REPORT FROM THE COMMISSION Report on Competition Policy 2010
Date: 2011-06-10
Institutions: European Commission
Subjects: business policy, competition policy, cooperation agreement, economic recession, single market

EUROPEAN COMMISSION 

Brussels, 10.6.2011 
COM(2011) 328 final 

REPORT FROM THE COMMISSION 

Report on Competition Policy 2010 

{SEC(2011) 690 final} 

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REPORT FROM THE COMMISSION 

Report on Competition Policy 2010 

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Introduction 

1. 

2. 

3. 

To  celebrate  the  40th  anniversary  of  the  Report  on  Competition  Policy,  this  edition 
begins  with  an  overview  of  the  major  developments  of  competition  policy  and 
enforcement  over  the  past  40  years.  The  Treaty  provisions  laying  down  the 
Commission's  powers  and  responsibilities  in  the  field  of  competition  policies  have 
remained remarkably stable over the past 40 years, while the economic and political 
environment  have  dramatically  changed.  Competition  policy  rules  and  procedures 
have  thus  undergone  a  constant  process  of  adaptation  in  order  to  contribute  to  the 
major  objectives  of  the  EU:  building  the  Single  Market,  making  it  deliver  for 
consumers and achieving a competitive social market economy. Looking back at this 
evolution provides the basis for assessing the key challenges competition policy has 
faced in the past and those that remain to be tackled.  

The  first  section  of  this  report  provides  an  overview  of  how  the  instruments  of 
competition  policy,  namely  the  State  aid,  antitrust  and  merger  control  rules,  were 
further developed and applied. This section also includes an update on the use of the 
temporary  rules  for  State  aid  adopted  as  a  response  to  the  financial  and  economic 
crisis. The second section discusses how competition instruments were deployed in 
selected  sectors.  The  third  section  focuses  on  cooperation  within  the  European 
Competition Network (ECN) and with national Courts while section four deals with 
international  activities.  Section  five  provides  an  overview  of  consumer-related 
activities  and  dialogue  with  stakeholders.  Last,  a  brief  description  of  inter-
institutional cooperation is given in section six. Unlike last year's report, the present 
report does not contain a focus chapter on a topic considered of particular importance 
in the field of competition policy. 

This report is a non-exhaustive summary of activities undertaken by the Commission 
in  the  field  of  competition  policy  over  the  year  2010.  Further  information  can  be 
found in a detailed Commission Staff Working Document and on the website of the 
Competition Directorate-General1.  

1 

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

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40TH ANNIVERSARY OF THE REPORT ON COMPETITION POLICY 

COMPETITION POLICY: AN ASSET OF THE EUROPEAN UNION  

Continuity and evolution in EU competition policy 

4. 

5. 

6. 

7. 

8. 

For  40  years  the  Commission  has  documented  how  it  has  enforced  and  shaped  EU 
competition policy. To mark this anniversary this year's Report steps back from the 
pressing urgencies of today to take view of the evolutions of competition policy.  

The  first  Report  on  competition  policy  was  published  in  1971  in  response  to  a 
request  by  the  European  Parliament.  Not  much  later  the  European  Economic 
Community  faced  a  severe economic crisis brought about by the oil price  shock of 
1973, resulting in inflationary pressures. The early Reports give an account of how 
competition  policy  was  used  by  the  Commission  as  part  of  a  wider  policy  mix  to 
address  this  economic  crisis.  The  deployment  of  competition  policy  within  a 
coordinated  policy  response  to  deal  with  major  economic  challenges  is  thus  not 
unprecedented. 

Likewise,  while  the  environment  in  which  EU  competition  policy  operates  has 
undergone profound changes, such as rapid technological development, enlargement 
or  globalisation,  the  original  Treaty  provisions  of  1957  which  prohibit  certain 
anticompetitive  agreements  and  abuses  of  dominant  positions  as  well  as  the 
provisions on State aid have remained remarkably unchanged over time, a testament 
to their inherent ability to be applied in different circumstances. 

Council  Regulations,  which  outline  the  Commission's  specific  enforcement  powers 
and obligations in more detail, have also been marked by considerable continuity and 
resilience.  In  the  antitrust  area,  the  1962  Council  Regulation  specifying  the 
Commission's enforcement powers was not amended until 2004. In merger control, 
the  corresponding  Regulation  was  adopted  in  1989  and  was  overhauled  only  once 
thereafter. A Regulation laying out detailed procedural rules in the State aid area was 
adopted in 1999.  

Given  its  exclusive  powers  in  the  area  of  competition  policy,  confirmed  by  the 
Lisbon Treaty, the Commission is empowered to adopt more detailed rules on how it 
intends  to  apply  its  main  tools,  i.e.  the  Treaty  provisions  on  antitrust,  mergers  and 
State  aid.  This  discretion  in  design  and  applying  such  rules  has  been  several  times 
confirmed by the judgments of the European Courts in Luxembourg, whose case law 
has  played  an  essential  role  in  ensuring  the  consistency  and  the  efficiency  of 
competition policy. 

1966
Consten and Grundig case

1971
GEMA decision

1971
Deutsche Grammophon case

The European Court establishes the principle 
that agreements prohibiting exports within the 
common market restrict competition.

First application of Article 82 EC (now 102 
TFEU) condemning the abuse of dominance of 
a German collecting society refusing the 
admission to nationals of other Member States.

The Court prohibits the holder of intellectual 
property rights to use them to prevent import 
of its own products, thus laying the basis for 
the principle of exhaustion of rights and 
confirming the importance of parallel trade.

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9. 

This  discretion  has  also  facilitated  the  Commission  in  shaping  and  maintaining  the 
regulatory framework up-to-date with the changing challenges in the making of the 
EU.  Nevertheless,  two  clearly  identifiable  threads  run  through  the  entire  history  of 
EU  competition  policy:  its  contribution  to  the  construction  and  preservation  of  the 
internal  market  and  its  contribution  to  consumer  welfare.  At  the  same  time, 
competition policy has supported the main objectives of the Union as set out in the 
Treaties:  a  competitive  market,  economic,  social  and  territorial  cohesion  and 
sustainable development. 

Contributing to the construction of the internal market 

10. 

A  key  priority  in  the  first  decades  of  existence  of  the  European  Economic 
Community  was  to  progressively  remove  State-imposed  barriers  between  the 
Member  States.  Competition  rules  of  the  EEC  Treaty  –  in  particular  the  antitrust 
rules – accompanied and supported this progressive dismantling of barriers to trade. 
Indeed,  in  the  terms  of  the  first  Report  on  Competition  Policy,  "the  Community's 
policy  must,  in  the  first  place,  prevent  governmental  restrictions  and  barriers  – 
which  have  been  abolished  –  from  being  replaced  by  similar  measures  of  private 
nature"2.  Accordingly,  the  antitrust  rules  were  rigorously  enforced  to  prevent 
companies  from  artificially  dividing  the  internal  market  through  practices  such  as 
market sharing and partitioning, price discrimination or raising obstacles to parallel 
trade.  The  first  antitrust  cases  targeting  impediments  to  parallel  imports  agreed 
between  private  firms  date  back  to  the  1960s,  notably  the  pioneering  decision  in 
1964  against  the  Grundig-Consten  agreement3  which  led  to  a  partitioning  of  the 
market and substantial price differences between France and Germany for the same 
products.  Extensive  enforcement  activities  in  this  area  continued  throughout  the 
1970s  and  beyond,  targeting  anticompetitive  practices  such  as  market  sharing 
cartels4. 

1973
Commission v Germany

1976
Suiker Unie case (Sugar cartel)

1980
Philip Morris

The Court establishes the Commission's 
right to request repayment of non-notified 
incompatible aid. 

Holding that it is not necessary to prove that there 
is an actual plan, the Court condemns various 
sugar producers who had taken part in concerted 
practices to protect the position of two Dutch 
producers on their domestic market. 

The company challenges the entire legal basis 
of State aid control after the Commission 
denied it investment aid. The Court confirms 
the Commission's general powers, discretion 
and many of its preferred modes of analysis.

2 
3 
4 

Report on Competition Policy 1971, p. 13 
Cases C-56/64 and C-58/64 Grunding-Consten [1966] ECR 299 
Such as the Sugar cartel – see Suiker Unie and others v Commission, judgment of 16.12.1975 

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11. 

The introduction of merger control in 1989 – one of the towering milestones over the 
past  40  years  –  has  to  be  seen  in  the  light  of  the  qualitative  leap  that  the  internal 
market  was  undergoing  in  the  run-up  to  its  formal  creation  on  31 December  1992 
after  the  entry  into  force  in  1987  of  the  Single  European  Act.  Competition  policy 
took  into  account  the  new  market  realities  of  increased  opportunities  for  European 
firms  to  merge  and  acquire  assets  across  national  borders.  A  step-change  was 
required and the Merger Regulation of 1989 was the culmination of a campaign that 
the  Commission  had  initiated  already  in  1973,  establishing  a  one-stop-shop  for 
review of mergers and acquisitions having a European dimension5. 

An increased focus on consumer welfare 

12. 

13. 

14. 

Subsequently,  over  the  past  two  decades,  the  Commission's  antitrust  and  merger 
policy and enforcement more effectively placed the emphasis on consumer welfare, 
notably through an increasingly refined economic analysis. The Commission's work 
on  the  Merger  Regulation  had  led  the  way,  eliminating  risks  of  consumer  harm 
resulting from the creation and strengthening of dominant positions through mergers.  

In  the  late  1990s  and  early  2000s,  the  Commission's  antitrust  policy  began  to  take 
major strides towards an effects-based approach, notably through the adoption of the 
first generation of rules on agreements between competitors (horizontal agreements) 
and  agreements  between  different  levels  in  the  distribution  chain  (vertical 
agreements).  This  new  generation  of  antitrust  rules  made  it  possible  for  the 
Commission,  when  weighing  the  pro-  and  anti-competitive  aspects  of  different 
agreements,  to  focus  on  those  involving  companies  with  market  power,  i.e.  where 
consumer harm could potentially arise. 

This also allowed the Commission to better focus its limited resources on the most 
harmful  agreements  between  firms,  such  as  cartels  which  effectively  have  no  pro-
competitive effects and are therefore in practice always prohibited. As in the case of 
other  antitrust  violations  by  firms,  the  Commission  can  impose  fines  aimed  at 
deterring such conduct. While the fight against hard-core cartels is fully recognised 
today as a fundamental pillar of competition policy, this was not always so and the 
Commission  had  initially  proceeded  step  by  step  in  the  absence,  by  and  large,  of 
national  laws  and  enforcement  against  cartels.  According  to  one  account  "[the] 
objective  was,  according  to  [the  then  Commissioner  for  Competition]  to  open  an 
investigation  into  a  few  major  cartels  which  were  particularly  damaging  to  the 
establishment  of  the  Community"6.  Yet  again,  the  connection  with  the  progressive 
establishment of the internal market is stated.  

1983
Leeuwarder Papierwarenfabriek case

1985
Block exemptions

1988
Renault decision

Annulling the Commission's decision on the 
ground of shortcomings in its analysis, the 
Court sets standards for the economic analysis 
required by the Commission to justify its State 
aid decisions.

In the 1980s, the Commission increasingly 
turns towards legislation for establishing 
competition law norms, from informal and 
general notices to formal and binding block 
exemptions.

After long negotiations, the Commission 
approves French State aid on certain 
conditions. This case is a symbol of the 
Commission's will to assert more effective 
control over State aid to industry.

5 

6 

Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between 
undertakings (OJ L 257, 21.9.1990, p. 13) 
The European Commission – History and Memories, p. 306 

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15. 

16. 

17. 

18. 

The  year  2002  marked  a  watershed  for  competition  policy,  with  the  Court  of  First 
Instance  annulling,  in  relatively  swift  succession,  three  Commission  merger 
prohibition decisions on account of lack of sufficient economic analysis and errors of 
assessment.  But  it  brought  long-term  benefits  in  that  the  Commission  decided  to 
rapidly  upgrade  its  capability  to  undertake  more  sophisticated  economic  analysis, 
notably  through  the  creation  of  a  team  of  specialised  economists  under  the 
responsibility of a Chief Economist as soon as 2003. 

This  greater  economic  orientation  was  being  taken  further  in  the  ensuing  years,  in 
particular  with  the  adoption  of  a  refined  substantive  test7  which  firmly  placed  the 
cursor on whether the transaction was likely to lead to a significant impediment on 
effective  competition,  notably  by  taking  full  account  of  the  potential  static  and 
dynamic  efficiencies.  This  new  test  allowed  extending  the  Commission's  review 
beyond  the  question  of  whether  the  transaction  would  place  a  firm  in  a  dominant 
position,  to  covering  other  situations  of  unilateral  anti-competitive  use  of  market 
power.  In  that  same  year,  the  Commission  adopted  horizontal  merger  guidelines 
providing a clear framework for the analysis of such unilateral effects8. 

With the adoption of guidance on the Commission's enforcement priorities regarding 
exclusionary  abuses  of  dominant  undertakings9,  the  economic  approach  aimed  at 
maximising consumer welfare has become embedded into the antitrust enforcement 
framework.  The  above-mentioned  document  recognises  that  dominant  firms  are 
entitled  to  compete  vigorously  on  the  merits,  and  that  as  a  general  principle  the 
Commission will not focus on conduct that leads to inefficient or less efficient rivals 
having to leave the market, provided that this is the result of competition on the basis 
of merits, such as the quality of their products and services. 

The  broadened  focus  encompassing  consumer  welfare  –  ensuring  that  markets  can 
deliver  the  best  outcomes  for  consumers  in  terms  of  prices,  output,  innovation  and 
quality  and  diversity  of  products  and  services  –  does  not  mean  that  the  internal 
market  is  no  longer  relevant.  On  the  contrary,  in  legal  terms,  the  nexus  between 
competition  policy  and  internal  market  was  confirmed  by  the  Lisbon  Treaty. 
Moreover, as the crisis has shown, the integrity of the internal market must never be 
taken  for  granted.  The  Commission  must  be  prepared  to  use  all  its  available  tools 
whenever this core asset of the European Union comes under attack. EU competition 
policy – and in particular State aid rules – proved to be of crucial value in preserving 
the internal market, in particular by maintaining a level playing field in the financial 
and industrial markets. 

7 

8 
9 

Introduced  in  2004  in  Council  Regulation  (EC)  No  139/2004  of  20 January  2004  on  the  control  of 
concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1-22) 
Such as in cases Korsnas/Assidoman Cartonboard or T-Mobile Austria/Tele.ring 
Guidance  on  the  Commission's  enforcement  priorities  in  applying  Article  82  of  the  EC  Treaty  to 
abusive exclusionary conduct by dominant undertakings (OJ C 45, 24.2.2009, p. 7-20) 

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1989
Merger Regulation

1991
De Havilland decision

1995-1998
Credit Lyonnais

The Merger Regulation provides that 
concentrations having a Community dimension 
are subject to Community jurisdiction and 
removed from the jurisdiction of the National 
Competition Authorities.

