EN Official Journal of the European Union C 334/5

Final Report of the Hearing Officer (1)

BEH Electricity

(AT.39767)

(2016/C 334/05)

(1) On 27 November 2012, the European Commission (the ‘Commission’) initiated proceedings pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 (2) and Article 2(1) of Commission Regulation (EC) No 773/2004 (3) against Bulgarian Energy Holding EAD (‘BEH’) for alleged infringement of Article 102 TFEU on the market for the wholesale supply of electricity at freely negotiated prices in Bulgaria.

(2) The Commission adopted a Statement of Objections (‘SO’) on 12 August 2014. According to the SO, BEH holds a dominant position on the relevant market and the inclusion of territorial restrictions on resale in contracts for the sale of electricity by BEH’s subsidiaries NEK EAD, Thermal Power Plant Maritsa East 2 EAD and Nuclear Power Plant Kozloduy EAD amounts to an abuse of that dominant position.

(3) On 25 August 2014, BEH received access to the Commission file and subsequently submitted its reply to the SO on 25 November 2014, following a four-week extension to the original period of 9 weeks set by the Commission. In its written reply to the SO, BEH requested the opportunity to develop its arguments at an oral hearing.

(4) The oral hearing took place on 16 January 2015.

(5) On 15 May 2015, BEH offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003 to meet the concerns expressed in the SO. On 19 June 2015, the Commission published a Communication pursuant to Article 27(4) of Council Regulation (EC) No 1/2003, summarising the concerns of the Commission and the commitments submitted by BEH on 15 May 2015 and inviting interested third parties to submit observations within one month of this publication (4). A total of 7 substantive responses were received.

(6) On 8 September 2015, the Commission informed BEH of the result of the market test. On 16 October 2015, BEH submitted a revised version of the commitments.

(7) The draft decision makes the revised commitments binding upon BEH and any legal entity controlled by it, and concludes that in light of these, there are no longer grounds for action on its part, and thus the proceedings in this case should be brought to an end.

(8) I have not received any request or complaint with respect to the submitted commitments (5).

(9) Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

(10) In conclusion, I consider that the effective exercise of procedural rights has been respected in this case.

Brussels, 2 December 2015. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(4) OJ C 202, 19.6.2015, p. 2.

(5) According to Article 15(1) of Decision 2011/695/EU, parties to the proceedings offering commitments pursuant to Article 9 of Regulation (EC) No 1/2003 may call upon the hearing officer at any stage of the procedure in order to ensure the effective exercise of their procedural rights.