Report from the Commission - Report on Competition Policy 2009 SEC(2010)666
Date: 2010-06-03
Institutions: European Commission
Subjects: competition law, competition policy, control of State aid, economic recession, merger control, report, restriction on competition

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EUROPEAN COMMISSION 

Brussels, 3.6.2010 
COM(2010)282 final 

REPORT FROM THE COMMISSION 

Report on Competition Policy 2009 

SEC(2010)666 

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REPORT FROM THE COMMISSION 

Report on Competition Policy 2009 

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Introduction 

The  first  section  of  this  report  provides  an  overview  of  how  the  instruments  of 
competition  policy,  namely  the  State  aid,  anti-trust  and  merger  control  rules,  were 
further  developed  and  applied.  The  second  section  discusses  how  these  and  other 
instruments were deployed in selected sectors. The third section gives an overview of 
consumer related activities developed last year. Section four focuses on cooperation 
within  the  European  Competition  Network  (ECN)  and  with  national  courts  while 
section  five  deals  with  international  activities.  In  section  six,  a  brief  description  of 
inter-institutional cooperation is given.  

As  it  was  the  case  last  year,  the  Annual  Report  on  Competition  features  a  focus 
chapter  on  a  topic  considered  of  particular  importance  in  the  field  of  competition 
policy.  The  topic  chosen  for  this  year  is  "Competition  policy  and  the  financial  and 
economic crisis". 

On  this  basis,  special  attention  is  paid  in  this  year's  Report  to  the  European 
Commission's assessment of national measures adopted as a response to the financial 
and  economic  crisis,  be  them  national  schemes  or  measures  targeting  individual 
companies of the financial sector. In a similar way, particular attention is also given 
to  the  measures  implemented  within  the  Temporary  Framework,  to  palliate  the 
effects  of  the  crisis  on  the  real  economy.  A  request  to  that  end  is  made  by  the 
European  Parliament  in  its  draft  resolution  on  the  Annual  Report  on  Competition 
Policy for 2008, under discussion at the time of finalising this edition of the Annual 
Competition Report1.  

Further  information  can  be  found  in  a  detailed  Commission  Staff  Working 
Document2 and on the website of the Competition Directorate-General3. 

The  Lisbon  Treaty  entered  into  force  on  1  December  2009.  Since  then,  the 
numbering of the articles has changed. For antitrust, Articles 81, 82 and 86 EC have 
respectively  become  Articles  101,  102  and  106  TFEU  and  the  provisions  are  in 
substance  identical.  However,  throughout  this  document,  references  to  the  old 
numbering  have  been  maintained  when  they  relate  to  proceedings  taken  before  1 
December 2009. Similarly, old references to EC Treaty articles in the field of State 
aid (Articles 87 to 89 EC) have been maintained when the procedural steps referred 
to occurred before the entering into force of the Lisbon Treaty. 

Also, since 1 December 2009, the Court of First Instance (CFI) is named the General 
Court. However, the term CFI has been maintained in the present Communication for 
those judgments taken before that date.  

Draft  report  on  the  Report  on  competition  policy  2008  (2009/2173(INI)),  Ms.  Sophia  in  't  Veld 
(rapporteur - ALDE Group - NL). 
SEC (2010) 666. 
http://ec.europa.eu/competition/index_en.html 

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2. 

3. 

4. 

5. 

6. 

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FOCUS  CHAPTER:  COMPETITION  POLICY  AND  THE  FINANCIAL  AND  ECONOMIC 
CRISIS 

What has been the role of Competition Policy in the context of the crisis? 

7. 

8. 

9. 

During  2009  the  European  Union,  alongside  the  rest  of  the  world,  has  faced  an 
exceptionally severe financial and economic crisis. It has been a challenging year for 
the  economy  and  for  business,  and  for  policy  makers.  Governments,  central  banks 
and financial regulators, together with the European Commission, have worked hard 
to stabilise the financial system and make sure that a crisis of this type does not occur 
again in the future. Policy makers have also sought to design policies to minimise the 
impact of the crisis on the real economy. 

Since  the  beginning  of  the  crisis,  the  Commission's  objectives  in  applying  the 
competition rules have been two-fold. First, to support financial stability by giving, 
as  quickly  as  possible,  legal  certainty  to  rescue  measures  taken  by  EU  Member 
States. Second, to maintain a level playing field in Europe and ensure that national 
measures would not export problems to other Member States.  

Indeed, early on in the crisis, the Member States decided to inject large amounts of 
State  aid  into  the  financial  sector.  The  European  Commission  became  involved, 
through its powers to scrutinise State aid under the Treaty provisions on competition. 
From  the  beginning  of  the  crisis,  competition  policy  and  advocacy  played  an 
essential role in preserving one of the EU's biggest assets: the Internal Market. 

What was the Commission’s policy response? 

10. 

Between  October  2008  and  August  2009 
the  Commission  adopted  four 
Communications  indicating  how  it  would  apply  the  State  aid  rules  to  government 
measures  to  support  the  financial  sector  in  the  context  of  the  current  crisis.  On  13 
October 2008 the Commission adopted guidance on the application of State aid rules 
to State support schemes and individual assistance for financial institutions (Banking 
Communication)4.  This  guidance  was  issued  following  the  collapse  of  Lehman 
Brothers on 15 September 2008, the rescue needs of important market players such 
as Fortis, Dexia, Bradford & Bingley and Hypo Real Estate, and the announcement 
of  bank  bail  out  or  guarantee  schemes  by  Member  States  such  as  Denmark  and 
Ireland.  

11. 

The Commission had to deal with numerous notifications of emergency aid measures 
by  Member  States.  It  responded  within  very  tight  time  frames,  reallocating  highly 
committed staff and temporarily recruiting new resources. 

Recapitalisation of banks 

12. 

In  order  to  face  up  to  the  crisis,  Member  States  had  identified  various  types  of 
solutions,  from  guarantee-based  schemes  to  recapitalisations.  In-depth  discussions 

4 

Communication from the Commission - The application of State aid rules to measures taken in relation to financial 
institutions in the context of the current global financial crisis. (OJ C 270, 25.10.2008, p. 8). 

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13. 

14. 

15. 

took  place  with  the  European  Central  Bank  and  the  Member  States  and  on  5 
December 2008 the Commission adopted the Recapitalisation Communication5. 

The  Recapitalisation  Communication  differentiates  between  banks 
that  are 
fundamentally sound and banks in distress. It lays down guidelines for evaluating the 
capital  injections  which  constitute  aid.  Logically,  banks  in  distress  which  risk 
insolvency  should  be  required  to  pay  higher  interest  rates  for  the  received  State 
support and would be subject to closer scrutiny. Banks in distress that have received 
aid must restructure so as to restore long-term viability.  

Both  the  Banking  and  Recapitalisation  Communications  have  made  it  possible  to 
preserve  financial  stability  and  to  lessen  restrictions  on  the  availability  of  credit 
In  particular, 
whilst  keeping  distortions  of  competition 
recapitalisation  measures  have  proven  to  be  essential  for  providing  banks  with  a 
sufficient capital base, so that they could continue to fulfil the role as a lender to the 
real economy. At the same time the level of remuneration foreseen for State capital, 
in  combination  with  step-up  mechanisms  in  schemes  and  individual  measures, 
ensures that this capital is paid back as early as the economic circumstances permit. 

to  a  minimum. 

Between  October  2008  and  31  December  2009,  the  Commission  has  approved 
guarantee schemes for 12 Member States6. Seven Member States implemented pure 
recapitalisation  schemes7,  whilst  seven  Member  States  designed  mixed/holistic 
schemes8.  Spain,  Slovenia,  the  United  Kingdom,  Hungary  and  Germany  also 
implemented other forms of support schemes. 

16. 

In  terms  of  aid  to  individual  entities,  in  2009  the  Commission  approved 
recapitalisation and other support measures to 29 entities9.  

In the Commerzbank (CoBa) recapitalisation case10, the Commission approved a EUR 18 billion new capital aid 
by  the  German  Government,  on  the  basis  of  a  sound  business  restructuring  plan.  The  business  plan  presented 
focuses on Coba's core business, namely retail and corporate banking, including in Central and Eastern Europe. 
The bank's volatile investment banking will be reduced and commercial real state activities will be divested. The 
plan  foresees  large-scale  divestments  (amounting  to  45%  of  CoBa's  current  balance  sheet  total)  and  the 
suspension of payments of dividends and interests. To limit distortions of competition, CoBa will be subject to a 
general 3-year ban on acquisitions of financial institutions or other potential competing businesses. In addition, 
the plan imposes a price leadership prohibition, in relation to Coba's top three competitors in markets/products 
where  its  market  share  is  above  5%.  The  Commission  concluded  that  the  business  plan  presented  is  likely  to 
restore the bank's long term viability. 

Impaired assets 

5 

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7 
8 
9 

10 

Commission  Communication  Recapitalisation  of  financial  institutions  in  the current  financial  crisis:  limitation  of 
the aid to the minimum necessary and safeguards against undue distortions of competition. (OJ C 10, 15.1.2009, 
p. 2). 
Cyprus, Denmark, Finland, Ireland, Italy, Latvia, the Netherlands, Poland, Portugal, Slovenia, Spain and Sweden.. 
Denmark, Finland, France, Italy Poland, Portugal and Sweden. 
Germany, United Kingdom, Greece, Austria , Poland, Hungary and Slovakia. 
ING,  KBC,  Parex  Banka,  Anglo  Irish  Bank,  Bank  of  Ireland,  Allied  Irish  BankFortis,  Dexia,  Nord  LB,  IKB, 
Kaupthing  Bank  Finland,  Ethias,  SdB,  Banco  Privado  Portugues,  Hypo  Real  Estate,  WestLB,  Fionia,  HSH 
Nordbank,  Hypo  Tirol,  LBBW,  Kaupthing  Luxemburg,  Caisse  d'Epargne/Banque  Populaire,  Mortgage  Bank  of 
Latvia, Northern Rock, Commerzbank, Lloyds Banking Group, BAWAG, Hypo Group Alpe Adria and RBS. 
IP/09/711. 

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17. 

18. 

19. 

Despite the fact that recapitalisation schemes had been put in place in many Member 
States, in early 2009 investors were not showing signs of confidence in the system. 
Bank  guarantees  and  recapitalisations  did  not  translate  into  credits  flowing  to  the 
economy, uncertainty remained about undisclosed losses on assets having lost value. 
Confronted  with  this  situation,  some  Member  States  proposed  "asset  protection 
schemes".  The  UK  government  put  forward  a  proposal  for  a  GBP  500  billion 
protection scheme, while the Dutch announced a USD 40 billion asset protection for 
ING. 

On  25  February  2009,  after  detailed  discussions  with  the  Member  States,  the 
Commission adopted the Communication on the Treatment of Impaired Assets in the 
Community  banking  sector  ("Impaired  Assets  Communication")11.  The  Impaired 
Assets Communication responded to a growing consensus on the need to tackle the 
root causes of the crisis in the form of toxic assets on banks' balance sheets. In this 
Communication,  the  Commission  set  out  how  it  would  assess  asset  relief  measures 
for financial institutions under State aid rules. To date, only Germany has a national 
impaired asset relief scheme approved by the Commission.  

The  Communication  is  based  on  the  principles  of  transparency  and  disclosure, 
adequate burden sharing between the State and the beneficiary, and prudent valuation 
of assets based on their real economic value. Given the complexity surrounding the 
appropriate  valuation  of  the  assets,  the  Commission  decided  to  call  upon  technical 
experts  to  undertake  the  valuation  in  an  independent  manner.  Such  experts  were 
chosen under a framework contract following a tender procedure. 

On  12  May,  the  Commission  approved  additional  aid  measures  to  Fortis  Bank  and  Fortis  Holding12.  The 
additional aid by the Belgian and Luxembourg States resulted from the amendments brought to the agreement 
between Fortis Holding, BNP Paribas, Fortis Bank and the Belgian and Luxembourg authorities. The package of 
measures  included  relieving  Fortis  Bank  of  certain  impaired  assets.  In  line  with  the  Impaired  Assets 
Communication, Fortis Bank supports a significant part of the losses, since the price paid by the Belgian State to 
purchase or guarantee the structured credits is considerably below their real economic value. Also, as a way to 
prevent potential distortions of competition, Fortis committed not to expand through acquisitions in the banking 
market in Belgium and Luxembourg. 

A forward-looking restructuring approach 

20. 

As  time  passed,  the  Commission  started  to  look  at  the  medium  term,  at  the  way 
beneficiaries  of  the  aid  could  start  paying  back  the  money  borrowed  and  stand  on 
their own feet. Hence, on 14 August, the Commission adopted a Communication on 
the  return  to  viability  and  the  assessment of  restructuring  measures  in  the  financial 
sector 
("Restructuring 
in 
Communication")13. 

the  current  crisis  under 

the  State  aid 

rules 

21. 

The  Restructuring  Communication  reflects  the  Commission's  thinking  for  a  future 
beyond  the  current  crisis,  with  a  viable  banking  sector.  It  sets  out  the  principles 

11 

12 
13 

Communication from the Commission on the Treatment of Impaired Assets in the Community Banking 
sector (OJ C 72, 26.3.2009, p. 1). 
IP/09/743 . 
Communication  from  the  Commission  "The  return  to  viability  and  the  assessment  of  restructuring 
measures  in  the  financial  sector  in  the  current  crisis  under  the  State  aid  rules"  (OJ  C 195, 19.8.2009, 
p. 9). 

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22. 

23. 

applicable to those beneficiaries that were not only in need of short-term rescue aid, 
but required aid to implement structural changes to their business models.  

The  Communication  retains  the  main  principles  of  the  Community  Guidelines  on 
rescue  and  restructuring  aid  to  companies  in  financial  difficulties,  but  has  been 
adapted  to  the  extraordinary  economic  circumstances  of  the  financial  crisis.  The 
Commission's  restructuring  approach  implies  compliance  with  several  conditions. 
First,  banks  that  are  obliged  to  restructure  need  to  demonstrate  their  capacity  to 
return to long-term viability without State support. Second, they have to contribute to 
the restructuring costs (burden sharing). Third, they have to adopt measures to limit 
competition  distortions,  whether  divestments  in  core  markets  and/or  balance  sheet 
reductions. 

