting the modal shift of freight 
from road to water by means of granting s upport to costal and short sea shipping 
services on condition that they avoid journeys by lorry and they generate environmental benefits within the UK
348. 
                                                 
343 Cases N169/2008, N105/2008 and N168/2008. 
344 Case C21/2009. 
345 Case N385/2009. 
346 Case N614/2008 (C 122, 30.5.2009). 
347 Case C16/2008. 
348 Case N246/2009 (OJ C 209, 4.9.2009). 
EN 98   EN 2.5. Aviation 
2.5.1. Policy developments 411. The Regulation on computer reservation systems (CRS)
349 entered into force on 29 
March. The new rules aim to increase comp etition in the field of airline ticket 
distribution by reducing booking fe es and allowing airlines to provide more travel 
options via the CRSs. 
412. The new Directive on airport charges entered into force in March350. It applies to EU 
airports that are above a minimum size and establishes a common framework of 
airport charging thereby set ting common principles to be  observed by EU airports 
when determining the level of the charges in order to ensure that airport charges do not discriminate among airport users. Th e Directive sets forth a compulsory 
procedure for regular consultation betw een airport managing bodies and airport 
users, with the possibility for either pa rty to have recourse  to an independent 
supervisory authority whenever a decision on airport charges or the modification of 
the charging system is c ontested by airport users.  
413. On 18 June the Council and the European Pa rliament approved an amendment to the 
existing rules
351, aiming at bringing more flexibility in slot allocation in order to 
counteract the impact of the crisis on air transport. The measure temporarily freezes 
the "use it or lose it" rule during the 2009 summer season an d allows airlines to keep 
their rights over slots.  
414. On April 8 the Commission decided to open two formal proceedings in its 
investigations of th e airline cooperation on transatlantic flights352. One case concerns 
the cooperation agreements concluded be tween three members of the oneworld 
airline alliance – British Airways, Amer ican Airlines and Iberia. The second 
proceedings relate to separate cooperation ag reements entered into by four airlines of 
the Star Alliance – Lufthansa, United, Con tinental and Air Canada . In both cases the 
agreements provide for extensive cooperati on between the parties, including revenue 
sharing, joint price-setting and coordi nation of capacity and schedules on 
transatlantic flights between Europe and North America. In the oneworld case, on 
September 30, the Commission sent a SO to  British Airways, American Airlines and 
Iberia353. The Commission expressed concerns th at the parties' agreements would 
have adverse effects for passengers on se veral transatlantic routes where British 
Airways, American Airlines and Iberia enjoy a strong market position and where 
barriers to entry are significant. 
                                                 
349 Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a 
Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No 2299/89 (OJ L 35, 4.2.2009). 
350 Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 (OJ L 70, 
14.3.2009). 
351 Regulation (EC) no 545/2009 of the European Parliament and of the Council of 18 June 2009 amending 
Regulation (EEC) no 95/93 on common rules for the allocation of slots at community airports (OJ L 167, 29.6.2009, p. 24). 
352 See Press Release MEMO/09/168 , 20.4.2009. 
353 See Press Release MEMO/09/430 , 2.10.2009. 
EN 99   EN 415. The airline industry faced significant tu rbulence in 2009. Following 2008's peak in 
fuel prices, the fall in passenger and car go demand in 2009, in particular at the 
premium end of the fare scale, resulted in significant losses for many carriers. Both 
phenomena gave impetus to the pre-exis ting trend towards restructuring and 
consolidation in the sector. Given the legal framework applicable to transatlantic mergers, the restructuring took the form of intensified cooperation within global 
airline alliances resulting in joint ventur e agreements covering transatlantic routes. 
The European airline indus try, on the other hand, went  through a process of 
consolidation with mergers of bot h network and low-cost carriers
354 taking place. 
Some large network carriers, in particular  Lufthansa, seized this opportunity to 
expand via acquisitions of smaller regional players, namely Brussels Airlines355, 
Bmi356 and Austrian airlines357.  
416. While the Commission encourages airline co nsolidation in Europe, it has to make 
sure that the latter does not take place to the detriment of consumers. It is in this 
context that in 2009 the Commission conducte d several thorough first phase and two 
second phase market investigations. The 2009 airline merger wave also highlighted 
some policy issues, in particular as concer ns the treatment of pre-existing agreements 
between the parties and remedi es in the airline sector. 
417. Pre-merger competition between the mergi ng parties is often characterized by a 
network of pre-existing c ooperation agreements ranging from simple code-sharing 
agreements to cost and revenue sharing joint ventures. These agreements have to be analyzed in order to determine the relevant  counterfactual for the assessment of the 
effects of each transaction. 
Pre-merger cooperation that is contrary to Article 101 TFEU 
cannot be considered as a relevant counterfactual.  In the context of merger control, if 
the illegality of a pre-merger agreement between the parties were not taken into account, the parties could argue  that there would only be a small reduction or even 
no reduction of competition as a result of the merger. A merger decision in such 
circumstances would effectively incorporate and perpetuate the pre-merger illegality, 
since mergers that are approved under th e ECMR are no longer challengeable under 
Article 101 TFEU. The Commission analyzed  on a case-by-case basis the specific 
effects of the creation of a permanent stru ctural link (as opposed  to a contractual 
link) between the parties in order to assess the extent to which competition may be affected post-merger. 
418. As concerns airline remedy policy, th e Commission, in order to ensure the 
effectiveness of the slot remedies offere d in appropriate air line cases, agreed 
remedies with the potential to foster entr y at concerned airports by incentivising new 
entrants to create a base
358. In addition, the Commission improved and substantially 
simplified the procedure for slot applica tion for new entrants so as to provide 
additional incentives to new entrants to ta ke up slots offered by the parties and thus 
further foster the effectiveness of the remedies. 
                                                 
354 Case COMP/M.5364 Iberia/Vueling/Clickair . 
355 Case COMP/M.5335 Lufthansa/Brussels Airlines.  
356 Case COMP/M.5403 Lufthansa/bmi.  
357 Case COMP/M.5440 Lufthansa/Austrian Airlines . 
358 Case COMP/M.5364 Iberia/Vueling/Clickair . 
EN 100   EN 2.5.2. State aid cases 
419. The economic and financial crisis has had a significant effect on the airline sector. 
The Commission authorised the rescue aid gr anted to the Austrian Airlines Group in 
the form of a loan guarantee359.  
420. During 2009, the Commission also opened and subsequently closed the formal 
investigation procedure into the privatisati on and restructuring of Austrian Airlines. 
The Commission had doubts whether suffici ent compensatory measures had been 
proposed by the Austrian authorities to  address the resulting market distortions360. In 
addition, the Commission could not conclude whether the amount of the aid element 
of the restructuring plan had been kept to a minimum nor whet her the level of own 
contribution could be considered ap propriate under the 2004 Guidelines. 
421. In the final decision361, the Commission concluded that, since the insolvency of the 
airline would have been a ch eaper option for the State, the decision of Austria to 
accept a negative price amounted to a gr ant of State aid. After assessing the 
restructuring plan, the Commission concluded that this plan was in conformity with 
the applicable Community rules.  
422. The Commission decided on certain changes en visaged by the Gree k authorities in 
connection with the sales processes of Olympic Airlines, as  authorised in 2008362. 
The Greek authorities carried out a tende r procedure in conformity with the 
Commission decision. However, no valid o ffers were received. Thus, the Greek 
authorities informed the Commission on th eir intention to ca rry out the sales by 
direct negotiation with interested partie s. The Commission concluded that, given the 
specific circumstances of this case, and ta king into account the financial turmoil, the 
direct sale solution was the most likely to maximise the value of the two companies and consequently the State aid to be recovered. Howeve r, the acceptance by the 
Commission of such amendment to the sale  processes has been made subject to 
observance of several conditions
363. 
423. The Commission also approved th e intention of the Greek aut horities to cover part of 
the costs of the voluntary redundancy scheme to be implemented by Olympic 
Catering SA in respect of certain of its staff. The Commission considered that the 
measure, which pays part of the abnormal costs of the scheme, can be considered 
compatible with the common market. The abnormal costs in question result from 
certain Olympic Catering staff taking pa rt in an early retirement voluntary 
redundancy scheme. These staff members en joy a permanent status and salaries 
which were negotiated when the compa ny was a state-owned undertaking and are 
therefore not comparable to normal market conditions364. 
                                                 
359 Case NN72/2008. 
360 Case N663/2008 (OJ C 57, 11.3.2009). 
361 Case C6/2009. 
362 In 2008 the Commission found that the sale of certain assets of Olympic Airways / Olympic Airlines in 
bundled form did not involve State aid, provided that certain commitments made by the Greek 
authorities are fully complie d with. These conditions ma inly required that the sales should be carried 
out on the basis of a transparent, open and non-disc riminatory public tender, accepting the highest bid. 
363 Case N83/2009. 
364 Case N487/2009. 
EN 101   EN 424. Several State aids for invest ments in airport infrastructur e were approved at airports 
in Italy (Falconara airport and Tuscan airports)365, Germany (Berlin Brandenburg 
International Airport, Kassel-Calden airp ort, Dresden airport, Münster/Osnabrück 
airport)366, UK (Newquay Cornwall Airport)367, Poland (Lublin- Świdnik, Modlin, 
Podlaskie, Olsztyn/Szym any, Zegrze Pomorskie, Łódź, Bydgoszcz, Rzeszów-
Jasionka, Pozna ń-Ławica, Kraków-Balice, Warszawa–Ok ęcie, Katowice–Pyrzowice, 
Wrocław–Strachowice, Gda ńsk–Rębiechowo, Szczecin–Goleniów airports)368, 
Lithuania (Vilnius, Kaunas and Palanga International Airports)369 and the 
Netherlands370. The Commission concluded that the measures were not prejudicial to 
the common interest as they could be d eemed necessary and proportionate to reach 
objectives of Community interest. The Comm ission also authorised the co-financing 
of the apron-related equipment and other equipment necessary for the management 
of the Ostrava airport371.  
425. The Commission also authorised a regime  put in place by the Flemish authorities 
intended, through the grant of "s tart-up" aid, at th e creation of new air routes from 
Ostend-Bruges International Airport to other EU airports372. 
426. Finally, the Commission accepted the measures  taken by France in view of bringing 
to an end the differentiati on in passenger charges amongs t national and EU flights, 
which in fact granted an advantage to  airlines operati ng internal flights373. 
2.6. Ship Classification 
427. In 2008, the Commission started investigations into the wo rldwide ship classification 
market374 concerning the treatment by the Intern ational Association of Classification 
Societies (IACS) of third party classification societie s which are not members of 
IACS. 
428. In its preliminary assessment, the Commi ssion took the preliminary view that IACS 
may have reduced the level of competition in the ship classification market, notably 
by decisions preventing classification soci eties which are not already members of 
IACS from joining IACS, fr om participating in IACS ' technical working groups 
(which develop IACS' technical resolu tions that lay down requirements and 
interpretations to be incorporated into the classification rules and procedures of 
individual classification so cieties) and from accessi ng to technical background 
documents which relate to IACS' technical resolutions and which are necessary to understand and apply these resolutions. Gi ven the Commission's preliminary view 
that the ten members of IACS have a strong position on the market and that 
                                                