For the first time the Commission prohibits a 
merger, namely between a Canadian company 
and a French/ Italian consortium.

The Commission approves the high amount of 
State aid only on the condition that the French 
Government commits itself to privatise Crédit 
Lyonnais in an open, transparent and non-
discriminatory process.

The evolution of State aid control from humble beginnings to its current status as a 
cornerstone of the internal market 

19. 

20. 

21. 

State aid  control  has become an essential pillar of the Single Market, ensuring that 
companies  are  able  to  compete  on  equal  terms  independently  of  where  they  are 
located and providing safeguards against Member States engaging in mutual subsidy 
races at the expense of each other and of the general European interest. Such subsidy 
races would not only lead to a wasteful use of scarce resources, they would be to the 
detriment of the cohesion of the EU. 

The EU's State aid regime – a historically unique experiment10 – had to be developed 
gradually  from  scratch;  indeed,  an  early  inquiry  by  the  Commission  faced  with  a 
"jungle  formed  by  national  schemes,  many  of  which  were  long-standing,  complex 
and constantly changing"11. As a matter of fact, it was not until 1973 that the Court 
of  Justice  recognised  that  the  Commission  could  legally  require  Member  States  to 
order firms to pay back unlawfully granted State aid which was not compatible with 
the Treaty12. It took another ten years until the Commission decided to enforce this 
principle  as  a  matter  of  policy.  It  is  telling  that  the  Report  on  competition  policy 
1989  felt  it  had  to  state  the  obvious  fact  that  "even  if  tolerated  or  accepted  in  the 
past, [State aid] compatibility with the common market must be re-examined"13.  

Indeed,  the  number  of  staff  dedicated  to  State  aid  control  also  remained 
comparatively  low  until  the  end  of  the  1990s.  Even  so,  landmark  decisions  were 
adopted  showing  the  determination  of  the Commission  to  tackle  heavily  subsidised 
inefficient State firms, first in large industrial sectors and then in the services sectors. 
For  instance,  important  agreements  were  concluded  between  the  Commission  and 
Member States to put an end to historical unlimited guarantees to public firms14. 

10 

11 
12 
13 
14 

The  foundations  of  the  concept  of  State  aid  were  laid  out  already  in  1961  in  the  Case  30-59  De 
Gezamenlijke  Steenkolenmijnen  in  Limburg  v  Haute  Autorité  de  la  Communauté  Européenne  du 
Charbon et de l'Acier [1961] ECR 3 
The European Commission, 1958-1972 – History and memories, p. 312 
Case C-70/72 Commission v Germany [1973] ECR 813 
Report on Competition Policy 1989, p. 14 
In particular the Andreatta / Van Miert agreement of July 1993 concerning certain public undertakings 
in Italy (see IP/93/734, 8.9.1993) and the Monti / Koch-Weser agreement of July 2001 on the German 
system of State guarantees for public law credit institutions (see IP/01/1007, 17.7.2001). 

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1996
Leniency Notice

1999
State aid procedural Regulation

2001
GE/Honeywell case

Companies which provide information on a 
cartel before the Commission has opened an 
investigation can benefit from partial or total 
immunity from fines. Experience shows that it 
has led to a substantial increase in the number 
of cartels that have been uncovered and 
punished.

The Council Regulation codifies the 
Commission's practice and the Court's 
jurisprudence, providing for the first time a 
clear and transparent set of procedural rules 
and clarifying the procedures to be respected 
by the Commission and Member States 
regarding the State aid process.

The merger is permitted in the US but 
prohibited by the Commission because of its 
effects on the EU market. However, it is one of 
the rare examples of disagreement between the 
EU and US competition authorities since the 
Commission decision in Boeing / McDonnell 
Douglas in 1997.

Governance: embedding competition policy across the EU and projecting it beyond its 
borders  

22. 

23. 

24. 

As  a  competition  culture  evolved,  with  the  internal  market  consolidating  and  the 
Commission and, increasingly, National Competition Authorities (NCAs) developing 
their competition policies, time was ripe for a radical overhaul of the governance of 
EU competition policy. This was the so-called Modernisation of EU antitrust rules15; 
in  fact,  the  entry  into  force  of  antitrust  Modernisation  and  the  enlargement  took 
effect on the very same day: 1 May 2004. 

In  parallel,  the  Commission  issued  guidance  to  Member  States  on  how  it  would 
assess  support  to  specific  policy  objectives  of  common  European  interest,  such  as 
R&D,  regional  development,  the  environment  or  the  restructuring  of  firms  in 
difficulty. By 2005, State aid control was at the forefront of EU competition policy, 
illustrated by the status of the State Aid Action Plan as one of the two key priorities 
of  EU  competition  policy  for  that  mandate,  alongside  cartel  enforcement.  Among 
other things, the increased focus on State aid control has contributed to the evolution 
towards "less and better targeted aid", as highlighted by both the decreasing relative 
amount of aid granted by Member States (from 1.2% of EU GDP in 1992 to 0.62% 
in  2009,  excluding  crisis  measures)  and  the  increasing  share  of  aid  dedicated  to 
objectives of common interest (from 50% in the mid-nineties to 84% in 2009)16. The 
State  Aid  Action  Plan  also  advocated  a  more  economic  approach  based  on  a  so-
called "balancing test" of the possible negative and positive effects of the aid, to be 
used  mainly  for  in-depth  assessments  of  types  of  aids  which  are  typically  the  most 
distortive.  

Under  the  Modernisation  reforms,  NCAs  and  national  courts  were  empowered  and 
obliged  to  apply  all  EU  antitrust  rules  directly  and  in  full  to  cases  affecting  trade 
between Member States, placing the NCAs on an equal footing as enforcers with the 
Commission as part of the European Competition Network (ECN) and emphasizing 
the  Courts'  role  in  antitrust  private  enforcement,  following  the  Courage  v  Crehan 
judgment17 highlighting the need for an effective system of antitrust damages actions 
as part of the overall enforcement architecture18. Underlying this regime change was 
a sense that the competition culture of the Member States after nearly fifty years of 
antitrust  policy  had  reached  a  sufficiently  advanced  state  to  justify  a  significant 

15 

16 
17 
18 

Council  Regulation  (EC)  No  1/2003  of  16 December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25) 
State Aid Scoreboard – Autumn 2010 Update (COM(2010) 701) 
Case C-453/99 Courage v Crehan [2001] ECR I-6297 
White Paper on Damages actions for breach of the EC antitrust rules (COM(2008) 165 final) 

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degree of decentralisation in its enforcement. The impending enlargement, the largest 
in the EU's history, added urgency to the reform process.  

2001

Courage v Crehan

2001-2003
Mandate of Hearing Officer revised and 
Chief Economist position created

2002-2003
Airtours case; Schneider Electric case and 
Tetra Laval case

The Court rules that anyone who has suffered a 
harm caused by an infringement of the EC 
competition rules must be able to claim 
compensation.

These decisions aim at enhancing the 
objectivity and quality of the Commission's 
competition proceedings and the resulting 
decisions. 

In overturning three merger prohibition 
decisions, the Court requires the Commission 
to provide adequate reasoning in its decisions, 
based on accurate and persuasive evidence. 

25. 

26. 

27. 

Modernisation  has  significantly  contributed  to  a  more  level  playing  field  for 
businesses  operating across  borders, allowing them to plan their business strategies 
according  to  one  as  opposed  to  27  sets  of  rules19.  The  ECN  has  fostered  close 
cooperation  among  NCAs  and  the  Commission  which  resulted  in  an  enhanced  and 
more  consistent  enforcement  of  EU  antitrust  rules.  In  addition,  by  removing  the 
obligation to notify agreements, the reform enabled both the Commission and NCAs 
to focus their enforcement activities on infringements which are the most harmful for 
European  consumers.  The  Commission  has  also  been  pursuing 
increased 
convergence  between  EU  level  and  national  merger  control,  drawing  on  the 
experience of the antitrust Modernisation. 

The  continuous  integration  of  Member  States'  economies  within  a  consistent 
competition  framework  has  been  mirrored  by  the  advocacy  efforts  of  the 
Commission  to  promote  common  competition  principles  internationally.  In  an  ever 
more globalised economy, ensuring a more level playing field on the world stage has 
become  an  essential  objective  of  competition  policy.  This  led  the  Commission, 
starting from the 1990s "to seek to encourage the application of similar policies by 
the Community's main trading partners, by means of bilateral agreements or through 
multilateral  negotiation"20.  Consequently,  the  Commission  pursued  a  twofold 
strategy:  it  developed  and  strengthened  direct  bilateral  relations  with  main  trading 
partners and it invested substantially in multilateral bodies such as the OECD or the 
International Competition Network (ICN). 

The  first  Cooperation  Agreement  with  the  US  was  signed  already  in  1991  and  laid 
the  basis  for  the  very  successful  cooperation  between  the  Commission  and  the  US 
antitrust authorities. Similar agreements were concluded with Canada (1999), Japan 
(2003)  and  South  Korea  (2009)  and  have  proven  instrumental  in  addressing 
international  antitrust  cases.  These  bilateral  efforts  have  been  complemented  at  the 
multilateral level, in particular in the OECD and the ICN, to which the Commission 
has been actively involved as a founding member and which serve as important fora 
to spread best practices, to foster convergence and to facilitate cooperation. 

19 
20 

Report on the functioning of Regulation 1/2003 (COM(2009) 206 final) 
Report on Competition Policy 1992, p. 15 

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2003

Altmark Case

2004
Council Regulation 1/2003 
("Modernisation Regulation")

2004

Microsoft case

The Court clarifies that public service 
obligations only escape State aid scrutiny if 
the undertaking entrusted with the public 
service is an efficient undertaking. This 
strengthens the Commission's powers of 
control of public service obligations.

The notification system for potentially 
anticompetitive agreements is replaced by a 
self-assessment system. A new framework 
for co-operation between the National 
Competition Authorities and the 
Commission is established.

Microsoft abused its market power by deliberately 
restricting interoperability between Windows PCs 
and non-Microsoft work group servers, and by tying 
its Windows Media Player with its dominant 
Windows operating system. By levying additional 
fines for non-cooperation, the Commission shows 
strong enforcement of its decisions.

28. 

The  importance  of  the  international  dimension  is  increasingly  recognised,  most 
recently  in  the  Report  from  former  Competition  Commissioner  Mario  Monti  on  "A 
New Strategy for the Single Market"21. While this Report lists several key challenges 
relating  directly  to  the  internal  market  dimension  of  EU  competition,  such  as 
deepening  the  coherence  of  the  implementation  of  antitrust  rules  across  Member 
States and the coordination between the Commission and NCAs, in particular in the 
assessment  of  mergers  or  in  the  fining  policies,  it  also  emphasises  the  need  for 
greater  convergence  on  competition  policy  principles  at  the  international  level, 
especially  with  the  fastest  growing  EU  trade  partners.  Indeed,  the  Commission  has 
recently  been  deepening  its  bilateral  cooperation  with  the  competition  agencies  of 
major  economic  powers,  such  as  China,  India  and  Brazil.  Developing  an  effective 
competition policy and competition culture is a major challenge which requires time, 
as shown by the EU's own experience. At the same time, competition agencies and 
competition  legislation  have  become  part  of  mainstream  economic  governance  as 
illustrated  by  the  exponential  growth  over  the  last  decades  in  the  number  of 
competition agencies which form part of the ICN (currently exceeding 100 agencies). 

Competition policy as a tool to support competitiveness in line with the Europe 2020 Strategy  

29. 

30. 

31. 

It  is  clear  from  the  early  annual  Reports  that  the  contribution  and  support  of 
competition  towards  other  policy  objectives  has  gone  well  beyond  being  used  as  a 
crisis  resolution  instrument.  As  the  EU  exits  from  the  current  crisis  in  the  face  of 
fierce  global  competition,  a  major  challenge  for  competition  policy  in  the  coming 
years will be to support as effectively as possible the Europe 2020 Strategy for smart, 
inclusive and sustainable growth.  

Competition policy is well placed to make such a contribution as it is a key driver for 
making  markets  work  better  through  an  efficient  allocation  of  resources  and 
increased productivity and innovation. It therefore underpins the competitiveness of 
the  EU  economy,  which  is  more  important  than  ever  to  maintain  economic  and 
financial stability. Competition policy and competition-enhancing reforms must thus 
form an integral part of the economic governance.  

Competition  rules  also  recognise  the  need  to  enable  Member  States  to  promote  the 
Union's  objectives  of  economic,  social  and  territorial  cohesion.  The  regional  aid 
guidelines  facilitate  the  realisation  of  the  territorial  cohesion  of  the  Union  by 
promoting the development of poorer regions. The different State aid rules also allow 

21 

Report by Professor M. Monti to the President of the European Commission: "A new Strategy for the 
Single Market" of 9.5.2010 

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for  training  aid  and  the  promotion  of  the  access  of  disadvantaged  and  disabled 
workers to employment.  

2009
Intel Case

2008-2010
Temporary state aid measures

Intel harmed millions of European consumers 
by deliberately acting to keep competitors out 
of the market for computer chips for many 
years, thus limiting consumer choice and 
artificially raising prices (case under appeal).

The Commission temporarily amends the rules for State aid to the financial sector and the real 
economy in order to allow for additional State support for financial institutions and to mitigate the 
effects of the crisis on the real economy. This highlights the flexibility of competition rules and 
their safeguarding role in coordinating Member States' actions and preserving the Single Market.

32. 

Another essential area where competition policy has evolved to take into account a 
long-term  challenge  to  the  Union  is  the  protection  of  the  environment  and  the 
promotion of sustainable growth. Through both its antitrust enforcement activities in 
the  energy  sector  which  enhances  liquidity  and  security  of  supply  in  the  internal 
market and its adoption of environmental State aid guidelines, which facilitate aid to 
address  market  failures  in  this  area,  the  Commission  has  ensured  that  competition 
policy supports the shift towards a more sustainable economy.  

Conclusion: resilience and adaptability of EU competition policy 

33. 

The  European  Union  is  undergoing  a  period  of  rapid  and  dramatic  changes.  Some 
challenges and issues can be foreseen with some degree of certainty – the exit from 
the  crisis,  global  competition  and  sustainable  development  are  among  the  most 
prominent. But the EU will no doubt face other challenges which cannot be foreseen 
yet.  Nevertheless,  it  is  clear  that  competition  policy  throughout  its  existence  has, 
against  the  background  of  a  stable  Treaty  framework,  been  able  to  cope  with  the 
considerable evolutions of its environment. Given its resilience and adaptability, EU 
competition policy will continue to be one of the European Union's assets. 

