Summary of Commission Decision of 26 November 2008 relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement (Cases COMP/39.388 — German Electricity Wholesale Market and COMP/39.389 — German Electricity Balancing Market) (notified under document number C(2008) 7367 final) (Text with EEA relevance)
Date: 2008-11-26
Institutions: European Commission
Subjects: European Commission, Germany, competition law, dominant position, electrical industry, exchange of information

C 36/8

EN

Official Journal of the European Union

13.2.2009

Summary of Commission Decision

of 26 November 2008

relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement

(Cases COMP/39.388 — German Electricity Wholesale Market and COMP/39.389 — German
Electricity Balancing Market)

(notified under document number C(2008) 7367 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2009/C 36/08)

On 26 November 2008, the Commission adopted a decision relating to a proceeding under Article 82 of the
EC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1), the Commission
herewith publishes the decision, having regard to the legitimate interest of undertakings in the protection of their busi-
ness secrets. A non-confidential version of the decision is available on the Competition Directorate General website at
the following address:

http://ec.europa.eu/comm/competition/antitrust/cases/index/

(1) The Decision is addressed to E.ON AG, Düsseldorf (here-
after ‘E.ON’) and concerns two cases, one on the German
electricity wholesale market and one on the German balan-
cing market. It makes commitments offered by E.ON to
bring the two cases to an end binding. In the light of the
commitments offered,
that
there are no longer grounds for action on its part.

the Commission considers

(2) As regards the case on the German wholesale market, the
concern of
the Commission was that E.ON may have
designed a strategy to withdraw available generation
capacity (limiting the supply of electricity from certain
plants on the short term market — the power exchange
EEX) with a view to raising electricity prices to the detri-
ment of consumers thereby abusing its dominant position
on the German electricity wholesale market. In addition
the Commission had concerns
this may have
been complemented by a medium and long-term strategy
by E.ON of deterring actual or potential competitors from
entering the generation market and thereby limiting the
market volume in electricity generation.

that

(3) As regards the case on the German electricity balancing
market, the concern was that E.ON may have abused its
dominant position on the market
the demand of
secondary balancing reserves in the E.ON network area
according to Article 82 of the EC Treaty first by increasing
its own costs with a view to favouring its production
affiliate and passing the costs on to the final consumer;
from
and second by preventing power producers

for

other Member States from exporting balancing energy into
the E.ON balancing market.

(4) The Commission considers that the commitments offered
following the preliminary assessment and the observations
to
submitted by interested third parties are sufficient
address the identified competition concerns. First,
the
divestiture of about 5 000 MW of E.ON's generation
capacity addresses the concerns on the wholesale market.
This divestiture removes the ability and the incentive to
withdraw generation capacity profitably, which was
possible particularly due to the structure of EON's power
plant portfolio. The divested plants will also help actual
and potential competitors to get access to new plants and
plants with technologies that they do not possess. In addi-
tion, competitors will get access to new sites which will
help them to build up (or rebuild) even more generation
capacity with new power plants. Second, the divestiture of
its
EON's
transmission system business, consisting of
380/220 kV-line network, the system operation of
the
E.ON control area and related activities addresses the
concern on the balancing market arising from the verti-
cally integrated structure of E.ON which is active in
production/supply and transmission.

(5) The decision finds that in view of the commitments, there
are no longer grounds for action by the Commission.

(6) The Advisory Committee on Restrictive Practices and
issued a favourable opinion on

Dominant Positions
3 November 2008.

(1) OJ L 1, 4.1.2003, p. 1.