 
365 Case N12/2009 (OJ C 164, 16.7.2009), case N45/2009 (OJ C 125, 5.6.2009). 
366 Case NN25/2009 (OJ C 179, 1.8.2009), case N112/2008 (OJ C 97, 28.4.2009) case NN4/2009 
(OJ C 125, 5.6.2009), case N30/2008. 
367 Case N269/2009, (C 204, 29.8.2009). 
368 Case N196/2008 (OJ C 204, 29.8.2009), case N472/2008 (OJ C 79, 2.4.2009), case N 570/2008 (OJ C 
125, 5.6.2009). 
369 Case NN9/2009. 
370 Case NN43/2009 (OJ C 320, 24.12.2009). 
371 Case N307/2008 (OJ C 46, 25.2.2009). 
372 Case N377/2009. 
373 Case E4/2007 (OJ C 83, 7.4.2009). 
374 See MEMO/08/65 , 30.1.2008. 
EN 102   EN classification societies which are not me mbers of IACS may face significant 
competitive disadvantages, the Commission's preliminary assessment was that these decisions therefore raised concerns as to their compatibility with Article 81(1) EC 
and Article 53(1) EEA Agreement. More over, the Commission's preliminary view 
was that these decisions did not appear to fulfil the cumulative requirements for exemption under Article 81(3) EC a nd Article 53(3) EEA Agreement. 
429. To address the Commission's competition concerns, IACS offered the following 
commitments: 
• To set up objective and transparent membership criteria and to apply them in a 
uniform and non-discriminatory manner. The commitments foresee detailed rules, 
including clear deadlines, for the different  steps of the membership application, 
suspension and withdrawal procedure. 
• To ensure that classification societie s which are not members of IACS will 
nonetheless be able to participate in IACS' technical working groups. 
• To put all current and future IACS resolutions and their related technical 
background documents into the public domain at the same time and in the same way as they are made available to IACS members.  
• To set up an independent appeal board to  settle possible disputes about access to, 
suspension or withdrawal of membersh ip of IACS, participation in IACS' 
technical working groups and access to IA CS' resolutions and to their technical 
background documents. 
430. Between 10 June and 10 July 2009, the Commission consulted interested parties on 
the commitments proposed by IACS
375. The results of that consultation confirmed 
that the commitments were necessary and proportionate to remedy the concerns. As a result, the Commission adopted a decision on 14 October rendering the commitments 
offered by IACS legally binding, and closed its investigation
376. 
2.7. International aviation policy – EU-US cooperation 
431. Under the framework of cooperation set up by Annex 2 of the EU-US Air Transport 
agreement, the Commission and the US Department of Transportation (DOT) 
continued their joint work on the research project on airline alliances377. The project 
has a quantitative and a quali tative part. The quantitativ e part of the project – 
analysis of the impact of alliances on fares and number of passengers – has been finalised resulting in a detailed report by th e external consultant. A brief final report 
outlying the main qualitative findings is sc heduled for publication early next year
. 
                                                 
375 See Press release IP/09/898 , 10.6.2009. 
376 See Press release IP/09/1513 , 14.10.2009. 
377 See Press Release IP/08/459 , 18.3.2008. 
EN 103   EN H – POSTAL SERVICES  
1. O VERVIEW OF SECTOR  
432. The postal sector is of gr eat significance for the econom y of the EU, generating 
about 1% of EU GDP378. Virtually all Universal Service Providers (USP) in the EU 
are public undertakings contro lled by the Member States. 
433. Postal services are an essen tial vehicle of communication and trade, and they are also 
vital for many economic and social acti vities. Many key sectors, such as e-
commerce, publishing, mail order, insuran ce, banking and advertising, depend on the 
postal infrastructure. Postal services brin g social benefits which cannot always be 
qualified in economic terms. Postal services  are labour intensive and are also one of 
the principal public employers in Europe. Employment in the sector is principally 
provided by USP and is fairly stable, with about 1.6 million persons employed351. 
434. Postal services are evolvi ng substantially. Postal operators are facing fierce 
competition from electronic means of communica tion. This is in turn forcing them to 
adapt their businesses to better respond to customers' needs and to improve 
efficiency. The latter was also used as the main tool by USP to face the increasing number of postal competitors. In add ition, physical mail is increasingly being 
supplemented by multi-channel delivery and tailor-made solutions for customers, for example via hybrid mail services. 
435. Many postal operators are entering adjacent ma rkets through developing IT services 
for their customers or other new or value-added services. 
436. Despite the progress to-date, genuine comp etition is only just beginning to emerge 
even in cases where the m onopoly has been completely a bolished or substantially 
reduced. In the letter post segment, ma rket shares of competitors, although 
increasing, remain at a low level even in Me mber States that have fully liberalised 
their postal markets. Estimated market shares  of competitors in these Member States 
ranged from around 8% to 14% in 2007
351. Apart from the issue of the reserved area, 
other legal and strategic market  entry barriers still persist. 
2. P OLICY DEVELOPMENTS  
437. Under the third postal Directive379, most Member States, will have to accomplish full 
market opening by 31 December 2010 with a fu rther two years allowed for eleven 
Member States380. The Directive provides in partic ular for the abolition of the 
                                                 
378 Report from the Commission to the Council and the European Parliament on the application of the 
Postal Directive (Directive 97/67/EC as amended by Directive 2002/39/EC) of 22.12.2008, 
SEC(2008)3076. 
379 Directive 2008/06/EC of the European Parliament and of the Council of 20 February 2008 amending 
Directive 97/67/EC with regard to the full accomplis hment of the internal market of Community postal 
services (OJ L 52, 27.2.2008, p. 3 ). 
380 Czech Republic, Greece, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, Poland, Romania 
and Slovakia. 
EN 104   EN reserved area in all Member States, the confirmation of the scope and standard of 
postal universal service a nd the upgrading of the role  of national regulatory 
authorities. The Directive also offers a vari ety of measures that Member States may 
take to safeguard and finance the universal service, if this proves to be necessary. 
2.1. State aid 
438. Within the postal sector, the State aid assessment carried out  by the Commission 
includes a verification of the amount of co mpensation granted to postal operators in 
order to ensure that these compensations do not exceed what is necessary to cover 
the costs incurred in discha rging the public service oblig ations, taking into account 
the relevant receipts and r easonable profit, and that comm ercial activities outside the 
SGEI are not cross-subsidised. The compa tibility principles the Commission applies 
in its assessment are contained in the Community framework for State aid in the 
form of public service compensation (the Framework)381. However, the new Postal 
Directive provides for a new method of cal culating the net costs of postal universal 
services382, which departs from the mere acc ounting approach of actual loss 
compensation embodied in the Framework. Th e possible implications of this method 
will have to be reflected in th e future compensation mechanisms. 
2.1.1. Deutsche Post 
439. The Commission currently continues its  investigation into the alleged 
overcompensation of Deutsche Post AG383 for carrying out its universal service 
obligations from 1989 to 2007. The main focu s is on two public measures concerning 
the subsidy which Deutsche Post received from its affiliate Deutsche Telekom between 1990 and 1995 to cover its losses and the public financing which Deutsche Post has received since 1995 in order to finan ce the pension of its ci vil servants. It is 
important to note that the CFI annulled
384 the 2002 Commission decision which had 
already found certain aid measures for De utsche Post AG as incompatible. The 
Commission appealed this judgment385. 
440. Following considerable delays incurred due to an initial refusal of Germany to 
provide all necessary accounti ng data for the period after 1995, the investigation was 
eventually continued based on accounting information for the whole period until 
2007 which Germany submitted further to the issuance of an information injunction 
on 30 October 2008. The Commission has recen tly received the formal submission of 
the expert's final report aiming to quantify the possible amount of overcompensation; 
on that basis and the comments of the German authorities a final decision can be anticipated for the beginning of the year 2010. 
                                                
 
381 Community framework for State aid in the form of public service compensation (OJ C 297, 29.11.2005, 
pp. 4-7). 
382 The cost for providing the universa l service shall be calculated as the difference between the net cost for 
a designated universal service provi der of operating with the universal service obligations and the same 
postal service provider operating without universal service obligations. 
383 Case C36/2007  Complaint against the German State for unlawful State aid to Deutsche Post  (OJ C 245, 
19.10.2007 p. 21). 
384 Case T-266/02  Deutsche Post AG v Commission , [2008] ECR II-01233. 
385 Case C-399/08  Commission v Deutsche Post AG  (OJ C 301, 22.11.2008, p. 18). 
EN 105   EN 2.1.2. Belgian Post 
441. The European Commission has opened a formal investigation procedure to examine 
whether measures in favour of La Poste, th e Belgian postal operator, in particular the 
yearly compensation for public service obligations, are in line with EU State aid rules
386. 
442. The Commission's initial approval of a series  of measures in fa vour of La Poste in 
2003 was overturned by the CFI on 10 Fe bruary, who found that a formal 
investigation procedure was required in order to guarantee the possibility for 
competitors to submit their views to the Commission. The Commission's current 
investigation, opened on 13 July, aims to establish in a comprehensive way whether 
the totality of the measures in favour of  La Poste since its incorporation can be 
considered compatible with the Single Ma rket. The investigation concerns a large 
number of measures, including the yearly  compensation granted by Belgium for 
public service tasks, capital injections, re lief of pension liabi lities, transfer of 
buildings and tax exemptions. The investig ation is progressing swiftly with active 
cooperation of the Be lgian authorities. 
2.1.3. Royal Mail 
443. The European Commission has decided that f our state measures granted in favour of 
the UK postal incumbent Royal Mail betw een 2001 and 2007 are in line with EU 
State aid rules387. 
444. Further to a State aid investigati on opened in 2007 following complaints by 
competitors, the Commission concluded that  three loan measures granted in 2001-
2007 did not contain State aid because they  were granted under market conditions. 
The Commission authorised a fourth meas ure concerning Royal Mail's pension 
liabilities under EC Treaty rules allowing State aid to  facilitate certain economic 
activities (Article 87(3)(c) EC) because it covered abnor mal costs which had arisen 
from the previous period when Royal Mail had a monopoly over the letters market. 
None of the measures had been notified, b ecause the UK had contended that they did 
not constitute State aid. 
445. The decision adopted on 8 April does not cover measures initia lly announced by the 
UK authorities in December 2008 in respons e to the recommendations of the Hooper 
report, and currently still unde r discussion in the UK. This  decision does not concern 
either the separate measures in favour of  Royal Mail's subsidiary, Post Office 
Limited, which runs the network of post offices388. 
2.1.4. Unlimited guarantee to the French La Poste 
446. In 2007 the Commission opened the formal procedure to investigate the unlimited 
State guarantee resulting from the public -law status of the French La Poste389. The 
                                                 
386 Case C20/09 (ex N763/02) La Poste  (OJ C 176, 29.7.2009, p. 17 ). 
387 Case C7/07 (ex NN82/06 and NN83/06) Alleged aid in favour of Royal Mail  (OJ L 210, 14.8.2009, 
p. 16). 
388 The Commission approved a series of measures in favour of Post Office Limited, most recently in 
November 2007. 
389 Case C56/2007 Garantie d'Etat illimitée - La Poste  (France). 
EN 106   EN investigation includes an expert  study that has concluded th at La Poste indeed enjoys 
an unlimited guarantee due to its public-law  status. In July, the French government 
adopted a bill of law providing for the in corporation of La Poste as a société 
anonyme, which would put an end to the gu arantee. The law should be adopted early 
2010. In consideration of th e above, the Commission is  currently finalising its 
decision. 
2.2. Infringement procedures 
447. The European Commission pursued an in fringement proceeding under Article 258 
TFEU against the Slovak Republic for the non-implementation of the 2008 Commission decision on th e Slovakian postal Law
390. 
448. In its decision, the Commission found the re-monopolisation of the hybrid mail 
sector to the benefit of the postal incu mbent Slovak Post to be in breach of 
competition rules. Hybrid mail is a servic e whereby the content of a communication 
is electronically transmitted from the sender to the service provider, which then prints, envelopes, processes and delivers the postal item to the final addressee. As a 
result of the Slovak postal law amendment, alternative postal operators were no longer allowed to deliver hybrid mail items, an activity previously open to 
competition. 
449. Following the Commission´s decision, Slova kia did not inform the Commission of 
any measures which would have put an e nd to the infringement. As a result, the 
Commission opened infringement proceedi ngs and on 29 October issued a reasoned 
opinion in this case
391. Slovakia has an obligation to comply with the Commission's 
decision, failing which the Commission ma y bring the matter to  the ECJ In the 
meantime, the alternative operators may rely on the Commission's decision. 
2.3. Merger control 
450. On 21 April, the Commission cleared the first merger between incumbent postal 
operators, Posten (of Sweden) and Post Danmark392. The transaction was cleared 
subject to conditions rela ting to parcel delivery services. The Commission's 
investigation showed that liberalisation of the Danish mail market (scheduled to take 
place before 2011) is not at risk, as the proposed merger was unlikely to increase 
barriers to entry or expansion, or impede  competition in the Danish mail market. 
I – AUTOMOTIVE INDUSTRY  
1. O VERVIEW OF SECTOR  
451. The motor vehicles sector was hit particul arly hard by the economic crisis. Although 
world demand for cars in 2009 fell only by 2.4 % compared to 2008 thanks to strong 
                                                 
