Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/B-1/39.315 — ENI (Text with EEA relevance)
Date: 2010-03-05
Institutions: European Commission
Subjects: dominant position, energy distribution, energy transport, merger control, natural gas, restriction on competition, transport infrastructure








C_2010055EN.01001301.xml










5.3.2010   


EN


Official Journal of the European Union


C 55/13





Notice published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/B-1/39.315 — ENI
(Text with EEA relevance)
2010/C 55/10
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 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 6 March 2009, the Commission adopted a statement of objections pursuant to 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 alleged infringements of Article 102 TFEU by ENI Spa (hereafter ENI). ENI replied to the statement of objections on 1 October 2009. A hearing took place 27 November 2009. The statement of objections also constitutes a preliminary assessment within the meaning of Article 9 of Regulation (EC) No 1/2003.










(3)


According to the statement of objections, ENI is a dominant player on the market(s) for the transport of natural gas to and into Italy as well as on the downstream gas markets for the supply of gas.










(4)


The statement of objections expressed the concern that ENI may have abused its dominant position according to Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’) by refusing to supply transportation capacity on its natural gas pipelines. Notably, ENI’s management and operation of its natural gas transmission pipelines may have allegedly entailed (i) a refusal to grant access to capacity available on the transport network (‘capacity hoarding’), (ii) an offer of capacity in a less useful manner (‘capacity degradation’) and (iii) a strategic limitation of investment (‘strategic underinvestment’) in its international transmission pipeline system.










(5)


According to the statement of objections, these practices may have taken place despite very significant short- and long-term demand from third party shippers, which may have led to a foreclosure of competitors trying to transport and sell gas to Italian customers and therefore may have restricted competition on the downstream gas supply markets.




3.   THE MAIN CONTENT OF THE OFFERED COMMITMENTS







(6)


ENI does not agree with the conclusions of the Commission’s 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:










(7)


ENI will divest its current gas transmission system businesses in Germany (TENP) to a suitable purchaser that must not raise prima facie competition concerns. ENI will divest its current gas transmission system businesses in Switzerland (Transitgas) to a suitable purchaser that must not raise prima facie competition concerns. ENI will divest its gas transmission system businesses in Austria either to Cassa Depositi e Prestiti SpA (hereafter CDP), a publicly controlled joint stock company, or, alternatively, to another public entity controlled by the Italian Government fulfilling the requirements set in the commitments.










(8)


Should no binding sale and purchase agreements be signed within the divestiture period subparagraph (7) above with suitable purchasers or, in the case of the gas transmission system business in Austria, with CDP or another public entity, controlled by the Italian Government, ENI will grant the divestiture trustee an exclusive mandate to sell the divestment businesses to a suitable purchaser at no minimum price.










(9)


Concerning the gas transmission system businesses in Germany, ENI notably committed to divest:






—


its entire shareholding in Eni Gas Transport GmbH, which in turn correspond to a controlling participation of 49 % in Trans Europa Naturgas Pipeline GmbH & Co. KG, the company owning and operating the TENP pipeline system with a total length of approx. 500 km (from the border where TENP pipeline system is connected to the Dutch network to the Swiss border where TENP is interconnected with the Transitgas pipeline system),










—


its entire shareholding in Eni Gas Transport Deutschland S.p.A., which provides natural gas transportation services (as transmission system operator/TSO) through its ca. 60-70 % of the capacity rights of TENP, with the remaining (ca. 30-40 %) capacity managed by the other carrier E.On Gastransport GmbH,










—


auxiliary equipment necessary for the operation of the transmission network,










—


intangible assets necessary for the operation of the transmission network (such as contracts and licenses and the beneficial use agreements).