The above principles contribute to addressing the issue of moral hazard. In order not 
to  reward  the  risky  behaviour  that  has  occurred  in  the  past,  the  Communication 
clarifies  that  appropriate  remuneration  of  the  aid  will  be  required,  imposing 
temporary restrictions of coupon and dividend payments to bond- and shareholders. 
Tailor-made, case-specific measures to limit the distortions of competitions resulting 
from the aid, which are predominately determined by the relative/absolute size of the 
aid and the position of the beneficiary on the relevant markets, are also necessary for 
any  aid  to  be  compatible  with  the  Treaty.  Restructuring  plans  have  been  approved 
amongst  others  for  Commerzbank,  ING,  RBS,  Lloyds'  Banking  Group  and  KBC, 
whilst  many  others  are  currently  being  assessed,  within  formal  investigation 
procedures. 

On 18 November, the Commission approved the restructuring plan and illiquid asset back-up facility of Dutch 
bank  ING14.  On  the  basis  of  the  notified  restructuring  plan,  ING  will  pay  a  significant  proportion  of  the 
restructuring  costs,  ING's  long  term  commercial  viability  will  be  restored,  and  the  aid  will  not  lead  to  undue 
distortions of competition. The restructuring plan foresees that ING will reduce the risk profile and complexity 
of its operations and will sell its insurance activities over time. ING will also carve out, according to a detailed 
trustee-supervised timetable, a business unit (Westland Utrecht Hypotheekbank (WUH) / Interadvies), to step up 
competition in the Dutch retail banking market. 

But the financial crisis was not only about State aid 

24. 

25. 

The financial and economic crisis also gave rise to challenges under the EU mergers 
and antitrust rules. From a substantive point of view it was important to maintain a 
rigorous  enforcement  of  the  merger  and  antitrust  rules  in  order  to  preserve  the 
competitiveness of European business and facilitate its emergence from the crisis. 

In  the  wake  of  the  financial  crisis,  the  Commission  was  confronted  with  complex 
jurisdictional issues under the EC Merger Regulation. Indeed, questions arose as to 
whether  nationalisations  of  financial  institutions  needed  to  be  notified  to  the 
Commission  under  the  Merger  Regulation.  This  depended  on  whether  or  not  the 
nationalised  entity  would  remain  an  economic  unit  with  an  independent  power  of 
decision,  or  whether  such  nationalised  entity  could  be  considered  to  form  part  of  a 
single economic entity with other State controlled undertakings. 

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IP/09/1729 . 

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26. 

27. 

28. 

In most cases, the Commission was satisfied that the holding arrangements ensured 
independence  and  thus  that  no  concentration  was  taking  place.  However,  in  the 
German Hypo Real Estate bank case15 a concentration had to be notified. 

The  economic  crisis  did  not  have  a  substantial  impact  on  the  Commission's  policy 
and  practice  regarding  commitments  in  merger  cases.  Structural  commitments,  and 
notably  divestitures,  remained  the  most  appropriate  type  of  remedies  in  order  to 
prevent,  durably,  the  competition  concerns  which  would  have  been  raised  by  a 
merger. In some cases, the Commission, when evaluating a request for the extension 
of a deadline for the implementation of a remedy, took into account the difficulty of 
finding  buyers  in  the  prevailing  economic  climate.  Similarly,  the  Commission's 
merger  procedures  have  proven  well  suited  to  their  end,  also  under  difficult 
economic  conditions.  Notably,  the  Commission  granted  six  derogations  from  the 
stand  still  obligation  in  a  number  of  urgent  cases  having  regard  to  the  prevailing 
economic climate, albeit in full conformity with a well established and strict practice.  

In  antitrust,  the  Commission  was  called  upon  to  consider  arguments  relating  to 
difficulties  faced  by  companies  in  paying  fines  imposed  by  the  Commission  under 
the antitrust rules. The Commission carefully reviewed the conditions for "inability 
to pay". These conditions are only fulfilled if payment of the full amount of the fine 
would  irretrievably  jeopardise  the  economic  viability  of  the  undertaking  concerned 
and cause its assets to lose all their value. In line with this principle the Commission 
assessed requests on a case-by-case basis. An inability to pay claim was accepted in 
the Heat Stabilisers case, which led to a substantial reduction of the fine. 

And the crisis also hit the real economy 

29. 

30. 

As banks were deleveraging and becoming much more risk-averse than in previous 
years, companies started to experience difficulties with access to credit. As part of its 
response, the Commission adopted in January 2009 the "Temporary Framework for 
State aid measures to support access to finance in the current financial and economic 
crisis"16.  This  Temporary  Framework  (applicable  until  end-2010)  gives  Member 
States  additional  possibilities  to  tackle  the  effects  of  the  credit  squeeze  on  the  real 
economy. 

The  Temporary  Framework  formed  part  of  a  wider  Commission  response  to  the 
economic crisis: the European Economic Recovery Plan adopted in November 2008, 
which was endorsed by the European Council. In the context of the financial crisis, 
the  Commission  amended  the  temporary  framework  in  February  200917  to  provide 
Member States with additional possibilities to tackle the effects of the credit squeeze 
on the real economy. The amended framework takes into account different level of 
collateralisation  (in  particular  for  low  rating  categories)  when  calculating  the 
the  Commission  adopted  an 
permissible  guarantee  premium).  In  October, 
amendment  to  the  framework,  in  order  to  allow  for  a  separate  compatible  limited 

15 
16 

17 

Case COMP/M.5508 SOFFIN/Hypo Real Estate. 
OJ C 83, 7.4.2009, p. 1. The Commission applies the Temporary Framework from 17 December 2008, 
the date on which it agreed in principle its content. 
Communication  from  the  Commission  –Amendment  of  the  Temporary  framework  for  State  aid 
measures  to  support  access  to  finance  in  the  current  financial  and  economic  crisis  -  adopted  on  25 
February 2009. 

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amount of aid of EUR 15.000 for farmers18. Lastly, in December, the framework was 
modified so as to further facilitate access to finance especially in Member States with 
low labour costs19.  

The Temporary Framework focuses on two objectives: first, maintaining continuity 
in  companies'  access  to  finance  (e.g.  by  allowing  Member  States  to  grant  State 
guarantees for loans at reduced premia or subsidised interest rates for loans and the 
granting of up to EUR 500 000 per company); and second, encouraging companies to 
continue investing in a sustainable future (e.g. by allowing subsidised loans for the 
development  of  green  products).  In  addition  to  the  above  mentioned  new  aid 
measures,  the  Temporary  Framework  includes  temporary  adaptations  of  existing 
guidelines as a simplification of the rules on short term export credit insurance and 
an increase in the ceilings for risk capital investments. 

By  31  December  2009,  the  Commission  had  approved  79  measures  in  25  Member 
States aimed at stabilising companies and jobs in the real economy20. 

The  temporary  framework  is  a  horizontal  instrument,  which  has  allowed  Member 
States  to  support  all  sectors  of  the  economy  hit  by  the  crisis,  including  the  car 
industry. The Temporary Framework was widely used to support the car industry. As 
any  other  sector,  the  car  industry  can  benefit  from  aid  up  to  EUR  500 000  per 
company  for  the  next  two  years  (small  amounts  of  aid),  State  guarantees  on  loans, 
subsidies  loans  (including  specifically  for  green  cars)  and  facilitated  access  risk 
capital for SMEs. Some of the measures the temporary framework provides for, are 
of particular relevance for the car industry since they allow the financing of projects 
for the development of low emission vehicles. 

The  Commission  approved  aid  for  green  products,  notified  by  France,  United 
Kingdom,  Spain,  Germany  and  Italy21.  Furthermore,  a  number  of  Member  States 
including  France,  United  Kingdom,  Germany,  Belgium  (Flemish  region),  and 
Romania have installed guarantee and/or subsidised loan schemes from which the car 
industry (as well as other industries) can benefit22. For instance, a subsidised loan of 
EUR  1.5  billion  was  granted  by  Germany  to  Opel  following  the  bankruptcy 
proceedings  of  its  mother  company  General  Motors23,  while  France  granted  both 
Renault  and  PSA  subsidised  loans  of  EUR  3  billion24.  In  addition  in  June,  the 

Communication from the Commission amending the Temporary Community Framework for State aid 
measures  to  support  access  to  finance  in  the  current  financial  and  economic  crisis  (OJ  C  261, 
31.10.2009, p. 2). 
Communication from the Commission amending the Temporary Community Framework for State aid 
measures  to  support  access  to  finance  in  the  current  financial  and  economic  crisis  (OJ  C  303, 
15.12.2009, p. 6). 
Excluding temporary measures in the agricultural sector. 
N11/2009  (France),  N72/2009  (United  Kingdom),  N140/2009  (Spain),  N426/2009  (Germany), 
N542/2009 (Italy). 
See  for  instance  N23/2009  (France),  N71/2009  (United  Kingdom),  N27/2009  (Germany),  N117/2009 
(Flemish  region/Belgium),  N286/2009(Romania)  for  the  guarantee  schemes,  N38/2009  (Germany), 
N15/2009 (France), N257/2009 (United Kingdom) for the subsidised loan schemes. 
See http://www.bundesregierung.de/nn_774/Content/DE/Artikel/2009/11/2009-11-26-opel.html 
See http://www.gouvernement.fr/gouvernement/automobile-le-plan-d-aide-en-chiffres 

31. 

32. 

33. 

34. 

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Commission  approved  a  State  guarantee  on  an  EIB  loan  notified  by  Sweden  for 
Volvo Cars25. 

35. 

Finally, according to the temporary framework, Member States had to give feedback 
to  the  Commission  by  31  October,  on  its  implementation  and  effectiveness  in  the 
reactivation  of  the  bank  lending  and  in  supporting  companies26.  The  Commission 
prepared a questionnaire which was published on DG Competition's webpage, so as 
to  also  obtain  comments  from  interested  parties.  In  general,  Member  States 
considered  the  Temporary  Framework  as  a  useful  tool  which  has  provided  an 
important  support  for  companies.  They  confirmed  that  companies  were  still  facing 
difficulties  in  access  to  finance  and,  therefore,  the  continuity  of  the  Temporary 
Framework during 2010 was justified. Member States mainly implemented the 500k 
measure (the granting of EUR 500 000 per company) and the subsidised guarantees. 

Deliveries and costs involved 

36. 

37. 

38. 

39. 

25 

26 

27 

Between  October  2008  and  31  December  2009,  the  Commission  had  adopted  73 
decisions  in  relation  to  33  schemes  and  68  decisions  on  individual  measures  to  38 
banks. These 141 decisions encompass 21 Member States. Because of the urgency, 
some of those decisions were taken overnight, to avoid a domino effect and the major 
collapse of the EU's financial system. 

Between October 2008 and the end of 2009, the Commission approved around EUR 
3.63 trillion (equivalent to 29% of the EU-27 GDP) of State aid measures to financial 
institutions.  

As far as the real economy is concerned, by 31 December 2009, the Commission had 
approved  79  State  aid  measures  in  25  Member  States.  Out  of  these  measures,  18 
related  to  guarantees,  11  to  short-term  export  credit  measures,  nine  to  reduced 
interest rate loans, six to risk capital measures and five to reduced interest rate loans 
for  green  products.  A  large  number  of  the  measures  approved  (30)  related  to  the 
granting of up to EUR 500 000 per undertaking.  

The  autumn  2009  State  aid  Scoreboard  shows  that  the  overall  aid  volume  rose  in 
2008  from  around  0.5%  of  GDP  to  2.2%  of  GDP  or  EUR  279.6  billion  due  to  the 
financial  and  economic  crisis.  Crisis-related  aid  represented  roughly  1.7%  or  EUR 
212.2  billion  and  related  to  aid  to  financial  institutions  only27.  Aid  to  the  real 
economy  under  the  Temporary  Framework  started  to  be  implemented  by  Member 
States  only  in  2009.  Crisis  measures  aside,  total  aid  amounted  in  2008  to  0.5%  of 

Case N 80/2009 Volvo Cars, a subsidiary of Ford, applied for a EUR 200 million loan from EIB for a 
EUR  2  billion  project  for  R&D  into  green  technologies.  The  EIB  approval  was  conditional  upon 
receiving State guarantee on the loan. On 5 June 2009 the Commission approved the notified guarantee, 
out of which 90% under the Temporary Framework and 10% as aid free as the fee for it was market 
conform. 
See point 6 of the Communication from the Commission – Temporary Community framework for State 
aid  measures  to  support  access  to  finance  in  the  current  financial  and  economic  crisis  (OJ C 16, 
21.1.2009, p. 1). 
The maximum volume of Commission approved measures set up by Member States in 2008 to stabilise 
the financial markets amounted to € 3361 billion. According to the annual reports submitted by Member 
States, Member States implemented measures amounting to a nominal value of € 958 billion. According 
to  first  estimates,  the  aid  element  of  the  support  measures  put  in  place  in  2008  –  as  proxy  for  the 
benefits passed by the State to the benefitting financial institutions – amounted to € 212.2 billion. 

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GDP  or  EUR  67.4  billion,  a  level  similar  to  2007  and  the  years  before.  Aid  was 
mainly directed towards horizontal objectives of common interest (on average 88%), 
of which regional aid, research and development and environmental aid represented 
around two third whereas rescue and restructuring aid fell. Although figures for 2009 
are  not  yet  available,  the  volume  and  share  of  non-financial  aid  in  2009  is  not 
expected to change dramatically. 

Conclusion 

40. 

There  is  no  doubt  about  the  benefits  of  the  State  aid  granted  to  the  banking  and 
insurance sector. The liquidity injected has prevented the meltdown of the financial 
system  and  has  contributed  to  re-opening  markets,  provided  more  funds  to  the  real 
economy and helped financial markets reach a more normal market functioning. In 
this  crisis  context,  competition  policy  helped  support financial  stability and  created 
the  right  conditions  for  stable  financial  markets  in  the  short  and  longer  terms.  The 
timely  intervention  of  the  Commission  has  also  limited  the  consequences  of  the 
credit crunch for the real economy. Equally important, the use of competition rules 
has helped protect taxpayers' money.  

41. 

Competition  policy  is  not  a  static  and  rigid  policy;  it  takes  account  of  changing 
economic  realities.  This  combination  of  firm  principles  with  flexible  processes  has 
allowed  competition  policy  and  State  aid  in  particular,  to  play  a  constructive  and 
stabilising role in the EU's financial system and the real economy. 

1 

INSTRUMENTS 

1.1 

State aid control 

1.1.1. 

Shaping and applying the rules 

42. 

The implementation of the State Aid Action Plan (SAAP)28 continued in 2009, with 
the  adoption  of  guidance  papers  on  training  aid29  and  aid  to  disabled  and 
disadvantaged  workers30.  Guidance  on  the  in-depth  assessment  of  regional  aid  to 
large  investment  projects31  was  also  adopted.  The  principles  detailed  in  these 
guidelines  were  applied  for  the  first  time  in  the  Dell  Poland  case32,  where  the 
Commission concluded that the investment project by Dell to set-up a manufacturing 
plant in Łódź would significantly contribute to regional development and that these 
benefits outweigh any potential negative effects on competition.  