1. 

INSTRUMENTS 

1.1. 

Follow-up  to  the  implementation  of  the  temporary  crisis  framework  for  State 
aid 

1.1.1.  Crisis-related support for the financial sector 

34. 

22 

23 

24 

Since  the  beginning  of  the  global  financial  crisis  in  the  autumn  of  2008,  the 
Commission  provided  detailed  guidance  on  the  criteria  for  the  compatibility  of 
temporary  crisis-related  support  measures  for  financial  institutions  under  Article 
107(3)(b) of the Treaty on the Functioning of the European Union (TFEU), whether 
in the form of State guarantees22, recapitalisations23 or asset relief measures24 and on 

Communication  on  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)  
Communication on the recapitalisation of financial institutions in the current financial crisis: limitation 
of  aid  to  the  minimum  necessary  and  safeguards  against  undue  distortions  of  competition  (OJ C 10, 
15.1.2009, p. 2) 
Communication  on  the  treatment  of  impaired  assets  in  the  Community  banking  sector  (OJ C 72  of 
26.3.2009, p. 1) 

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11 

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the necessary restructuring measures for distressed banks25. Through the application 
of State aid rules, the Commission ensured that distortions of competition within the 
internal  market  were  limited  to  a  minimum  despite  the  important  amounts  of  State 
aid and that beneficiary banks were restructured when necessary.  

Between 1 October 2008 and 1 October 2010, the Commission took more than 200 
decisions on State aid measures for the financial sector aiming to remedy a serious 
disturbance  in  Member  States'  economies.  More  than  40  schemes  were  authorised, 
amended  or  prolonged  and  individual  decisions  concerned  more  than  40  financial 
institutions.  In  2009,  the  nominal  amount  of  aid  to  the  financial  sector  used  by 
Member States constituted EUR 1 107 billion (9.3% of EU GDP), whereas the figure 
for 2008 was EUR 1 236 billion26. 

The  availability  of  State  guarantees  proved  to  be  an  effective  tool  throughout  the 
crisis to improve access to funding for banks and to restore market confidence. The 
use of recapitalisation schemes was limited in 2010 while some ad hoc interventions 
took  place  during  2010.  However,  the  situation  showed  a  reduction  in  the  use  of 
State capital injections in 2010 compared to 2009; moreover, banks which benefited 
from asset relief or capitalisation support measures in 2009 or 2010 were subject to 
restructuring obligations. 

Restructuring  of  a  number  of  European  banks  was  among  the  main  challenges  of 
2010 and followed three main principles: (i) the return to long-term viability without 
State  aid,  based  on  a  sound  restructuring  plan,  (ii)  burden  sharing  between  the 
bank/its  stakeholders  and  the  State  and  (iii)  limitation  of  competition  distortions, 
usually through structural (divestitures) and behavioural measures (acquisition bans 
or  limitations  on  aggressive  commercial  behaviour).  In  2010,  the  Commission 
approved  14  banks'  restructuring  or  liquidation.  The  main  cases  concerned  Aegon, 
Dexia,  Ethias,  Parex  and  Sparkasse  Köln/Bonn27;  they  were  all  approved  by  the 
Commission  and  included  binding  behavioural  and  structural  measures.  The 
Commission adopted a negative decision in the case of Banco Privado Português and 
the bank is currently in liquidation28. 

As a result of policy intervention, the severe shortage of bank funding that occurred 
in  autumn  2008  was  overcome  relatively  quickly.  However,  the  sovereign  crisis 
which  struck  in  the  first  half  of  2010  clearly  showed  that,  although  some 
improvement  compared  to  the  peak  of  late  2008,  the  level  of  stress  in  financial 
markets  was  still  requiring  targeted  crisis-related  support  beyond  2010.  On 
1 December  2010,  the  Commission  extended  the  validity  of  the  rules  for  crisis-
related measures for the financial sector until the end of 201129. However, given the 
evidence that banks were facing fewer difficulties in raising capital on the markets, 

Communication on the return to viability and the assessment of restructuring measures in the financial 
sector in the current crisis under the State aid rule (OJ C 195, 19.8.2009, p. 9) 
State aid scoreboard – Autumn 2010 Update (COM(2010) 701) 
Cases N372/2009 Viability plan for Aegon, C9/2009 Restructuring of Dexia, N256/2009 Restructuring 
aid  for  Ethias,  C26/2009  Restructuring  aid  for  Parex  and  C32/29  Restructuring  of  Sparkasse 
Köln/Bonn 
Case C33/2009 Restructuring of BPP 
Communication  on  the  application,  after  1 January  2011,  of  State  aid  rules  to  support  measures  in 
favour of banks in the context of the financial crisis (OJ C 329, 7.12.2010, p. 7) 

35. 

36. 

37. 

38. 

25 

26 
27 

28 
29 

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12 

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the  Commission  introduced  from  1 January  2011  a  requirement  to  submit  a 
restructuring  plan  for  every  beneficiary  of  a  recapitalisation  or  an  impaired  asset 
measure, irrespective of whether the bank is considered to be fundamentally sound or 
distressed. 

1.1.2. 

Implementation of the Temporary Framework for the real economy 

39. 

40. 

41. 

In  2008,  the  Commission  adopted  the  Temporary  Framework  (TF)30  aimed  at 
facilitating  companies'  access  to  finance  in  the  context  of  the  crisis.  Between  its 
introduction and 1 October 2010, the Commission approved 73 schemes and four ad-
hoc aid measures. The volume of aid approved in 2009 was EUR 82.5 billion (0.7% 
of EU GDP).  

The main measures used were the compatible limited amount of aid, the subsidised 
guarantees and the subsidised loans. The relaxation of the conditions for exceptional 
acceptance of government export credit insurance within the Community contributed 
to  sustain  trade.  The  risk  capital  adaptation  was  also  positively  perceived  as  an 
important  signal  for  private  investors.  The  subsidised  loans  for  the  production  of 
green products were used by a smaller number of Member States, being notified by 
five of them31.  

In view of the fragility of the recovery, the Commission considered premature to let 
the  TF  expire  in  its  entirety  at  the  end  of  2010.  A  progressive  phasing-out  was 
considered  the  most  suitable  response  to  the  current  market  situation.  The 
Commission  approved  on  1 December  2010  a  prolongation  of  the  Temporary 
Framework32 until the end of 2011 with a focus on SMEs and a limited spectrum of 
measures.  The  measures  that  address  outstanding  market  failures,  in  particular  the 
remaining  problems  on  access  to  finance  for  SMEs,  were  maintained,  subject  to 
tighter conditions to reflect the gradual transition into the normal State aid regime.  

1.1.3.  Contribution  of  competition  policy  to  the  economic  adjustment  programmes  of 

Greece and Ireland 

42. 

In  2010,  Greece  found  itself  in  a  weak  fiscal  position.  To  support  the  Greek 
government's  efforts  to  get  its  economy  back  on  track,  the  Commission,  the 
European  Central  Bank  and  the  International  Monetary  Fund  (IMF)  pledged  on 
2 May 2010 a three-year economic adjustment programme33 financed by Euro Area 
Member States in bilateral loans totalling EUR 80 billion and supported by the IMF 
with a stand-by arrangement of about EUR 30 billion. The Greek authorities agreed 
to a multi-annual programme of fiscal consolidation and structural reforms in order 
to put the Greek economy on a sustainable path, to restore confidence on sovereign 
debt markets and to preserve the stability of the Euro area. In order to strengthen the 
Greek financial system, issuance of additional government guarantees was authorised 

30 

31 
32 

33 

Temporary framework for State aid measures to support access to finance in the current financial and 
economic crisis (consolidated version) (OJ C 83, 7.4.2009, p. 1) 
France, Germany, Italy, Spain and the United Kingdom 
Temporary Union framework for State aid measures to support access to finance in the current financial 
and economic crisis (OJ C 6, 11.1.2011, p. 5) 
The  Economic  Adjustment  Programme  for  Greece,  European  Economy,  Occasional  Papers  61,  May 
2010 

EN 

13 

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43. 

by  the  Commission34,  an  independent  Financial  Stability  Fund  providing  capital 
support to banks was established35 and restructuring plans for six of the recapitalised 
banks  were  submitted  in  line  with  EU  State  aid  rules.  Moreover,  the  structural 
reforms  of  the  economic  adjustment  programme  included  a  competition  related 
section. Greece thus cooperated with the Commission on its new investment law, on 
reforms  of  the  Hellenic  Competition  Authority  and  on  the  liberalisation  of  closed 
professions. 

As  regards  Ireland,  the  situation  became  very  stressed  for  both  the  banks  and  the 
sovereign debt in the last quarter of the year. The combination of a severe economic 
crisis and of an oversized banking sector taking huge losses led to great pressure on 
the Irish sovereign debt. On 28 November 2010, a Programme was agreed between 
the  Commission,  the  European  Central  Bank  (ECB),  the  IMF  and  the  Irish 
authorities36. The Programme foresees a loan of EUR 85 billion to Ireland, of which 
EUR  35 billion  will  be  available  to  restore  banks'  viability.  As  part  of  the 
Programme, two domestic banks will be wound down (Anglo Irish Bank & INBS), 
while  others  will  be  capitalised  and  restructured  in  compliance  with  EU  State  aid 
rules.  As  regards  competition-related  structural  reforms,  a  number  of  policy 
measures  will  be  taken  to  bolster  competition  in  product  and  energy  markets  and 
other  network  industries.  This  includes  introducing  legislative  changes  to  remove 
restrictions  to  trade  and  competition  in  sheltered  sectors,  addressing  the  current 
exclusion  of  certain  sectors  from  the  scope  of  the  national  competition  law  and 
improving deterrence of anticompetitive behaviour. 

1.2. 

Antitrust enforcement 

1.2.1. 

Shaping the rules: Review of Block Exemption Regulations 

Block Exemption Regulation on vertical agreements 

44. 

45. 

34 
35 

36 
37 

38 

On 20 April 2010, the Commission adopted a revised Block Exemption Regulation37 
and  guidelines38  regarding  vertical  agreements,  i.e.  agreements  between  suppliers 
and buyers operating at different levels of the production and distribution chain for 
the supply and distribution of products and services.  

The basic principle of the revised rules remains that companies with limited market 
power  are  free  to  decide  how  their  products  are  distributed,  provided  their 
agreements  do  not  contain  price-fixing  or  other  hardcore  restrictions.  However,  the 
rules were revised in order to take into account both the buyers' and sellers' potential 
market  power  so  that  all  parties  to  the  agreement  must  have  a  market  share  under 
30% for a block exemption. 

Case N260/2010 Third prolongation of Greek bank support scheme (OJ C 238, 3.9.2010, p. 3) 
Case  N328/2010  Recapitalisation  of  credit  institutions  in  Greece  under  the  Financial  Stability  Fund 
(OJ C 316, 20.11.2010, p. 7) 
MEMO/10/624 
Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the 
Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted 
practices (OJ L 102, 23.4.2010, p. 1-7) 
Commission notice – Guidelines on Vertical Restraints (OJ C 130, 19.5.2010, p. 1-46) 

EN 

14 

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46. 

47. 

48. 

The  Regulation  and  accompanying  guidelines  also  take  into  account  the  rapid 
development  of  the  internet  as  a  force  for  online  sales  and  for  cross-border 
commerce,  which  increases  consumer  choice  and  price  competition.  Through  the 
added  clarity  and  greater  predictability  of  the  new  rules,  distributors  have  clear 
incentives  to  develop  online  activities  to  reach  and  be  reached  by  customers 
throughout the EU, thus ensuring the full realisation of the digital internal market. 

Block Exemption Regulations on horizontal cooperation agreements 

On  14 December  2010,  the  Commission  adopted  new  rules  and  guidelines  for  the 
assessment of horizontal cooperation agreements, i.e. agreements concluded between 
companies  operating  at  the  same  level  of  the  supply  chain,  such  as  agreements  to 
cooperate on research and development, production, purchasing, commercialisation, 
standardisation, and exchange of information. This new regime consists of two Block 
Exemption Regulations regarding research and development agreements on one hand 
and  specialisation  and  joint  production  agreements  on  the  other  hand39  and 
accompanying horizontal guidelines40. 

The  Commission's  approach  enshrined  in  the  new  rules  is  to  leave  companies 
maximum freedom to cooperate while at the same time protecting competition from 
such cooperations which are contrary to Article 101 TFEU, e.g. by being harmful to 
consumers.  The  Commission's  view  on  cooperation  between  competitors  has  not 
fundamentally  changed  since  the  previous  rules  were  put  in  place  in  2000. 
Nevertheless,  the  new  rules  on  horizontal  cooperation  agreements  are  much  more 
detailed,  user-friendly  and  clearer  than  the  previous  ones.  Two  key  features  of  the 
reform  include  the  insertion  of  a  new  chapter  on  information  exchange  and  a 
substantial  revision  of  the  chapter  on  standardisation  agreements.  The  latter  in 
particular  clarifies  the  key  conditions  to  ensure  competitive  standard-setting 
processes  and  contributes  to  the  objective  of  building  a  more  efficient  standards 
system  for  Europe  as  set  out  in  the  Flagship  Initiative  "An  Integrated  Industrial 
Policy for the Globalisation Era" of the Europe 2020 strategy41. 

Sectoral Block Exemption Regulations 

49. 

In  the  field  of  insurance,  the  new  Insurance  Block  Exemption  Regulation42  was 
adopted  on  24 March  2010.  On  27 May,  the  Commission  adopted  new  competition 
rules  for  agreements  between  vehicle  manufacturers  and  their  authorised  dealers, 

39 

40 

41 

42 

Commission Regulation (EU) No 1217/2010 of 14 December 2010 on the application of Article 101(3) 
of  the  Treaty  on  the  functioning  of  the  European  Union  to  categories  of  research  and  development 
agreements  (OJ L 335,  18.12.2010,  p. 36)  and  Commission  Regulation  (EU)  No  1218/2010  of 
14 December  2010  on  the  application  of  Article  101(3)  of  the  Treaty  to  categories  of  specialisation 
agreements (OJ L 335, 18.12.2010, p. 43) 
Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union 
to horizontal cooperation agreements (OJ C 11, 14.1.2011, p. 1) 
An Integrated Industrial Policy for the Globalisation Era: Putting Competitiveness and Sustainability at 
Centre State (COM(2010) 614) 
Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of 
the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector 
(OJ L 83, 30.3.2010, p. 1) 

EN 

15 

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repairers  and  spare  parts  distributors43.  The  new  rules  broadly  align  competition 
policy in the car market to the general regime applicable to other sectors. 

1.2.2.  Private enforcement of EU antitrust rules 

50. 

51. 