390 Case COMP/39562 Slovakian postal Law  (OJ C 322, 17.12.2008, p. 10 ). See also Press Release 
IP/08/1467 , 7.10.2008. 
391 See Press Release IP/09/1632 , 29.10.2009. 
392 Case COMP/M.5152. 
EN 107   EN demand in China393, car sales (passenger cars and light commercial vehicles up to 
3.5to) in the EU decreased by 4.6% compared to 2008 and 12.5% compared to 2007
394. In 2009, scrapping schemes were introd uced in twelve Me mber States; they 
had a positive impact on sales in the short term, in particular in Germany, where the 
scheme had a significant budget (EUR 5 billion). On the basis of the information mechanism set up by Directive 98/34/EC, th e national scrapping schemes containing 
in addition technical regulat ions were notified before adoption to the Commission 
and the Member States, which guaranteed transparency, exchange of information and the prevention of obstacles to the single market. 
452. Falling demand and world overcapacity which ha ve characterised the sector for some 
years resulted in bankruptcy proceedings of  several major automotive suppliers, most 
notably the two US suppliers General Moto rs and Chrysler. As a consequence, two 
of GM's European operations, Opel/Vauxhall and Saab, where put up  for sale and, in 
the case of Opel, required state loans to continue operations. 
453. The second challenge the sector is currently  facing is the transition towards greener 
cars. Increasing demand by customers fo r low emission cars and a tightening 
regulatory environment requires large scal e investments for the development of 
vehicles which meet the standards of the future. The Commission authorised several 
State aid schemes in this respect. At the same time, the sector benefited from eased access to finance through loans and guarantees.  
2. P
OLICY DEVELOPMENTS  
2.1. Antitrust and Advocacy 
454. The current Motor Vehicle Block Exemp tion Regulation (1400/2002) expires on 31 
May 2010. The Commission carried out a review  of the Regulation, and on 22 July it 
adopted a Communication on the future co mpetition policy orientations for the 
sector. On the basis of those policy or ientations the Commission adopted on 28 
October a preliminary draft of a new Mo tor Vehicle Block Exemption Regulation 
and accompanying guidelines which where, after consultation with the Member 
States, published for public consultation on 21 December. 
455. The Commission concluded that  the markets for vehicle sales are competitive, due to 
a number of external factors such as st ructural overcapacit ies and technological 
innovation. As a consequence, re al car prices, i.e. adjusted  for inflation and quality 
improvements, have been falling for years leading to highly competitive price levels. 
456. On the other hand, competition on the mark ets for vehicle repair and spare part 
distribution is much more limited, because there is a specific aftermarket for each 
brand of vehicle on which the car manufactur ers enjoy a high market share. Vehicle 
repair is important for buyers, as it accounts  for a significant portion of the lifetime 
cost of owning and running a vehicle. Therefore, the Comm ission distinguished in its 
                                                 
393 Global auto report, Scotia Bank, http://www.scoti acapital.com/English/bns_econ/bns_auto.pdf  
394 ACEA, New registrations by country 
http://www.acea.be/index.php/news/news_deta il/new_vehicle_registrations_by_country/  
EN 108   EN Communication of 22 July between the market s for the sales of new motor vehicles 
and the repair and maintenance markets. 
457. As it does not appear justified to treat the competitive vehicle sales markets any 
differently from other sectors, the Comm ission has proposed to remove the sector 
specific rules applying to the market for ve hicle sales laid down in the current Motor 
Vehicle Block Exemption Regulation and apply the general competition rules on 
vertical agreements together with sector-spe cific guidelines. In or der to give dealers 
time to adapt to the new rules, the Commission envisages prolonging the current rules regarding markets for new vehicle sales for three years. 
458. With regard to the aftermarkets, the Commission has proposed to retain sector 
specific provisions, in the form of a focu sed block exemption in combination with 
guidelines. These sector sp ecific provisions are design ed to address efficiently, 
serious competition concerns, including th e issue of independent operators' access to 
technical information, the fr ee access to competing spare parts and the misuse of 
warranties. 
459. These measures are fully coherent with in itiatives taken by the EU institutions in 
other policy areas such as the proposal for liberalisation of the rules on design rights 
for replacement parts. In addition, very sp ecific conditions for access to repair and 
maintenance information for passenger cars and light commercial vehicles have been set out in the legislation governing light duty vehicle emissions (Euro 5 and Euro 6 
limit values)
395.  
2.2. State aid to the car sector 
Temporary Framework 
460. The Temporary Framework for State aid396 was widely used to support the car 
industry. For example, it allows financing of projects for the development of low 
emission vehicles. The Comm ission approved aid schemes for green products, i.e. 
"green cars", notified by France,  UK, Spain, Germany and Italy397. Furthermore, the 
Commission approved several guarantee and/or loan schemes for a number of 
Member States, such as France, UK, Germ any, Belgium (Flemish region), Sweden 
and Romania among others398. 
461. In all cases of State aid to  the car sector, the Commi ssion continued to enforce a 
strict policy line. In particular, the Commi ssion consistently indi cated that it would 
not accept that State aid granted under schemes approved on the basis of the 
Temporary Framework would be subject – de  jure or de facto – to protectionist 
                                                 
395 Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type 
approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 171, 29.6.2007, 
p. 1). 
396 Under the Temporary Framework, the car industry can benefit from aid up to EUR 0.5 million per 
company for the next two years 'small amounts of aid', state guarantees on loans, subsidies loans, 
including specifically for green cars, and of  facilitated access risk capital for SMEs.  
397 N11/2009 (France), N72/2009 (UK), N140/2009 (Spain), N426/2009 (Germany), N542/2009 (Italy).  
398 N23/2009 (France), N71/2009 (UK), N27/2009 (Germany), N117/2009 (Flemish region/Belgium), 
NN34/2009 (Sweden), N286/2009 (Romania). 
EN 109   EN conditions, such as conditions concerning the geographic location of investments. 
The Commission carefully examined each case th at raised this type  of protectionist 
concerns, ensuring that the aid was not biased by unjustified non-commercial 
considerations and that it contributed to the future vi ability of the car industry. 
462. This approach was followed when early in 2009 France announced  its intention to 
grant State aid to its national car produ cers on the basis of a scheme approved under 
the Temporary Framework399. Following extensive contacts between the 
Commission and the French authorities, the French authorities eventually made undertakings to the effect th at the loan agreem ents intended for the car manufacturers 
would not contain any condition regarding eith er the location of their activities or a 
preference for France-based suppliers. A similar issue was raised in the context of State aid that Germany inte nded to grant to Adam Opel  GmbH under an approved 
Temporary Framework scheme
400, in connection with a sale  by General Motors of its 
Opel/Vauxhall European operations to an investor. Eventually, General Motors 
reversed its decision to sell Opel and the investor's process was terminated. 
463. As regards notified aid to the car industr y, on 13 May the Commission authorised a 
EUR 11 million training aid fo r staff at the truck maker Scania's plants in Sweden401. 
The training programme, that will increase the skills and problem-solving ability of blue-collar workers, wa s found compatible with  Article 87(3) EC.  
464. On 13 November, the Commission authorised  a state guarantee from the Romanian 
State to Ford Romania SA
402. The Commission also authorised, on 2 December, a 
EUR 57 million training aid to  Ford Romania SA, thus closing the investigation 
procedure on this case403. 
465. On 5 June the Commission authorised stat e guarantees from the Swedish state to 
Volvo Personvagnar (Volvo PV)404. The guarantees will allow Volvo PV to access 
loans from the European Investment Ba nk to co-finance the development of 
environment-friendly cars. The Commission found that 90% of the guarantees met 
the conditions of the Temporary Framework, in  particular as Vol vo PV would pay an 
adequate remuneration for the guarantee and provide sufficient securities in case the 
guarantee would be drawn. The remaining 10% of the guarantees would be provided 
on market conditions and therefore do not constitute State aid. 
Regional aids  
466. The Commission authorised on 29 April regi onal investment aid for EUR 46 million, 
which the Italian authorities intended to grant to Fiat Group for a large investment project for the production of a new car model in Sicily
405. Sicily is an area eligible 
for regional aid under Article 107(3)(a) TFEU , as a region with an abnormally low 
standard of living and high unemployment. Th e project aimed at the extension of the 
existing plant of Fiat in Termini Imerese in order to change the production process 
                                                 
399 N15/2009, OJ C 122, 30.5.2009, p. 1. 
400 N38/2009, decision of 19.2.2009. 
401 N98/2009 Training aid to Scania , OJ C 147, 27.6.2009, p. 6. 
402 N478/2009 Individual State Guarantee for Ford Romania S.A .. 
403 Case C39/2008 (ex N148/2008) Training Aid to Ford Craiova, Romania . 
404 N80/2009 State guarantees in favour of Volvo Cars , OJ C 172, 24.7.2009, p. 2. 
405 Case N635/2008 FIAT Termini Imerese.  
EN 110   EN and to diversify its production, more spec ifically to produce a new passenger car 
under the Lancia brand to re place the existing small car model Lancia Ypsilon. The 
investment was expected to maintain ex isting jobs in the region. The Commission 
found the measure to be compatible with  the requirements of the Regional Aid 
Guidelines 2007-2013 and in particular with the rules on large investment projects, 
because Fiat would not increas e significantly its capacity. 
467. On 29 October the Commission opened the fo rmal investigation against Hungarian 
regional aid of some EUR 50 million for a la rge investment project of Audi Hungaria 
Motor Kft. in its existing plant in Györ406, since the 25% market share threshold 
applicable under the relevant  regional aid rules for larg e investment projects was 
exceeded. Hungary intends to subsidise th e installation of new high-tech engine 
production lines for new genera tion engines and engine co mponents for a wide range 
of passenger car models of the Volkswag en-Porsche Group. The aid would take the 
form of a direct grant and a corporate tax al lowance. In the preliminary investigation, 
the Commission carried out the "market shar e"-test under point 68(a) of the Regional 
Aid Guidelines regarding all individua l passenger car segments. For several 
segments, both at EEA and global level, th e 25% threshold set by the guidelines was 
exceeded.  
468. On 13 July the European Commission author ised, under EC Treaty State aid rules, 
EUR 111.5 million of aid, which the Hungari an authorities intend to grant to 
Mercedes-Benz Hungary407, owned by Daimler AG, for the construction of a new car 
manufacturing plant in the region of Dél- Alföld. The investment project aimed at 
installing new machinery and equipment fo r the manufacture of two new passenger 
car models. The project involved investments eligible for the calculation of the aid of 
EUR 548.4 million and an aid amount of EUR 111.5 million in the form of a cash 
grant and a corporate tax allowance. In  addition, Mercedes-Benz Hungary will 
receive financial support fo r railway access to the public railway network which 
amounts to some HUF 214 million (EUR 0.8 million). Mercedes-B enz Hungary will 
finance the project using own equity and ba nk loans. The measures are in line with 
the requirements of the Regional Aid Guid elines 2007-2013. In particular, the project 
will significantly contribute to the devel opment of the region's economy, including 
the creation of 2 500 direct  jobs, and respects the market share and capacity 
thresholds of the Regional Aid Guidelines 
469. On 17 June, the Commission authorised EU R 51.9 million of aid, which the Spanish 
authorities intend to grant to Ford España408, part of the Ford Motor Company, for a 
radical transformation of th e existing plant on Almussafes,  in the Valencia region. 
The Commission's assessment found the meas ure to be compatible with the 
requirements of the regional Aid Guidelines 2007-2013. The investment guarantees the continuity of activity at the Almussafe s plant and will maintain some 5 000 direct 
jobs at the plant. Ford's investment project is aimed at dismantling existing 
production lines and installing new machiner y and equipment for the manufacture of 
three new passenger car models. The investme nt project involves costs eligible for 
                                                
 
406 Case C31/2009 (ex N113/2009) Audi Hungaria Motor Kft.  
407 N671/2008, see IP/09/1147 State aid: Commission endorses EUR 111.5 million aid for Mercedes-Benz 
investment in Kecskemét, Hungary .. 
408 N473/2008, see IP/09/958 State aid: Commission endorses EUR 51.9 million aid for Ford investment in 
Almussafes, Spain . 
EN 111   EN the calculation of the public support of EUR 493.6 million and an aid amount of 
EUR 51.9 million. Ford is financing the bulk of the project through its own resources. 
J – FOOD INDUSTRY  
1. O VERVIEW OF SECTOR  
470. The food supply chain brings together the agricultural sector, the food processing 
industry and the distribution sector, altogether accountin g for 6% of the EU added 
value and 12% of EU employment. 
471. Reversing the trend of three decades of declining agricultural prices, in 2006 the 
prices of a number of commodities started to follow a steady upward course. Prices increased dramatically in the second half of 2007 and reached peak levels in the first months of 2008. Between September 2006 a nd February 2008, world agricultural 
commodity prices rose by 70% in dollar term s. In the EU, these price hikes caused a 
rapid increase in consumer food prices , which reduced household purchasing power. 
The extent of the price increases differed widely between Member States. 
472. In 2008 the Commission initiated a process to  provide both an i mmediate and a long-
term response to the surge in food pri ces and to mitigate the impact on final 
consumers. In line with the Communicati on on "Tackling the challenge of rising food 
prices; Directions for EU action" of May 2008
409, an inter-service Task Force was set 
up to examine the functioni ng of the food supply chain. 
473. The Task Force produced a first report on the situation in a second Communication 
on "Food Prices in Europe" adopted on 10 December 2008410. It proposed a roadmap 
to improve the functioning of the food suppl y chain. In terms of competition policy, 
it called for ensuring a vigorous and coherent  enforcement of competition rules in the 
food supply markets by the Commission a nd NCAs. Given the difficult situation 
faced by the dairy sector, the Commission al so adopted a "Report on the dairy market 
situation" in July 2009411. 
2. P OLICY DEVELOPMENTS  
474. The Commission continued enforcing comp etition rules on food markets through the 
active monitoring of existing commitment d ecisions and pursued the assessment of 
cases in which inspections were carried out in 2008. The work of the Commission Food Task Force continued in 2009. In th is context, the Commission undertook a 
                                                
