EN Official Journal of the European Union C 133/4

Final report of the Hearing Officer (1)

Case COMP/39.386 — Long Term Contracts France

2010/C 133/04

The draft Decision presented to the Commission relates to the alleged breach of Article 102 TFEU by the EDF S.A. and its subsidiaries, notably, Electricité de Strasbourg S.A. and its controlled entities (hereafter collectively referred to as ‘EDF Group’).

It expresses the concern that the energy company foreclosed the French market for supplies of electricity to large industrial customers by concluding supply agreements which, by virtue of their scope of application, duration, and nature, limited the possibilities for other undertakings to acquire large industrial customers in France and the concern that EDF Group's supply contracts contained resale restrictions. These practices have had the effect of hindering the entry and expansion of alternative suppliers on the French market and of increasing the lack of liquidity in the wholesale market, hence delaying the effective liberalisation of the French electricity market.

The Commission opened proceedings on 18 July 2007 and adopted a Statement of Objections on 19 December 2008. Following access to file and the replies to the Statement of Objections, an Oral Hearing was organised on 2 April 2009. In order to address the Commission's competition concerns, EDF Group submitted commitments under Article 9(1) of Regulation (EC) No 1/2003 (2) on 14 October 2009. Under these commitments, EDF Group primarily ensures that: competitors can compete each year for on average 65 % of the electricity EDF contracts with large industrial customers in France during the 10 year duration of the commitments. In addition, the resale restrictions in all EDF Group contracts will be abolished.

On 4 November 2009, the Commission published a notice pursuant to Article 27(4), summarising the concerns and the commitments whilst inviting interested third parties to submit observations on this notification within one month of its publication. A total of 16 responses were received from interested parties, which included large industrial electricity users and electricity generators.

The Commission informed the EDF Group of the result of the market test. The Group reacted to the concerns expressed and submitted a revised proposal of commitments on 5 February 2010.

The Commission has now come to the conclusion that, in view of the latter commitments, and without prejudice to Article 9(2), the proceedings should be brought to an end.

The EDF Group has declared to the Commission that it has received sufficient access to the information it considered necessary to propose commitments in order to meet the concerns expressed by the Commission.

No additional queries or submissions have been made to the Hearing Officer in connection with the present case by the EDF Group or any third parties.

In the light of the above, I consider that the right to be heard has been respected in this case.

Brussels, 3 March 2010. Michael ALBERS

(1) Pursuant to Article 15 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.

(2) In the following, all Articles referred to relate to Regulation (EC) No 1/2003.