Private enforcement of the EU antitrust rules is an essential complement to a strong 
public enforcement by the Commission and National Competition Authorities. In its 
2008  White  Paper  on  antitrust  damages  actions44,  the  Commission  suggested  a 
number  of  measures,  such  as  collective  redress  and  quantification  of  antitrust 
damages,  to  improve  the  possibilities  for  consumers  and  businesses  to  obtain 
compensation for harm caused to them by antitrust infringements.  

The Commission's suggestions on collective redress triggered a broad public debate 
that  goes  beyond  the  boundaries  of  the  antitrust  field  and  focuses  on  the  role  of 
collective  redress  where  a  single  infringement  of  EU  rules  harms  large  groups  of 
victims.  The  Commission  decided  to  prepare  a  public  consultation  which  should 
contribute to identify a set of common principles for any future legislative proposals 
concerning collective redress. A Communication presenting such principles has been 
scheduled for adoption in 2011. 

1.2.3.  Applying Article 101 TFEU: Cartels 

52. 

53. 

54. 

In  2010  the  Commission  adopted  seven  cartel  decisions45  imposing  fines  totalling 
over EUR 3 billion on 70 undertakings, maintaining its strong enforcement focus on 
the fight against cartels.  

The  Commission  focused  on  making  the  process  more  efficient  through  the 
application  of  the  settlement  procedure.  In  2010,  the  Commission  adopted  its  two 
first settlement decisions: a full settlement decision in the DRAMs case and a hybrid 
settlement  decision  in  the  Animal  Feed  Phosphates  case.  The  DRAMs  case 
constituted  a  milestone  in  EU  cartel  practice  since  its  settlement  comprised  all  ten 
undertakings involved and its decision was not appealed.  

Against the background of the economic crisis, the seven cartel decisions adopted in 
2010  led  to  32  applications  for  a  fine  reduction  on  grounds  of  "inability  to  pay"46, 
nine of which were granted after a thorough analysis of the financial situations of the 
applicants. 

1.2.4.  Applying Article 101 TFEU: Other agreements and concerted practices 

55. 

In  2010,  the  Commission  put  an  end  to  a  major  antitrust  case  under  Article  101 
TFEU in the air transport sector by making legally binding commitments offered by 

43 

44 
45 

46 

Commission Regulation (EU) No 461/2010 of 27 May 2010 on the application of Article 101(3) of the 
Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted 
practices in the motor vehicle sector (OJ L 129, 28.5.2010, p. 52) 
White Paper on Damages actions for breach of the EC antitrust rules (COM(2008) 165 final) 
Cases COMP/38511 DRAMs, COMP/39092 Bathroom fittings & fixtures, COMP/38344 Pre-stressing 
steel,  COMP/38866  Animal  Feed  Phosphates,  COMP/36212  Carbonless  paper  (re-adoption  for 
Bolloré), COMP/39258 Airfreight and COMP/39309 LCD 
See Point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of 
Regulation No 1/2003 (OJ C 210, 1.9.2006, p. 2-5) 

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16 

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British Airways, American Airlines and Iberia47. This decision will entail significant 
benefits  for  European  consumers  by  ensuring  that  sufficient  competition  on  the 
transatlantic flights, in particular from London, is maintained. 

In the financial services sector, the Commission  made  binding  Visa's  commitments 
on Multilateral Interchange Fees for immediate debit card transactions applicable to 
cross-border  transactions  in  the  EEA  and  to  domestic  transactions  in  nine  EEA 
countries48,  bringing  them  in  line  with  the  MasterCard's  unilateral  undertakings  of 
1 April 200949 and the "merchant-indifference methodology" to modes of payment.  

The Commission also adopted its first antitrust decision in the health services market. 
It  imposed  a  fine  of  EUR  5 million  on  the  French  Association  of  Pharmacists50 
condemning its market behaviour in the French market for clinical laboratory testing.  

56. 

57. 

1.2.5.  Applying Article 102 TFEU: abuse of dominant position 

58. 

59. 

60. 

The Commission continued its enforcement activities of Article 102 TFEU, notably 
in  the  energy  sector,  where  it  took  four  decisions  and  in  the  ICT  sector,  where  it 
opened several proceedings.  

In the energy sector, the Commission followed upon its 2007 energy sector inquiry, 
adopting  four  major  antitrust  decisions,  whereby  commitments  proposed  by 
undertakings  to  put  an  end  to  a  potential  infringement  were  made  binding.  They 
relate  to  incumbents  in  France,  Sweden,  Germany  and  Italy  foreclosing  access  to 
energy  markets  through  various  means,  such  as  long-term  supply  contracts  with 
resale  restrictions  or  limiting  available  transport  or  export  capacities  on  energy 
networks51. 

In  the  ICT  markets,  the  Commission  opened  proceedings  against  IBM  concerning 
potential  abuses  of  a  dominant  position  in  the  mainframe  computer  market,  and 
against  Google  Inc  on  potential  abuses  of  a  dominant  position  in  online  search, 
online advertising and online advertising intermediation. The Commission launched 
two preliminary investigations into Apple's business practices relating to the iPhone. 
Both were closed after Apple proposed to change these practices52. 

47 
48 
49 
50 
51 
52 

Case COMP/39596 BA/AA/IB. See IP/10/936 and MEMO/10/330, 14.7.2010. 
Case COMP/39398 Visa MIF. See IP/10/1684, 8.12.2010. 
Case COMP/34579 MasterCard. See IP/09/515, 1.4.2009. 
Case COMP/39510 ONP. See IP/10/1683, 8.12.2010. 
See section 2.2. infra. 
See section 2.4. infra. 

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Number of antitrust and cartels enforcement decisions per year and type, 2005-2010 

14

8

2

4

13

7

1

4

1

14

1

7

4

1

1

11

6

4

1

14

1

1

5

6

1

10

5

1

2

2

Cartel Other*

Cartel Settlement

Cartel Hybrid

Cartel Prohibition

Antitrust Other**

Antitrust Commitment

Antitrust Prohibition

2005

2006

2007

2008

2009

2010

* Rejection of complaint   ** Rejection of complaint, procedural infringement, penalty payment
Source: DG Competition

1.3.  Merger control 

61. 

62. 

63. 

64. 

In 2010 the number of mergers notified was at low level due to the economic crisis. 
In  total,  274  transactions  were  notified  to  the  Commission,  16  decisions  were 
submitted to conditions and no prohibition was decided this year. The large majority 
of  the  mergers  notified  were  approved  without  conditions  both  under  the  normal 
procedure and the simplified procedure, which represented 55% of notifications. 

The  Commission  took  three  decisions  in  2010  following  an  in-depth  analysis  in 
second  phase  investigation  for  the  Oracle  /  Sun  Microsystems53  (see  section  2.4. 
infra), Monsanto / Syngenta54 and Unilever / Sara Lee Body55 mergers.  

On 17 November 2010, after an in-depth investigation, the Commission cleared the 
acquisition of the global sunflower seed business of the US company Monsanto by 
Syngenta  of  Switzerland  conditional  upon  the  divestment  of  Monsanto's  sunflower 
hybrids, commercialised or under official trial in Spain and Hungary, as well as the 
parental  lines  used  in  the  creation  of those  hybrids  or  currently  under  development 
for the creation of hybrids for Spain and Hungary. 

The Commission also cleared on the same date the planned acquisition by the Anglo-
Dutch consumer goods company Unilever of the body and laundry care businesses of 
Sara  Lee  Corp  of  the  US,  subject  to  conditions.  The  Commission's  in-depth 
investigation  had  shown  that  the  merger  would  give  Unilever  a  very  strong 
leadership  position  in  a  number  of  deodorants  markets  by  combining  the  parties' 

53 
54 
55 

Case COMP/M.5529 Oracle / Sun Microsystems (OJ C 91, 9.4.2010, p. 7)  
Case COMP/M.5675 Syngenta / Monsanto's sunflower seed business. See IP/10/1515, 17.11.2010. 
Case COMP/M.5658 Unilever / Sara Lee Bodycare. See IP/10/1514, 17.11.2010. 

EN 

18 

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brands,  most  notably  Sanex  with  Dove  and  with  Rexona  which  presently  compete 
against each other. To remedy these concerns, the merging parties offered to divest 
Sara Lee's Sanex brand and related business in Europe. 

Number of merger final decisions per year and type, 2005-2010 

398

25

5

130

348

21

4

112

343

27

9

117

211

238

190

299

21

2

107

169

270
16

1

110

243
18

82

143

143

Interventions*

2nd Phase Clearance

1st Phase Clearance
(Non-simplified Procedure)

1st Phase Clearance
(Simplified Procedure)

2005

2006

2007

2008

2009

2010

* Includes one prohibition in 2007
Source: DG Competition

1.4. 

State aid control 

65. 

66. 

The  majority  of  aid  approved  in  2010  related  to  horizontal  objectives  of  European 
common  interest,  such  as  culture  and  heritage  conservation,  regional  cohesion, 
environment protection, research, development and innovation and compensations of 
damages caused by natural disaster, notwithstanding aid related to the economic and 
financial  crisis.  Member  States  made  wide  use  of  the  possibilities  offered  by  the 
General Block  Exemption Regulation  (GBER)56, whereby measures which fulfil its 
criteria  may  be  granted  without  prior  notification  to  the  Commission.  In  2010,  the 
Commission  was  informed  about  the  introduction  of  414  such  new  measures  by 
Member States.  

In terms of amount of aid authorised, figures are compiled with one year delay in the 
bi-yearly  State  aid  Scoreboards.  Total  aid  excluding  crisis-related  measures 
amounted in 2009 to 0.62%  of GDP or EUR 73.2 billion, at a slightly higher level 
than  2008  (0.58%  of  GDP).  On  average,  84%  of  aid  to  industry  and  services  was 
directed towards horizontal objectives of common interest57. 

56 

57 

Commission  Regulation  (EC)  No  800/2008  of  6 August  2008  declaring  certain  categories  of  aid 
compatible with the common market in application of Article 87 and 88 of the Treaty (General Block 
Exemption Regulation) (OJ L 214, 9.8.2008, p. 3) 
State aid scoreboard – Autumn 2010 Update (COM(2010) 701) 

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19 

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67. 

2010 was the first full year with the Simplification Package in place. This Package 
comprises a Best Practice Code58 and a Notice on a Simplified Procedure59, both of 
which aim at improving the effectiveness, transparency and predictability of State aid 
procedures.  The  first  results  of  the  Best  Practices  Code  were  encouraging,  in 
particular regarding complaints-handling, with an increasing number of complainants 
informed of the status of their complaints. 

Evolution of total State aid granted by Member States as % of GDP in the EU, 2004-200960 

3,62%

3,00%

2,51%

1,93%

0,62%

0,58%

0,77%

0,54%

0,01%

0,53%

0,58%

0,62%

2004

2005

2006

2007

2008

2009

Source: DG Competition, Eurostat

1.4.1.  Horizontal State aid 

Regional aid 

Aid granted in the context
of the economic and
financial crisis

Aid granted excluding
crisis measures

68. 

In  accordance  with  the  guidelines  on  national  regional  aid  for  2007-201361,  the 
Commission carried out the review of the State aid status and the aid ceiling of the 
statistical effect regions that benefited transitionally from a status as an assisted area 
pursuant  to  Article  107(3)(a)  until  the  end  of  2010.  Similarly,  the  Commission 
accepted changes to national regional State aid maps notified by three Member States 

58 
59 

60 

61 

Code of Best Practice for the conduct of State aid control procedures (OJ C 136, 16.6.2009, p. 13-20) 
Notice  from  the  Commission  on  a  simplified  procedure  for  treatment  of  certain  types  of  State  aid 
(OJ C 136, 16.6.2009, p. 3-12) 
The  total  covers  aid  to  manufacturing,  services,  coal,  agriculture,  fisheries  and  part  of  the  transport 
sector  but  excludes,  due  to  the  lack  of  comparable  data,  aid  to  the  railway  sector  and  aid  for 
compensation for services of general economic interest. Aid amounts refer to the aid element (or gross 
grant equivalent in case of guarantees or loans) contained in a State aid measure as opposed to figures in 
point  35  mentioning  amounts  of  aid  used  by  Member  States.  See  the  State  aid  scoreboard  –  Autumn 
2010 Update (COM(2010) 701) for more on evolution of total State aid granted by Member States. 
Guidelines on national regional aid 2007-2013 (OJ C 54, 4.3.2006, p. 13-44) 

EN 

20 

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69. 

70. 

71. 

(France,  Ireland  and  Italy)  for  certain  areas  eligible  to  regional  aid  on  the  basis  of 
Article 107(3)(c). 

The Commission approved in 2010 regional aid to six large investment projects. Four 
of these projects are in the photovoltaic sector, three in Germany and one in Spain62, 
while the other investment projects are in the mechanics industry in Germany and in 
Italy63.  Furthermore,  five  ad  hoc  aid  measures  in  favour  of  single  enterprises  for 
investments in areas under the Regional Aid maps 2007-2013 were approved, as well 
as  ten  regional  aid  schemes,  five  of  which  regarding  outermost  regions.  The 
Commission closed in 2010 three formal investigations with one positive64 and two 
negative decisions concerning an illegitimate SME bonus in favour of Sovello AG65, 
and an incompatible aid measure in favour of Fri-el Acerra66 because of the absence 
of incentive effect and insufficient regional contribution. 

Environmental aid 

The  Commission  cleared  a  number  of  measures  in  support  of  energy  saving  and 
renewable  energy  production  under  the  environmental  aid  guidelines67.  An 
increasing  number  of  these  notifications  concerned  relatively  large  individual  aid 
(above  EUR  7.5 million  investment  aid  per  undertaking)  and  were  subject  to  a 
detailed  economic  assessment  as  part  of  the  more  economic  approach  to  State  aid 
analysis.  The  approved  schemes  concerned  mostly  aid  to  renewable  energy  and  to 
carbon capture and storage projects. 