 
409 (COM(2008)321). The Communication analyses structural and cycli cal factors and proposes a three-
pronged policy response, including short-term measures in the context of the Health Check of the 
Common Agricultural Policy and in the monitoring of the retail sector; initiatives to enhance 
agricultural supply and ensure food security including the promotion of sustainable future generations 
of biofuels; and initiatives to contribute to the global effort to tackle the effects of price rises on poor 
populations. 
410 COM(2008)821. 
411 http://ec.europa.eu/agriculture/markets/milk/report2009/index_en.htm 
EN 112   EN focused fact-finding exercise, holding a set of bilateral meetings with a number of 
European associations representing differe nt players active in the food supply chain. 
The objective of these meetings was to  obtain insights into the specific 
characteristics of food markets, in the light of the most recent economic 
developments. This exercise further aimed at identifying potential competition-related concerns that may affect the functioning of the food sector. Apart from 
hardcore restrictions on competition, this ex ercise identified some other practices as 
potentially harmful for competition. Such  practices, which may merit a closer 
assessment by Competition Authorities, alwa ys on a case-by-case basis, relate to 
joint purchasing agreements ("buying alliances"); joint selling agreements; tying and bundling obligations; and the increased use of private labe ls. The results of this fact 
finding exercise were shared with NCAs and incorporated into a Communication on 
"A better functioning of the food supply ch ain", adopted by the Commission on 28 
October
412. 
475. Given that food markets are often nationa l/regional in scope, it is crucial for 
Competition Authorities to address potenti al malfunctioning within the food supply 
chain through a coherent and coordinated approach. To this end, in 2009, the 
European Competition Network has served as a forum for discussion and exchange of best practice on issues re lated to food markets. In th is context, the Commission 
has organised two meetings of the EC N Food Subgroup in July and November..  
476. The dairy sector is one of the sectors that have faced most difficulties in 2009. In 
view of these difficulties, the Commissi on adopted in July a "Report on the dairy 
market situation"
413. A High Level Group on Milk bringing together national 
agriculture experts was also set up a nd its work is ongoing. The Commission's 
dialogue with NCAs regarding the milk sector has also intensified through the 
creation of an ECN Joint Working Team  on Milk whose work will continue 
throughout 2010. 
477. At national level, as evidenced by the si gnificant efforts deployed over the last two 
years by NCAs and which continued in 2009, ECN members have attached due 
priority to case-by-case invest igations, as well as to broa der inquiries regarding food 
markets, leading to the finding of an appr eciable number of serious infringements, 
such as cartels and resale price maintena nce cases. These infringements were swiftly 
remedied through cease-and-desist orders , accompanied where appropriate by 
substantial fines. Such cases spanned a vari ety of product markets, such as the dairy, 
milk, flour, bakery, pasta, eggs, poultry, b eef, vegetables, fruit, olive oil, chocolate 
and herbs markets. 
III – Consumer activities 
1. K EY ACTIONS  
478. The Consumer Liaison Unit has been in place and operational for over a year, 
pursuing the objectives of deepening DG Co mpetition's engagement with consumer 
                                                 
412 http://ec.europa.eu/economy_finance/publications/publication16061_en.pdf 
413 http://ec.europa.eu/agriculture/markets/milk/report2009/index_en.htm 
EN 113   EN representatives and developing new ways  of communicating directly with the 
broader public. 
479. In 2003 the Commission created the Eu ropean Consumer Consultative Group 
(ECCG) as the Commission's main fo rum for engaging with consumer 
organisations414. The ECCG constitutes a platform for general discussions on issues 
relating to consumer interests; it gives an opinion on Community matters affecting the protection of consumer interests and advises the Commission when it outlines 
policies and activities having an effect on consumers. The ECCG has set up a Subgroup on competition that now meets twice a year in Brussels. Subgroup 
meetings provide the opportunity to disc uss, from a consumer point of view, 
Commission decisions and polic y actions in the field of competition, thus matching 
consumer bodies' demands for a more prac tical approach to competition issues.  
480. The ECCG Competition Subgroup consists of  one national consumer organisation 
representative per EU Member State, plus  one representative from BEUC and two 
from EEA observers (Iceland and Norway).  The Commission provi des the secretariat 
for the Subgroup. 
481. In 2009 the themes discussed during Subgroup meetings reflected the importance of 
the economic and financial crisis. State aid measures, which could a priori seem 
remote for consumers, have raised st rong interest among Subgroup members, who 
are fully aware that State aid is a bout taxpayers' money. The Commission's 
presentation on the economic and financial crisis and State aid led to fruitful 
discussions on the structure of the banking sector and its incentives to fulfil its role of 
financing the real economy. Particular em phasis was put on the passing-on of lower 
interest rates to consumers and the possibl e reinforcement of 'too-big-to-fail' banks 
through state support. 
482. Another illustration of the potential impact of  State aid on consumers' every day life 
came from the Commission's public consulta tion on digital cinema. It was underlined 
that conversion costs to a ne w technology could threaten th e very existen ce of a large 
proportion of cinemas across Europe, especially smaller art houses. Consumers' representatives were therefore interested in raising the issues related to this matter 
(notably cultural diversity) back in their respective countries, so as to be better able 
to inform the Commission of which type  of cinemas consumers think should be 
supported by public funding. 
483. Other topics such as the Intel decision and the Pharmaceutical Sector Inquiry were on 
the agenda of the ECCG Competition Subgroup. 
484. On 21 October, the Commission hoste d a public event on "Competition and 
Consumers in the 21
st century", bringing together c onsumer organisations, business 
representatives and academics as well as Member State judges and officials, to 
underline the impact of competition policy on European consumers' welfare and its synergies with consumer protection polic y. In the opening speech, the Commissioner 
for Competition stressed the need for existing public enforcement to be complemented by effective damages action mech anisms at national level, in order to 
                                                
 
414 2003/709/EC decision of 9 October 2003 
EN 114   EN allow consumers to be compensated for the harm suffered as a result of a breach of 
competition law. 
485. Reaching out to consumers is not merely a question of explaining and discussing EU 
competition policy principles and achieveme nts. It is also about empowering 
consumers; for if they understand bette r the mechanics of a competitive economy, 
they will play a more active role on the market by rewarding those suppliers that 
operate fairly and best respond to consumers’  needs, thus ensuring that their voice be 
heard by businesses. 
486. Much effort has been devoted to followi ng a user-friendly appr oach in updating the 
consumer pages of the competition website by making use of different methods of 
communication. The explanatory pages now include a short video presenting the 
benefits of competition in consumers' everyday life. They also contain an interactive animation where visitors can see how actions by the Commission relate directly to everyday products.  
487. Raising the public's awareness on competiti on issues is not only key to having 
consumers fully exerting their power of choice; it should also allow further 
improving the input they may give to the Commission. 
IV – The European Competitio n Network and cooperation with 
National Courts – Overview of cooperation  
A – GENERAL OVERVIEW  
488. In 2009, the European Competition Network (E CN), i.e. the network for cooperation 
of the Member States' NCAs and the Commission for the enforcement of EU antitrust rules, continued to be a very active forum for discu ssion and exchange on 
good practices. As in previous years, it pe rformed well under the mechanisms laid 
down in Regulation 1/2003, with a view to ensure the efficient and consistent 
enforcement of Articles 101 and 102 TFEU. 
1. C
OOPERATION ON POLICY ISSUES  
489. The ECN provides a platform for EU comp etition authorities to constructively 
coordinate enforcement action, ensure co nsistency and discus s policy issues of 
common interest. During 2009, the ECN met in the following fora. 
• The annual meeting of the Director Gene ral of DG Competition and the heads of 
all NCAs took place on 13 October. For th e first time the meeting was organised 
to include break-out sessions which al lowed a more in-depth discussion. The 
sessions focussed on challenges in competition enforcement for all ECN members: priority setting, convergence/tran sparency of procedures, sanctions and 
criminalisation, cooperation in merger s. The meeting also addressed the 
Commission's actions in the financial cris is and endorsed unanimously the report 
on leniency convergence under the ECN Model Leniency Programme (see 1.1. 
below).  
EN 115   EN • Four ECN plenary meetings served as an important tool for debates about general 
issues of common interest and excha nge of experiences and know-how. The 
plenary took part in the preparatory f act-finding work for the Report on the 
functioning of Regulation 1/2003, whic h the Commission issued on 29 April415 
(see section I.B.1.1.). Furthermore, the plen ary participated in the preparation of 
the report on leniency convergence unde r the ECN Model Leniency Programme 
(see 1.1. below).  
• Two working groups dealt with specific issues such as en hancing cooperation 
within the ECN. These working groups provided an excellent forum for sharing 
experiences on concrete i ssues and exchanging good practices. Two additional 
ECN working groups provided fora for disc ussions concerning the review of the 
Commission's policy on horizontal agreemen ts and on vertical restraints. They 
explored the case experience in thes e fields and provided input for the 
Commission's review of the existi ng Block Exemption Regulations, and 
accompanying Guidelines, which are due to expire in 2010. Furthermore, the chief 
economists of the NCAs and DG Competition met for exchanges on matters within their area of expertise. 
• Moreover, several ECN subgroups dedicate d to particular sectors addressed 
sector-specific issues and engaged in a useful exchange of experience and best 
practices. For example, the subgroup on pha rmaceuticals dealt w ith the results and 
follow-up to the Pharma Sector Inquiry  (see II.F. above) and the Banking 
subgroup (see II.A. above) concentrated on further guidance in the area of MIFs 
and SEPA. 
1.1. Convergence of ECN leniency programmes 
490. During 2009, the ECN assessed the state of co nvergence in the fiel d of leniency. On 
13 October, the heads of the ECN author ities endorsed a repor t which reviews the 
state of convergence of the leniency progr ammes of the ECN memb ers with regard to 
the provisions of the ECN Model Leniency Programme
416. The report is based on 
information from the competition authorities and covers developments up to 
1 October. An annex to the report li sts applicable leniency programmes.  
491. The report concludes that the work w ithin the ECN was a major catalyst in 
encouraging Member States to introduce leniency programmes and in promoting 
convergence between them. At the date of the report, twenty five Member States (all except Malta and Slovenia) and the European Commission operated leniency programmes. The first Slovenian leniency programme comes into force on 1 January 
2010; the Maltese competition authority c onsiders introducing a leniency programme 
in the near future. Reforms of existing leniency programmes were pending in five 
Member States. Hence, the conve rgence process is still on-going. 
492. The ECN Model Leniency Programme
417 was endorsed by the ECN members on 29 
September 2006. Just three years after its endorsement, most Member States revised 
                                                 