28 

29 

30 

31 

32 

State Aid Action Plan – Less and better targeted State aid: a roadmap for State aid reform 2005-2009 
(COM(2005)107 final, 7.6.2005).  
Communication  from  the  Commission  -  Criteria  for  the  compatibility  analysis  of  training  State  aid 
cases subject to individual notification (OJ C 188, 11.8.2009, p. 1). 
Communication  from  the  Commission  -  Criteria  for  the  compatibility  analysis  of  State  aid  to 
disadvantaged and disabled workers subject to individual notification (OJ C 188, 11.8.2009, p. 6).  
Communication from the Commission concerning the criteria for an in-depth assessment of regional aid 
to large investment projects (OJ C 223, 16.9.2009, p. 3). 
C 46/2008. 

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43. 

44. 

45. 

46. 

47. 

The  Commission  also  clarified  several  aspects  of  the  application  of  the  SGEI 
(Services  of  General  Economic  Interest)  Package  through  answers  to  16  questions 
asked in the framework of the Interactive Information Service33. 

The  Commission  extended  the  validity  of  the  State  aid  assessment  criteria  of  the 
2001 Cinema Communication34 until 31 December 201235.  

The  Commission  prolonged  until  October  2012  the  validity  of  the  current 
Community  Guidelines  on  State  Aid  for  Rescuing  and  Restructuring  Firms  in 
Difficulty36. Under these guidelines, the Commission authorised the aid granted and 
planned  by  Poland  to  the  Gdansk  Shipyard  and  finalised  the  in-depth  investigation 
started in June 2005. 

Also in July, a revised Broadcasting Communication was adopted, so as to provide 
more  clarity  on  the  Commission's  assessment  of  publicly  funded  new  media 
services37.  

In  September,  the  Commission  adopted  Guidelines  on  the  application  of  State  aid 
rules  to  public  funding  for  the  rapid  deployment  of  broadband  networks,  and  also 
addressed  public  funding  to  the  deployment  of  so-called  next  generation  access 
broadband  networks38.  These  measures  are  aimed  at  providing  equitable  broadband 
coverage at affordable prices for European citizens.  

1.1.2. 

State aid control – the Simplification Package 

48. 

The  Simplification  Package  entered  into  force  on  1  September.  The  Package  is 
composed of a Best Practice Code39 and a Notice on a Simplified Procedure40, both 
aiming  at  improving  the  effectiveness,  transparency  and  predictability  of  the 
Commission's State aid procedures. 

1.1.3.  Recovery policy 

49. 

Recovery of unlawful State aid has not been conceived as a penalty, but as a means 
to restore the situation previous to the granting of the illegal and unlawful aid. By 31 
December, the amount of illegal and incompatible aid recovered increased from EUR 
2.3  billion  in  December  2004  to  EUR  10.4  billion.  The  percentage  of  illegal  and 
incompatible aid still to be recovered has evolved accordingly (from 75% at the end 

33 
34 

35 

36 

37 

38 

39 
40 

http://ec.europa.eu/services_general_interest/registration/form_en.html 
Communication  on  certain  legal  aspects  relating  to  cinematographic  and  other  audiovisual  works, 
OJ C 43, 16.2.2002, p. 6. 
Communication  concerning  the  State  aid  assessment  criteria  of  the  Commission  communication  on 
certain legal aspects relating to cinematographic and other audiovisual works (Cinema Communication) 
of 26 September 2001, OJ C 31, 7.2.2009, p. 1. 
Prolongation  of  Community  guidelines  on  State  aid  for  rescuing  and  restructuring  firms  in  difficulty 
(OJ C 156, 9.7.2009, p. 3). 
Communication  on  the  application  of  State  aid  rules  to  public  service  broadcasting  of  2  July  2009, 
OJ C 257, 27.10.2009. 
Community  Guidelines  for  the  application  of  State  aid  rules  in  relation  to  rapid  deployment  of 
broadband networks, OJ C 235, 30.9.2009, p. 7. 
Code of Best Practice for the conduct of State aid control procedures (OJ C 136, 16.6.2009, pp. 13-20). 
Notice  from  the  Commission  on  a  simplified  procedure  for  treatment  of  certain  types  of  State  aid 
(OJ C 136, 16.6.2009, pp. 3-12). 

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of 2004 to 12% at 31 December 2009). The share of the total amount recovered has 
however  slightly  decreased  between  2008  and  2009  (from  90.9%  to  88%),  due  to 
seven new recovery decisions adopted in 2009 and high amounts of aid identified41 
in several 2008 decisions. 

1.1.4. 

State aid enforcement by national courts 

50. 

In April, the Commission issued a new Notice on State aid Enforcement by National 
Courts42.  This  Notice  seeks  to  provide  more  detailed  guidance  on  all  aspects  of 
private  State  aid  enforcement.  It  offers  national  courts  more  practical  and  user 
friendly Commission support in their daily work, as National judges would be able to 
ask  the  Commission  for  information  in  its  possession  and/or  for  its  opinion  on  the 
application of the State aid rules. 

1. 1.5.  Monitoring of State aid measures 

51. 

Since  2006,  the  Commission  has  been  stepping  up  the  "ex  post  monitoring"  of  the 
main types of aid covered by Block Exemption Regulations (BER) and therefore no 
longer  subject  to  the  notification  obligation.  The  analysis  of  the  results  of  the  first 
three years monitoring exercises shows that, overall, the part of the existing State aid 
architecture  (schemes  and  BERs)  functions  in  a  satisfactory  manner.  All  Member 
States  are  cooperating  with  the  Commission,  albeit  many  have  submitted  the 
information  requested  with  considerable  delay.  The  CFI  also  handed  down  out  a 
judgment43 which confirmed the legality of the monitoring exercises. 

1.1.6.  Horizontal State aid 

52. 

53. 

41 

42 
43 
44 
45 

In  2009,  the  Commission  approved  29  aid  schemes  and  adopted  four  non  aid 
decisions on the basis of the Community  Framework for research and development 
and  innovation44;  19  out  of  these  measures  were  pure  R&D  schemes,  two  were 
innovation-oriented schemes and 12 were mixed, pursuing both R&D and innovation 
objectives.  In  addition,  and  following  an  in-depth  economic  assessment,  the 
Commission  decided  not  to  raise  objections  on  nine  individually  notifiable  aids  to 
large R&D projects. Furthermore, it monitored information submitted on aids to 73 
other R&D projects, which exceeded EUR 3 million although without falling under 
the duty for individual notification. 

As to State aid granted in favour of R&D projects under the GBER45, there were 51 
schemes providing aid for fundamental research, 186 for industrial research and 181 
for  experimental  development.  At  the  same  time,  the  GBER  was  also  used  by 
Member States for measures relating to innovation, 57 of which referred to industrial 
property  rights  for  SMEs,  26  to  young  innovative  enterprises,  47  to  innovation 
advisory and support services, and 23 to the loan of highly qualified personnel. 

This is due to the fact that the Commission cannot always quantify the aid amount to be recovered (in 
such cases, Commission Decisions include information enabling the Member State to determine the aid 
amount). 
OJ C 85, 9.4.2009, p. 1. 
Judgment in Case T-376/07, Germany v. Commission, 25.11.2009. 
OJ C 323, 30.12.2006, p. 1. 
OJ L 214, 9.8.2008, p. 3. 

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54. 

55. 

56. 

57. 

As far as environmental aid is concerned, the Commission approved 34 aid schemes 
and  four  individual  applications,  most  of  them  under  the  Environmental  Aid 
Guidelines46. Furthermore, the Commission cleared one case as not constituting State 
aid. Moreover, following a formal investigation procedure, the Commission took two 
negative  decisions,  one  conditional  decision  as  well  as  a  positive  decision.  At  the 
same time the Commission decided to open formal investigations in four other cases 
related to environmental aid.  

In  the  area  of  risk  capital  financing  for  SMEs,  and  further  to  the  six  aid  schemes 
authorised under the Temporary Framework, the Commission approved 25 measures 
under  the  Risk  capital  guidelines47;  16  of  which  complied  with  the  safe  harbour 
provisions  allowing  for  a  light  assessment.  The  Commission  conducted  a  detailed 
assessment of the compatibility of the measures in seven other cases, and considered 
that  they  did  not  involve  State  aid  in  the  remaining  two  cases.  Furthermore,  13 
additional  aid  schemes  were  implemented  in  2009  under  the  GBER,  which  also 
started to be used by Member States for risk capital purposes. 

In total the Commission was informed of 971 aid measures which were implemented 
in  2009  under  the  GBER.  Apart  from  the  above  mentioned  objectives,  these 
exempted aid measures also covered the fields of employment aid, training aid, aid 
for environmental purposes48 and regional aid. 

In the field of regional aid, in 2009 the Commission approved 45 schemes, mostly on 
the basis of the Guidelines on national regional aid for 2007-201349. It also approved 
12 ad hoc aid measures in favour of single enterprises for investments in areas under 
the  Regional  Aid  maps  2007-201350..  On  the  basis  of  the  same  Guidelines  on 
national  regional  aid  for  2007-2013,  State  aid  to  nine  large  investment  projects51 
were  approved  and  a  formal  investigation  procedure  was  initiated  regarding  two 
other  such  projects52  as  well  as  one  ad  hoc  regional  aid  case53.  The  Commission 
finally  closed  the  formal  investigation  procedure  for  two  other  large  investment 
projects with a positive decision54. 

58. 

Under  the  Temporary  Framework,  in  2009  the  Commission  adopted  30  decisions 
approving  limited  amounts  of  compatible  aid  schemes,  15  decisions  approving 
measures  for  State  aid  in  the  form  of  guarantee  and  nine  decisions  approving 
measures in the form of subsidized interest rates. 

46 
47 
48 

49 
50 
51 

52 

53 
54 

OJ C 82, 1.4.2008, p. 1. 
OJ C 194, 18.8.2006, p. 2. 
124 aid measures; more information will be available in 2010 on the basis of the national annual reports 
for 2009. 
OJ C 54, 4.3.2006. 
Decisions to be found at: http://ec.europa.eu/competition/state_aid/regional_aid/regional_aid.html 
In the energy sector: Case N538/2008 Ersol Thin Film, Case N453/2008 Sunfilm AG, Case N539/2008 
ASI Industries/Ersol Solar Energy, Case N180/2009 EnPlus Centrale Termoelettrica di San Severo. In 
the  automotive  sector:  Case  N473/2008  Ford  España,  Case  N671/2008  Aid  to  Mercedes  Benz 
Manufacturing  Hungary,  Case  N635/2008  Fiat  Sicily,  Case  N674/2008  Volkswagen  Slovakia.  In  the 
paper industry: Case N203/2008 Hamburger Spremberg GmbH. 
Case N113/2009 Aid to Audi Hungaria Motor Ltd, Case N588/2008 Petróleos de Portugal – Petrogal 
S.A.  
Case N357/2008 Fri-el Acerra s.r.l. 
Case C21/2008 Sovello Ag (formerly EverQ) and Case N46/2008 Aid to Dell Poland. 

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1.1.7. 

State aid for Coal 

59. 

60. 

During  2009  the  Commission  approved  aid  to  the  coal  sector  in  Germany55, 
Slovakia56  and  Spain57.  These  aid  schemes  are  intended  to  support  access  to  coal 
reserves and to restructure the coal sector in these countries. 

In  view  of  the  forthcoming  expiry  of  Regulation  1407/200258  (on  31  December 
2010), the Commission carried out a public consultation on the future policy options 
with respect to aid to the coal industry59. 

1.1.8. 

State aid in the agricultural sector 

61. 

62. 

The  Commission  assesses  State  aid  granted  to  the  agriculture  and  to  the  forestry 
sector  on  the  basis  of  the  Guidelines  for  State  aid  in  the  agriculture  and  forestry 
sector 2007 to 201360. In 2009, the Commission registered 139 new State aid cases 
and adopted 146 decisions.  

In  the  context  of  the  amendment  to  the  Temporary  Framework,  the  maximum 
amount  of  aid  to  agricultural  undertakings  can  only  be  granted  once  until  31 
December  2010.  Any  agricultural  de-minimis  aid  received  since  the  beginning  of 
2008  by  individual  undertakings  in  compliance  with  Commission  Regulation  (EC) 
No 1535/200761 has to be deducted from this amount.  

1.2 

Antitrust – Articles 101, 102 and 106 TFEU 

1.2.1. 

Shaping and applying the rules  

Report on the functioning of Regulation 1/2003 

63. 

On  29  April,  the  Commission  adopted  its  Report  on  the  functioning  of  Council 
Regulation  1/200362.  The  Report  takes  stock  of  how  the  modernisation  of  EU 
antitrust enforcement rules has worked since the entry into force of the Regulation on 
1 May 2004. It describes the experience in all major areas covered by the Regulation 
and  evaluates  the  progress  made  by  introducing  new  instruments  and  working 
methods.  The  Report  also  highlights  a  number  of  aspects  which  merit  further 
evaluation. 

Private enforcement of the EU antitrust rules 

64. 

The EU antitrust rules have direct effect; as such, they confer rights on individuals, 
including the right to damages, which can be enforced before national courts (private 
enforcement).  The  Commission  launched  a  policy  project  aimed  at  ensuring  the 

55 
56 
57 
58 
59 
60 

61 

62 

Case N563/2008 Aid for German hard coal in 2008 (OJ C 199, 25.8.2009, p. 1). 
Case N347/2009 – Slovak Republic, Baňa Dolina a.s. 
Case NN20/2009, ex N647/2008 Aid for the coal sector in 2008-2010 (OJ C 234, 29.9.2009, p. 5). 
OJ L 205, 2.8.2002, p.1. 
http://ec.europa.eu/energy/coal/consultations/2009_07_15_en.htm 
Community  guidelines  for  State  aid  in  the  agriculture  and  forestry  sector  2007-2013  (OJ C 319, 
27.12.2006, p. 1. 
Commission Regulation (EC) No 1535/2007 of 21 December 2007 on the application of Articles 87 and 
88 to de minimis aid in the sector of agricultural production (OJ L 337, 21.12.2007, p. 35). 
COM(2009)206 final, accompanied by a Staff Working Paper, SEC(2009)574 final. 

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65. 