Research & Development & Innovation 

Innovation has been placed at the heart of the Europe 2020 Strategy and the Flagship 
Initiative on an Innovation Union68 outlines the necessity to improve the financing of 
innovation  in  Europe  to  boost  its  performance.  The  Community  Framework  for 
research  and  development  and  innovation69  supports  this  objective  by  making  it 
easier for Member States to better target State aid to the relevant market failures. In 
2010, the Commission approved twelve aid schemes, with an overall budget of more 
than EUR 5 billion, on the basis of this Framework, and decided to initiate a formal 
investigation  procedure  regarding  one  further  case  which  was  subsequently 
withdrawn.  Out  of  those  measures,  five  were  pure  R&D  schemes,  four  were 
innovation-oriented schemes and four were mixed. In addition, following an in-depth 
economic  assessment,  the  Commission  decided  not  to  raise  objections  to  ten 
individually notifiable aids to large R&D projects referring to new processes for bio-
methane  production,  use  of  composite  materials  for  the  construction  of  specific 
lithography  for  semiconductor  devices. 
components  of  aero-structures,  and 

62 

63 

64 
65 
66 
67 
68 
69 

Cases N641/2009 Solibro GmbH, N221/2009 Wacker Chemie AG, N237/2010 Sovello3 and N285/2009 
Silicio Solar 
Cases  N261/2009  Liebherr  MCCtec  Rostock  GmbH  and  N27/2010  Fiat  Powertrain  Technologies  in 
Verrone 
Case C34/2008 Deutsche Solar AG (OJ L 7, 11.1.2010, p. 40-47) 
Case C27/2008 Sovello AG (formerly EverQ) SME bonus (OJ L 167, 1.7.2010, p. 21-38) 
Case C8/2009 Fri-el Acerra s.r.l 
Community guidelines on State aid for environmental protection (OJ C 82, 1.4.2008, p. 1) 
See the Communication on an "Innovation Union" (COM(2010) 546 final).  
Community  framework  for  State  aid  for  research  and  development  and  innovation  (OJ C 323, 
30.12.2006, p. 1-26) 

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21 

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Furthermore,  it  monitored  information  submitted  on  aids  to  52  other  R&D  projects 
which exceeded EUR 3 million although without falling under the duty for individual 
notification. 

72. 

Moreover,  40  schemes  providing  aid  for  fundamental  research,  91  for  industrial 
research and 86 for experimental development were submitted under the GBER. The 
GBER  was  also  used  by  Member  States  for  measures  relating  to  innovation,  42  of 
which  related  to  industrial  property  rights  for  SMEs,  21  to  young  innovative 
enterprises, 24 to innovation advisory and support services, and eleven to the loan of 
highly qualified personnel. 

Aid to promote risk capital 

73. 

In  the  area  of  risk  capital  financing  for  SMEs,  the  Commission  approved  seven 
measures  under  the  risk  capital  guidelines70  with  an  overall  budget  of  EUR 
380 million.  Out  of  those  measures,  three  did  not  comply  with  the  safe  harbour 
provisions and were subject to a detailed assessment. Furthermore, eleven additional 
aid  schemes  were  implemented  in  2010  under  the  GBER,  which  some  Member 
States increasingly used for risk capital purposes. 

1.4.2.  Aid to coal and agricultural sectors 

74. 

75. 

Following  a  proposition  from  the  Commission  in  July  2010,  the  Council  adopted  a 
decision  on  State  aid  to  facilitate  the  closure  of  uncompetitive  coal  mines71  on 
10 December  2010  in  light  of  the  expiry  of  the  current  Regulation  at  the  end  of 
201072. Member States will be able to grant aid to support coal production if there is 
a  closure  plan  whose  deadline  does  not  extend  beyond  31  December  2018  and  to 
cover  exceptional  costs  (social  welfare,  rehabilitation  of  sites  or  removal  of  waste 
water) associated with the closure of mines until 2027.  

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 201373. In 2010, 214 new State aid cases were registered and 161 decisions 
were adopted. 

1.4.3. 

State aid enforcement by national courts 

76. 

According  to  a  recent  study74,  more  and  more  cases  are  brought  before  national 
courts.  In  2010,  the  Commission  continued  its  efforts  to  improve  the  system  of 
private State aid enforcement at national level focusing on enhancing communication 
with national judges. In October 2010, it published a handbook on the "Enforcement 

70 

71 

72 

73 

74 

Community  guidelines  on  State  aid  to  promote  risk  capital  investments  in  small  and  medium-sized 
enterprises (OJ C 194, 18.8.2006, p. 2) 
Council decision of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines 
(OJ L 336, 21.12.2010, p. 24-29) 
Council  Regulation  (EC)  No  1407/2002  of  23 July  2002  on  State  aid  to  the  coal  industry  (OJ L 205, 
2.8.2002, p. 1-8) 
Community  guidelines  for  State  aid  in  the  agriculture  and  forestry  sector  2007-2013  (OJ C 319, 
27.12.2006, p. 1) 
2009  Study  on 
http://ec.europa.eu/competition/state_aid/studies_reports/enforcement_study_2009.pdf 

the  enforcement  of  State  aid 

level  available  at: 

law  at  national 

EN 

22 

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of EU State aid law by national courts"75 in order to assist national judges in dealing 
with State aid cases.  

1.4.4.  Ex-post monitoring of State aid measures 

77. 

To ensure effective enforcement of the State aid rules, the Commission has launched 
regular  ex-post  monitoring  exercises  since  2006  for  non-notified  aid  measures 
granted  under  the  GBER  or  under  approved  schemes.  In  2010,  ex-post  monitoring 
included measures covered by the GBER, as well as aid in the form of risk capital, 
aid  in  the  transport  sector,  aid  in  the  broadband  area,  cultural  aid  and  aid  to  the 
shipbuilding  sector.  The  results  of  the  first  exercises  show  that  schemes  and  BERs 
function  in  a  satisfactory  manner.  In  a  minority  of  cases  substantive  problems  or 
procedural issues were identified. 

1.4.5.  Recovery policy 

78. 

79. 

When unlawful aid is declared incompatible, the Commission is entitled to ask for its 
recovery by the Member State who granted it in order to restore the previous market 
situation. The amount of illegal and incompatible aid recovered has increased from 
EUR  2.3 billion  in  December  2004  to  EUR  10.9 billion  in  December  201076.  The 
percentage  of  illegal  and  incompatible  aid  still  to  be  recovered  has  declined 
accordingly from 75% to 14%. 

In  order  to  ensure  better  enforcement  of  its  decisions,  the  Commission  brought 
proceedings in 2010 under Article 108(2)77 in three cases and under Article 260(2)78 
in  one  case,  thus  leading  to  26  cases  under  litigation.  As  of  end  2010,  the 
Commission had 41 pending active recovery cases. 

2. 

SECTOR DEVELOPMENTS 

2.1. 

Financial services 

80. 

81. 

75 
76 
77 

78 

79 

The financial and economic crisis continued into 2010 to hit the EU financial sector. 
The  temporary  regulatory  framework  established  in  2008  was  further  extended  to 
2011  under  tightened  conditions.  Its  implementation  was  the  main  focus  of 
competition  enforcement  over  the  year,  in  particular  in  the  field  of  restructuring  of 
supported financial institutions79. 

However, the Commission maintained its vigilance over the other competition policy 
challenges  affecting  the  sector.  The  Commission  made  legally  binding  the 
commitments  offered  by  Visa  Europe  in  April  2010  concerning  its  Multilateral 
Interchange  Fee  (MIF)  for  immediate  debit  cards  transactions  applicable  to  cross-

Available at: http://ec.europa.eu/competition/publications/state_aid/national_courts_booklet_en.pdf  
These figures do not include State aid granted to the agricultural, fishery and transport sectors. 
Actions  under  Article  108(2)  are  aimed  at  condemning  a  Member  State  for  non-implementation  of  a 
State aid recovery decision. 
Actions under Article 260(2) are infringement actions aimed at condemning a Member State for non-
implementation of a Court judgment, and may include the payment of fines. 
See section 1.1. infra. 

EN 

23 

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border transactions in the EEA and to domestic transactions in nine EEA countries80 
and a number of transparency measures81. Visa Europe's maximum weighted average 
MIF  for  those  transactions  will  be  reduced  to  0.2%,  in  line  with  the  unilateral 
undertakings  previously  offered  by  MasterCard82.  The  commitments  were  assessed 
under the "merchant-indifference methodology" which seeks to set MIFs at a level at 
which merchants are indifferent as to whether a payment is made by immediate debit 
card  or  by  cash.  The  Commission  concluded  that  the  MIF  rate  proposed  by  Visa 
Europe  should  be  made  binding  and  closed  the  proceedings  as  regards  the  specific 
MIFs  covered  by  the  commitments,  while  the  rest  of  the  case  (including  MIFs  for 
credit cards) is still ongoing. 

The  Single  Euro  Payments  Area  (SEPA)  continued  to  be  an  important  focus  of 
antitrust  advocacy  in  the  field  of  financial  services  in  2010,  in  particular  through 
informal dialogue with the European Payments Council. For instance it was clarified 
that SEPA compliant card schemes do not need to cover all 32 States of the SEPA 
territory, giving new schemes a real chance of entering the market. In addition, the 
Commission  adopted  a  proposal  on  establishing  technical  requirements  for  credit 
transfers and direct debits in Euros83 on 16 December 2010. It includes provisions to 
forbid per transaction MIFs for SEPA Direct Debit after a transitional period but to 
allow MIFs for reject transactions under certain conditions. 

On  15 September  2010,  the  Commission  presented  a  proposal  for  a  Regulation  on 
over-the-counter  (OTC)  derivatives,  central  counterparties  and  trade  repositories 
which include several measures aiming at making OTC derivatives markets safer and 
at  enhancing  financial  supervision84.  It  foresees  a  common  framework  for  central 
counterparties (CCPs) in the EU and lays down the conditions for the establishment 
of  interoperability  arrangements  between  CCPs  for  cash  securities.  Interoperability 
arrangements  should  be  welcomed  from  a  competition  perspective  as  they  give 
customers a choice and allow CCPs to consolidate clearing volume at a single entity.  

Following a two and a half years review involving all interested market players and 
National  Competition  Authorities,  the  Commission  adopted  on  24 March  2010  the 
new  insurance  Block  Exemption  Regulation85  (BER)  on  agreements  in  relation  to 
joint compilations, tables and studies and  the  common coverage of certain types of 
risks (pools) in the insurance sector. In the new BER, the Commission decided not to 
renew two of the four types of cooperation covered under the previous one, namely 
agreements  concerning  standard  policy  conditions  and  security  devices,  which  are 
now addressed by the new Horizontal guidelines adopted in 2010. 

In EEA countries where the domestic MIF rates apply in the absence of other MIFs or are set directly 
by Visa Europe. 
Case COMP/39398 Visa MIF. See IP/10/1684, 8.12.2010. 
Case COMP/34579 MasterCard. See IP/09/515, 1.4.2009. 
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  technical 
requirements for credit transfers and direct debits in Euros and amending Regulation (EC) No 924/2009 
(COM(2010) 775 final, 2010/373 COD) 
Proposal for a Regulation of the European Parliament and of the Council on OTC derivatives, central 
counterparties and trade repositories (COM(2010) 484/5, 2010/0250 COD) 
Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of 
the Treaty on the Functioning of the European Union to certain categories of agreements, decisions and 
concerted practices in the insurance sector (OJ L 83, 30.3.2010, p. 1-7) 

82. 

83. 

84. 

80 

81 
82 
83 

84 

85 

EN 

24 

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85. 

The  reduced  merger  activity  persisted  in  2010  in  the  financial  sector.  The 
Commission  examined  cases  in  the  sectors  of  retail  banking  services86,  asset 
management87  and  distribution  of  mutual  funds  services88.  A  number  of  cases 
resulted from restructuring State aid decisions in the context of the financial crisis89.  

2.2. 

Energy and environment 

86. 

87. 

88. 

89. 

The  Commission  presented  in  November  2010  its  energy  strategy  for  the  next  ten 
years  in  the  framework  of  the  Flagship  Initiative  of  the  Europe  2020  strategy  on  a 
"Resource Efficient Europe"90. An open and competitive single market in the energy 
sector should contribute to a secure and sustainable supply of energy at competitive 
prices  by  encouraging  the  rapid  development  of  renewable  energies  and  by 
promoting the development of new environmentally friendly technologies.  

In 2010, the Commission continued to follow up on its 2007 energy sector inquiry, 
adopting  four  major  antitrust  decisions  whereby  the  Commission  made  binding  the 
commitments  proposed  by  undertakings  to  put  an  end  to  an  infringement.  These 
commitments  are  expected  to  have  a  major  structural  impact  on  competition  in  the 
energy internal market. 

In  the  EDF  Customer  Foreclosure  case91,  the  Commission  had  concerns  that  EDF 
may  have  abused  its  dominant  position  in  France  by  concluding  supply  contracts 
which foreclosed the market given their scope, duration and exclusive nature and by 
including resale restrictions in its supply contracts. EDF offered, for a period of ten 
years,  to  ensure  that  other  suppliers  could  compete  for  65%  on  average  of  the 
electricity EDF contracts with large French industrial users each year and to limit the 
duration of any new contract  concluded with large industrial users to five years. In 
addition, EDF committed to remove all resale restrictions in its supply contracts and 
to  assist  customers  wishing  to  resell  electricity.  These  commitments,  planned  to 
come into effect on 1 July 2010, were postponed to 1 January 2011. 

In the  Svenska  Kraftnät (SvK) case92, the Commission had concerns that SvK may 
have abused its dominant position in the Swedish electricity transmission market by 
limiting the export capacity available on interconnectors in order to relieve internal 
congestion  on  its  network  and  to  reserve  domestic  electricity  for  domestic 
consumption. SvK offered to operate the Swedish electricity market on the basis of 
several flexible bidding zones from 1 November 2011 on. This will allow electricity 
trading to adjust to available transmission capacity through market prices rather than 
through arbitrary measures. 

86 

87 
88 

89 
90 

91 
92 

Cases COMP/M.5948 Santander / Rainbow and COMP/M.5960 Crédit Agricole / Cassa di Risparmio 
della Spezia / Agences Intesa Sanpaolo 
Case COMP/M.5580 Blackrock / Barclays Global Investors UK Holdings 
Cases  COMP/M.5728  Credit  Agricole  /  Société  Générale  Asset  Management  and  COMP/M.5726 
Deutsche Bank / Sal. Oppenheim 
Cases COMP/M.5948 Santander / Rainbow and COMP/M.5968 Advent / Bain capital / RBS Worldpay 
See the Commission's Communications on "A resource-efficient Europe" (COM(2011) 21 final) and on 
"Energy 2020 – A strategy for competitive, sustainable and secure energy" (COM(2010) 639 final). 
Case COMP/39386 Long term electricity contracts in France (OJ C 133, 22.5.2010, p. 5-6) 
Case COMP/39351 Swedish Interconnectors (OJ C 142, 1.6.2010, p. 28-29) 

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25 

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90. 

91. 

92. 

93. 

In E.ON Gas93, the Commission's investigation showed that E.ON had reserved, on a 
long-term basis, the largest part of the available transport capacity at the entry points 
to  its  gas  transmission  networks,  thereby  potentially  preventing  other  gas  suppliers 
from  accessing  the  German  gas  market.  The  Commission  reached  the  preliminary 
view that the long-term reservations might have infringed EU rules on the abuse of a 
dominant market position. E.ON undertook to release about 15% of pipeline capacity 
at the entry points to its gas networks by October 2010. From October 2015, E.ON 
will further reduce its bookings of entry capacity in the NetConnect Germany grid to 
50% and in E.ON's grid for low-calorific gas to 64% of the pipeline capacity.  