415 Article 44 of Regulation 1/20 03. COM(2009)206 final, accompanie d by a Staff Working Paper, 
SEC(2009)574 final. 
416 The Report is available at http://ec.europa.eu/competition/ecn/documents.html   
417 Available at http://ec.europa.eu/competition/ecn/model_leniency_en.pdf   
EN 116   EN their existing programmes or adopted new ones to align with the ECN Model 
Leniency Programme. In the revision pr ocess, the ECN members essentially 
followed the key features of  the Model Programme. The re port also finds that full 
convergence has not yet occurred in all areas.  
493. The purpose of the ECN Model Leniency Pr ogramme is to provide a basis for the 
soft harmonisation of the leniency progr ammes of the ECN members, setting out 
provisions that the ECN members believ ed every leniency programme should 
contain. It also introduced a model for a uniform summary application system at 
national level for immunity applicati ons in cases where the Commission is 
particularly well placed to deal with the case418. The report reviews in detail the 
textual convergence in areas such as the sc ope of leniency programmes, the types of 
applicants excluded from immunity, the ma rker system, the possibility of summary 
applications and of oral submissions , and the conditions for leniency.  
1.2. Cooperation in individual cases 
494. Cooperation between the ECN members in individual cases is organised around two 
principal obligations on th e NCAs under Regulation 1/2003, namely to inform the 
Commission when new cases are opened (A rticle 11(3)) and before the final 
enforcement decision is taken (Article 11(4)). Informing the Commission and the 
Network about new cases fac ilitates swift reallocation of  cases on a few occasions 
where it appears necessary and promotes enhanced and effective enforcement. The second requirement contributes to the coherent application of EU law. 
1.2.1. Case allocation 
495. The Commission was informed under Artic le 11(3) of the Regulation of 129 new 
case investigations launched by NCAs  in 2009. Amongst the new cases, 62% 
concerned the application of Article 101 TFEU, 29% concerned the application of 
Article 102 TFEU and the remainder concer ned the application of both Articles 101 
and 102 TFEU. The figure for Article 101  TFEU cases includes notably the 
enforcement action of the NCAs in the area of cartels. Large numbers of cases could be observed inter alia  in the energy, media, telecom, transport and financial services' 
sectors. 
496. With regard to work-sharing within the Network, the flexible and pragmatic 
approach introduced by the Regulation and the Network Notice continued to function 
very well in practice. As in previous years, in 2009 th ere were very few instances 
where case-allocation discussions took place, and even fewer occasions where a case 
changed hands. The situations where work-s haring plays a role typically occur when 
a complainant or a leniency applicant chooses to contact both the Commission and one or more NCAs. In 2009, a small number of complaints were re-allocated from the Commission to NCAs that were wi lling to follow up the matters raised. 
Furthermore, in a limited number of inst ances, the Commission and NCAs agreed on 
a way of dividing work on a case-by-case basis. 
                                                
 
418 See paragraph 14 of the Network Notice, available at http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:52004XC0427(02):EN:NOT  
EN 117   EN 1.2.2. Coherent application of the rules 
497. The Commission services reviewed 69 envi saged decisions under Article 11(4) of 
Regulation 1/2003, as well as advised on info rmal requests and queries from NCAs. 
The number of envisaged decisions we nt up by 15% compared with 2008. The 
envisaged decisions submitted to the Commission related to a broad range of infringements in different  sectors of the economy. 
498. To date, the Commission has not initiated proceedings with the view to ensure 
decision-making coherency as foreseen  by Article 11(6) of Regulation 1/2003. 
2. A
PPLICATION OF EU COMPETITION RULES BY NATIONAL COURTS IN THE EU:  
REPORT ON THE IMPLEMENTATION OF ARTICLE 15 OF REGULATION 1/2003 
2.1. Assistance in the form of informat ion or in the form of an opinion 
499. Article 15(1) of Regulation 1/2003 allows national judges to ask the Commission for 
information in its possession or for an opinion on questions concerning the 
application of the EU co mpetition rules. In 2009, the Commission issued five 
opinions: one in reply to a re quest from a Belgian court, one to a Lithuanian court 
and three to Spanish courts. 
2.1.1. The opinion requested by a Belgian court 
500. On 2 February, the Commission received  a request for an opinion from the 
Rechtbank van Koophandel te Dendermonde in  the context of an action brought by 
BVBA DD Bikes (DD Bikes), a former aut horised dealer and repairer for Ducati 
Motorbikes against BV Ducati North Europe (Ducati) for failure to be admitted to 
the Ducati authorised repair network.  
501. In terms of whether the di stribution system implemen ted by Ducati could benefit 
from the exemption provided by Regu lation 2790/1999 on Vertical Restraints419, it is 
noted in the opinion that it is first necessary to establish whether there is a separate market for the repair and maintenance of Du cati bikes and if so, the market share of 
Ducati as supplier of the spar e parts is relevant. If Duca ti's market share were to 
exceed 30% (subject to the two year grace pe riod if the market share goes up to 35% 
or subject to one year if it rises above 35% according to Artic le 9 of Regulation 
2790/1999) its agreements with it s authorised repairers woul d not be able to benefit 
from the exemption provided by Regulati on 2790/1999, but could st ill benefit from 
individual exemption depending on the co mpetitive strength of the authorised 
dealers. If however, the national court did not  find that there are separate markets for 
the sale of new motor bikes and their repair and maintenance respectively, the market 
share of Ducati on the primary market for the sale of new motor bikes is likely to be 
below 30%, and its agreements with its au thorised repairers would prima facie be 
covered by Regulation 2790/1999.  
                                                
 
419 OJ L 336, 29.12.1999, p. 21. 
EN 118   EN 2.1.2 The opinion requested by a Lithuanian court 
502. The Commission replied to the request for an opinion by the S upreme Administrative 
Court of Lithuania, con cerning the assessment of an agreement on information 
exchange. The affected markets were L ithuanian paper wholesale markets. The 
Commission observed that the assessment of a practice c oncerning the disclosure of 
information among competitors depends on whet her it concerns an infringement by 
object or an infringement by effect. Insofa r as the assessment of likely effects is 
concerned, the market structure is one of th e factors to be taken into account. With 
reference to the case-law of the Community Courts, the Commission explained that it 
is necessary that the  market structure is not "fragmen ted" or "atomised"; however, it 
does not follow that both elements of ther e being a "highly con centrated market" and 
the affected markets being "o ligopolistic" in nature need to be established in every 
case for the purpose of establishing an in fringement by effect . The Commission then 
examined (taking into account the nature of information) the criteria relevant for the 
assessment of the market structure in info rmation exchange cases, where the assessed 
infringement is an infringement by eff ect. As whether the agreement in question 
constituted an infringement of Article 81  EC and whether it had appreciable effects 
on trade between Member States, the Co mmission concluded that the assessment 
depended on case-specific elements which we re for the national court to assess.  
2.1.3. The opinions requested by Spanish courts 
503. Firstly, on 24 March, the Juzgado de lo Me rcantil n°2 of Barcelona requested an 
opinion regarding the application of Artic le 81 EC in the context of litigation 
between Bright Service S.A. and REPSOL C. P.P., one of the largest suppliers on the 
Spanish wholesale market for petroleum products. The questions raised by the 
national court mainly concern the imp lications of a Comm ission decision of 
12/04/2006420 (the REPSOL Decision) and whether it precludes national courts and 
competition authorities from assessing whet her an exclusive supply agreement which 
is part of the commercial REPSOL network is harming or has infringed the competition rules. The opinion specifies th at commitment decisions adopted by the 
Commission on the basis of Article 9 of Regulation 1/2003 do not conclude as to 
whether or not there has been or still is an infringement. Notwithstanding this, a national court cannot take a decision which would run counter to the operative part 
of the Commission's decision, i.e. which would conflict with the implementation of 
the commitments which were made binding by the REPSOL Decision.  
504. Secondly, the Commission replied to a request  from the Juzgado de  lo Mercantil n°1 
of Madrid in the context of litigation following the acquisition of Dalphi Metal España's (DME) car airbag and steer ing wheel business by TRW Automotive 
(TRW), a US automotive component manuf acturer. This acquisition was approved 
by the Commission in 2005 under the EU Merger Regulation
421. This decision took 
into account the fact that at the time Takata-Petri (Takata), which is also a 
manufacturer of car airbags and steeri ng wheels, held a minority stake in DME 
(21.6%) and had a shareholding of 49% in  each of three DM E production joint 
ventures. The Commission considered that th is could not give rise to a risk of 
                                                 
420 Case COMP/38348 REPSOL C.P.P. SA - Distribution de Carburants et Combustibles . 
421 Case COMP/M.3972, TRW Aotomotive/Dalphi Metal España, Article 6(1)(b) non-opposition. 
EN 119   EN coordination between TRW and Takata on the markets for airbags and steering 
wheels.  
505. Takata subsequently brought proceedings against some decisions taken by the Board 
of Directors of DME's production companies, in  particular, against its refusal to give 
Takata access to the transfer prices charged to DME for certain products manufactured by DME's production compan ies on the grounds that this would 
infringe Article 81 EC. The questions raised  by the court are addr essed in the opinion 
as follows. Firstly, in terms of whether th e "unilateral" provision of information by 
an undertaking to a competitor could constitu te an exchange of information contrary 
to Article 81 EC, it is spec ified that the mere receipt of information by an 
undertaking could be anti-competitive because it could eliminate uncertainty about the future conduct of competitors and allow this undertaking to take into account this 
information in order to determine its po licy on the market, although a case-by-case 
analysis of this is need ed. Secondly, the exchange of  historical data does not 
influence market conditions and therefor e does not constitute an infringement of 
Article 81 EC. On the basis of Commission pr actice, information which is more than 
one year old can generally be regarded as  "historical", however this has to be 
assessed taking into account the extent to which data becomes obsolete on the market 
concerned, and depending on the market  structure in the case at hand.  
506. The third opinion was requested by the Ju zgado de lo Mercantil n°5 of Madrid 
regarding the application of Article 81 EC  in the context of litigation between 
PETROCAT, a supplier on the Spanish wholes ale market for petroleum products and 
two operators of service stations, CANALS y FILS S.L. and ZERO SETS S.L. With 
regard to the first question concerning wh ether a long term exclusive supply contract 
(of a duration of 27 years or more) can  result in a significant restriction of 
competition contrary to Article 81 EC, th e opinion specifies that the assessment of 
whether there is foreclosure has to be examined in the context of the overall 
competitive situation and existing econom ic and legal links (see the REPSOL 
Decision and the decision a dopted by the Spanish Compet ition Authority in the 
CEPSA case). With regard to clauses in long term exclusive supply contracts which 
set the retail price, the opi nion distinguishes between di fferent types of contracts 
entered into between wholesaler distributo r and service stations, according to the 
ownership and degree of risk involved in order to assist the national court in 
identifying whether the service station is ultimately an agen t. If it is not a genuine 
agent, such a clause would violate Article 81( 1) EC. The opinion also clarifies that in 
accordance with Article 5(a) of Re gulation 2790/1999 on Vertical Restraints, 
exclusivity clauses of such long duration can  only be exempted from the prohibition 
in Article 81(1) EC if the market share of  the supplier is less th an 30% and, if on 1 
January 2003, the remaining duration of the c ontract would be less than five years or 
if the contractual goods or services are sold by the buyer from premises and land 
owned by the supplier or are rented by the supplier to third parties not connected 
with the buyer. It is  noted in the opinion that these conditions should be interpreted 
restrictively and do not appear to be met in this case.  
2.2. Amicus curiae  interventions under Article 15(3) of Regulation 1/2003 
507. Article 15(3) of Regulation 1/2003 provides that where th e coherent application of 
Articles 101 or 102 TFEU so requires, th e Commission, acting on its own initiative, 
EN 120   EN may submit written observations to courts of  the Member States, and may also make 
oral observations with the permi ssion of the court in question.  
508. In 2009, the Commission submitted written obser vations in one case before the Paris 
Court of Appeal, relating to a restriction of on-line sales in selective distribution 
agreements422.  
509. The Commission observed that a general pr ohibition of on-line sales imposed by the 
supplier on its selected dist ributors is an infringement  by object under Article 81(1) 
EC, which is not block-exempted under Regulation 2790/1999. Moreover, the 
Commission observed that the notion of "obj ective justification", mentioned in point 
51 of the Guidelines on Vertical Restraints , should be interpreted strictly and shall 
not replace the analysis of efficiencies  under Article 81(3) EC. In general, only 
exceptional circumstances, external to the pa rties, may be consid ered as an objective 
justification for restricti ons by object. If however th e supplier proves that the 
conditions of Article 81(3) EC are fulf illed, the agreement may be individually 
exempted under that Article. On  29 October, the Paris Cour t of Appeal referred to 
the ECJ a question for prelim inary ruling under Article 234 EC423. 
510. Furthermore, the Commission's powers  to submit written observations as amicus 
curiae in national court proceedings were addres sed in the judgment of the ECJ of 11 
June, in case C-429/07, Inspecteur van de Belastingdienst v X BV . In this judgment, 
the ECJ gave a broad interpretation of the condition of " coherent application of 
Articles 81 and 82 EC" as laid down in  Article 15(3) of Re gulation 1/2003 (see 
paragraph 153 above). Following the ECJ ruling, the Commission submitted its observations opposing tax deductibility of fines. 
2.3. Financing the training of nation al judges in EU competition law 
511. Continuous availability of training programmes for national judges in EU 
competition law contributes to the effective and coherent application of those rules. 
In 2009, 10 grant agreements were conclude d for training of judges' programmes in 
various Member States. 
V – International activities  
512. In an increasingly globalised world ec onomy, competition policy must also adopt a 
global outlook. The Commission is responding to this challenge by reinforcing and 
extending its relations with partners al l over the world in both bilateral and 
multilateral fora. The Commission attaches the hi ghest importance to effective 
international cooperation in the area of competition. Bilateral meetings between the 
Commissioner for Competition with count erparts in the United States, Brazil, 
Canada, Japan and China, as well as participation by the Commissioner for 
                                                 