66. 

effectiveness of EU antitrust damages actions and in 2008 adopted a White Paper on 
damages  actions  for  breach  of  the  EC  antitrust  rules63  putting  forward  concrete 
suggestions.  The  White  Paper's  suggestions  include:  (i)  clarifying  what  type  of 
damages  can  be  claimed  by  whom;  (ii)  facilitating  the  position  of  consumers  and 
other indirect victims in situations where an illegal overcharge has been passed on to 
them;  (iii)  improving  the  efficiency  of  follow-on  actions  for  damages  by  providing 
that  final  infringement  decisions  of  national  competition  authorities  constitute 
sufficient proof of an infringement; (iv) ensuring that claimants can obtain fair access 
to evidence through disclosure in court; (v) providing for effective collective redress; 
and  (vii)  suggesting  rules  to  ensure  a  smooth  interplay  between  private  and  public 
enforcement, including protection of leniency programmes. 

In  March  2009,  both  the  European  Parliament  and  the  European  Economic  and 
Social Committee adopted opinions supporting the approach of the White Paper. The 
Commission services have started to work on the technical instruments designed to 
achieve the objectives of the White Paper, while taking due account of the opinions 
and  comments  received  within  the  public  consultation.  Further,  the  Commission 
services have started work on a non-binding guidance on quantification of damages. 

Cartels 

In 2009, the Commission adopted six cartel decisions64 imposing fines amounting to 
EUR  1.62  billion  on  43  undertakings65.  It  continued  to  attach  high  priority  to  the 
detection, investigation and sanctioning of cartels. For the first time it issued cartel 
decisions  to  undertakings  in  Slovakia  and  Slovenia  (Calcium  Carbide  case  – 
regarding  calcium  carbide  powder  and  granulates  for  the  gas  and  metallurgic 
industry). The fight against cartels with an international dimension proved to be very 
successful,  epitomized  by  the  decisions  in  Marine  Hoses66  (a  market  sharing  and 
price  fixing  cartel  concerning  marine  hoses,  used  to  load  oil  and  other  petroleum 
products  from  offshore  facilities  onto  vessels  and  offload  them  back  to  offshore 
facilities,  for  which  the  EU  co-operated  with  the  US,  UK  and  Japan),  Power 
Transformers67  (a  market  sharing  agreement  between  European  and  Japanese 
producers relating to power transformers, auto transformers and shunt reactors with a 
voltage range of 380 kV and above) and Heat Stabilisers (a market sharing and price 
fixing cartel relating to plastic additives, involving EU, US and Swiss companies). 

67. 

Following  the  annulment  by  CFI  of  the  Decision  on  Concrete  Reinforcing  Bars  in 
200768,  on  30  September  the  Commission  readopted  its  initial  decision  from  2002 
and retained all eight undertakings, confirming an almost identical fine on them69. 

63 
64 

65 

66 
67 
68 
69 

COM(2008)165 final, see http://ec.europa.eu/competition/antitrust/actionsdamages/index.html 
Cases  COMP/39406  Marine  Hoses;  COMP/39401  E.on/GDF;  COMP/39396  Calcium  Carbide; 
COMP/37956  Concrete  reinforcing  bars  (re-adoption);  COMP/39129  Power  Transformers  and 
COMP/38589 Heat Stabilisers. 
Includes entities not fined such as immunity applicants. If more than one legal entity of the same group 
were subject to the decision, they are counted as one.  
See Annual Competition Report 2007, p. 43. 
See IP/09/1432. 
T–77/03 Feralpi Siderugica SpA/Commission [2007] ECR II-139 Summ.pub. 
With the re-adoption decision the Commission imposed a fine of EUR 83 250 million, reducing the fine 
for one of the undertakings from EUR 16 140 million to EUR 14 350 million because of a shift in the 
latter's relative size. See IP/09/1389. 

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68. 

69. 

70. 

71. 

72. 

Other agreements and concerted practices 

On the application of the antitrust rules to non-cartel cases, the Commission adopted 
on  14  October  a  commitment  decision70  rendering  legally  binding  commitments 
offered by the International Association of Classification Societies (IACS) to address 
concerns  raised  in  the  course  of  an  investigation  pursuant  to  Article  81  EC  and 
Article 53 of the EEA Agreement in the worldwide ship classification market.  

A  number  of  BERs  and,  when  relevant,  accompanying  guidelines  relating  to  the 
application of Article 101 TFEU, due to expire in the near future were reviewed in 
2009. These reviews concern in particular the BERs for Vertical and for Horizontal 
Agreements, the "Insurance" BER71 (see section 2.1) and the "Motor vehicle" BER 
(see section 2.9). 

The Commission issued draft BER and Guidelines for public consultation on Vertical 
Agreements in July. It is proposed to maintain, in essence, the current rules, while at 
the  same  time  adapting  and  refining  them  to  take  account  of  developments  in  the 
marketplace, in particular the market power of buyers, and the continuous increase of 
online sales. 

As  regards  Horizontal  Agreements,  the  revision  of  the  guidelines72  is  linked  to  the 
revision  of  the  "Specialisation  agreements  BER"73  and  the  "Research  and 
Development  agreements  BER"74.  The  horizontal  guidelines  cover  not  only 
specialisation  and  R&D  agreements  but  also  other  types  of  agreements  such  as 
production, commercialisation and joint purchasing agreements. 

A  Regulation  (EC)  No  906/2009  on  the  application  of  Article  81(3)  EC  to  certain 
categories  of  agreements,  decisions  and  concerted  practices  between  liner  shipping 
companies  (consortia)75  was  also  adopted.  This  Regulation  allows  operational 
cooperation to provide a joint liner shipping service between liner shipping carriers 
subject to certain conditions. Such type of cooperation has been exempted from the 
EU competition rules since 1995. The new Regulation enters into force on 25 April 
2010 for five years. 

Abuse of dominant positions (Article 102 TFEU) 

73. 

The Commission's Guidance on its enforcement priorities in applying Article 82 EC 
to  abusive  exclusionary  conduct  by  dominant  undertakings  was  published  in  the 
Official Journal (OJ) on 24 February76. 

70 
71 

72 

73 

74 

75 
76 

Case COMP/39416 Ship Classification. 
Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of 
the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector 
(OJ L 53, 28.2.2003, p. 8). 
Commission  Notice  –  Guidelines  on  the  applicability  of  Article  81  to  horizontal  cooperation 
agreements, OJ C 3, 6.1.2001, p. 2. 
Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) 
to categories of specialisation agreements, OJ L 304, 5.12.2000, p. 3. 
Commission Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) 
to categories of research and development agreements, OJ L 304, 5.12.2000, p. 7. 
OJ L 256, 29.9.2009, p. 31. 
OJ C 45, 24.2.2009, p. 7. 

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74. 

13. 

75. 

76. 

77. 

The Commission adopted final decisions in the energy (RWE and GdF) and IT (Intel, 
Microsoft and Rambus) sectors. It also decided to open proceedings in the sectors for 
electronic  communications  (Polish  and  Slovakian  incumbents  in  the  broadband 
market)  and  financial  services  (Standard  &  Poor's  and  Thomson  Reuters).  More 
detailed information is to be found in the respective sectorial sections of this Report.  

State  measures  (Public  undertakings/Undertakings  with  exclusive  and  special 
rights – Article 106 TFEU 

On  2  February,  the  Commission  sent  a  Reasoned  Opinion77  (RO)  to  the  Slovak 
Republic requesting it to bring its Competition Act in conformity with EU law. On 
25 June it closed the infringement procedure78, following the repeal of the contested 
provision in its entirety with effect from 1 June. An infringement procedure against 
the  Slovak  Republic  is  still  on-going  for  the  non-implementation  of  the  2008 
Commission decision on the Slovakian postal Law79. 

In  August,  the  Commission  adopted  a  decision  accepting  commitments  made  by 
Greece to ensure fair access to Greek lignite deposits80. 

In October, following the opening up of the distribution of "Livret A" by banks, the 
infringement procedure which had been opened against France in 2007, was closed.  

1.4 

Merger control 

1.4.1. 

Shaping and applying the rules 

78. 

In  2009  the  number  of  mergers  notified  was  below  the  record  levels  of  previous 
years.  In  total,  259  transactions  were  notified  to  the  Commission  and  243  final 
decisions  were  adopted.  Of  these  final  decisions,  225  transactions  were  approved 
without  conditions  during  Phase  I,  82  decisions  were  approved  without  conditions 
under  the  normal  procedure  and  143  (or  63.6%)  were  cleared  using  the  simplified 
procedure.  13  transactions  were  cleared  in  Phase  I  subject  to  conditions. 
Furthermore,  the  Commission  initiated  five  Phase  II  proceedings,  with  three 
decisions adopted subject to conditions. Two cases were withdrawn in Phase II and 
six cases in Phase I. No prohibition decisions were taken during the year. 

1.4.2.  Article 21 

79. 

77 
78 

79 

80 

The legal powers provided for  in  Article 21(4) of the  EC Merger Regulation  allow 
the Commission to intervene in order to deter and ultimately prevent Member States 
from  preventing  or  restricting  the  takeover  of  domestic  companies  by  companies 
from  other  Member  States  on  unjustified  grounds.  This  provision  also  provides  a 
procedural  framework  for  the  exchange  of  views  in  a  timely  manner  with  Member 
States  to  distinguish  interventions  with  a  protectionist  motivation  from  a  genuine 

See Press Release IP/09/200, 2.2.2009. 
See  Press  Release  IP/09/1182,  23.7.2009.  The  successful  resolution  of  this  case  follows  a  previous 
infringement  procedure  against  the  Czech  Republic  where  similar  problematic  legislation  was  also 
repealed in 2007.  
Case  COMP/39562  Slovakian  postal  Law  (OJ C 322,  17.12.2008,  p. 10).  See  also  Press  Release 
IP/08/1467, 7.10.2008. 
OJ C 243, 10.10.2009, p. 5.  

EN 

18 

   EN 

                                                 
pursuit  of  legitimate  public  interests  (other  than  competition).  From  its  inception, 
there have been fewer than 20 cases were Article 21 was applied. After a period of 
more  frequent  application  of  Article  21,  in  2009  no  new  proceedings  were  opened 
under this provision. 

1.4.3 

The Merger Report 

80. 

81. 

The Commission presented a report to the Council on the application of the Merger 
Regulation81 (ECMR), five years after its entry into force. The report concludes that 
overall, the jurisdictional thresholds and the referral mechanisms have provided the 
appropriate  legal  framework  for  a  flexible  allocation  and  re-allocation  of  cases 
between  the  Commission  and  the  National  Competition  Authorities  (NCAs).  The 
report also finds that the post-notification mechanisms have proven to continue to be 
useful in re-allocating cases notwithstanding the introduction of the pre-notification 
referral mechanisms. 

Finally,  the  report  highlights  areas  where  there  may  be  potential  room  for 
improvement, such as the operation of the "two-thirds rule", the way to handle cases 
which are notified to three or more NCAs ("one stop shop" concept) and the issue of 
further  convergence  of  the  applicable  national  rules  in  their  relation  to  Community 
rules. 

2 

SECTOR DEVELOPMENTS 

2.1. 

Financial services 

82. 

83. 

84. 

81 

82 
83 

84 

Financial markets are crucial to the functioning of modern economies. The year has 
been  extremely  difficult  for  the  financial  sector  and  the  Commission  has  played  a 
leading role by providing legal certainty in the field of State aid and merger control82.  

In  the  area  of  financial  market  data  distribution,  formal  proceedings  were  opened 
against Standard & Poor's for allegedly abusing its dominant position related to the 
issuance and licensing of securities identifier codes called ISINs83. The Commission 
also  opened  formal  proceedings  against  Thomson  Reuters  concerning  the  use  of 
RICs84.  

Further  to  the  Commission’s  opening  of  investigations  in  2008  regarding  VISA 
Europe's  cross-border  MIFs,  an  SO  was  sent  in  April.  In  May  the  Commission 
commissioned  an  external  study  comparing  the  costs  of  payments  by  cash  and  by 
cards. 

Communication  from  the  Commission  to  the  Council,  Report  on  the  functioning  of  Regulation  No 
139/2004,  and  the  accompanying  Commission  staff  working  paper,  18  June  2009  (COM(2009)281 
final). 
For more detail, see the Focus Chapter within this Report. 
ISIN  are  the  global  identifiers  for  securities  and  are  governed  by  the  International  Standardisation 
Organisation  (ISO)  standard  6166.  They  are  indispensable  for  a  number  of  operations  that  financial 
institutions  carry  out  (for  instance,  reporting  to  authorities  or  clearing  and  settlement)  and  cannot  be 
substituted by other identifiers for securities. See also MEMO/09/508. 
RICs are short, alphanumerical codes that identify securities and their trading locations. They are used 
to retrieve information from Thomson Reuters' real-time datafeeds, for example real-time information 
on stock prices at a certain exchange. See also IP/09/1692 of 10.11.2009. 

EN 

19 

   EN 

                                                 
85. 

86. 

87. 

88. 

89. 

The  Commission  continued  to  closely  monitor  the  implementation  of  the  2007 
prohibition  decision  on  MasterCard's  cross-border  Multilateral  Interchange  Fees 
(MIFs).  In  April  MasterCard  committed  to  reintroduce  substantially  lower  cross-
border MIFs85 to repeal scheme fee increases, and to change its system rules in order 
to  increase  transparency  and  competition  in  the  payment  cards  market86.  The 
implementation of these undertakings is closely monitored by an independent trustee. 

The  Commission  carried  out  a  review  of  the  functioning  of  the  current  Insurance 
BER87 before it expires on 31 March 2010. On the basis of the evidence found during 
the  Review,  the  draft  BER  renews  the  exemption  for  two  categories  of  agreement: 
joint  compilations,  tables  and  studies;  and  agreements  on  co-insurance  and  co-
reinsurance  pools.  The  draft  was  published  for  consultation  on  5  October  for  eight 
weeks. 

SEPA (Single Euro Payments Area) was an important focus of antitrust advocacy in 
the  field  of  financial  services.  SEPA  is  a  self-regulatory  initiative  launched  by  the 
European  Banking  Industry  and  led  by  the  European  Payments  Council  (EPC)  to 
move  to  an  integrated  Euro  payments  area,  ensuring  that  cross  border  payments 
become as easy and efficient as domestic payments.  

In the course of 2009, informal discussions were held with potential new entrants – 
Payfair  and  Monnet  in  particular  –  notably  to  clarify  the  compatibility  of  their 
envisaged  financing  mechanisms  with  competition  rules  and  to  encourage  effective 
SEPA-compliant competition in payment cards market. 