In  the  ENI  case94,  the  Commission  had  concerns  that  ENI  may  have  abused  its 
dominant  position  in  the  gas  transport  markets  by  refusing  to  grant  competitors 
access  to  capacity  available  on  the  transport  network,  by  granting  access  in  an 
impractical  manner  and  by  strategically  limiting  investment  in  ENI's  international 
transmission pipeline system. ENI may also have had the incentive to foreclose rivals 
to protect its margins in the downstream gas supply markets. ENI committed to the 
structural divestment of its international transport activities for the import of gas into 
Italy from Russia and from Northern Europe.  

In  the  context  of  the  open  investigations,  the  Commission  is  still  examining  aid 
granted  in  the  form  of  regulated  electricity  tariffs  in  France  and  Spain.  Regulated 
tariffs  may  result  in  undue  price  advantages  for  electricity  end-users  and  create 
market foreclosure. In the majority of Member States, regulated tariffs in favour of 
medium and large undertakings have been abolished or are being phased-out. France 
will  phase-out  regulated  tariffs  for  medium  and  large  undertakings  in  2015,  in  the 
framework  of  a  reform  of  the  electricity  market  (loi  Nome)  which  is  set  to  be 
implemented as of 2011. Spain abolished such tariffs in 2009.  

The  Commission  cleared  a  number  of  measures  in  support  of  energy  saving, 
renewable  energy  production  and  remediation  of  contaminated  sites  under  the 
horizontal  environmental  aid  guidelines95.  In  particular,  the  Commission  authorised 
investment  aid  for  the  implementation  of  an  innovative  production  process  to  one 
German steel producer and investment aid to another German steel producer for the 
implementation of a process recycling the gas emitted in the steelmaking process96. 
The Commission cleared investment aid for the construction of a biomass boiler in 
France97and for the construction of a high-efficiency combined heat and power plant 
in  Austria98.  The  Commission  also  authorised  aid  to  remediate  two  contaminated 
sites in Austria99. 

94. 

The  Commission  dealt  with  two  individual  support  measures  for  industrial-scale 
carbon  capture  and  storage  (CCS)  demonstration  projects.  The  Commission 

93 
94 
95 
96 

97 
98 
99 

Case COMP/39317 E.On Gas Foreclosure. See IP/10/494, 4.5.2010. 
Case COMP/39315 ENI. See IP/10/1197, 29.9.2010. 
Community guidelines on State aid for environmental protection (OJ C 82, 1.4.2008, p.1) 
Case  N450/2009  Top  Gas  Recycling  (TGR)  Project  -  Aid  to  Arcelor  Mittal  Eisenhüttenstadt  GmbH 
(OJ C 94, 14.4.2010, p. 9) 
Case N650/2009 Aid for the realisation of a biomass (wood) fueled thermo boiler 
Case N295/2008 Investment aid to Mellach power plant (OJ C 154, 12.6.2010, p. 1) 
Cases N135/2000 Aid for the Remediation of a Contaminated Site in Linz (OJ C 312, 17.11.2010, p. 5-
6)  and  N197/2010  Individual  Aid  for  the  Remediation  of  the  Contaminated  Site  in  Unterkärnten 
(OJ C 265, 30.9.2010, p. 1) 

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95. 

authorised investment aid for a CCS demonstration project in  Rotterdam  where  the 
CO2  from  power  generation  is  captured  and  stored  in  a  depleted  gas  field100.  The 
Commission also approved investment aid to a Dutch power generator for a project 
in which the CCS technology is tested on a coal gasification process101. 

In  the  area  of  security  of  electricity  supply,  the  Commission  approved  aid  for  the 
construction of a 400 MW thermal power plant in Latvia102 on the basis of a number 
of  special  factors  including  the  isolation  of  the  Latvian  energy  market,  Latvia's 
increasing  dependence  on  gas  and  the  closure  of  the  Lithuanian  Ignalina  nuclear 
power  plant  at  the  end  of  2009.  The  Commission  also  authorised  a  Dutch  scheme 
using tax deductions to encourage investment in the exploration and exploitation of 
small  gas  fields  on  the  Dutch  continental  shelf  in  the  North  Sea103.  It  authorised  a 
Spanish  aid  scheme  intended  to  compensate  electricity  generators  for  using 
indigenous coal for some of their production as a public service obligation104. While 
the Electricity Market Directive105 allows Member States to take such measures for 
security  of  supply  reasons,  they  are  subject  to  State  aid  rules,  in  particular  the 
Community framework for State aid in the form of public service compensation106. 
The Commission found no manifest error of assessment in the justifications made by 
Spain  as  regards  the  definition  of  the  public  service  obligation  and  verified  that  all 
the requirements of the framework were satisfied. Furthermore, the scheme being of 
a transitional nature, Spain undertook not to extend it beyond 2014; it also committed 
to  ensure  its  consistency  with  current  and  future  EU  rules  on  State  aid  to  the  coal 
industry. 

2.3. 

Electronic Communications 

96. 

97. 

100 
101 
102 
103 
104 
105 

106 

107 
108 

As a part of the Europe 2020 Strategy, the Commission launched on 26 August 2010 
its Digital Agenda for Europe107. It sets out the Commission's priorities in the field of 
the  digital  economy,  among  which  the  creation  of  a  single  market  for  telecom 
services. In particular, it puts forward the Commission objective to bring to near zero 
the  difference  between  roaming  and  national  tariffs  by  2015.  It  also  sets  ambitious 
target for fast and ultra-fast internet access in Europe. 

In  2010,  more  effective  competition  due  to  competition  law  enforcement,  sector 
regulation,  technological  developments  and  new  business  models  resulted  in  lower 
prices  for  electronic  communication  services  and  innovative  service  offers.  A 
Commission  report  released  in  June  2010108  showed  that  EU  telecom  markets  are 
becoming more competitive thanks to the Commission's guidance in the consultation 

Case N381/2010 CCS project in Rotterdam harbour area 
Case N190/2009 CO2 Catch-up pilot project at Nuon Buggenum plant (OJ C 238, 3.9.2010, p. 1) 
Case N675/2009 Tender for Aid for New Electricity Generation Capacity (OJ C 213, 6.8.2010, p. 1) 
Case N718/2009 Development of marginal offshore gas fields (OJ C 270, 6.10.2010, p. 1) 
Case N178/2010 Preferential dispatch of indigenous coal plants (OJ C 312, 17.11.2010, p. 6) 
Directive  2003/54/EC  of  the  European  Parliament  and  of  the  Council  of  26 June  2003  concerning 
common  rules  for  the  internal  market  in  electricity  and  repealing  Directive  96/92/EC  (OJ L 176, 
15.7.2003, p. 37)  
Community framework for State aid in the form of public service compensation (OJ C 297, 29.11.2005, 
p. 4)  
A Digital Agenda for Europe (COM(2010) 245 final/2) 
Market Reviews under the EU Regulatory Framework – Further steps towards the consolidation of the 
internal market for electronic communications (COM(2010) 271 final) 

EN 

27 

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98. 

99. 

100. 

review  process  under 

and 
communications. 

the  EU 

regulatory 

framework 

for  electronic 

In  the  Telekomunikacja  Polska  case109,  the  Commission  sent  on  1 March  2010  a 
Statement  of  Objections  to  the  Polish  incumbent  operator,  preliminary  concluding 
that  it  had  infringed  Article  102  by  abusing  its  dominant  position  in  refusing  to 
supply remunerated access to its wholesale broadband services. 

The merger of France Télécom's and Deutsche Telekom's UK subsidiaries110, cleared 
on  1 March  2010,  highlighted  the  importance  of  spectrum  ownership  in  the 
development  of  4G  networks.  The  investigation  showed  that  the  parties'  combined 
contiguous  spectrum  could  result  in  the  new  entity  being  the  only  mobile  network 
operator in the UK able to offer next-generation mobile data services through Long 
Term  Evolution  technology  at  the  best  possible  speeds  in  the  medium  term.  The 
clearance  decision  was  thus  conditional  upon,  inter  alia,  divestiture  of  a  quarter  of 
the parties' combined spectrum in the 1800 MHz band. 

In  order  to  achieve  its  objectives  of  reaching  fast  broadband  coverage  for  all 
European  citizens  and  ultra-fast  broadband  subscriptions  for  at  least  50%  of 
European  households  by  2020,  the  Commission  assessed  and  approved  the  use  of 
State  aid  and  other  types  of  public  funding  under  the  broadband  guidelines111  for 
approximately  EUR  1.8 billion  that  generated  total  investments  in  broadband 
networks of more than EUR 3.5 billion.  

2.4. 

Information and Communication Technology (ICT) 

101. 

102. 

Efficient ICT products and services are essential to the smart growth put forward as a 
major objective of the Europe 2020 Strategy. Preserving opportunities for new firms 
to  enter  the  market  and  challenge  established  players  is  essential  to  realise  the  full 
potential of the digital economy. Competition can be fostered by interoperability and 
efficient  standards since they typically favour entry  by a greater number  of players 
and drive down the costs of innovation. 

Against  this  background,  the  Commission  sought  to  provide  more  guidance  on 
standardisation  agreements  in  its  guidelines  on  cooperation  agreements  adopted  on 
14 December 2010. For the positive effects of standardisation to fully materialise, the 
standard-setting process should be transparent and accessible to all interested market 
players. In addition, holders of intellectual property rights are encouraged to commit 
to  license  on  fair,  reasonable  and  non-discriminatory  terms  (FRAND  commitment) 
and effectively adhere thereto to ensure accessibility of the standard.  

103. 

In spring 2010, the Commission launched two parallel preliminary investigations into 
business  practices  by  Apple  relating  to  the  iPhone112.  Apple  had  made  warranty 
repairs  service  available  only  in  the  country  where  the  iPhone  was  bought,  which 
could  have  potentially  led  to  a  partitioning  of  the  EEA  market.  Apple  had  also 

109 
110 
111 

112 

Case COMP/39525 Telekomunikacja Polska. See IP/10/213, 1.3.2010. 
Case COMP/M.5650 T-Mobile / Orange (OJ C 108, 28.4.2010, p. 4) 
Community  guidelines  for  the  application  of  State  aid  rules  in  relation  to  rapid  deployment  of 
broadband networks (OJ C 235, 30.9.2009, p. 7-25) 
See IP/10/1175, 25.9.2010. 

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28 

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restricted  the  terms  and  conditions  of  its  licence  agreement  with  independent 
developers of applications requiring the use of Apple's native programming tools and 
approved  software  languages  to  the  detriment  of  third-party  software.  This  could 
have ultimately resulted in shutting out competition from applications developed for 
running  on  other  mobile  platforms.  Since  Apple  decided  in  September  2010  to 
introduce cross-border iPhone warranty repair services within the EEA and to relax 
the restrictions on the development tools for iPhone apps, the Commission decided to 
close both investigations. 

104. 

105. 

On  26 July  2010,  the  Commission  initiated  formal  antitrust  investigations  against 
IBM Corporation based on two different alleged infringements of EU antitrust rules 
related to the abuse of a dominant position in the market for mainframe computers113. 
The  investigation  focuses  on  IBM's  alleged  tying  of  mainframe  hardware  to  its 
mainframe  operating  system  and  on  IBM's  alleged  exclusionary  practices  towards 
competing suppliers of mainframe maintenance services.  

On  30 November  2010,  the  Commission  initiated  formal  proceedings  against 
Google114 with a view to further investigating allegations that Google has abused a 
dominant market position in online search, online advertising and online advertising 
intermediation, following complaints from several search service providers. 

106.  Microsoft sent to the Commission the first two reports on the implementation of the 
Choice  Screen  software  which  Microsoft  agreed  to  distribute  to  users  of  Windows 
within the EEA in order to offer an unbiased choice between the most widely used 
web  browsers115.  By  the  end  of  November  2010,  the  Choice  Screen  had  been  seen 
more  than  270  million  times,  and  more  than  84  million  web  browsers  had  been 
downloaded through it. 

107. 

108. 

On  21 January  2010,  the  Commission  cleared  the  planned  acquisition  of  Sun 
Microsystems  by  Oracle  Corporation,  the  leading  proprietary  database  software 
vendor116.  The  acquisition  raised  the  issue  of  the  competitive  effect  of  open  source 
software  products,  such  as  Sun's  database  MySQL.  Following  a  second  phase 
investigation, the Commission approved the acquisition unconditionally.  

The  Commission  conditionally  approved  the  acquisition  of  Tandberg  by  Cisco117 
since  the  investigation  revealed  concerns  regarding  the  market  for  high-end 
videoconference  products  due  to  interoperability  issues.  Conditions  included  the 
divestment  of  the  Telepresence  Interoperability  Protocol  developed  by  Cisco  to  an 
independent  industry  body  to  ensure  interoperability  and  allow  other  vendors  to 
participate in its development.  

113 

114 

115 
116 
117 

Cases  COMP/39511  IBM  Corporation,  COMP/39790  TurboHercules/IBM  and  COMP/39692  IBM 
Maintenance Services. See IP/10/1006, 26.7.2010. 
Cases COMP/39740 Foundem/Google, COMP/39775 Ejustice/Google and COMP/39768 Ciao/Google. 
See IP/10/1624, 30.11.2010. 
Case COMP/39530 Microsoft (tying) (OJ C 36, 13.2.2010, p. 7). 
Case COMP/M.5529 Oracle / Sun Microsystems (OJ C 91, 9.4.2010, p. 7) 
Case COMP/M.5669 Cisco / Tandberg. See IP/10/377, 29.3.2010. 

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2.5.  Media 

109. 

110. 

111. 

112. 

In  the  context  of  the  transition  to  digital  broadcasting,  the  Commission  sent  in 
November 2010 a letter of formal notice to the French authorities regarding the 2007 
French  law  granting  existing  analogue  TV  broadcasters  the  possibility  to  obtain  an 
additional  national  TV  channel  in  the  digital  switchover.  In  the  absence  of 
convincing  evidence  that  such  TV  broadcasters  obtained  the  additional  channels 
based  on  objective,  transparent,  non-discriminatory  and  proportionate  criteria,  the 
Commission considered that it appeared to be in breach of EU law118.  

In September 2010, under the ongoing infringement procedure concerning the Italian 
broadcasting  legislation,  the  Italian  Authority  for  Communications  adopted  criteria 
and  rules  aimed  at  ensuring  that  more  frequencies  resulting  from  the  "digital 
dividend" are assigned to newcomers and smaller existing companies. The tender for 
such frequencies should be launched in 2011.  

In December 2010, the Commission cleared the acquisition by News Corporation of 
the  UK  pay-TV  operator  British  Sky  Broadcasting  (BSkyB)119.  The  Commission 
concluded that the transaction would not lead to a significant impediment to effective 
competition, without prejudice to the investigation by the competent UK authorities 
of whether it is compatible with the UK interest in media plurality. 

