Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in case COMP/B-1/39.386 — Long-term contracts France (Text with EEA relevance)
Date: 2009-11-04
Institutions: European Commission
Subjects: France, audit, dominant position, electrical energy, energy distribution, exchange of information, liberalisation of the market, restriction on competition








C_2009262EN.01003201.xml










4.11.2009   


EN


Official Journal of the European Union


C 262/32





Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in case COMP/B-1/39.386 — Long-term contracts France
(Text with EEA relevance)
2009/C 262/13
1.   INTRODUCTION







(1)


According to Article 9 of 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 address the concerns expressed to them by the Commission in its statement of objections, 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 comments within the time limit fixed by the Commission.




2.   SUMMARY OF THE CASE







(2)


On 19 December 2008, the Commission adopted a statement of objections in accordance with Article 27(1) of Regulation (EC) No 1/2003 read in conjunction with Article 10(1) of Commission Regulation (EC) No 773/2004 (2), concerning the infringements allegedly committed by EDF SA and/or the legal entities directly or indirectly controlled by it, including its subsidiary Electricité de Strasbourg SA (together hereinafter referred to as ‘EDF’), on the French market for the supply of electricity to large industrial customers. On 9 March 2009, EDF replied to the statement of objections and on 2 April 2009 a hearing took place. The statement of objections constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.










(3)


According to the statement of objections, EDF is the dominant player in the market for the supply of electricity to large industrial customers. The Commission suspects EDF of abusing its dominant position within the meaning of Article 82 of the EC Treaty:






—


by concluding supply contracts which, by virtue of their scope of application, duration and nature, significantly limit the possibilities of other undertakings of concluding contracts for the supply of electricity to large industrial customers in France as the main or secondary supplier,










—


by including restrictions on resale in its supply contracts with large industrial customers.














(4)


The Commission considers that these practices have had the effect of hindering the entry of alternative suppliers on the French market and increasing the lack of liquidity in the trading market, thereby delaying the effective liberalisation of the electricity market.




3.   THE MAIN CONTENT OF THE PROPOSED COMMITMENTS







(5)


EDF challenges the Commission's conclusions set out in the statement of objections. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003 to address the Commission’s competition concerns. The key elements of the commitments can be summarised as follows (for details of all the points, see the text of the commitments):










(6)


The relevant market to which the commitments apply is the supply of electricity in France to sites with an annual consumption of 7 GWh or over (excluding distribution losses and own consumption).










(7)


From 1 January 2010, EDF undertakes that, throughout the period in which these commitments apply, (i) at least 60 % for each calendar year, and (ii) at least 65 % on average for all the calendar years, of the electricity supplied to large industrial customers under its supply contracts, either directly or through a buying group, will be put back on the market.










(8)


However, if for a given calendar year during the commitment period, the volume of EDF's portfolio is less than in 2009, EDF undertakes, for the calendar year in question, that the volume not put back on the relevant market will not exceed (20-30) TWh, increased in proportion to the growth of the relevant market between the year in question and the year 2009.










(9)


EDF pledges that the maximum duration of new contracts for the supply of electricity to large industrial customers will not exceed five years.










(10)


During the period of the commitments, EDF will systematically offer large industrial customers two alternative types of contract, one of which will effectively allow the customer to contract for additional supplies with another supplier of his choice.










(11)


The above commitments concerning the foreclosure of the French market for the supply of electricity to large industrial customers will be applicable for 10 years from 1 January 2010. But they will be terminated early and definitively if at any point the volumes sold by EDF on the relevant market represent not more than 40 % of the total volumes sold on the relevant market in two consecutive years. If this 40 % threshold is reached in only one year, these commitments will not apply the following year, but will be applied again thereafter.










(12)


Lastly, EDF pledges that for a period of 10 years from 1 July 2010 new contracts concluded with large industrial customers and the general and specific conditions of sale applicable will not entail any restrictions on resale. EDF will inform customers with contracts in force at that date that the provisions of their contract no longer restrict the resale of the electricity purchased under the contract.










(13)


EDF will draw up an annual report on the compliance with the commitments and will send it to the European Commission and the French energy regulator (the CRE) by 31 March of the year following the calendar year covered. The last report will be drawn up by 31 March 2021. The annual report will be based on data audited by an independent third-party auditor.










(14)


The commitments are published in full, in French on the website of the Directorate-General for Competition at: http://ec.europa.eu/competition/index_en.html




4.   INVITATION TO SUBMIT COMMENTS







(15)


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










(16)


In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their comments on the proposed commitments. Interested third parties are also asked to state in their comments whether they consider that the commitments which EDF intends to make are likely to address the concerns raised. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which business secrets and other confidential passages are deleted and are replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’. The Commission will take account of legitimate requests.










(17)


These comments can be sent to the Commission under reference number COMP/B-1/39.386 — Long-term contracts France, by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128), or by post to the following address:





European Commission




Directorate-General for Competition




Antitrust Registry




1049 Bruxelles/Brussel




BELGIQUE/BELGIË










(1)  OJ L 1, 4.1.2003, p. 1.

(2)  OJ L 123, 27.4.2004, p. 18.