Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/B-1/39.402 — RWE Gas Foreclosure (Text with EEA relevance) (2008/C 310/09)
Date: 2008-12-05
Institutions: France
Subjects: Germany, competition law, energy transport, gas supply, mining operation, sustainable development

5.12.2008

EN

Official Journal of the European Union

C 310/23

Notice published pursuant

to Article 27(4) of Council Regulation (EC) No 1/2003 in Case
COMP/B-1/39.402 — RWE Gas Foreclosure

(Text with EEA relevance)

(2008/C 310/09)

1. INTRODUCTION

1. According to Article 9 of the Council Regulation (EC) No 1/2003 (1), the Commission may decide — in
cases where it intends to adopt a decision requiring that an infringement is brought to an end and the
parties concerned offer commitments to meet the concerns expressed to them by the Commission in its
preliminary assessment — to make those commitments binding on the undertakings. Such a decision
may be adopted for a specified period and shall conclude that there are no longer grounds for action by
the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a
concise summary of the case and the main content of the commitments. Interested parties may submit
their observations within the time limit fixed by the Commission.

2. SUMMARY OF THE CASE

2. On 15 October 2008, the Commission adopted a preliminary assessment pursuant to Article 9(1) of
Regulation (EC) No 1/2003 concerning alleged infringements of RWE AG, Essen and its subsidiaries on
the German gas markets (‘RWE’).

3. According to the preliminary assessment RWE is dominant on the gas transport market(s) within its
network area. The preliminary assessment expressed the concern that RWE may have abused its domi-
nant position according to Article 82 of the EC Treaty, notably by way of a refusal to supply gas trans-
mission services to third parties and by a behaviour aiming at lowering the margins of RWE's down-
stream competitors in gas supply (‘margin squeeze’).

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

4. RWE does not agree with the Commission's preliminary assessment. It has nevertheless offered commit-
ments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission's competition
concerns. The key elements of the commitments can be summarised as follows:

5. RWE will divest its current German gas transmission system business to a suitable purchaser which

must not raise prima facie competition concerns. RWE notably committed to divest:

— RWE's German high-pressure gas transmission network, with a total length of approx. 4 000 km.
This corresponds to RWE's entire current German high-pressure gas transmission network, with the
exception of some network parts in the area of Bergheim (length: approx. 100 km) (2). For parts of
the network which are currently not exclusively owned by RWE but co-owned with other parties,
RWE commits to divest its entire share,

— auxiliary equipment necessary for the operation of the transmission network (such as the gas condi-

tioning facilities in Broichweiden and Hamborn, a dispatching centre (Prozessleitsystem) etc.),

— intangible assets necessary for the operation of the transmission network (such as software for the

dispatching centre, contracts and licenses).

6. RWE also commits to supply the purchaser for a limited period of up to five gas years following the
the transmission
the divestiture with auxiliary services necessary for the operation of

closing of
network, such as the provision of gas flexibility services.

(1) 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. 1-25).

(2) These 100 km of the transmission network can, according to RWE, not be economically divested to a third purchaser since
there are no sufficient measurement facilities for the gas flows to downstream grid parts in this area, see Schedule 4 of the
commitment text.

C 310/24

EN

Official Journal of the European Union

5.12.2008

7. The business will be endowed with personnel and key personnel necessary for the operation of the

transmission network.

8. The commitments are published in full

in German on the website of the Directorate-General for

Competition at:

http://ec.europa.eu/comm/competition/index_en.html

4. INVITATION TO MAKE COMMENTS

9. The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation
(EC) No 1/2003 declaring commitments summarised above and published on the Internet, on the
website of the Directorate-General for Competition, to be binding.

10. In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested
third parties to submit their observations on the proposed commitments. In this context, the
Commission asks interested parties to comment on the question whether the assets and rights RWE
offers to transfer to the purchaser (see in detail Schedule 1-6) are sufficient to guarantee the viability of
the business and, if any elements are deemed to be missing, to describe these elements in detail. These
observations must reach the Commission not later than one month following the date of this publica-
tion. Interested third parties are also asked to submit a non-confidential version of their comments, in
which commercial secrets and other confidential passages are deleted and are replaced as required by a
non-confidential summary or by the words ‘commercial secrets’ or ‘confidential’. Legitimate requests
will be respected.

11. Observations can be sent

reference number COMP/B-1/39.402 —
RWE foreclosure either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax ((32-2) 295 01 28)
or by post, to the following address:

to the Commission under

European Commission
Directorate-General for Competition
Antitrust Registry
B-1049 Brussels