The  dialogue  launched  with  the  EPC  in  2007  continued  in  2009,  with  a  focus  on 
interchange  fees  for  SEPA  Direct  Debit  (SDD),  governance  of  the  EPC  and  of  the 
schemes as well as standardisation. In March, the Commission and the ECB issued a 
joint  statement  clarifying  financing  principles  for  SDD,  including  the  possibility  to 
charge multilateral interchange fees in some Member States on a transitional basis88. 
On 2 November, Regulation 924/200989 on cross-border payments entered into force 
and the Commission and the ECB published guidance on the long-term financing of 
SDD90. The guidance concerns the period when the transitional MIF arrangements no 
longer apply.  

90. 

Between  3  November  and  14  December  the  Commission  launched  a  public 
consultation  on  further  guidance  to  participants  in  the  SDD  scheme  as  regards  the 
assessment  of  collective  financing  mechanisms  under  European  competition  rules. 
Following  the  consultation,  the  Commission  may,  if  appropriate,  decide  to  adopt 

85 

86 
87 

88 

89 
90 

Following the new methodology, the maximum weighted average MIF per transaction is now reduced 
to 0.30% for consumer credit cards and to 0.20% for consumer debit cards. 
See IP/09/515 and MEMO/09/143. 
Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of 
the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector 
(OJ L 53, 28.2.2003, p. 8). 
Joint  statement  by  the  European  Commission  and  the  European  Central  Bank  clarifying  certain 
principles underlying a future SEPA direct debit (SDD) business model, SEC(2009)397. 
OJ L 266, 9.10.2009, p. 11. 
Applicability of Article 81 of the EC Treaty to multilateral interbank-payments in SEPA Direct Debit 
SEC (2009)1472. 

EN 

20 

   EN 

                                                 
further  guidance  to  provide  greater  clarity  and  predictability  on  the  general 
framework of analysis. 

2.2. 

Energy and Environment 

91. 

92. 

93. 

94. 

On  6  April  the  European  Parliament  and  the  Council  adopted  the  climate-energy 
legislative  package  containing  measures  to  fight  climate  change  and  promote 
renewable energy that had been proposed by the Commission in January 2008. The 
package contains a directive on renewable energy establishing sustainability criteria 
for biofuels and bioliquids91 which are also relevant for the assessment of State aid in 
that  area.  Moreover,  the  European  Parliament  and  the  Council  adopted  a  Directive 
revising the EU Emissions Trading System (ETS) for greenhouse gases92. 

On  13  July  the  European  Parliament  and  the  Council  adopted  the  Internal  Energy 
Market  package93  and  on  16  July  the  Commission  adopted  a  proposal  for  a 
Regulation concerning measures to safeguard security of gas supply.  

The Commission has been very active in enforcing competition policy in the energy 
sector, on the basis of the knowledge acquired through the Energy Sector Inquiry94. 
The development of effective competition in these markets should result in increased 
security of supply, reduced environmental impact, greater innovation and the supply 
of energy at competitive prices to the EU's households and businesses. 

On 18 March, a decision95 was adopted in the RWE Gas Foreclosure case rendering 
divestiture commitments previously proposed by RWE legally binding and closed its 
investigation.  In  the  same  vein,  commitments  offered  by  GDF  Suez96  were  made 
legally binding through the adoption on 2 December of a decision under Article 9 of 
Regulation 1/2003. The commitments will make it easier for competitors to enter the 
French gas market. In addition, on 4 November, the Commission launched a market 
test on commitments offered by the French energy company EDF, in the framework 
of the EDF Customer Foreclosure case97. Together with the reform of the regulated 
electricity market being implemented by the French government98, the commitments 
in  this  case  have  the  potential  to  constitute  an  important  step  towards  a  fully 
competitive  electricity  market  in  France.  On  22  December  2009,  a  preliminary 
assessment within the meaning of Article 9 of Regulation 1/2003 was sent to E.ON 
AG and its subsidiaries, including E.ON Ruhrgas AG and E.ON Gastransport GmbH, 
expressing  concerns  as  to  a  violation  of  Article  102  TFEU  (ex-Article  82  EC).  In 

91 

92 

93 
94 

95 
96 
97 
98 

Directive  2009/28/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  the 
promotion  of  the  use  of  energy  from  renewable  sources  and  amending  and  subsequently  repealing 
Directives 2001/77/EC and 2003/30/EC (OJ L 140, 5.6.2009, p. 16). 
Directive  2009/29/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  amending 
Directive  2003/87/EC  so  as  to  improve  and  extend  the  greenhouse  gas  emission  allowance  trading 
scheme of the Community (OJ L 140, 5.6.2009, p. 63). 
OJ L 211, 14.8.2009. 
Communication  from  the  Commission:  Inquiry  pursuant  to  Article  17  of  Regulation  (EC)  No  1/2003 
into the European gas and electricity sectors (Final report) (COM(2006)851 final, 10.1.2007), and DG 
Competition report on energy sector inquiry (SEC(2006)1724, 10.1.2007). 
See IP/09/410, 18.3.2009. 
Case COMP/39316. 
Case COMP/39386 Long term electricity contracts in France.  
See MEMO/09/394. 

EN 

21 

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parallel, the Commission prepared a market test notice within the meaning of Article 
27(4) of Regulation 1/2003. 

As  far  as  other  energy  cases  are  concerned,  on  8  July  the  Commission  adopted  a 
decision  under  Article  7  of  Regulation  1/2003,  imposing  total  fines  of  EUR  1 106 
million  on  E.ON  and  GDF  Suez  for  market  sharing99.  These  are  the  first  fines  the 
Commission  has  imposed  for  an  antitrust  infringement  in  the  energy  sector  and 
represent the highest fine imposed in 2009. On 6 March a SO was addressed to ENI 
S.p.A.100  in  relation  to  the  company's  management  and  operation  of  natural  gas 
transmission  pipelines.  On  23  April,  proceedings  were  opened  in  the  Svenska 
Kraftnät101  case.  On  6  October,  the  Commission  launched  a  market  test102  inviting 
comments from interested parties on the commitments offered by Svenska Kraftnät 
(SvK), the Swedish transmission system operator.  

In  the  field  of  mergers,  the  Commission  cleared  with  remedies  three  transactions 
concerning  the  supply  of  gas  and  electricity:  Vattenfall's  acquisition  of  Nuon 
Energy103,  RWE's  purchase  of  Essent104  and  Segebel's  acquisition  by  EDF105.  Two 
cases106  arising  from  the  remedies  given  by  E.ON  antitrust  proceedings107  were 
cleared unconditionally. 

In  the  area  of  State  aid  control  progress  was  made  with  regard  to  French  regulated 
electricity  tariffs108.  On  19  September,  the  French  government  announced  a  reform 
plan providing for a phasing-out of the tariffs and a mechanism aimed at stimulating 
competition on the electricity market by ensuring access to competitors to a certain 
percentage of EDF nuclear generation capacity at a regulated price. The adoption of 
the French legislation is required before the Commission can take a final decision109.  

On 18 November, a negative decision with recovery was adopted in the preferential 
tariffs case for Alcoa plants in Veneto and Sardinia110.  

In  the  area  of  renewable  energies  the  Commission  authorised  a  Cypriot  scheme111, 
three Danish schemes112 and an Austrian scheme subsidising feed-in tariffs in favour 
of  producers  of  renewable  energies113.  Concurrently  an  in-depth  investigation  is 

Case COMP/39401. See IP/09/1099, 8.7.2009. 
Case COMP/39315. See MEMO/09/120, 19.3.2009. 
Case COMP/39351. See MEMO/09/191, 23.4.2009. 
See IP/09/1425, 6.10.2009. 
Case COMP/M.5496 Vattenfall/Nuon decision. 
Case COMP/M.5467 RWE/Essent. 
Case COMP/M.5549 EDF/Segebel. 
Case COMP/M.5512 Electrabel/E.ON (certain assets) and M.5519 E.ON/Electrabel acquired assets. 
Cases COMP/39388 and COMP/39389 E.ON electricity. 
Case C17/2007 (ex NN19/07) Regulated electricity tariffs in France (OJ C 96, 25.4.2009, p. 18). 
MEMO/09/394, 15.9.2009.  
Case C36b/2006 Preferential electricity tariff – Alcoa (not yet published). 
Case  N143/2009  Aid  scheme  to  encourage  electricity  generation  from  large  commercial  wind,  solar, 
photovoltaic systems and biomass (OJ C 247, 15.10.2009, p. 2).  
Case  N359/2008  Supplement  for  electricity  generated  by  incinerating  biomass  (OJ  C  179,  1.8.2009, 
p. 1); Case N354/2008 Supplement for electricity from new wind turbines (OJ C 143, 24.6.2009, p. 6); 
Case N356/2008 Supplement for electricity generated with bio gas (OJ C 151, 3.7.2009, p. 16).  
Case N446/2008 Second amendment of the Green Electricity Act 2008 (OJ C 217, 11.9.2009, p. 12). 

95. 

96. 

97. 

98. 

99. 

99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 

112 

113 

EN 

22 

   EN 

                                                 
100. 

101. 

102. 

initiated concerning certain provisions of the Austrian scheme which seem to favour 
large energy consumers114.  

Subject  to  conditions,  a  Danish  project  to  grant  CO2  tax  exemptions  to  companies 
covered by the EU’s ETS115 was cleared. Furthermore the Commission approved tax 
reductions  for  the  Danish  cement  industry,  the  first  of  such  cases  to  be  approved 
under the new rules for aid in the form of reductions of environmental taxes in the 
Environmental Aid Guidelines116. On the other hand, the Commission concluded that 
industry  was  not 
a  similar 
compatible117, since the tax exemption could not be found necessary or proportional. 

tax  exemption  concerning 

the  Dutch  ceramic 

The  Commission  authorised  a  UK  scheme  introducing  a  trading  system  for  CO2 
emissions  related  to  energy  consumption118.  Furthermore,  Polish119,  Lithuanian120 
Bulgarian121  schemes  providing  for  tax  reduction  to  stimulate  the  production  of 
certain forms of biofuels were also adopted.  

The Commission dealt with a number of Austrian measures promoting electricity and 
heat  generation122  and  distribution  infrastructure123;  it  authorised  three  Polish 
schemes  on  heating  distribution  networks124,  on  electricity  connection  networks  for 
renewable  energies125  and  on  modernisation  of  electricity  distribution  networks126. 
The  Commission  also  cleared  a  scheme  for  a  tender  to  conduct  two  front  end 
engineering  and  feasibility  studies  (FEED  studies)  on  two  industrial-scale  carbon 
capture and storage (CCS) demonstration projects in the UK127. 

103. 

Finally,  on  the  basis  of  the  Temporary  Framework128  the  Commission  approved 
national  aid  schemes  from  France129,  Germany130,  Spain131,  Italy132  and  the  United 

114 

115 

116 

117 
118 
119 
120 
121 
122 
123 

124 

125 

126 

127 
128 

129 

130 

C24/2009 (ex N446/2008) Second amendment of the Green Electricity Act 2008 (OJ C 217, 11.9.2009, 
p. 12).  
Case C41/2006 Modification of the CO² tax for quota-regulated fuel consumption in the industry (the 
public version is not yet available). 
Case  N327/2008  NOx  tax  reductions  for  large  polluters  and  companies  reducing  pollution,  and  tax 
reductions for biogas and biomass.  
Case C5/2009 (ex N210/2008) Exemption from environmental taxes for ceramic producers. 
Case N629/2008 Carbon Reduction Committment (CRC). 
Case N57/2008 Operating aid for biofuels – Poland (OJ C 247, 15.10.2009, p. 1). 
Case N372/2007 Support for biofuel (OJ C 106, 8.5.2009, p. 14). 
Case N607/2008 Tax reductions for biofuels (Bulgaria). 
Case N461/2008 Law on Combined Heat and Power Stations (CHP) (OJ C 109, 13.5.2009, p. 1). 
Case N485/2008 Aid Scheme for District Heating and Cooling Infrastructure and Cooling Installations 
(AT) (OJ C 191, 14.8.2009, p. 1). 
Case N54/2009 Aid for modernisation of heating distribution networks in Poland (OJ C 204, 29.8.2009, 
p. 2). 
Case  N55/2009  Aid  for  constructing  and  modernisation  of  electricity  connection  networks  for 
renewable energies in Poland (OJ C 206, 1.9.2009, p. 3). 
Case  N56/2009  Aid  for  modernisation  and  replacement  of  electricity  distribution  networks  in  Poland 
(OJ C 206, 1.9.2008, p. 4). 
Case N74/2009 CCS Demonstration Competition – FEED (OJ C 203, 28.8.2009, p. 2). 
Temporary Framework for State aid measures to support access to finance in the current financial and 
economic crisis (OJ C 83, 7.4.2009, p. 1). 
Case N11/2009 Régime temporaire de prêts bonifiés pour les entreprises fabriquant des produits verts 
(OJ C 106, 8.5.2009, p. 22). 
Case  N426/2009  Federal  Framework  for  low  interest  loans  for  the  production  of  green  products 
(OJ C 225, 18.9.2009, p. 2). 

EN 

23 

   EN 

                                                 
Kingdom133, to preserve investments in products with an environmental benefit (i.e. 
green products). The schemes were dealt with in an accelerated procedure. 

2.3. 

Electronic communications 

104. 

105. 

106. 

Providers  of  electronic  communications  services  continued  to  operate  within  the 
confines of the EU regulatory framework for electronic communications134. Ex ante 
regulation  under  the  Regulatory  Framework  builds  on  competition  law  principles. 
This approach has been adopted by National Regulatory Authorities (NRAs) in their 
assessment of electronic communication markets. 

In  2009  the  Commission  received  161  notifications  from  NRAs  and  adopted  87 
comments  letters  and  59  no-comments  letters  within  the  Community  consultation 
mechanism  under  Article  7  of  the  Framework  Directive  whereas  9  cases  were  still 
open at the end of the year. In one case135, the Commission raised serious doubts as 
to the compatibility of the notified measures with EU law and opened a second phase 
investigation. 

On 7 May the Commission issued a Recommendation on termination rates136 setting 
out a methodology for regulating termination rates, aiming at ensuring consistency of 
regulatory approaches. On 1 July a new EU Regulation on intra-community roaming 
became applicable. The new rules will apply until the summer of 2012 and, by the 
summer  of  2010,  the  Commission  will  report  on  their  functioning  to  the  European 
Parliament and Council.  

107. 