The  Commission  continued 
to  approve  State  financing  for  public  service 
broadcasters where both the public service remit and the financing are determined in 
full transparency and where the State funding does not exceed what is necessary to 
fulfil  the  public  service  mission.  On  20 July  2010,  the  Commission  closed  with  a 
positive decision the formal investigations into the new financing system for public 
service broadcasters in France and Spain in view of the phasing out of advertising by 
those chains120 and closed the investigation into the existing financing regime for the 
Dutch public service broadcasters, following amendments and formal commitments 
by the Netherlands121. 

2.6. 

Pharmaceutical industry 

113. 

Following the conclusion of the inquiry into the pharmaceutical sector in 2009122, the 
Commission  announced  the  revision  of  the  so-called  "Transparency  Directive" 
setting minimum rules for pricing and reimbursement procedures123. The review will 
examine  ways  to  improve  the  transparency  of  such  measures  and  to  avoid  related 
market  access  delays,  in  particular  for  generic  medicines.  A  number  of  Member 
States  (e.g.  Spain,  Italy  or  Austria)  also  took  up  recommendations  from  the  sector 
inquiry on improving market access for generic medicines. 

118 

119 
120 

121 
122 
123 

Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic 
communications networks and services (OJ L 249, 17.9.2002, p. 21-26) 
Case COMP/M.5932 News Corp / BSkyB. See IP/10/1767, 21.12.2010. 
Cases C27/2009 Subvention pluriannuelle pour France Télévisions and C38/2009 New tax-based 
funding system for public broadcasting in Spain (OJ L 1, 4.1.2011, p. 9-19) 
Case E5/2005 Yearly financing of Dutch public broadcasters (OJ C 74, 24.3.2010, p. 4) 
Executive Summary of the Pharmaceutical Sector Inquiry, 8.7.2009  
Council  Directive  89/105/EEC  of  21 December  1988  relating  to  the  transparency  of  measures 
regulating the prices of medicinal products for human use and their inclusion in the scope of national 
health insurance systems (OJ L 40, 11.2.1989, p. 8-11) 

EN 

30 

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114. 

115. 

116. 

117. 

118. 

The  sector  inquiry  also  contributed  to  the  momentum  towards  the  adoption  of  the 
Community  patent  and  the  specialised  patent  litigation  system  in  Europe  as 
advocated  and  proposed  by  the  Commission.  On  10 December  2010,  the  Council 
indicated  that  an  enhanced  cooperation  is  the  only  option  for  moving  ahead  on  the 
creation of a unified EU patent system. The Commission submitted such a proposal 
on 14 December 2010124. 

The  Commission  also  started  to  monitor  patent  settlements  in  the  EU125.  The 
proportion  of  patent  settlements  in  the  pharmaceutical  sector  that  are  potentially 
problematic  fell  to  10%  in  the  period  July  2008  to  December  2009  compared  with 
22%  in  the  period  covered  by  the  sector  inquiry  (January  2000-June  2008).  The 
simultaneous increase in the overall number of patent settlements increased showed 
that companies are not prevented from concluding settlements by the Commission's 
ongoing enforcement action. 

Different  enforcement  actions  are  under  way  as  a  direct  follow-up  to  the  sector 
inquiry. The Commission is investigating patent settlement agreements concluded by 
Servier and a number of generic operators  for the hypertension drug perindopril126. 
On similar issues, the Commission also opened formal proceeding against the Danish 
its  antidepressant  drug 
pharmaceutical  undertaking  Lundbeck 
citalopram127.  

relating 

to 

The  pharmaceutical  sector  also  became  a  priority  for  a  number  of  National 
Competition Authorities (NCA). For instance, in the UK, the Office of Fair Trading 
(OFT) issued a Statement of Objections to Reckitt Benckiser in February 2010 which 
admitted  the  infringement  and  agreed  to  pay  a  fine  of  GBP  10.2  million128.  The 
Italian  NCA  opened  a  formal  investigation  against  the  originator  company  Pfizer 
over  a  potential  abuse  of  the  patent  system  by  artificially  prolonging  patent 
protection for the drug latanoprost. 

The consolidation trend in the pharmaceutical sector continued in both the originator 
and  the  generic  segments  of  the  market.  The  main  cases  that  were  examined  were 
Abbott / Solvay Pharmaceuticals, Teva / Ratiopharm and Novartis / Alcon129. These 
cases  were  cleared  in  the  first  phase  with  commitments.  Given  that  pharmaceutical 
companies  are  often  active  worldwide,  the  procedures  involved  cooperation  with 
other competition authorities around the world.  

2.7. 

Healthcare services 

119. 

The  Commission  adopted  its  first  antitrust  decision  in  the  health  services  market 
imposing  a  fine  of  EUR  5 million  on  the  French  Association  of  Pharmacists 
(ONP)130. The Commission condemned the market behaviour of ONP in the French 

124 

125 
126 
127 
128 
129 

130 

Proposal for a Council decision authorising enhanced cooperation in the area of the creation of unitary 
patent protection (COM(2010) 790 final, 2010/0384 NLE) 
Available at: http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry  
Case COMP/39612 Servier (perindopril) 
Case COMP/39226 Lundbeck. 
Available at: http://www.oft.gov.uk/news-and-updates/press/today?prid=749499  
Cases  COMP/M.5661  Abbott  /  Solvay  Pharmaceuticals  (OJ C 89,  7.4.2010,  p. 1)  and  COMP/M.5778 
Novartis / Alcon 
Case COMP/39510 ONP. See IP/10/1683, 8.12.2010. 

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market  for  clinical  laboratory  testing.  In  particular,  it  established  that  ONP  limited 
possible price reductions for clinical testing and restricted the development of certain 
groups  of  laboratories  with  a  view  to  protecting  the  economic  interests  of  the 
majority of its members. 

120. 

During 2010, the Commission examined a number of complaints lodged by private 
health  service  providers  against  their  allegedly  unfair  treatment  or  against  potential 
excessive compensation of publicly-owned hospitals. These complaints usually came 
from operators in Member States with health care markets more open to competition 
(e.g. Belgium, France, Germany and the Netherlands).  

2.8. 

Transport 

121. 

The  economic  downturn  of  2009  had  a  significant  impact  on  almost  all  transport 
sectors  but  2010  proved  to  be  a  year  of  progressive  recovery.  By  the  end  of  2010, 
prices in air and maritime transport had largely come back to pre-crisis levels. 

2.8.1.  Air transport 

122. 

123. 

On 14 July 2010, the Commission put an end to a major antitrust case under Article 
101  in  the  air  transport  sector  by  making  legally  binding  commitments  offered  by 
British  Airways,  American  Airlines  and  Iberia131  in  response  to  the  competition 
concerns  stemming  from  their  agreement  to  coordinate  prices,  capacity,  schedules, 
marketing  and  sales  and  to  share  revenues  on  transatlantic  routes.  To  address  the 
identified  competition  concerns,  the  three  airline  companies  committed  to  release 
seven slot pairs at London Heathrow or London Gatwick airports on four routes, to 
offer fare combinability and special pro-rate agreements and to provide competitors 
access to the parties' frequent flyer programmes. This decision will entail significant 
benefits  for  European  consumers  by  ensuring  that  sufficient  competition  on  the 
transatlantic flights, in particular from London, is maintained. 

In 2010,  air transport concentrations  constituted an  important focal point in  merger 
control,  reflecting  the  ongoing  industry  consolidation.  On  14 July  2010,  the 
Commission  cleared  the  merger  between  British  Airways  and  Iberia  following  a 
market  investigation  which  showed  that  the  merged  entity  will  continue  to  face 
sufficient  competition  in  passenger  and  air  cargo  transport  as  well  as  ground 
handling132.  On  27 July  2010,  the  Commission  approved  the  merger  of  United 
Airlines and Continental Airlines which are both US carriers providing scheduled air 
passenger  and  cargo  transport  between  the  EEA  and  the  US133.  The  market 
investigation confirmed the complementary nature of their transatlantic networks. On 
30 July  2010,  the  Commission  opened  an  in-depth  investigation  of  the  planned 
merger between Olympic Air and Aegean Airlines following initial indications that 
the  proposed  concentration  would  lead  to  very  high  market  shares  on  a  number  of 
routes134. 

131 
132 
133 
134 

Case COMP/39596 BA/AA/IB. See IP/10/936 and MEMO/10/330, 14.7.2010. 
Case COMP/M.5747 British Airways / Iberia (OJ C 241, 8.9.2010, p. 1) 
Case COMP/M.5889 United Airlines / Continental Airlines (OJ C 225, 20.8.2010, p. 1) 
Case COMP/M.5830 Olympic Air / Aegean Airlines, (OJ C 174, 1.7.2010, p. 16) 

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124. 

125. 

126. 

The  Eyjafjallajökull  volcano  eruption  in  Iceland  in  April  2010  created  a  cloud  of 
volcanic  ash  which  covered  most  of  Europe,  except  the  Mediterranean  region 
airspace. On 4 May 2010, the Council agreed to "recall the existing legal framework 
applicable  to  potential  support  measures  by  Member  States"  (Article  107(2)(b) 
TFEU) in its conclusions on the EU response to the consequences of the volcanic ash 
cloud on air transport. However, no Member State expressed in 2010 its intention to 
grant State aid to the air transport industry in the above mentioned context. 

Several  State  aids  for  investments  in  airport  infrastructure  were  approved  as 
compatible with the internal market for airports in the UK (Derry Airport), in Finland 
(Vaasa  airport  and  Oulu  airport)  and  in  Latvia  (Riga  Airport)135.  The  Commission 
also  closed  the  formal  investigation  procedure  into  the  agreement  concluded  until 
2016 between Bratislava Airport and Ryanair by concluding that no advantage was 
being granted to Ryanair136.  

Besides, the Commission opened formal investigation procedures in February 2010 
on the State aid aspects of a loan granted to ČSA-Czech Airlines by a State-owned 
entity (Osinek) as well as a subsequent liberation of the collaterals of the loan137 and 
into  several  measures  granted  by  the  Hungarian  authorities  to  support  Malév,  the 
national  air  carrier,  in  the  context  of  its  privatisation  and  subsequent  re-
nationalisation138  in  December  2010.  Finally,  the  Commission  authorised  in 
November 2010 a rescue aid in the form of a loan facility worth EUR 52 million for 
the  Maltese  flag  carrier139  to  tackle  liquidity  problems  faced  by  Air  Malta  until  a 
sound restructuring plan is submitted to the Commission. 

2.8.2.  Rail and inland transport 

127. 

128. 

135 

136 
137 

138 
139 
140 

141 

142 

The  Commission  adopted  a  proposal  to  recast  the  first  railway  package  on 
17 September 2010140. The proposal aims at increasing competition on rail market by 
improving access to rail-related services such as terminals and maintenance facilities 
and by strengthening the powers of the national rail regulators. 

In the field of State aid control, the Commission adopted in February 2010 its first 
decision  applying  the  new  regulation  on  public  passenger  transport  services  which 
entered  into  force  on  3 December  2009141.  The  Commission  thus  concluded  the 
formal  investigation  procedure  initiated  in  2008  regarding  the  public-service 
contracts of the Danish railway company Danske Statsbaner (DSB)142. It found that 

Cases  NN65/2009  Derry  Airport  (OJ C 144,  3.6.2010,  p. 27),  N397/2009  Vaasa  Airport  (OJ C 29, 
5.2.2010), N286/2010 Oulu Airport and N41/2010 Riga Airport (OJ C 143, 2.6.2010) 
Case C12/2008 (ex NN74/2007) Agreement between Bratislava Airport and Ryanair 
Case  C6/2010  Possible  State  aid  implications  of  a  loan  provided  by  Osinek  a.s.  See  IP/10/179, 
24.2.2010. 
Case C38/2010 Malév Hungarian Airlines. See IP/10/1753, 21.12.2010. 
Case N504/2010 Air Malta plc. See IP/10/1509, 15.11.2010. 
Proposal for a Directive of the European Parliament and of the Council establishing a single European 
railway area (COM(2010) 475 final, COD 2010/0253) 
Regulation  (EC)  No  1370/2007  of  the  European  Parliament  and  the  Council  of  23 October  2007  on 
public  passenger  services  by  rail  and  road  repealing  Council  regulations  (EEC)  No  1191/69  and  No 
1107/70 (OJ L 315, 3.12.2007, p. 1-13) 
Case  C41/2008  Public  service  contracts  between  the  Danish  Government  and  Dankse  Statbaner.  See 
IP/10/178, 24.2.2010. 

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the  compensation  paid  by  the  Danish  government  every  year  to  DSB  for  the  costs 
incurred  in  meeting  its  public-service  obligations  was  limited  to  what  was  strictly 
necessary to cover those costs. The Commission authorised on 26 May 2010 the plan 
of  Société  nationale  des  chemins  de  fer  belges  (SNCB)  to  restructure  its  freight 
activities143  and  authorised  in  December  2010  a  rescue  aid  of  around  EUR 
128 million  for  BDZ  EAD,  the  State-owned  Bulgarian  railway  operating  on  both 
freight and passenger railway markets144. 

129. 

In the field of merger control, several acquisitions were approved by the Commission 
conditional to the divestment of activities in certain geographic markets, such as the 
proposed  acquisition  of  rail  and  bus  operator  Arriva  plc  of  the  UK  by  Deutsche 
Bahn145 or to commitments to ensure an effective access for new entrants, such as the 
"New  Eurostar"  joint  venture  between  the  SNCF  and  London  Continental 
Railways146. 

2.8.3.  Maritime transport 

130. 

131. 

132. 

133. 

143 

144 
145 
146 
147 
148 

149 

The  Commission  continued  in  2010  to  pursue  advocacy  efforts  vis-à-vis  third 
countries in the area of maritime antitrust. Its consistent message is to advocate the 
exemption  from  antitrust  rules  of  certain  consortia  –  an  operational  cooperation 
between liner shipping carriers for joint service of cargo carriage – whilst prohibiting 
all forms of price-fixing and capacity-fixing agreements. 

In  January  2010  the  Commission  initiated  proceedings  against  the  "Baltic  Max 
Feeder"  scheme  whereby  owners  of  container  vessels  intended  to  jointly  cover  the 
costs  of  removing  vessels  from  service147.  The  planned  scheme  was  subsequently 
abandoned and the case closed. 

Also  in  January  the  Commission  approved  for  the  first  time  aid  for  launching  a 
"Motorways of the Sea" project on the basis of both the maritime guidelines and the 
complementary  aid  guidelines148.  The  project  concerns  the  establishment  of  a 
maritime link between the French port of Nantes-Saint Nazaire and the Spanish port 
of  Gijón149  and  aims  at  capturing  between  3%  and  5%  of  the  road  traffic  currently 
passing through the west of the Pyrenees. 