422 Case at Paris Court of Appeal, No RG 2008/23812, Pierre Fabre Dermo-Cosmétique . 
423 Case C-439/09, Pierre Fabre Dermo-Cosmétique . The referred question is whether a general and 
absolute prohibition to sell contract goods to end users via the Internet, imposed on authorised distributors within the framework of a selective distribution network, constitutes an infringement of 
Article 81(1) EC, which is not exempted under Regulation No 2790/1999, however could possibly 
benefit from an individual exemption under Article 81(3) EC. 
EN 121   EN Commission in the February meeti ng of the OECD Competition Committee 
demonstrate this commitment. 
A – MULTILATERAL COOPERATION  
1. I NTERNATIONAL COMPETITION NETWORK  
513. DG Competition continued to play a leading ro le in the ICN. More specifically, DG 
Competition is a member of the Steering Group, co-chair of the cartels Working 
Group and an active member of the other Working Groups (on mergers, agency effectiveness, unilatera l conduct and advocacy). 
514. DG Competition hosted on 22 and 23 January in Brussels a "Seminar on Competition 
Agency Effectiveness", the first such event of its type. The seminar addressed issues 
that are of central importance to the eff ectiveness of implementation of competition 
policies such as strategic pl anning of agency activities an d prioritisation of actions, 
effective project delivery, evaluation and accountability and communication. 
Representatives of 47 competition agencies part icipated in the seminar, most of them 
heads of agencies or senior staff respons ible for the planning of agency operations. 
515. The 8
th Annual Conference took place in Züri ch (Switzerland) from 3 to 5 May. 
516. The Merger Working Group continued its wo rk to draft Recommended Practices in 
several areas of substantiv e merger analysis and pres ented them at the Annual 
Conference on Recommended Practices on comp etitive effects in horizontal merger 
review, on unilateral effects and on coordinated effects. 
517. The Unilateral Conduct Working Group, whic h was set up in 2006, presented two 
reports on tying, bundled di scounting and loyalty rebate s. The Working Group also 
started preparations for a report on refu sals to supply. In March the ICN held a 
workshop on Unilateral Conduct in Washington. 
518. The Cartels Working Group, co-chaired by  DG Competition, continued its work on 
the Anti-Cartel Enforcement Manual, in par ticular on searches and inspections and 
on developing an effective leniency program. The 2009 ICN Cartels workshop was held in Cairo (Egypt) from 27 to 29 October. 
2. OECD 
519. The Commission continued to contribute actively to the work of the OECD 
Competition Committee and participated in each of the three sessions held by the 
Committee in 2009. It submitted contributi ons to most roundtables on competition 
policy, including on the role of competition law in times of crises, the standard of 
merger review, two-sided markets, co mpetition, patents and innovation, margin 
squeeze, state-owned companies and failing firm defence. The Commissioner for Competition made a speech on the "Road to recovery" in the context of the OECD 
session dedicated to the financial crisis. 
EN 122   EN 3. UNCTAD 
520. The Commission participated at the 10th annual conference of the Intergovernmental 
Group of Experts (IGE) on Competition Law and Policy of the United Nations 
Conference on Trade and Development (UNCTAD). It submitted contributions to most roundtable discussions, such as the one on the relationship between competition 
and industrial policies in promoting ec onomic development, the one on public 
monopolies, concessions, competition law and policy as well as the one on the role of economic analysis in competition cases. 
B – BILATERAL COOPERATION  
521. The Commission cooperates with numerous competition authorities on a bilateral 
basis and, in particular, w ith the authorities of the European Union's major trading 
partners. The European Union has entered into dedicated coopera tion agreements in 
competition matters with the United States, Canada and Japan. 
1. A GREEMENTS WITH THE USA,  CANADA , JAPAN AND SOUTH KOREA  
522. As in previous years, cooperation with th e United States of America was intense. 
Based on two dedicated competition cooperation agreements424, contacts between 
DG Competition and the Antitrust Division of the US Department of Justice (DoJ) 
and the US Federal Trade Commission (FTC ) were frequent. These contacts ranged 
from cooperation in individual cases to mo re general matters related to competition 
policy. Numerous meetings and video- or telephone-conferences took place to 
discuss issues such as cooperation in cartel investigations, abuse of dominance or the 
application of the competition rules in particular sectors. The Commissioner for 
Competition met her US counterparts, Ch airman Jon Leibowitz of the FTC and 
Christine Varney, the Assistant Attorney General, at several occasions.  
523. In case-related contacts, case teams regularly updated each other on the state of 
investigations (within th e limits of the above-menti oned agreements). Merger 
control, in particular, re quires good coordination with the DoJ and the FTC. The 
2002 EU-US Best Practices on cooperation in  reviewing mergers provided a useful 
framework for cooperation, especially by indi cating critical points in the procedure 
where cooperation could be particularly useful. The Pfizer/Wyeth  and 
Panasonic/Sanyo  cases can be cited as exampl es of good cooperation between the 
EU and US agencies. 
524. Cooperation with the Canadian Competitio n Bureau is based on the EU/Canada 
Competition Cooperation Agreement which was signed in 1999425. Contacts between 
the Commission and the Bureau have been fr equent and fruitful. Case-related contact 
concerned mainly merger and cartel investig ations. In the area of cartel cases this 
                                                 
424 Agreement between the European Communities and the Government of the United States of America 
regarding the application of their competition laws (OJ L 95, 27.4.1995, p. 47) and Agreement between 
the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of th eir competition laws (OJ L 173, 18.6.1998, p. 26). 
425 Agreement between the European Communities and the Government of Canada regarding the 
application of their competition laws  (OJ L 175, 10.7.1999, p. 50). 
EN 123   EN also included the coordination of investigativ e measures and, in the area of mergers, 
the discussion of possible remedies. Th e Commission and the Canadian Competition 
Bureau continued their dialogue on general competition issues of common concern. 
The Commissioner for Competition met th e Head of the Canadian Competition 
Bureau, Melanie Aitken, at the annual bi lateral high level meeting on 30 March in 
Toronto and officials from both side s conducted other reciprocal visits. 
525. Cooperation with the Japan Fair Trade Commission (JFTC) is based on the 2003 
Cooperation Agreement426. The Commissioner for Competition met with JFTC 
Chairman Takeshima during the EU-Japan High Level meeting on competition policy
 on 10 September in Brussels. At th e centre of discussions were policy 
initiatives on both sides (especially merger  remedies and the JFTC's draft guidance 
on unilateral conduct), as well as recent enfo rcement actions. In addition to contacts 
on individual cases, the Co mmission and the JFTC continued their ongoing dialogue 
on general competition issues of common concern. 
526. On 23 May, the European Community and South Korea signed a bilateral 
cooperation agreement in the field of comp etition, which entered into force on 1 July 
2009427. This agreement contained provi sions on enforcement cooperation, 
notification, consultation and exchange of non-confidential information. The 
agreement supersedes the Me morandum of Understanding428 between DG 
Competition and the KFTC. 
2. C OOPERATION WITH OTHER COUNTRIES AND REGIONS  
527. The European Commission continued its cl ose cooperation with the European Free 
Trade Association (EFTA) Surveillance Aut hority in enforcing the Agreement on the 
European Economic Area (EEA). 
528. Relations with Brazil have intensified with cooperation on cases and DG 
Competition hosting a visitor from CADE, the Brazilian decision-making 
competition authority, for a 3 month period. They reached a new level on 8 October 
when The Commissioner for Competition signed a Memorandum of Understanding 
(MoU) with the Brazilian Ministry of Ju stice and the heads of the Brazilian 
Competition Authorities in order to ensure a closer cooperation between DG Competition and its Brazilian counterparts . This MoU reflects the importance of 
Brazil as a trading partner for the EU and the maturity of its competition enforcement authorities. 
529. Cooperation with China under the EU-China competition policy dialogue
429 
remained a priority in 2009 with the a nnual competition dialogue being held in 
Brussels on 22-23 June. In addition, contacts between DG Competition and the Chinese administration were intensive and dealt mainly with questions concerning 
                                                
 
426 Agreement between the European Community and the Government of Japan concerning cooperation on 
anti-competitive activities (OJ L 183, 22.7.2003, p. 12). 
427 Agreement between the European Community and the Government of the Republic of Korea 
concerning cooperation on anti-competitive activities (OJ L 202, 4.8.2009, p. 36). 
428 Memorandum of Understanding on cooperation between the Fair Trade Commission of the Republic of 
Korea and the Competition Directorate-General of the European Commission (October 2004). 
429 Terms of Reference of the EU-China competition policy dialogue (May 2004). 
EN 124   EN the recently adopted anti-monopoly law and the implementing legislation which is 
being elaborated. Together with th e Chinese Anti Monopoly Enforcements 
Authorities, the National Development a nd Reform Commission (NDRC), the State 
Administration of Commerce and Industry (SAIC) and Ministry of Commerce 
(Mofcom), DG Competition co-hosted several workshops in Beijing as well as the Competition Weeks in the provinces on EU me rger control and antitrust issues for 
high-level representatives from the An ti Monopoly Enforcements Authorities. 
Moreover, high-level representatives visited the Anti Monopoly Enforcements 
Authorities in Beijing to discuss tec hnical and enforcement cooperation. DG 
Competition is furthermore actively negotiating a competition chapter to be part of the 1985 upgrade agreement/Partnership and Cooperation Agreement. 
530. Cooperation with India intensified dur ing 2009 as India has appointed seven 
Commissioners to constitute the Compe tition Commission of India (CCI) which is 
entrusted with the enforcem ent of the 2002 Competition Ac t. India moreover notified 
the operative parts of the 2002 Competition Act regarding restrictive agreements, 
abuse of dominance and merger control,  which is a pre-requisite for their 
enforcement. Consequently, a number of meetings between th e CCI and high level 
DG Competition officials took place th roughout 2009 and the Commissioner for 
Competition also paid a visit to the CCI in November. DG Competition is moreover 
engaged in technical cooperation with the CCI and it welcomed 6 high level CCI officials in September for discussions on the most efficient ways to combat cartels. 
531. DG Competition played an active role in  the ongoing negotiations on Free Trade 
Agreements (FTA) with India, Ukraine, India, South Korea, Andean Countries 
(Colombia and Peru) and Canada, and on the trade part of the Association 
Agreement with Central America, with a view to ensuring that anti-competitive 
practices (including State aid) do not er ode the trade and other economic benefits 
sought through those agreements. DG Competiti on continued to play an active role in 
the negotiation of the competition chapte r of Economic Partnership Agreements 
(EPAs) with five groupings of former ACP countries, (four in Africa and one in the 
Pacific). The FTA with South Korea was initialled on 15 October 2009 and is expected to be signed and enter into for ce during the course of 2010. It is the first 
time that an FTA contains a prohibition on certain types of subsidies. Moreover, DG 
Competition is negotiating competition provisions in a number of Partnership and Cooperation Agreements with Mongolia and certain ASEAN countries and in 
particular Vietnam, Indonesia, Tha iland, Brunei, Singapore and Malaysia. 
C – ENLARGEMENT  
532. In the context of enlargement, candida te countries must fulfil a number of 
requirements in the field of competition policy as a condition for joining the European Union. Candidate countries must  adopt national legislation compatible 
with the EU acquis . They must also put in place  the necessary administrative 
capacity and demonstrate a credible en forcement record. DG Competition provides 
technical assistance and s upport to help the candidate countries fulfil these 
requirements and it continuous ly monitors the extent to which the candidate 
countries are prepared for accession. 
EN 125   EN 533. During 2009, there was particularly close cooperation with Croatia and Turkey. 
These two candidate countries have to fu lfil "opening benchmarks" before accession 
negotiations on the competition chapter can st art. Croatia made important progress in 
meeting these opening benchmarks, including on the remaining important issue of 
the restructuring of its shipyards. Turkey has yet to introduce a system for the control and monitoring of State aid. 
534. DG Competition assisted the Western Balkan  countries in further aligning their 
competition rules with EU law. This include d, among others, help in drafting laws on 
competition and State aid and advice on setting up the necessary institutions to enforce these rules. DG Competition c ontinued to help Macedonia improve the 
compliance of its fiscal legislati on with Community rules on State aid. 
535. DG Competition also took part in the pr eliminary discussions  on Iceland's EU 
membership prospect. 
536. In the framework of the European Neighbourhood Policy (ENP), DG Competition 
monitored the implementation of the compe tition-related priorities in the bilateral 
action plans agreed between the EU and EN P countries, which set out an agenda of 
political and economic reforms in the shor t and medium term. It also organised a 
certain number of seminars financed by the TAIEX program on competition-related 
issues for these countries. 
VI – Interinstitutional cooperation 
537. In 2009, the Commission continued its coopera tion with the other institutions of the 
European Union in accordance with the respective agreements or protocols entered into by the relevant institutions
430. 
538. The Commission cooperates closely with th e European Parliament (EP). In 2009, the 
EP adopted two resolutions on competition policy issues: a resolution on the White 
paper on damages actions for breach of th e EC antitrust rule s, and on the Annual 
Competition Reports for 2006 and 2007. In addi tion to the regular dialogue between 
the Commissioner for Competition and the ECON committee, the Commission 
participated in discussions held in other Parliamentary committees, and on a range of subjects including the Annual Competition Report, the White Paper on Damages Actions, the Broadcasting Communication, St ate aid and the financial crisis, the 
Pharmaceutical Sector Inquiry and the Motor Vehicle Block Exemption Regulation. Bilateral meetings with MEPs were held  on these and on a range of other issues, 
including the Insurance Bl ock Exemption Regulation. 
539. The Commission also cooperates closely with both the European Ombudsman and 
Members of the EP by replying to Parlia mentary Questions and Petitions. In 2009, 
                                                