The Commission encourages aid measures having the objective to provide adequate 
broadband  coverage  at  affordable  prices  for  all  European  citizens.  Until  2009,  the 
Commission has assessed and approved the use of State aid and other types of public 

131 

132 
133 
134 

135 
136 

Case N140/2009 Competitiveness plan of the automotive sector – Realisation of investments Aimed at 
the manufacture of more environmental friendly products (OJ C 146, 26.6.2009, p. 2). 
Case N542/2009 Aid for the production of green products. 
Case N72/2009 Temporary Aid for the production of green products (OJ C 145, 25.6.2009, p. 7). 
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory framework for electronic communications networks and services (Framework Directive) (OJ 
L  108,  24.4.2002,  p.  33),  Directive  2002/19/EC  of  the  European  Parliament  and  of  the  Council  of  7 
March 2002 on access to, and interconnection of, electronic communications networks and associated 
facilities  (Access  Directive)  (OJ  L  108,  24.4.2002,  p.  7),  Directive  2002/20/EC  of  the  European 
Parliament  and  of  the  Council  of  7  March  2002  on  the  authorisation  of  electronic  communications 
networks and services (Authorisation Directive) (OJ L 108, 24.4.2002 p. 21), Directive 2002/22/EC of 
the  European  Parliament  and  of  the  Council  of  7  March  2002  on  universal  service  and  users'  rights 
relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 
24.4.2002, p. 51), Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 
concerning  the  processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic 
communications  sector  (Directive  on  privacy  and  electronic  communications)  (OJ  L  201,  31.7.2002, 
p. 37). These Directives have recently been amended by Directives 2009/140/EC and 2009/136/EC (OJ 
L 337, 18.12.2009, p. 37 and 11). 
Case AT/2009/970 concerning the Austrian Wholesale broadband access market 
Termination rates are wholesale tariffs charged by the operator of a called party to the operator of the 
calling  party's  network.  The  tariffs  have  a  considerable  impact  on  consumers'  phone  bills  and  are 
regulatory  authorities.  Commission 
therefore  subject 
Recommendation  2009/396/EC  of  7  May  2009  on  the  regulatory  treatment  of  fixed  and  mobile 
termination rates in the EU (OJ L 124, 20.5.2009). 

regulation  by 

the  national 

to  price 

EN 

24 

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funding  of approximately  EUR 2  billion137 in Europe that generated investments to 
broadband networks of more than EUR 3 billion. 

108. 

The  Broadband  Guidelines  adopted  in  September  address  not  only  aid  to  basic 
broadband networks (ADSL, cable, mobile, wireless or satellite broadband services) 
but  also  support  to  very  high  speed  NGA  networks  (fibre-based  or  advanced 
upgraded cable networks at the current stage). The guidelines also provide additional 
explanation about the way the existing case law applies in the broadband sector, for 
those cases in which a Member State qualifies the operation of a broadband network 
as  a  service  of  general  economic  interest  (SGEI).  In  this  context,  the  Commission 
approved public financing worth EUR 59 million for an NGA project in the French 
department of Hauts-de-Seine138.  

109. 

In  the  antitrust  field,  the  Commission  initiated  proceedings  against  the  Polish  and 
Slovakian incumbents in the broadband market139. 

2.4. 

Information technology 

110. 

111. 

The  information  and  communication  technology  sector  is  of  particular  importance 
for driving innovation and realizing the potential of the digital economy. Information 
technology  markets  are  frequently  prone  to  network  effects,  as  illustrated  by  the 
Commission's  2004  Microsoft case.140 These effects may  result in customer lock-in 
as  well  as  in  the  emergence  of  dominant  market  positions,  which  are  not  in  and  of 
themselves problematic, but may necessitate timely competition law enforcement to 
ensure competition on the merits in the markets concerned or in related markets. In 
this context, interoperability and standards are key recurring issues in an increasingly 
inter-connected world. 

In  the  Intel  case141  a  prohibition  decision  was  issued  on  13  May,  finding  that  Intel 
had  infringed  Article  82  EC  by  engaging  in  anticompetitive  practices  aimed  at 
excluding  competitors  from  the  market  for  x86  Central  Processing  Units  (CPU). 
These  practices  harmed  consumers  throughout  the  EEA.  By  undermining  its 
competitors'  ability  to  compete  on  the  merits  of  their  products,  Intel's  actions 
undermined  competition,  reduced  consumer  choice  and  hindered  innovation.  The 
decision imposes a fine of EUR 1.06 billion on Intel, which is the highest fine ever 
imposed on a single company by the Commission. Intel lodged an appeal against the 
decision with the CFI on 22 July142. 

112. 

On  16  December  2009,  the  Commission  made  legally  binding  on  Microsoft 
commitments  it  had  offered  to  address  the  competition  concerns  raised  by  the 
Commission  in  a  Statement  of  Objections  in  January  2009  relating  to  the  tying  of 
Microsoft's  web  browser,  Internet  Explorer,  to  its  dominant  client  PC  operating 
system,  Windows.  These  commitments  should  result  in  greater  and  more  informed 

137 
138 

139 
140 
141 
142 

Out of which EUR 1.5 billion constituted as State aid within the meaning of Article 107 TFEU. 
Commission  decision  of  30  September  2009  on  N331/2008  "Réseau  à  très  haut  débit  en  Hauts-de-
Seine". Not yet published.  
MEMO/09/203, 27.4.2009. 
Case COMP/37.792 Microsoft (OJ L 32, 6.2.2007, p. 23). 
Case COMP/37990 Intel (OJ C 227, 22.9.2009, p. 13). 
T-286/09 Intel v Commission (OJ C 220, 12.9.2009, p. 41). 

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113. 

114. 

choice  of  web  browsers  for  consumers  in  the  EEA,  and  in  more  freedom  for 
computer  manufacturers.  Microsoft  committed  (a)  to  distribute  a  Choice  Screen 
software update to users of Windows client PC operating systems within the EEA by 
means of Windows Update that will offer users an unbiased choice between the most 
widely  used  web  browsers  in  the  EEA,  and  (b)  to  make  available  a  mechanism  in 
Windows  7  and  subsequent  versions  of  Windows  in  the  EEA  enabling  PC 
manufacturers and end users to turn Internet Explorer on and off.143 

In  the  Rambus  case,  the  Commission  had  expressed  concerns  that  Rambus  was 
imposing unreasonable royalties for the use of certain patents for DRAM chips used 
in virtually all PCs. The Commission adopted a  decision  on  9  December  2009 that 
renders legally binding commitments offered by Rambus that in particular put a cap 
on  its  royalty  rates.144  In  2008,  worldwide  DRAM  sales  exceeded  US$  34  billion 
(more  than  EUR  23  billion).  Rambus  committed  to  put  a  worldwide  cap  on  its 
royalty  rates  for  five  years.  Rambus  agreed  to  charge  zero  royalties  for  the  earlier 
generations of chips concerned in combination with a maximum royalty rate of 1.5% 
for the later generations of chips concerned. This is substantially lower than the 3.5% 
Rambus was previously charging.  

The  case  shows  once  more  that  an  effective  standard-setting  process  should  take 
place in a non-discriminatory, open and transparent way to ensure competition on the 
merits  and  to  allow  consumers  to  benefit  from  technical  development  and 
innovation145.  The  Commission  is  currently  revising  the  antitrust  guidelines  for 
the  existing  chapter  on 
horizontal  agreements  and 
standardisation to provide more guidance on standard-setting. The draft will be ready 
for  public  consultation  in  early  2010.  The  Commission  will  also  continue  to 
investigate and intervene as appropriate in specific cases where there are competition 
concerns. 

to  consolidate 

intends 

2.5.  Media 

115. 

The  Commission  continued  discussions  with  senior  consumer  and  industry 
representatives  about  the  business  opportunities  created  by  the  Internet  and  the 
existing barriers to increased online retailing of music and goods in Europe, through 
the  Online  Commerce  Roundtable.  A  report  on  opportunities  and  barriers  to  online 
retailing was published in May 2009 and two meetings of the Roundtable under the 
aegis  of  the  Commissioner  for  Competition  were  held  in  September  and  October 
2009,  focusing  on  online  music.  The  Roundtable  initiative  resulted  in  two  joint 
statements:  on  online  distribution  of  music and on rights ownership information. A 
number  of  the  Roundtable  participants  also  announced  concrete  steps  and 
commitments that should result in improved access of European consumers to music 
online146. 

143 

144 

145 

146 

The Decision is published on the website of the Directorate-General for Competition under "Antitrust 
cases". 
A  non-confidential  version  of  the  Decision  and  the  commitments  is  available  on  the  Commission's 
website at: http://ec.europa.eu/comm/competition/antitrust/cases. 
The  decision  and  the  commitments  are  published  on  the  website  of  the  Directorate-General  for 
Competition under "Antitrust cases". 
All the documents are available at http://ec.europa.eu/competition/sectors/media/online_commerce.html 

EN 

26 

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116. 

117. 

118. 

In 2009, the Commission continued to closely monitor the transition from analogue 
to digital terrestrial broadcasting in Italy in the context of the infringement procedure 
that  it  launched  in  2006  concerning  the  Italian  broadcasting  legislation.  Following 
close contacts with the Commissioners for Competition and Information Society, the 
Italian authorities adopted new  criteria  for  the "digitization" of  terrestrial  television 
networks  in  Italy  aimed  at  ensuring  that  more  frequencies  would  be  available  to 
newcomers and to smaller existing broadcasters. The tender for the allocation of the 
frequencies is expected to be launched in early 2010147. 

As  regards  State  aid,  the  Commission  continued  to  monitor  the  transition  (switch-
over) from analogue to digital terrestrial broadcasting in the EU Member States. The 
CFI confirmed on 6 October a negative decision concerning Germany148, also based 
on a lack of technology neutrality of the scheme149. 

On  2  July,  the  Commission  adopted  a  revised  Broadcasting  Communication  which 
aims  at  providing  more  clarity  on  the  Commission's  assessment  of  publicly  funded 
new  media  services150.  Throughout  the  year,  the  Commission  adopted  a  number  of 
positive individual decisions concerning the financing of public service broadcasting 
systems  in  France,  Spain,  Austria  and  Denmark.  In  June,  it  adopted  a  proposal  for 
making  the  Swedish  press  aid  to  high  circulation  metropolitan  newspapers 
compatible with the State aid rules151. 

2.6. 

Pharmaceutical industry & Health 

Pharmaceutical Industry 

119. 

120. 

121. 

147 
148 

149 
150 

151 
152 

In  2009  the  Commission  concluded  its  inquiry  into  the  EU  pharmaceutical  sector. 
The  inquiry  sought  to  examine  the  reasons  for  the  observed  delays  in  the  entry  of 
generic  medicines  onto  the  market  and  the  apparent  decline  in  innovation  as 
measured by the number of novel medicines reaching the market. The inquiry dealt 
with the competitive relationship (i) between originator and generic companies and 
(ii)  amongst  originator  companies  and  made  important  policy  recommendations  on 
how  to  improve  the  functioning  of  the  sector.  The  Commission  published  its  Final 
Report on 8 July152. 

In  the  final  report  of  the  sector  inquiry,  the  Commission  invited  all  interested 
stakeholders  to  bring  potential  competition  concerns  to  the  attention  of  the 
competition authorities. 

The Commission also opened proceedings against Servier, investigating among other 
things patent settlement agreements, concluded by Servier and a number of generic 
operators, which might be anti-competitive. This investigation does not form part of 

The Commission had sent to Italy a Reasoned Opinion in this case on 18.7.2007. 
Case C-25/2004 DVB-T Berlin Brandenburg. This judgment was appealed by Germany in December. 
The appeal also concerned the issue of technology neutrality  
Cases T-8/06, T-21/06, T-24/06. 
Communication  on  the  application  of  State  aid  rules  to  public  service  broadcasting  of  2  July  2009, 
OJ C 257, 27.10.2009. 
Case E4/2008. 
Commission Communication of 8 July 2009 on the Executive Summary of the Pharmaceutical Sector 
Inquiry Report, press release IP/09/1098. 

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27 

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the sector inquiry, but the knowledge acquired during the sector inquiry has allowed 
the  Commission  to  draw  conclusions  on  the  areas  where  Commission  action  based 
on competition law could be appropriate and effective.  

122.  With  regard  to  the  regulatory  framework,  the  Final  Report  highlights  three  main 
areas of concerns: patents, marketing authorisations and pricing and reimbursement. 
With  respect  to  patents  the  Commission  has  reaffirmed  the  urgent  need  for  the 
establishment  of  a  Community  patent  and  for  a  unified  and  specialised  patent 
litigation system in Europe.  

123. 

124. 

In relation to the issue of parallel trade in medicines the judgement of the European 
Court of Justice (ECJ) of 6 October provided important clarifications on restrictions 
of  parallel  trade  in  the  pharmaceutical  sector,  in  particular  regarding  so-called  dual 
pricing systems153. 

In  the  field  of  merger  control,  several  large  mergers  of  pharmaceutical  companies 
took place in 2009, confirming the trend of consolidation in the industry. All cases 
were cleared in the first phase either with or without commitments. The assessment 
of  pharmaceutical  mergers  has  shown  that  animal  health  markets  have  generally 
become  quite  concentrated.  In  order  to  allow  the  new  entry  of  a  purchaser  into  the 
field  of  animal  health  vaccines,  the  divestiture  package  in  the  Pfizer/Wyeth154  case 
included for the first time a production facility. 

Health Care Services 

125. 

126. 

153 

154 
155 

156 

The Commission's actions in this field geared towards State aid, where it received a 
number  of  complaints  from  private  hospitals  against  allegedly  unfair  treatment  or 
excessive compensation towards publicly-owned hospitals in various Member States, 
the latter being often subject to allegations of cross-subsidizing commercial activities 
from  public  financing.  Most  of  the  complaints  came  from  Member  States  who 
already opened up their markets to competition (e.g. Germany and Belgium). 

On 28 October, the Commission adopted a positive decision finding that the public 
financing  granted  by  the  Belgian  authorities  in  favour  of  public  hospitals  in  the 
Brussels  region  was  in  line  with  the  requirements  set  out  in  the  Treaty155.  It  also 
approved in June the new Irish scheme of levies and tax relief in the health insurance 
sector156. 

See  Case  C-501/06  GlaxoSmithKline  v.  Commission  (2009),  available  at:  http://eur-lex.europa.eu.  In 
March 1998, GSK notified to the Commission its pricing policy for 82 medicines in Spain applicable to 
Spanish  wholesalers.  According  to  the  notified  policy  GSK  charged  a  different  price  to  wholesalers 
depending on the final destination of the product, i.e. if the product was intended for consumption in 
Spain a lower price would apply, and if exported, a higher price was charged. A number of wholesalers 
and wholesaler associations lodged complaints against this policy with the Commission, which in May 
2001, adopted a decision declaring that GSK had infringed Article 81(1) EC. 
See Case COMP/M.5476 Pfizer / Wyeth. 
Case NN54/2009 Association bruxelloise des institutions des soins de santé privées asbl (ABISSP) vs. 
Belgique. The public version of this decision is not yet available. It will be displayed as soon as it has 
been cleansed of any confidential information. 
Case  N582/08  Health  Insurance 
C(2009)3572 final (OJ C 186, 8.8.2009). 

intergenerational  solidarity  relief  (Ireland).  Final  decision 

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28 

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127. 

