Final report of the Hearing Officer in Case 61291 — Liechtensteinische Kraftwerke Anstalt and Telecom Liechtenstein AG (Pursuant to Articles 15 and 16 of EFTA Surveillance Authority Decision No 177/02/COL of 30 October 2002 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 80, 27.3.2003, p. 27 )
Date: 2009-06-18
Institutions: European Commission
Subjects: Liechtenstein, audit, competition law, fine, industrial restructuring, infringement of EU law, report, restriction on competition, telecommunications industry








C_2009138EN.01000501.xml










18.6.2009   


EN


Official Journal of the European Union


C 138/5





Final report of the Hearing Officer in Case 61291 — Liechtensteinische Kraftwerke Anstalt and Telecom Liechtenstein AG

(Pursuant to Articles 15 and 16 of EFTA Surveillance Authority Decision No 177/02/COL of 30 October 2002 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 80, 27.3.2003, p. 27)

2009/C 138/07
The draft decision presented to the EFTA Surveillance Authority under Article 9 of Chapter II of Protocol 4 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (hereinafter referred to as ‘the Surveillance and Court Agreement’) concerns an agreement concluded between Liechtensteinische Kraftwerke Anstalt (‘LKW’) and Telecom Liechtenstein AG on 11 July 2006, aimed at restructuring the telecommunications markets in Liechtenstein.
On 1 December 2006, the EFTA Surveillance Authority received a complaint against Telecom Liechtenstein, LKW and the Principality of Liechtenstein alleging an infringement of Articles 53 and 59 of the EEA Agreement.
On 23 November 2007, the Competition & State Aid Directorate of the EFTA Surveillance Authority expressed its concerns to the Parties to the agreement that certain elements of their agreement appeared to infringe Article 53(1) EEA and that they were unlikely to qualify for individual exemption.
By letters dated 5 December 2007 and 13 December 2007, LKW and Telecom Liechtenstein indicated that they wished to propose commitments to meet the concerns expressed by the Competition & State Aid Directorate.
On 19 December 2007, the EFTA Surveillance Authority opened proceedings pursuant to Article 2 of Chapter III of Protocol 4 to the Surveillance and Court Agreement and communicated its preliminary assessment to the Parties pursuant to Article 9 of Chapter II of Protocol 4 to the Surveillance and Court Agreement. The EFTA Surveillance Authority’s preliminary assessment stated that certain elements of the agreement appeared to infringe Article 53(1) EEA and would be unlikely to qualify for individual exemption.
On 28 February 2008, LKW and Telecom Liechtenstein submitted commitment proposals to the EFTA Surveillance Authority in response to the preliminary assessment of 19 December 2007.
On 15 May 2008, the EFTA Surveillance Authority published a notice in the Official Journal pursuant to Article 27(4) of Chapter II of Protocol 4 to the Surveillance and Court Agreement inviting interested third parties to submit observations on the proposed commitments by 16 June 2008 (1).
In response to the Notice, the EFTA Surveillance Authority, in June 2008, received observations from third parties and the complainant.
On 23 June and 26 June 2008, the Authority provided the Parties with non-confidential versions of the comments received in response to the Notice.
The observations received from third parties following the publication of the Notice were not such as to lead the EFTA Surveillance Authority to reconsider its concerns.
Accordingly, the EFTA Surveillance Authority has come to the conclusion that, in view of the commitments proposed and after having assessed the relevant observations by third parties and the complainant, and without prejudice to Article 9(2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement, the commitments address the concerns it had expressed in its preliminary assessment and that there are no longer grounds for action.
In a Decision under Article 9 of Chapter II of Protocol 4 to the Surveillance and Court Agreement, a breach of the competition rules is not established, but the Parties accept to remedy the concerns expressed by the EFTA Surveillance Authority in a preliminary assessment. There is in this process a willingness on both sides to simplify the administrative and legal requirements which are inherent in a full investigation of a suspected infringement.
No queries or submissions with regard to the process have been made to me by the Parties or any third party.
In the light of the above, I consider that the rights to be heard have been respected in this case.

Brussels, 21 August 2008.

Per Andreas BJØRGAN





(1)  OJ C 118, 15.5.2008, p. 31 and EEA Supplement No 28, 15.5.2008, p. 4.