 
430 Framework Agreement of 26 May 2005 on relati ons between the European Parliament and the 
Commission; Protocol of Cooperation between the European Commission and the European Economic 
and Social Committee of 7 November 2005; Protoc ol on the Cooperation Arrangements between the 
European Commission and the Committee of the Regions of 17 November 2005. 
EN 126   EN the Commission responded to 446 written qu estions, 38 oral questions and 43 
petitions involving matters of competition policy431. 
540. The Commission cooperates closely with the Council  by informing it of important 
policy initiatives in the field of compe tition, such as on State aid measures and 
guidelines for the banking industry and othe r additional State aid measures in the 
context of the financial and economic cr isis. The Economic and Financial Committee 
(EFC), has been consulted on the Banking, Recapitalisation, Impaired Assets and 
Restructuring Communications, and on a re view of guarantee and recapitalisation 
schemes. The EFC prepares the work for the Economic and Financial Affairs 
Council (ECOFIN) and includes a European Central Bank representative. 
541. The Commission made contribu tions on competition policy in respect of conclusions 
adopted in the ECOFIN Council (Single Market Review, Single Euro Payments 
Area, exit strategies for the financia l sector) and the European Council (exit 
strategies), the Competitiveness Council (such as on contribution to the EU2020 
agenda, industrial policy or  single market), the Transport, Telecommunications and 
Energy Council (Internal Energy Market legislative packag e, energy/climate 
package). 
542. The Commission informs the European Economic and Social Committee (EESC)  
and the Committee of the Regions  about major policy initiatives, and participates in 
debates that may be held in the resp ective Committee on those initiatives. During 
2009, the EESC published reports on the Annual Competition Report 2007, and the White Paper on damages actions. DG Compe tition services have also attended 
working group meetings, and had bilatera l meetings with EESC rapporteurs on a 
number of other subjects including SMEs adapting to global market changes, 
shipbuilding and State aid.  
                                                
 
431 Of these the Commissioner in charge of Competition directly responded to 149 written questions, 15 
oral questions and 19 petitions. 
EN 127   EN ANNEX: State aid - Ov erview of national measures adopted as a response to the 
financial/economic crisis (2008 & 2009) 
Brussels, January 2010 
STATE AID : OVERVIEW OF NATIONAL MEASURES ADOPTED AS A RESPONSE TO THE 
FINANCIAL /ECONOMIC CRISIS  
(See table attached in annex) 
This information is compiled from a range of sources and is provided for information only. 
The European Commission cannot confirm the co mpleteness or accuracy of the information. 
EN 128   EN COMMUNICATIONS FROM THE COMMISSION TO PROVIDE GUIDANCE TO MEMBER STATES  
Communication from the Commission  — The application of State aid rules  to measures 
taken in relation to financial institutions in th e context of the current global financial crisis , 13 
October 2008 (see IP/08/1495 ) 
Communication from  the Commission  — The recapitalisation of financial institutions  in 
the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition, 5 December 2008 (see IP/08/1901
) 
Communication from the Commission  on the Treatment of  Impaired Assets in the 
Community Banking Sector, 25 February 2009 (see IP/09/322 ) 
Communication from the Commission  - Temporary framework  for State aid measures to 
support access to finance in the cu rrent financial and economic crisis, adopted on 17 
December 2008 (see IP/08/1993 ), as amended on 25 February 2009. 
Communication from the Commission  - The return to viability  and the assessment of 
restructuring  measures in the financial sector in th e current crisis under the State aid rules, 
23 July 2009 (see IP/09/1180 ) 
STATE AID CASES - SITUATION AS OF 8 JANUARY 2010 
Decisions adopted by the Commission in 2008/2009/2010432 
 Member State Type of measure / Beneficiary 
 Type of Decision Date of adoption 
 Austria N557/2008 - Aid scheme for the 
Austrian financial sector (guarantees, recapitalisation & other) 
 
N352/2009 - Prolongation  
N663/2009 - Second prolongation Decision not to 
raise objections IP/08/1933
 
 
MEX/09/0630  
 
MEX/09/1217  09 December 2008
  
 
30 June 2009  
17 December 2009 
 Austria N214/2008 - Recapitalisation of Hypo 
Tirol Decision not to 
raise objections 
IP/09/928  17 June 2009 
 Austria N 640/2009 - BAWAG - capital inj ection Decision not to  22 December 2009 
                                                 
432 As a general rule, aid schemes are reviewable six months after approval. Some individual decisions are 
subject to a review and po ssible restructuring plan. 
EN 129   EN and asset guarantee raise objections 
IP/09/1989  
 Austria C 16/2009 + N698/2009 – Emergency 
aid to Hypo Group Alpe Adria Decision not to 
raise objections 
IP/09/1998  23 December 2009 
 Belgium/France/ 
Luxembourg NN45-49-50/2008 - Guarantee on 
liabilities of Dexia 
 
 Prolongation Decision not to 
raise objections 
IP/08/1745
 
 IP/09/1662
 19 November 2008
 
 
 30 October 2009 
 Belgium/France/ 
Luxembourg C9/2009 - Guarantee in favour of Dexia 
on certain assets in FSA Decision not to 
raise objections 
IP/09/399  13 March 2009 
 
 Belgium/Luxembourg/
Netherlands N574/2008 - Measures in favour of 
Fortis Decision not to 
raise objections 
IP/08/1746  19 November 2008 
 Belgium/Luxembourg/
Netherlands NN42-46-53A/2008 - Restructuring aid 
to Fortis Bank and Fortis Bank Luxembourg Decision not to 
raise objections IP/08/1884
 03 December 2008 
 Belgium/Luxembourg N255/200 9 and N274/2009 - Additional 
aid measures in favour of Fortis Bank 
and Fortis Bank Luxembourg Decision not to 
raise objections 
IP/09/743  12 May 2009 
 Belgium N602/2008 - Recapitalisation measure in 
favour of KBC Decision not to 
raise objections 
IP/08/2033  18 December 2008 
 Belgium NN57/2008 - Capital Injection for Ethias 
Group Decision not to 
raise objections IP/09/254
 12 February 2009 
 Belgium C18/2009 - Recapitalisation and asset 
relief for KBC Group Decision not to 
raise objections 
IP/09/1063  30 June 2009 
 Belgium C18/2009 - Asset relief and restructuring 
package for KBC Final conditional 
decision after 
formal investigation procedure 
IP/09/1730
 18 November 2009 
 Cyprus N511/2009 - Cypriot scheme to support 
credit institutions (guarantee) Decision not to 
raise objections IP/09/1569
 22 October 2009 
 Denmark NN36/2008 - Rescue aid to Roskilde 
Bank Decision not to 
raise objections 
(IP/08/1222 ) 31 July 2008 
 
 Denmark NN39/2008 - Liquidation aid to Roskilde 
bank Decision not to 
raise objections 5 November 2008 
EN 130   EN IP/08/1633  
 Denmark NN51/2008 - Guarantee scheme for 
banks in Denmark Decision not to 
raise objections 
IP/08/1483  10 October 2008 
 Denmark N31a/2009 - Recapitalisation scheme 
and amendment of the guarantee scheme 
 
NN46/2009 - Prolongation 
 N628/2009 – Second prolongation Decision not to 
raise objections IP/09/206
 
 
MEX/09 /0817  
 
MEX/09/1217  3 February 2009 
  
17 August 2009 
 17 December 2009 
 Denmark NN23/2009 - Rescue aid for Fionia Bank Decision not to 
raise objections 
IP/09/819  20 May 2009 
 Finland N567/2008 - Finnish guarantee scheme 
 
 N44/2009 - Amendment to the guarantee 
scheme 
  
N239/2009 - Prolongation and 
modification 
 
N674/2009 – Second prolongation and 
modification Decision not to 
raise objections 
IP/08/1705
 
 
Decision not to 
raise objections IP/09/681
 
 
IP/09/681  
 
 
MEX/09/1217  13 November 2008 
 
 5 February 2009
 
  
30 April 2009 
  
17 December 2009 
 Finland NN2/2009 - Guarantee for Kaupthing 
Bank Finland Decision not to 
raise objections 
IP/09/82  21 January 2009 
 Finland N329/2009 - Capital injection scheme Decision not to 
raise objections IP/09/1303
 11 September 2009 
 France N548/2008 - Financial support measures 
to the banking industry in France (Refinancing) 
 
N251/2009 - Extension of the scheme Decision not to 
raise objections IP/08/1609
 
 
Decision not to 
raise objections 
IP/09/750  30 October 2008 
  
12 May 2009 
EN 131   EN  France N613/2008 - Financial support measures 
to the banking industry in France 
(Recapitalisation) 
 N29/2009 - Amendment to the Decision 
 
N164/2009 - Amendment to the Decision Decision not to 
raise objections 
IP/08/1900
 
 IP/09/158
 
 
IP/09/461  08 December 2008
 
 
 
28 January 2009 
 
23 March 2009 
 France N249/2009 - Capital injection for Caisse 
d'Epargne and Banque Populaire Decision not to 
raise objections 
IP/09/722  8 May 2009 
 Germany C9/2008 - Restructuring aid to Sachsen 
LB Conditional 
decision (after 
formal investigation 
procedure IP/08/849
 4 June 2008 
 Germany C10/2008 - Restructuring aid to IKB Conditional 
decision (after 
formal investigation procedure) 
IP/08/1557
 21 October 2008 
 Germany 
 NN44/2008 - Rescue aid to Hypo Real 
Estate Holding 
 Decision not to 
raise objections IP/08/1453
 2 October 2008 
 Germany N512/2008 - Aid scheme for financial 
institutions in Germany (guarantees, 
recapitalisations & other) 
 
N625/2008 - Amendment to the Decision 
  
N330/2009 – Prolongation 
 
N665/2009 – Second prolongation Decision not to 
raise objections 
IP/08/1589
 
 
 
  EXME09 / 22.06
  
 MEX/09/1217
 27 October 2008 
 
 
12 December 2008 
 
 22 June 2009 
 
17 December 2009 
 Germany N615/2008 - Guarantee and 
recapitalisation for Bayern LB  
 Decision not to 
raise objections 
IP/08/2034  18 December 2008 
 Germany N655/2008 - Guarantee for NordLB Decision not to 
raise objections 22 December 2008 
EN 132   EN  
 