In  the  area  of  antitrust,  in  October  the  Commission  adopted  a  SO  for  a  suspected 
infringement of Article 81 EC by the French Association of Pharmacists (i.e., Ordre 
National des  Pharmaciens, Conseil National de l'Ordre des Pharmaciens, Section G 
de l'Ordre National des Pharmaciens and Conseil Central de la Section G de l'Ordre 
des  Pharmaciens)157.  The  Commission  was  concerned  that  ONP  may  be  imposing 
minimum prices for clinical analysis and restricting the development of some market 
players with a view to protecting the economic interests of its members, the French 
pharmacists.  

2.7. 

Transport 

128. 

129. 

130. 

131. 

Competition policy in the transport sector aims to ensure an efficient functioning of 
markets  which  have  recently  been  liberalised  or  which  are  in  the  process  of 
liberalisation.  To  this  end,  the  regulatory  framework  continued  to  be  modernised, 
bringing  transport  sector  within  the  generally  applicable  competition  rules.  The 
regulatory work was complemented by investigation and enforcement actions.  

In  the  road  transport  sector,  the  new  Regulation  on  public  passenger  transport 
services158  entered  into  force  on  3 December.  The  regulation  lays  down  the  rules 
applicable to the compensation of public service obligations in inland traffic. 

The  Commission  examined  a  number  of  State  aid  cases  relating  to  bus  services  in 
Denmark  and  Germany.  In  the  field  of  urban  transport,  a  formal  investigation 
procedure  was  closed  regarding  the  reform  of  the  financing  method  for  the  special 
pension scheme for the staff of RATP, the French public transport company159. 

In  line  with  the  wider  Community  objectives  of  the  common  transport  policy  and 
environmental  protection,  the  Commission  authorised  a  regime  promoting  the 
purchase of more environmentally-friendly heavy goods vehicles in Slovenia160. The 
Commission  also  authorised  a  German  aid  scheme  aiming  at  supporting  market 
acceptance  of  available  highly  efficient  vehicle  technologies161  and  an  aid  scheme 
supporting the purchase of low-carbon buses in England162. 

132. 

Regarding the improvement of public transport infrastructure, several major projects 
were  authorised,  among  which  the  construction  and  maintenance  of  the  motorways 
A1163 and A2164 in Poland.  

133. 

In the area of rail transport, the Commission approved the acquisition of the Polish 
railway  company  PCC  Logistics  by  Deutsche  Bahn  AG165  on  12  June.  In  October, 

157 
158 

159 
160 
161 
162 
163 
164 
165 

Case COMP/39510 LABCO/ONP. 
Regulation  (EC)  No.  1370/2007  of  the  European  Parliament  and  the  Council  of  23  October  2007  on 
public  passenger  services  by  rail  and  road  and  repealing  Council  regulations  (EEC)  No.  1191/69  and 
No. 1107/70 (OJ L 315, 3.12.2007). 
Case C42/2007 (OJ L 327, 12.12.2009). 
Case N395/2008 (OJ C 125, 5.6.2009). 
N457/2009. 
Case N517/2009. 
Cases N151/2009, N152/2009 (OJ C 164, 16.7.2009). 
Case N462/2009. 
Case COMP/M.5480. 

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29 

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134. 

135. 

136. 

the Commission referred to France a concentration by which SNCF would take joint 
control of Keolis, an undertaking active in passenger public transport166. 

As in previous years, the Commission adopted several State aid decisions to promote 
rail transport and combined transport in several Member States, including Bulgaria167 
the Czech Republic168, Germany169 and the UK (restructuring of Eurostar)170.  

In the area of maritime transport, the Commission adopted in June a Communication 
on  State  aid  to  ship  management  companies171.  The  Commission  adopted  positive 
decisions regarding State aid to seafarers in Italy172 and Finland173. It also concluded 
the  formal  procedure  opened  in  2007  regarding  the  DIS  regime  in  Denmark.  It 
accepted  the  extension  of  the  DIS  regime  to  cable-laying  vessels  by  applying  by 
analogy  the  Maritime  Guidelines174.  In  addition,  it  concluded  the  investigation 
procedures  regarding  tonnage  tax  schemes  in  Ireland175,  Denmark176,  approved  an 
amendment to the Dutch tonnage tax scheme177 and the introduction of a tonnage tax 
scheme in Slovenia178 and Poland179. 

The Commission partially authorised a Greek180 and a Latvian181 port infrastructure 
development project and initiated a formal investigation procedure regarding certain 
fiscal measures in favour of the port sector in France182. In addition, it concluded the 
formal  investigation  procedure  initiated  in  2008  regarding  the  public  financing  of 
ferry  shipping  services  between  the  Scottish  mainland  and  the  islands  off  the  west 
and  north  coasts  of  Scotland183.  With  the  exception  of  one  route,  the  Commission 
confirmed  that  the  public  service  obligations  for  the  western  and  northern  islands 
were  legitimately  defined  and  entrusted  on  the  operators.  In  the  field  of  mergers, 
Maersk, the world's largest shipping conglomerate, acquired Broström184. 

166 
167 
168 
169 
170 
171 

172 
173 

174 
175 
176 
177 
178 
179 
180 
181 
182 
183 
184 

Case COMP/M.5557 SNCF / CDPQ / Keolis / Effia. 
Case N175/2009 (OJ C 246, 14.10.2009). 
Cases N409/2008, N410/2008 and N411/2008 (OJ C 106, 8.5.2009). 
Case N324/2009 (OJ C 299, 9.12.2009). 
Case N420/2008 (OJ C 183, 5.8.2009). 
Communication from the Commission providing guidance on State aid to ship management companies 
(OJ C 132, 11.6.2009). 
Case N219/2009 (OJ C 196, 20.8.2009). 
Cases N120/2009 (OJ C 232, 26.9.2009), N67/2009 (OJ C 232, 26.9.2009) and N300/2009 (OJ C 299, 
9.12.2009). 
Case C22/2007 (OJ L 119, 15.5.2009). 
Case C2/2008 (OJ L 228, 1.9.2009). 
Case C5/2007 (OJ L 315, 2.12.2009). 
Case N457/2008 (OJ C 106, 8.5.2009). 
Case N325/2007 (OJ C 53, 6.3.2009). 
Case C34/2007. 
Cases N169/2008, N105/2008, N168/2008 and C21/2009.  
Case N385/2009. 
Case N614/2008 (OJ C 122, 30.5.2009). 
Case C16/2008, not yet published. 
Case COMP/M.5346 APMM/Broström. 

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137. 

138. 

139. 

140. 

141. 

In  the  field  of  aviation,  the  Regulation  on  computer  reservation  systems  (CRS)185 
entered  into  force  on  29  March.  The  new  Directive  on  airport  charges  entered  into 
force on 15 March186.  

On 18 June the Council and the European Parliament approved an amendment to the 
existing  rules187,  aiming  at  bringing  more  flexibility  in  slot  allocation  in  order  to 
counteract the impact of the crisis on air transport. The measure temporarily freezes 
the "use it or lose it" rule during the 2009 summer season and allows airlines to keep 
their rights over slots.  

The airline industry faced significant turbulence in 2009, with a fall in passenger and 
cargo  demand  which  resulted  in  significant  losses  for  many  carriers  and  the 
restructuring of the sector. The restructuring took the form of intensified cooperation 
within  global  airline  alliances  resulting  in  joint  venture  agreements  covering 
transatlantic  routes.  The  European  airline  industry  went  through  a  process  of 
consolidation  with  mergers  of  both  network  and  low-cost  carriers188.  Some  large 
network  carriers,  in  particular  Lufthansa,  seized  this  opportunity  to  expand  via 
acquisitions  of  smaller  regional  players,  namely  Brussels  Airlines189,  Bmi190  and 
Austrian Airlines191.  

On  8  April  the  Commission  opened  formal  proceedings  in  its  investigations  of  the 
airline  cooperation  on  transatlantic  flights192,  the  Oneworld  airline  alliance  (British 
Airways,  American  Airlines  and  Iberia)  and  the  Star  Alliance  (Lufthansa,  United, 
Continental  and  Air  Canada).  On  30  September,  the  Commission  sent  a  SO  in  the 
Oneworld case193.  

During  the  year,  the  Commission  authorised  the  rescue  aid  granted  to  the  Austrian 
Airlines Group in the form of a loan guarantee194. It also found the restructuring plan 
of  Austrian  Airlines  compatible  with  the  common  market195.  Also,  subject  to 
observance of several conditions196, the Commission decided on certain changes that 
the  Greek  authorities  intended  to  introduce  in  the  sales  processes  of  Olympic 
Airlines. In addition, the Commission approved the intention of the Greek authorities 
to cover part of the costs of the voluntary redundancy scheme to be implemented by 
Olympic Catering SA in respect of certain of its staff197. 

185 

186 

187 

188 
189 
190 
191 
192 
193 
194 
195 
196 
197 

Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a 
Code  of  Conduct  for  computerised  reservation  systems  and  repealing  Council  Regulation  (EEC)  No 
2299/89 (OJ L 35, 4.2.2009). 
Directive  2009/12/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  2009  (OJ  L  70, 
14.3.2009). 
Regulation (EC) no 545/2009 of the European Parliament and of the Council of 18 June 2009 amending 
Regulation  (EEC)  no  95/93  on  common  rules  for  the  allocation  of  slots  at  community  airports 
(OJ L 167, 29.6.2009, p. 24). 
Case COMP/M.5364 Iberia/Vueling/Clickair. 
Case COMP/M.5335 Lufthansa/Brussels Airlines. 
Case COMP/M.5403 Lufthansa/bmi. 
Case COMP/M.5440 Lufthansa/Austrian Airlines. 
See Press Release MEMO/09/168, 20.4.2009. 
See Press Release MEMO/09/430, 2.10.2009. 
Case NN72/2008, not yet published. 
Case C6/2009. 
Case N83/2009, not yet published. 
Case N487/2009. 

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142. 

The  Commission  accepted  the  measures  taken  by  France  in  view  of  ending  the 
differentiation  in  passenger  charges  amongst national and EU flights, which in fact 
granted an advantage to airlines operating domestic flights198. 

2.8. 

Postal services 

143. 

As  regards  the  application  of  State  aid  rules  to  the  postal  sector  in  2009,  the 
Commission  adopted  several  decisions  aiming  to  ensure  that  postal  operators 
entrusted  with  services  of  general  economic  interest  and  their  subsidiaries  do  not 
enjoy  unduly  granted  advantages.  Throughout  the  year,  the  Commission  continued 
its  investigation  into  the  alleged  overcompensation  of  Deutsche  Post  AG199  for 
carrying  out  its  universal  service  obligations  from  1989  to  2007.  On  13  July,  the 
Commission opened a formal investigation procedure to examine measures in favour 
of Belgian La Poste200. In the UK Royal Mail case, the Commission decided that four 
State  measures  granted  between  2001  and  2007  were  in  line  with  EU  State  aid 
rules201. In relation to the French La Poste case202 the French government adopted a 
bill of law providing for the incorporation of La Poste into "société anonyme" by 1 
January  2010,  which  would  put  an  end  to  the  guarantee.  In  consideration  of  the 
above, the Commission is currently finalising its decision. 

144. 

As for mergers, on 21 April, the Commission cleared subject to conditions the first 
merger  between  incumbent  postal  operators,  Posten  (of  Sweden)  and  Post 
Danmark203. 

2.9. 

Automotive industry 

145. 

The motor vehicles sector was hit particularly hard by the economic crisis. Although 
world demand for cars in 2009 fell only by 2.4% compared to 2008 thanks to strong 
demand  in  China204,  car  sales  (passenger  cars  and  light  commercial  vehicles  up  to 
3.5to)  in  the  EU  decreased  by  4.6%  compared  to  2008  and  12.5%  compared  to 
2007205. Scrapping schemes introduced in various national markets, in particular the 
German scheme, had a positive impact on sales in the short term. On the basis of the 
information  mechanism  set  up  by  Directive  98/34/EC,  the  national  scrapping 
schemes containing in addition technical regulations were notified before adoption to 
the  Commission  and  the  Member  States,  which  guaranteed  transparency,  exchange 
of information and the prevention of obstacles to the single market. 

146. 

Falling demand and world overcapacity which have characterised the sector for some 
years resulted in bankruptcy proceedings of several major automotive suppliers, most 
notably the two US suppliers General Motors and Chrysler. As a consequence, two 

198 
199 

200 
201 

202 
203 
204 
205 

Case E4/2007 (OJ C 83, 7.4.2009). 
Case C36/2007 Complaint against the German State for unlawful State aid to Deutsche Post (OJ C 245, 
19.10.2007 p. 21). 
Case C20/09 (ex N763/02) La Poste (OJ C 176, 29.7.2009, p. 17). 
Case  C7/07  (ex  NN82/06  and  NN83/06)  Alleged  aid  in  favour  of  Royal  Mail  (OJ  L  210,  14.8.2009, 
p. 16). 
Case C56/2007 Garantie d'Etat illimitée - La Poste (France). 
Case COMP/M.5152. 
Global auto report, Scotia Bank, http://www.scotiacapital.com/English/bns_econ/bns_auto.pdf 
ACEA, New registrations by country 
http://www.acea.be/index.php/news/news_detail/new_vehicle_registrations_by_country/ 

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147. 

148. 

149. 

150. 

151. 

of GM's European operations, Opel/Vauxhall and Saab, where put up for sale and, in 
the case of Opel, required State loans to continue operations. 

The second challenge the sector is currently facing is the transition towards greener 
cars.  Increasing  demand  by  customers  for  low  emission  cars  and  a  tightening 
regulatory  environment  requires  large  scale  investments  for  the  development  of 
vehicles which meet the standards of the future. The Commission authorised several 
State aid schemes in this respect206. At the same time, the sector benefited from eased 
access to finance through loans and guarantees.  