(10)


Concerning the gas transmission system businesses in Switzerland, ENI notably committed to divest:






—


its share of 46 % in Transitgas AG, which owns and operates the Transitgas pipeline system consisting of approx. 292 km of natural gas pipelines,










—


its entire shareholding in Eni Gas Transport International SA (ENI GTI) providing natural gas transportation services including marketing of transport capacity of approx. 85-95 % of the capacity of the Transitgas pipeline system (as TSO),










—


auxiliary equipment necessary for the operation of the transmission network,










—


intangible assets necessary for the operation of the transmission network (such as contracts and licenses, the lease agreement under which capacity rights are assigned),










—


in this respect it has to be pointed out that some functions carried out by ENI GTI, auxiliary to the operation of the transmission network, are provided jointly to all of ENI’s transmission networks within and outside the EU and to other carriers’ business. Those shared functions (consisting among others in assistance and support for engineering, hydraulics, metering, operation and maintenance and materials) and the relevant personnel are not part of the divestiture businesses (3). However, ENI committed to transfer all the shared functions to a New Service Company that may provide those services also to the Purchaser(s) upon request.














(11)


Concerning the gas transmission system businesses in Austria, ENI notably committed to divest:






—


its share of 89 % in participation in Trans Austria Gasleitung GmbH that holds 100 % of the capacity rights for the transport of natural gas on the TAG pipeline pursuant to a lease agreement and that provides natural gas transportation services (as TSO),










—


intangible assets necessary for the operation of the transmission network (such as contracts and licenses, lease agreement).














(12)


ENI also commits for a limited period following the closing of the divestiture to supply the purchaser(s) with auxiliary services necessary for the operation of the transmission networks (such as for example fuel gas and gas supply contract for balancing services) as well as other services currently provided by Eni GTI as Shared Functions.










(13)


The businesses will be endowed with the personnel necessary for the operation of the transmission network.










(14)


As from 22 December 2009 and until the time of closing, ENI commits not to prolong or renew any transport contract or enter into any new transport contract for its benefit as shipper on the TAG, TENP and Transitgas pipelines, except for possible future auctions and other public allocation procedures for reverse flow transportation capacity towards markets other than the Italian one (4).










(15)


An independent monitoring trustee will be appointed to supervise the fulfilment of these commitments by ENI.










(16)


The non-confidential version of the commitments is published in full in the authentic English text and available on the website of the Directorate-General for Competition at: http://ec.europa.eu/comm/competition/index_en.html




4.   INVITATION TO MAKE COMMENTS







(17)


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










(18)


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 in particular on the following questions. Comments should, as far as possible, be substantiated with a detailed reasoning, containing the necessary facts on which the comments are based and, if a problem is identified, a proposal for a solution of the identified problem:






(a)


The divestiture of ENI's carrier and TSO companies managing and operating TENP, Transitgas and TAG is meant to address the identified problems of refusal to supply transportation capacity. In this respect, ENI notably committed to divest its entire share in ENI GTI. However, some of the functions carried out by this company will not be part of the divestiture. Among those are, for example, the assistance and support for technical operations, metering and operation and maintenance functions. Do you have comments regarding the non-inclusion among the transferred assets of such auxiliary services in terms of impact on the management and operation of the divested businesses? In particular, are those auxiliary services easily duplicable or available in outsourcing on the market for the purchaser(s)? Does the proposal of acquiring those functions from a New Service Company (controlled by ENI) raise concerns regarding the possibility that the purchaser(s) would effectively and independently run the transmission businesses?










(b)


ENI is not prevented from booking reverse flow capacity on the transmission networks. Do you have comments regarding the impact that such bookings might have on the capacity available in imports toward Italy?




Third parties are invited to make comments also on all other aspects of the commitments.










(19)


Third parties’ observations must reach the Commission no 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’. If your request for the protection of confidential information is justified, the Commission will ensure the protection of this information.










(20)


Observations may be sent to the Commission under reference number COMP/B-1/39.315 — ENI, either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by mail, 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. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102, respectively, of the Treaty on the Functioning of the European Union (‘TFEU’). The two sets of provisions are, in substance, identical. For the purposes of this notice, references to Article 102 TFEU should be understood as references to Article 82 of the EC Treaty where appropriate.

(2)  OJ L 123, 27.4.2004, p. 18.

(3)  See paragraph 3 of Schedule 1C.

(4)  See paragraph 2(e) of the Schedules.