 
N412/2009 - Prolongation IP/08/2056  
 
 
MEX/09/0910   
 
 
10 September 2009 
 Germany N639/2008 - Guarant ee for IKB Decision not to 
raise objections 
IP/08/2055  22 December 2008 
 Germany N17/2009 - Guarantee for SdB – 
Sicherungseinrichtungsgesellschaft deutscher Banken mbH Decision not to 
raise objections IP/09/114
 22 January 2009 
 Germany N244/2009 - Commerzbank capital 
injection Decision not to 
raise objections 
IP/09/711  7 May 2009 
 Germany C43/2008 - Aid for the restructuring of 
West LB Conditional 
decision (after 
formal investigation procedure) 
IP/09/741
 12 May 2009 
 Germany N531/2009 - Temporary additional aid to 
West LB Decision not to 
raise objections IP/09/1434
 7 October 2009 
 Germany N264/2009 - Recapitalisation of HSH 
Nordbank Decision not to 
raise objections 
IP/09/854  29 May 2009 
 Germany C17/2009 - Recapitalisation and asset 
relief for LBBW (Landesbank Baden 
Württemberg) 
 Decision not to 
raise objections 
IP/09/1058  30 June 2009 
 Germany N314/2009 - German asset relief scheme Decision not to 
raise objections 
IP/09/1216  31 July 2009 
 Germany N400/2009 - Additional aid (guarantees) 
for IKB Decision not to 
raise objections 
IP/09/1235  17 August 2009 
 Germany Export credit scheme Decision not to 
raise objections IP/09/1319
 15 September 2009 
 Germany C17/2009 - Landesbank Baden 
Württemberg "LBBW" - restructuring 
plan and impaired assets relief measure Conditional 
decision (after 
formal investigation procedure 
IP/09/1927
 15 December 2009 
EN 133   EN  Germany N694/2009 – State guarantees for Hypo 
Real Estate Decision not to 
raise objections 
IP/09/1985  21 December 2009 
 Germany N555/2009 – Rescue aid for WestLB; in-
depth investigation into bad bank Decision not to 
raise objections IP/09/1996
 22 December 2009 
 Greece N560/2008 - Aid scheme to the banking 
industry in Greece (guarantees, 
recapitalisation & other) 
 
Prolongation and modification Decision not to 
raise objections 
IP/081742  
 
MEX/09/0918  19 November 2008 
 
 
18 September 2009 
 Hungary N664/2008 - Financial support measures 
to Hungarian financial industry in form 
of recapitalisation and guarantee scheme 
 
N355/2009 - Prolongation and 
modification 
 
N662/2009 – Second prolongation Decision not to 
raise objections 
IP/09/253  
 
MEX09 /0903  
 
 
MEX/09/1217  12 February 2009 
 
 
3 September 2009 
  
17 December 2009 
 Hungary N 358/2009 - Hungarian Mortgage 
Support Scheme 
 
 
N603/2009 - Prolongation Decision not to 
raise objections IP/09/1123
 
 
Decision not to raise objections 
MEX 09/1124
 13 July 2009 
  
24 November 2009 
 Ireland NN48/2008 - Guarantee scheme for 
banks in Ireland 
 Decision not to 
raise objections IP/08/1497
 13 October 2008 
 Ireland N9/2009 - Recapitalisation of Anglo 
Irish Bank Decision not to 
raise objections 
IP/09/50  14 January 2009 
 Ireland N356/2009 - Recapitalisation of Anglo 
Irish Bank Decision not to 
raise objections 
IP/09/1045  26 June 2009 
 Ireland N61/2009 - Change of ownership of 
Anglo Irish Bank 
 Decision not to 
raise objections 
IP/09/271  17 February 2009 
EN 134   EN  Ireland N149/2009 - Recapitalisation of Bank of 
Ireland Decision not to 
raise objections 
IP/09/483  26 March 2009 
 Ireland N241/2009 - Recapitalisation of Allied 
Irish Bank Decision not to 
raise objections IP/09/744
 12 May 2009 
 Ireland N349/2009 - revised Irish guarantee 
scheme for financial institutions Decision not to 
raise objections 
IP/09/1787  20 November 2009 
 Italy N520a/2008 - Guarantee scheme for 
Italian banks 
 
 
N328/2009 - Prolongation Decision not to 
raise objections 
IP/08/1706  
 
IP/09/929  14 November 2008
 
 
 
16 June 2009 
 Italy N648/2008 - Recapitalisation scheme 
  
N97/2009 - Amendment 
 N 466/2009 - Prolongation Decision not to 
raise objections IP/08/2059
 
 
  
MEX/09/1006
 23 December 2008 
  
20 February 2009 
 6 October 2009 
 Latvia NN68/2008 - Public support measures to 
Parex Banka  
 NN3/2009 - Amendment to the Decision 
 
N189/2009 - Amendment to the Decision Decision not to 
raise objections 
IP/08/1766
 
 
 
 IP/09/732
 24 November 2008 
 
 11 February 2009 
 
11 May 2009 
 Latvia N638/2008 - Guarantee scheme for 
banks 
 
 
N326/2009 – Prolongation 
 
N664/2009 – Second prolongation Decision not to 
raise objections 
IP/08/2054  
 MEX/09/0630
 
 
MEX/09/1217  22 December 2008
 
 
 
30 June 2009 
 
17 December 2009 
 Latvia NN60/2009 - Capital injection for 
Mortgage Bank of Latvia  Decision not to 
raise objections 19 November 2009 
EN 135   EN IP/09/1742  
 Luxembourg N344/2009&N380/2009 - Restructuring 
aid for Kaupthing Bank Luxembourg Decision not to 
raise objections 
IP/09/1107  9 July 2009 
 Netherlands N524/2008 - Guarantee scheme for 
Dutch financial institutions 
 
 
N379/2009 - Prolongation and modification 
 
N669/2009 – Second prolongation Decision not to 
raise objections IP/08/1610
 
 
MEX/09/0707  
 
 
MEX/09/1217  30 October 2008
 
 
 
7 July 2009 
 
 
17 December 2009 
 Netherlands 
 N528/2008 - Measure in favour of ING Decision not to 
raise objections 
IP/08/1699  13 November 2008 
 Netherlands N569/2008 - Measure in favour of 
Aegon Decision not to 
raise objections IP/08/1822
 27 November 2008 
 Netherlands N611/2008 - SNS Reaal/New capital 
injection by Dutch authorities Decision not to 
raise objections 
IP/08/1951  10 December 2008 
 Netherlands C10/2009 - ING Illiqui d asset facility Decision not to 
raise objections 
IP/09/514  31 March 2009 
 Netherlands C10/2009 - ING restructuring plan and 
illiquid asset back-up facility Final conditional 
decision after formal investigation 
procedure 
IP/09/1729
 18 November 2009 
 Poland N208/2009 - Polish support scheme for 
financial institutions (guarantee and 
liquidity support) Decision not to 
raise objections 
IP/09/1360  25 September 2009 
 Poland N302/2009 – Polish bank recapitalisation 
scheme Decision not to 
raise objections 
IP/09/1979  21 December 2009 
 Portugal 
 NN60/2008 - Guarantee scheme for 
credit institutions in Portugal Decision not to 
raise objections IP/08/1601
 29 October 2008 
 Portugal NN71/2008 - State guarantee for Banco 
Privado Português Decision not to 
raise objections 
IP/09/400  13 March 2009 
 Portugal N556/2008 - Bank recapitalisation 
scheme Decision not to 
raise objections 20 May 2009 
EN 136   EN IP/09/818  
 Slovakia N392/2009 - Slovak bank support 
scheme Decision not to 
raise objections 
IP/09/1889  8 December 2009 
 Slovenia N531/2008 - Guarantee scheme for credit 
institutions in Slovenia 
 
N331/2009 - Prolongation  
N651/2009 – Second prolongation Decision not to 
raise objections IP/08/1964
 
 
EXME09 / 22.06   
 MEX/09/1217
 12 December 2008
 
 
 
22 June 2009 
 
17 December 2009 
 Slovenia N637/2008 - Liquidity scheme for 
financial sector
 
 N510/2009 – Prolongation Decision not to 
raise objections 
IP/09/452
 
 MEX09/1910
 20 March 2009
 
 
 
19 October 2009 
 Spain NN54a/2008 - Fund for the Acquisition 
of Financial Assets in Spain
 
 
Modification 
 
 
N337/2009 - Prolongation Decision not to 
raise objections 
IP/08/1630  
 
Decision not to 
raise objections 
 
Decision not to 
raise objections MEX09/0807
 4 November 2008
 
  
8 April 2009
 
 
7 August 2009 
 
 Spain NN54b/2008 - Spanish guarantee scheme 
for credit institutions 
 
 Prolongation 
 
 
N588/2009 - Second prolongation 
 Decision not to 
raise objections 
IP/08/2049
 
 Decision not to 
raise objections 
MEX09 / 0625
  
 
Decision not to 
raise objections 
MEX/09/1201  22 December 2008
 
 
 
25 June 2009 
 
 
1 December 2009 
 Sweden N533/2008 - Support measures for the 
banking industry in SwedenDecision not to 
raise objections 29 October 2008
 
EN 137   EN  
 
N26/2009 - Amendment to the decision 
 N154/2009 - Amendment and 
prolongation 
 N544/2009 - Prolongation IP/08/1600
 
 
IP/09/186  
 IP/09/652
 
 
 
MEX/09/1026    
 
28 January 2009 
 28 April 2009 
 
 
26 October 2009 
 Sweden NN64/2008 - Emergency rescue 
measures regarding Carnegie Investment 
Bank Decision not to 
raise objections 
IP/08/1977  15 December 2008 
 Sweden N69/2009 - Recapitalisation scheme
 
 
 
N436/2009 - Prolongation Decision not to 
raise objections 
IP/09/241  
 
Decision not to 
raise objections MEX09 / 0805
 11 February 2009 
 
 
 
5 August 2009 
 United Kingdom 
 NN41/2008 - Rescue aid to Bradford and 
Bingley 
 Decision not to 
raise objections 
IP/08/1437  1 October 2008 
 United Kingdom N507/2008 - Aid scheme to the banking 
industry in the UK (guarantees, 
recapitalisation & other) 
 N650/2008 - Amendment to the Decision 
 
 N193/2009 – Prolongation 
 
 
 
 N537/2009 – Prolongation 
 
N677/2009 - Prolongation Decision not to 
raise objections 
IP/08/1496
 
  
 
 Decision not to 
raise objections 
IP/09/586
 
 
 MEX/10/13
 
 
MEX/09/1217  13 October 2008 
 
 
 23 December 2008 
 
 15 April 2009 
 
 
 
 13 October 2009 
 
17 December 2009 
EN 138   EN  United Kingdom N111/2009 - Working capital guarantee 
scheme Decision not to 
raise objections 
IP/09/471  24 March 2009 
 United Kingdom UK Asset backed Securities guarantee 
scheme  
 
Prolongation Decision not to 
raise objections IP/09/613
 
 
MEX/09/1027  21 April 2009 
  
 
27 October 2009 
 United Kingdom C14/2008 - Restructuring package for 
Northern Rock Final conditional 
decision after 
formal investigation 
procedure 
IP/09/1600  28 October 2009 
 United Kingdom N428/2009 - Restructuring plan of 
Lloyds Banking Group Decision not to 
raise objections IP/09/1728
 18 November 2009 
 United Kingdom N422/2009 and N621/2009  - Royal Bank 
of Scotland, impaired asset relief 
measure and restructuring plan Decision not to 
raise objections 
IP/09/1915  14 December 2009 
 
Cases currently under formal in vestigation procedure (in-depth investigation under the 
EC Treaty’s rules on state aid) 
 Country Type of measure / Beneficiary 
 Date of decision 
regarding the 
opening of formal 
investigation  
  
 Belgium/France/Luxembourg C9/2009 - Restructuring of Dexia 13 March 2009 
(IP/09/399 ) Case under 
assessment  
 Germany C15/2009 - Aid package for Hypo 
Real Estate (restructuring) 
 
Extension and temporary approval 
of capital injections 7 May 2009 
IP/09/712  
 
 13 November 2009 
IP/09/1708
 Case under 
assessment 
 Germany, Austria C16/2009 - Aid package for 
Bayern LB and its Austrian subsidiary Hypo Group Alpe 
Adria 
 Extension 12 May 2009 
IP/09/742
 
 
 
 23 December 2009 Case under 
assessment 
 
EN 139   EN IP/09/1998  
 Germany C29/2009  - Aid package for HSH 
Nordbank AG 22 October 2009 
IP/09/1577  Case under 
assessment 
 Germany C32/2009  - Support measures for 
German savings bank Sparkasse 
KölnBonn 5 November 2009 
IP/09/1670  Case under 
assessment 
 Germany C43/2009 – WestLB: in-depth 
investigation into bad bank 22 December 2009 
IP/09/1996  Case under 
assessment 
 Latvia C26/2009 - Aid package for JSC 
Parex Banka 29 July 2009 
IP/09/1203  Case under 
assessment 
 Netherlands C11/B/2008  - State measures in 
favour of Fortis Bank Nederland 
(FBN) and the activities of ABN 
Amro 8 April 2009 
IP/09/565  Case under 
assessment 
 Portugal C33/2009 -  State guarantee for 
Banco Privado Português 10 November 2009 
IP/09/1691  Case under 
assessment