In  all  cases  of  State  aid  to  the  car  sector,  the  Commission  continued  to  enforce  a 
strict policy line. In particular, the Commission  consistently indicated that it would 
not  accept  that  State  aid  granted  under  schemes  approved  on  the  basis  of  the 
Temporary  Framework  would  be  subject  –  de  jure  or  de  facto  –  to  protectionist 
conditions, such as unjustified non-commercial conditions concerning the geographic 
location  of  investments.  The  Commission  carefully  examined  each  case  that  raised 
this  type  of  protectionist  concerns,  ensuring  that  the  aid  was  not  biased  by  non-
commercial  considerations  and  that  it  contributed  to  the  future  viability  of  the  car 
industry. 

On 13 May the Commission authorised a EUR 11 million training aid for staff at the 
truck maker Scania's plants in Sweden207. Training aid of EUR 57 million was also 
authorised  on  2  December,  to  Ford  Romania  SA,  thus  closing  the  investigation 
procedure  on  this  case208.  On  5  June  the  Commission  authorised  State  guarantees 
from the Swedish State to Volvo Personvagnar (Volvo PV)209 and on 13 November, 
from the Romanian State to Ford Romania SA210. It also authorised investment aid to 
Mercedes-Benz Hungary211 and Ford España212.  

Concerning  regional  aid,  on  29  April  investment  aid  for  EUR  46  million  was 
authorised to Fiat Group for a large investment project for the production of a new 
car  model  in  Sicily  (Italy)213.  However,  on  29  October  it  opened  a  formal 
investigation  against  Hungarian  regional  aid  of  some  EUR  50  million  for  a  large 
investment project of Audi Hungaria Motor Kft. in its existing plant in Györ214.  

In  the  antitrust  field,  a  preliminary  draft  of  a  new  Motor  Vehicle  BER  and 
accompanying guidelines were adopted on 28 October. The texts were published for 
public consultation on 21 December and follow the course set in the Commission's 
Communication of 22 July215. Based on current evidence, and subject to the outcome 
of the public consultation, the Commission believes that car distribution agreements 
should not be treated differently from any similar agreements in other sectors. Thus, 

206 
207 
208 
209 
210 
211 
212 
213 
214 
215 

For more information, see the Focus Chapter within this Report.  
N98/2009 Training aid to Scania, OJ 147, 27.6.2009, p. 6. 
Case C39/2008 (ex N148/2008) Training Aid to Ford Craiova, Romania. 
N80/2009 State guarantees in favour of Volvo Cars, OJ C 172, 24.7.2009, p. 2. 
N478/2009 Individual State Guarantee for Ford Romania S.A. 
N671/2008. See IP/09/1147. 
N473/2008. See IP/09/958. 
Case N635/2008 FIAT Termini Imerese. 
Case C31/2009 (ex N113/2009) Audi Hungaria Motor Kft. 
Commission  Communication  on  The  Future  Competition  Law  Framework  applicable  to  the  Motor 
Vehicle sector of 22 July 2009 (COM(2009) 388 final) 

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the draft BER therefore provides that the future general Block Exemption for vertical 
restraints  will  take  the  place  of  the  current  specific  rules  for  such  agreements. 
However, in order to protect investments made by car dealers under the old rules, for 
instance in multi-brand sites, it is proposed that this changeover will not occur until 
31 May 2013.  

152. 

As  regards  the  aftermarkets  (repair  and  maintenance  and  spare  parts),  the  analysis 
carried  out  has  shown  that  competition  is  more  limited  due  to  their  brand-specific 
nature  and  that  sector-specific  provisions  were  needed  in  a  number  of  areas.  With 
regard  to  the  aftermarket,  the  draft  BER  together  with  the  draft  accompanying 
guidelines are hence intended to replace the existing BER216 as of 1 June 2010. This 
will  complement  the  sector-specific  rules  concerning  access  to  repair  and 
maintenance information for new vehicles. 

2.10. 

Food industry 

153. 

154. 

155. 

The Commission has continued to enforce competition rules on food markets through 
the active monitoring of existent commitment decisions and pursued the assessment 
of  cases  in  which  inspections  had  been  carried  out  in  2008.  The  work  of  the 
Commission Task Force on the functioning of the Food Supply Chain continued in 
2009. In this context, the Commission undertook a focused fact-finding exercise so 
as to identify potential competition-related concerns that may affect the functioning 
of the food sector. The results of this fact finding exercise were shared with NCAs 
and  incorporated  into  the  Commission  Communication  on  "A  better  functioning  of 
the food supply chain", adopted on 28 October217. 

The  ECN  Food  Subgroup  met  in  July  and  November  to  discuss  and  exchange  best 
practices on issues related to food markets. . 

The dairy sector is one of the sectors that have faced the greatest difficulties in 2009. 
In view of these difficulties, the Commission adopted a "Report on the dairy market 
situation"  in  July218.  A  High  Level  Group  on  Milk  bringing  together  national 
agriculture  experts  was  also  set  up  and  its  work  is  ongoing.  The  Commission's 
dialogue with NCAs regarding the milk sector also intensified through the creation of 
an ECN Joint Working Team on Milk whose work will continue throughout 2010. 

3. 

CONSUMER ACTIVITIES 

156. 

157. 

216 

217 
218 

The  Consumer  Liaison  Unit  has  been  in  place  and  operational  for  over  a  year, 
pursuing the objectives of deepening DG Competition's engagement with consumer 
representatives  and  developing  new  ways  of  communicating  directly  with  the 
broader public. 

In  2003  the  Commission  created  the  European  Consumer  Consultative  Group 
for  engaging  with  consumer 
(ECCG)  as 

the  Commission's  main 

forum 

Commission Regulation 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to 
categories  of  vertical  agreements  and  concerted  practices  in  the  motor  vehicle  sector,  OJ  L  203, 
1.8.2002, pp 30-41. 
http://ec.europa.eu/economy_finance/publications/publication16061_en.pdf 
http://ec.europa.eu/agriculture/markets/milk/report2009/index_en.htm 

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158. 

4. 

159. 

160. 

161. 

162. 

organisations219. The ECCG has set up a Subgroup on competition that meets twice a 
year  in  Brussels220.  During  the  year,  the  ECCG  Competition  Subgroup  held 
discussions  on  issues  such  as  the  financial  crisis  and  related  State  aid  measures, 
digital cinema, the Intel decision and the Pharmaceutical Sector Inquiry.  

On  21  October  DG  Competition  hosted  a  public  event  on  "Competition  and 
Consumers in the 21st century". In view of improving communication, the consumer 
pages  of  the  competition  website  were  updated  to  include  more  user-friendly 
information.  

THE  EUROPEAN  COMPETITION  NETWORK  AND  COOPERATION  WITH  NATIONAL 
COURTS 

In 2009, the ECN continued to be a very active forum for discussion and exchange 
on good practices among the Commission and the Competition authorities in the 27 
Member States.  

The  Director  General  of  DG  Competition  and  the  heads  of  all  NCAs  met  on  13 
October.  The  discussion  focussed  on:  priority  setting,  convergence/transparency  of 
procedures, sanctions and criminalisation, cooperation in mergers. The meeting also 
addressed the Commission's actions in the financial crisis and endorsed unanimously 
the report on leniency convergence under the ECN Model Leniency Programme221. 

The  Commission  was  informed  under  Article  11(3)  of  the  Regulation  of  129  new 
case  investigations  launched  by  NCAs  in  2009.  Large  numbers  of  cases  could  be 
observed  inter  alia  in  the  energy,  media,  telecom,  transport  and  financial  services 
sectors. The Commission was also informed of 69 envisaged decisions under Article 
11(4)  of  Regulation  1/2003  (representing  an  increase  of  15%  as  compared  with 
2008). 

In 2009, the Commission issued five opinions under Article 15(1) of the Regulation 
on  questions  by  national  judges  concerning  the  application  of  the  EU  competition 
rules: one to a Belgian court, one to a Lithuanian court and three to Spanish courts. 
In relation to amicus curiae interventions under Article 15(3) of the Regulation, the 
Commission submitted written observations in one case in front of the Paris Court of 
Appeal, relating to a restriction of online sales in selective distribution agreements222 
following up on the ruling of the ECJ in Case C-429/07, the Commission submitted 
written  observations  to  the  Gerechtshof  Amsterdam  regarding  tax-deductibility  of 
Commission fines. 

219 
220 

221 
222 

2003/709/EC decision of 9 October 2003. 
The  ECCG  Competition  Subgroup  consists  of  one  national  consumer  organisation  representative  per 
EU  Member  State,  plus  one  representative  from  the  European  Consumers'  Organisation  (BEUC)  and 
two  from  EEA  observers  (Iceland  and  Norway).  The  Commission  provides  the  secretariat  for  the 
Subgroup. 
The Report is available at http://ec.europa.eu/competition/ecn/documents.html  
Case  at  Paris  Court  of  Appeal,  No  RG  2008/23812,  Pierre  Fabre  Dermo-Cosmétique.  The  case  has 
given  rise  to  a  request  for  a  preliminary  ruling  in  accordance  with  Article  267  TFEU;  see  Case  C-
439/09. 

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163. 

Through the year, 10 grant agreements were concluded for training programmes for 
judges in various Member States. 

5. 

INTERNATIONAL ACTIVITIES 

164. 

165. 

166. 

167. 

168. 

169. 

170. 

In an increasingly globalised world economy, competition policy must also adopt a 
global outlook. DG Competition continued to play a leading role in the International 
Competition  Network  (ICN).  On  22  and  23  January,  DG  Competition  hosted  in 
Brussels a  "Seminar  on Competition Agency  Effectiveness", the first such event of 
its type.  

As  in  the  past,  DG  Competition  contributed  actively  to  the  work  of  the  OECD 
Competition  Committee  and  participated  at 
the 
Intergovernmental  Group  of  Experts  (IGE)  on  Competition  Law  and  Policy  of  the 
United  Nations  Conference  on  Trade  and  Development  (UNCTAD),  submitting 
contributions to most roundtable discussions. 

the  annual  conference  of 

Cooperation  with  the  United  States  of  America  was  intense,  both  as  regards 
individual  cases  and  more  general  matters  related  to  competition  policy.  The  same 
applies  to  cooperation  with  the  Canadian  Competition  Bureau  and  the  Japan  Fair 
Trade Commission.  

On  23  May,  the  European  Community  and  South  Korea  signed  a  bilateral 
cooperation  agreement  in  the  field  of  competition,  which  entered  into  force  on 
1 July223.  The  Free  Trade  Agreement  (FTA)  with  South  Korea  was  initialled  on  15 
October 2009 and is expected to be signed and enter into force during the course of 
2010.  It  is  the  first  time  that  an  FTA  contains  a  prohibition  on  certain  types  of 
subsidies. 

On 8 October Commissioner Kroes signed a Memorandum of Understanding (MoU) 
with  the  Brazilian  Ministry  of  Justice  and  the  heads  of  the  Brazilian  Competition 
Authorities in order to ensure a closer cooperation between DG Competition and its 
Brazilian counterparts.  

The  annual  competition  dialogue  with  China  was  held  in  Brussels  on  22-23  June. 
Cooperation  with  India 
intensified  during  2009  as  India  appointed  seven 
Commissioners  to  constitute  the  Competition  Commission  of  India  (CCI)  which  is 
entrusted with the enforcement of the 2002 Competition Act.  

In the context of enlargement, there was particularly close cooperation with Croatia 
and  Turkey.  These  two  candidate  countries  have  to  fulfil  "opening  benchmarks" 
before  accession  negotiations  on  the  competition  chapter  can  start.  Moreover,  DG 
Competition  further  assisted  the  Western  Balkan  countries  in  aligning  their 
competition  rules  with  EU  law  and  took  part  in  the  preliminary  discussions  on 
Iceland's EU membership prospect. 

223 

Agreement  between  the  European  Community  and  the  Government  of  the  Republic  of  Korea 
concerning cooperation on anti-competitive activities (OJ L 202, 4.8.2009, p. 36). 

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6. 

INTERINSTITUTIONAL COOPERATION 

171. 

172. 

173. 

174. 

In 2009, the Commission continued its cooperation with the other institutions of the 
European  Union  in  accordance  with  the  respective  agreements  or  protocols  entered 
into by the relevant institutions224. 

In 2009, the European Parliament (EP) adopted a resolution on the White Paper on 
Damages  Actions  for  breach  of  the  EC  antitrust  rules  and  the  Annual  Competition 
Reports  for  2006  and  2007.  In  addition  to  the  regular  dialogue  between  the 
Commissioner  for  Competition  and  the  ECON  committee,  the  Commission 
participated in discussions held in other Parliamentary committees and on a range of 
subjects  including  the  Annual  Competition  Report,  the  White  Paper  on  Damages 
Actions,  the  Broadcasting  Communication,  State  aid  and  the  financial  crisis,  the 
Pharmaceutical Sector Inquiry and the Motor Vehicle Block Exemption Regulation. 
Bilateral meetings with MEPs were held on these and on a range of other issues. 

The  Commission  cooperates  closely  with  the  Council  by  informing  it  of  important 
policy  initiatives  in  the  field  of  competition,  such  as  on  State  aid  measures  and 
guidelines  for  the  banking  industry  and  other  additional  State  aid  measures  in  the 
context of the financial and economic crisis. The Economic and Financial Committee 
(EFC)225, has been consulted on the Banking, Recapitalisation, Impaired Assets and 
Restructuring  Communications,  and  on  a  review  of  guarantee  and  recapitalisation 
schemes.  The  Commission  made  contributions  on  competition  policy  in  respect  of 
conclusions  adopted  in  different  Council  formations  such  as  the  ECOFIN  the 
Competitiveness  the  Transport,  Telecommunications  and  Energy  and  the  European 
Council.  

The  Commission  informs  the  European  Economic  and  Social  Committee  (EESC) 
and the Committee of the Regions about major policy initiatives, and participates in 
debates  that  may  be  held  in  the  respective  Committee  on  those  initiatives.  During 
2009, the EESC published reports on the Annual Competition Report 2007 and the 
White  Paper  on  damages  actions.  DG  Competition  services  have  also  attended 
working  group  meetings  and  had  bilateral  meetings  with  EESC  rapporteurs  on  a 
number  of  other  subjects  including  SMEs  adapting  to  global  market  changes, 
shipbuilding and State aid. 

224 

225 

Framework  Agreement  of  26  May  2005  on  relations  between  the  European  Parliament  and  the 
Commission; Protocol of Cooperation between the European Commission and the European Economic 
and  Social  Committee  of  7  November  2005;  Protocol  on  the  Cooperation  Arrangements  between  the 
European Commission and the Committee of the Regions of 17 November 2005. 
The EFC prepares the work for the Economic and Financial Affairs Council (ECOFIN) and includes a 
European Central Bank representative. 

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