Final report of the Hearing Officer in Case COMP/M.4180 — Gaz de France/Suez (pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings)
Date: 2006-10-30
Institutions: European Commission
Subjects: Belgium, France, application of EU law, audit, competition, economic concentration, electrical energy, gas, merger control, thermal energy

29.3.2007

EN

Official Journal of the European Union

C 72/45

Final report of the Hearing Officer in Case COMP/M.4180 — Gaz de France/Suez

(pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of
reference of Hearing Officers in certain competition proceedings (1))

(2007/C 72/20)

On 10 May 2006 the Commission received a notification of a proposed concentration pursuant to Article 4
of Council Regulation (EC) No 139/2004 (2) (the Merger Regulation) according to which the undertakings
Gaz de France and Suez would merge, within the meaning of Article 3(1)(a) of the Merger Regulation, via
an exchange of shares.

By decision dated 19 June 2006 the Commission found that the transaction raised serious doubts as to its
compatibility with the common market and the functioning with the EEA Agreement. Accordingly, the
Commission initiated proceedings in accordance with Article 6(1)(c) of the Merger Regulation.

A statement of objections was sent to the parties on 18 August 2006 to which they were asked to reply by
1 September 2006. On the same day, the parties were granted access to the file, which was completed on
21 August. The parties replied to the Statement of Objections within the deadline.

The Parties were given additional access to the file on 9 October and on 20 October 2006, which allowed
them the opportunity of making their views known on the objections against them, within the meaning of
Article 18(1) of the Merger Regulation.

The parties did not request the opportunity to develop their arguments at an oral hearing.

Several competitors and clients of the merging parties were admitted to the proceedings as interested third
parties according to Article 18(4) of the Merger Regulation. They were informed of the nature and subject
matter of the case in the form of non-confidential versions of the Statement of objections. However, I
rejected a request from the European Federation of Public Service Unions' (EPSU) to receive a non confiden-
tial version of the Statement f Objections. In particular, I took note of the fact that EPSU is neither the
recognised representative of the employees of the undertakings concerned, nor a consumer association
within the meaning of Article 11(c) of Commission Regulation (EC) 802/2004 (3) and had not demonstrated
a sufficient interest in the proceedings.

On 20 September 2006 the parties offered commitments in order to resolve the competition concerns iden-
tified in the Statement of Objections. A market test of the commitments was carried out and the result of
the market inquiry indicated that the commitments were not sufficient to remove the competition concerns
identified by the Commission. The Parties were immediately given access to all non-confidential replies by
participants to the market test. I have not been asked to verify the objectivity of the market inquiry.

On 10 October 2006, the Commission decided, in agreement with the parties, to extend the procedure with
5 working days pursuant to Article 10(3), second paragraph of the Merger Regulation.

Subsequently, on 13 October 2006, the parties submitted new modified commitments in order to resolve
the remaining competition concerns. The Parties have indicated that these commitments would replace the
commitments submitted on 20 September.

Subject to full compliance with the commitments submitted on 13 October 2006 the draft decision
concludes that the proposed concentration will not significantly impede effective competition and is hence
compatible with the common market and the EEA Agreement.

I consider that the rights to be heard of all participants to the present proceedings have been respected.

Brussels, 30 October 2006

Serge DURANDE

(1) OJ L 162, 19.6.2001, p. 21.
(2) OJ L 24, 29.1.2004, p. 1.
(3) OJ L 133, 30.4.2004, p. 1.