As regards State aid to finance port infrastructure, the Commission decided to launch 
a  study  to  collect  information  to  better  understand  the  functioning  of  ports  and  the 
public  financing  of  their  infrastructure.  On  the  basis  of  its  results,  the  Commission 
will be able to define a reliable approach for moving forward in that field.  

Case  N726/2009  Aide  à  la  restructuration  des  activités  "fret"  de  la  SA  de  droit  public  SNCB.  See 
IP/10/615, 26.5.2010. 
Case N402/2010 Rescue aid for the Bulgarian State Railways EAD (BDZ). See IP/10/1733. 
Case COMP/M.5855 Deutsche Bahn / Arriva plc (OJ C 276, 13.10.2010, p. 1) 
Case COMP/M.5655 SNCF / LCR / Eurostar (OJ C 272, 8.10.2010, p. 2) 
Case COMP/39699 Baltic Max Feeder. See IP/10/374, 26.3.2010. 
Guidance on State aid complementary to Community funding for the launching of the motorways of the 
sea (OJ C 317, 12.12.2008, p. 10) 
Cases N573/2009 and N647/2009 Aide à la mise en œuvre et à l'exploitation de l'autoroute de la mer 
entre  le  port  de  Nantes-Saint-Nazaire  (France)  et  le  port  de  Gijon  (Espagne)  opérée  par  GLD 
Atlantique (OJ C 74, 24.3.2010, p. 5) 

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2.9. 

Postal services 

134. 

135. 

136. 

Under the third Postal Directive150, most Member States will have to accomplish full 
market  opening  by  eliminating  any  remaining  reserved  area  by  31 December  2010, 
with a two years extension allowed for eleven Member States151. The liberalisation 
process  is  progressing  swiftly  and  certain  Member  States  (Estonia,  Finland, 
Germany,  the  Netherlands,  Sweden  and  the  United  Kingdom)  already  fully  opened 
their  postal  markets  ahead  of  the  deadline.  Despite  the  progress  to  date,  genuine 
competition, notably in the letter mail segment, is only just beginning to emerge. It is 
essential to ensure that the possible compensation received by the universal service 
provider  for  the  delivery  of  public  service  is  consistent  with  the  actual  costs  of  the 
services and does not constitute an unfair advantage in order to ensure a level playing 
field between competitors and to promote competition in the postal services.  

In this context, the Commission continued in 2010 its investigation opened in 2007 
into  the  alleged  overcompensation  of  Deutsche  Post  AG152  for  carrying  out  its 
universal service obligations from 1989 to 2007. Following the confirmation of the 
annulment of the 2002 Commission decision by the Court of Justice153, the ongoing 
investigation  follows,  as  demanded  by  the  Court  of  Justice,  a  comprehensive 
approach including all universal services provided by Deutsche Post.  

In  2010,  the  Commission  continued  its  formal  investigation  procedure  opened  in 
2009  in  order  to  examine  whether  certain  measures  in  favour  of  the  Belgian  postal 
operator De Post - La Poste are in line with EU State aid rules154. The Commission's 
current  investigation,  opened  on  13 July  2009,  is  proceeding  swiftly  with  active 
cooperation  from  the  Belgian  authorities  and  concerns  a  number  of  measures, 
including  the  compensation  granted  by  Belgium  for  public  service  tasks,  capital 
injections, relief of pension liabilities, transfer of buildings and tax exemptions. 

137.  With  its  final  decision  of  26 January  2010155,  the  Commission  closed  the  formal 
investigation  procedure  in  which  it  had  examined  an  alleged  State  aid  granted  in 
favour of French La Poste in the form of an unlimited State guarantee resulting from 
its public-law status. The Commission did not challenge the public service mission of 
La Poste nor its public ownership and control in light of the neutrality of European 
rules  regarding  property  regimes  applicable  in  Member  States.  However,  it 
considered  that  the  State  guarantee  resulting  from  the  special  status  of  La  Poste 
represented  incompatible  State  aid  and  should  be  removed,  which  was  achieved 
through  the  conversion  of  La  Poste  into  a  public  limited  company  on  1 March 
2010156. 

150 

151 

152 

153 
154 
155 
156 

Directive  2008/6/EC  of  the  European  Parliament  and  of  the  Council  of  20 February  2008  amending 
Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal 
services (OJ L 52, 27.2.2008, p. 3)  
Czech  Republic,  Greece,  Cyprus,  Latvia,  Lithuania,  Luxembourg,  Hungary,  Malta,  Poland,  Romania 
and Slovakia 
Case C36/2007 Complaint against the German State for unlawful State aid to Deutsche Post (OJ C 245, 
19.10.2007 p. 21) 
Case C-399/08 P European Commission v Deutsche Post AG 
Case C20/2009 (ex N763/2002) Mesures en faveur de La Poste (OJ C 176, 29.7.2009, p. 17) 
Case C56/2007 Garantie d'Etat illimitée - La Poste (France) (OJ L 274, 19.10.2010, p. 1) 
Loi No 2010-123 du 9 février 2010 relative à l'entreprise publique La Poste et aux activités postales 

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2.10.  Automotive industry 

138. 

139. 

140. 

141. 

In  2010,  the  motor  vehicle  sector  began  to  emerge  from  the  crisis  that  hit  it 
particularly  hard  in  2008  and  2009.  In  addition  to  sustaining  this  recovery,  future 
challenges for the industry include the launch of more resource-efficient cars and the 
tailoring  of  distribution  networks  to  demand  levels  and  growing  international 
competition.  Potential  competition 
the  necessary 
issues 
restructuring  of  the  sector  and  fostering  the  development  of  "greener"  cars  while 
maintaining a level playing field. 

include  managing 

On  27 May  2010,  the  Commission  adopted  new  competition  rules  for  agreements 
between vehicle manufacturers and their authorised dealers, repairers and spare parts 
distributors.  The  new  framework  applies  the  general  Vertical  Block  Exemption 
Regulation  adopted  on  20 April  2010  to  such  agreements  from  2010  as  regards  the 
aftermarkets,  and  2013  as  regards  the  markets  for  the  sale  of  new  vehicles.  In 
addition,  the  Commission  adopted  Regulation  461/2010157,  which  sets  out  three 
supplementary hardcore clauses relating to spare parts distribution, and a detailed set 
of  supplementary  guidelines  for  assessing  vertical  agreements  in  the  sector158.  The 
new rules represent a flexible and proportionate response to the differing intensities 
of  competition  on  the  primary  and  aftermarkets,  and  broadly  align  the  rules 
applicable  to  agreements  between  car  manufacturers  and  their  authorised  dealers, 
repairers and spare part distributors with the general regime. 

In 2010, 15 mergers in the automotive industry were notified to the Commission and 
all  were  cleared  in  the  first  phase  without  commitments.  The  acquisition  of  Volvo 
Cars by the Chinese companies Geely and Daqing159 was the only case involving car 
manufacturers. 

The  automotive  sector  had  the  possibility  to  make  use  of  the  exceptional  support 
measures contained in the State aid Temporary Framework as long as the approved 
schemes  were  not  restricted  to  this  activity  but  open  to  all  the  sectors  of  the 
economy.  In  particular,  the  Commission  authorised  in  February  2010  the  plans 
notified by Sweden to provide a guarantee that would enable Saab Automobile AB160 
to access a loan from the European Investment Bank (EIB) for an investment project 
worth  EUR  1 billion  related  inter  alia  to  fuel  efficiency  and  car  safety.  On 
16 December,  the  Commission  authorised  a  comparable  guarantee  by  Sweden  to 
enable  Volvo  Cars  Corporation  to  access  a  EUR  500 million  loan  from  the  EIB  to 
finance  research  and  engineering  activities  related  to  fuel  efficiency  and  road 
safety161. 

157 

158 

159 
160 
161 

Commission Regulation (EU) No 461/2010 of 27 May 2010 on the application of Article 101(3) of the 
Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted 
practices in the motor vehicle sector (OJ L 129, 28.5.2010, p. 52-57) 
Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles 
and for the distribution of spare parts for motor vehicles (OJ C 138, 28.5.2010, p. 16) 
Case COMP/M.5789 Geely / Daqing / Volvo Cars (OJ C 187, 10.7.2010, p. 3) 
Case N541/2009 State guarantee in favour of SAAB 
Case N520/2010 State guarantees in favour of Volvo Personvagnar AB (Volvo Cars Corporation)  

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2.11. 

Food supply chain 

142. 

143. 

144. 

3. 

145. 

In July 2010, the Commission set up the High Level Forum for a Better Functioning 
Food  Supply  Chain162.  The  Forum  will  in  particular  tackle  unfair  trading  practices 
resulting from contractual imbalances and differences in bargaining power between 
suppliers  and  buyers.  These  practices,  which  must  be  distinguished  from 
anticompetitive practices, normally fall under national contract or commercial laws. 

Several  potential  competition  challenges  are  nonetheless  affecting  the  food  supply 
chain  in  Europe.  The  ECN  Food  Subgroup  continued  to  serve  as  an  operational 
framework for discussion and coordination among National Competition Authorities 
(NCAs)  on  these  issues.  A  significant  number  of  NCAs  have  actively  undertaken 
inquiries in the food and retail sectors.  

Special attention was devoted to the dairy sector in light of the difficulties faced by 
dairy farmers during the recent milk crisis. Following the High-Level Group on Milk 
recommendations,  the  Commission  adopted  a  legislative  proposal163  in  December 
2010 on contractual relationships in the milk sector. The proposal allows collective 
bargaining negotiations by producer organisations of milk farmers subject to certain 
limits  based  on  their  share  of  EU-wide  and  national  milk  production  volumes.  The 
proposal  also  provides  for  a  "safety  clause"  allowing  the  competent  NCA  or  the 
Commission to decide that the negotiations by a producer organisation may not take 
place  where  they  would  limit  competition  severely  or  where  they  would  inflict  a 
serious prejudice to dairy processors, in particular SMEs. 

THE  EUROPEAN  COMPETITION  NETWORK  AND  COOPERATION  WITH  NATIONAL 
COURTS 

In  2010,  the  European  Competition  Network  (ECN)  continued  to  be  a  very  active 
forum  for  discussion  and  exchange  of  good  practices  on  the  enforcement  of  EU 
antitrust  rules  across  the  27  Member  States.  The  Commission  was  informed  under 
Article  11(3)  of  Regulation  1/2003164  of  158  new  case  investigations  launched  by 
National Competition Authorities (NCA) in 2010, inter alia in the transport, energy, 
manufacturing,  media  and  telecom  sectors.  Moreover,  the  number  of  enforcement 
decisions  reported  by  NCAs  and  reviewed  by  the  Commission  increased  by  36% 
compared to 2009. As in previous years, the Commission did not initiate in 2010 any 
proceedings with the view to ensuring coherency in decision-making. 

146. 

The  Commission  responded  to  two  requests  from  national  courts  (Spain  and 
Belgium) under Article 15(1) of Regulation 1/2003 which allows national judges to 
ask the Commission for information in its possession or for an opinion on questions 
concerning the application of the EU competition rules. 

162 

163 

164 

Commission decision of 30.7.2010 (OJ C 210, 3.8.2010, p. 4), see also A better functioning food supply 
chain in Europe (COM(2009) 591 final). 
Proposal  of  9 December  2010  for  a  Regulation  of  the  European  Parliament  and  of  the  Council 
amending Council Regulation (EC) No 1234/2007 as regards contractual relations in the milk and milk 
products sector (COM(2010) 728) 
Council  Regulation  (EC)  No  1/2003  of  16 December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25) 

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147. 

148. 

149. 

The Commission submitted written observations in three cases under Article 15(3) of 
Regulation  1/2003.  The  observations  were  submitted  to  the  High  Court  of  Ireland 
regarding  conditions  of  Article  101(3)  TFEU  with  a  particular  focus  on  capacity-
reducing restructuring agreements, to the Supreme Court of the Slovak Republic in 
relation  to  the  application  of  the  economic  continuity  of  undertakings  and  the 
effectiveness  of  fines  and  to  the  Dutch  Supreme  Court  regarding  the  non-tax 
deductibility of fines. 

The  Working  Groups  on  horizontal  agreements  and  on  vertical  restraints  were 
particularly active this year in the context of the review of the corresponding Block 
Exemption  Regulations  and  accompanying  guidelines.  A  Merger  Working  Group 
was also established. 

In 2010, the ECN launched a publication for the attention of the legal and business 
communities  as  well  as  of  consumer  organisations  and  academics,  the  ECN  Brief, 
aiming at increasing public awareness of the activities conducted by the ECN. 

4. 

INTERNATIONAL ACTIVITIES 

150. 

151. 

152. 

153. 

154. 

The  Commission  continued  to  play  a  leading  role  in  the  International  Competition 
Network  (ICN),  notably  through  its  involvement  in  the  Steering  Group's  "Second 
Decade  Project"  reflecting  on  the  ICN  future  in  the  globalised  economy.  The 
Commission  contributed  to  the  work  of  the  OECD  Competition  Committee  and 
participated in the three sessions held in 2010. It also took part in the Sixth Review 
Conference of the United Nations Conference on Trade and Development. 

As  in  previous  years,  cooperation  with  US  authorities  was  intensive  and  the 
Commissioner  for  Competition  regularly  met  his  US  counterparts,  Chairman  Jon 
Leibowitz  of  the  FTC  and  Christine  Varney,  the  Assistant  Attorney  General.  A 
number  of  important  antitrust  and  merger  cases  investigated  in  2010  affected  both 
the EU and US markets. EU-US Best Practices on cooperation in reviewing mergers 
proved to be a useful framework for example in the Cisco / Tandberg and Novartis / 
Alcon cases. 

In December 2010, the Council gave a mandate to the Commission to negotiate an 
agreement on cooperation in competition matters with the Swiss Confederation. This 
agreement  should  be  based  on  the  agreements  concluded  so  far  with  the  United 
States,  Canada,  Japan  and  Korea  and  could  in  addition  include  provisions  on  the 
exchange of confidential information. 

Cooperation  with  China  remained  a  priority  in  2010.  In  addition  to  regular 
discussions  concerning  the  anti-monopoly  law  and  its  implementing  legislation, 
issues  relating  to  concrete  cases  were  discussed  during  high-level  visits  in  Beijing 
and Brussels respectively. 

Close  technical  cooperation  between  DG  Competition  and  the  Competition 
Commission  of  India  continued  in  2010,  in  particular  in  the  fields  of  restrictive 
agreements, abuse of dominance and merger control. 

155. 

DG  Competition  played  an  active  role  in  the  ongoing  negotiations  on  Free  Trade 
Agreements (FTAs) and other bilateral agreements with a large number of individual 

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third countries or third country groupings. In particular, the Foreign Affairs Council 
authorised  on  16 September  2010  the  signature  of  the  EU-Korea  FTA  which  is  the 
first  to  contain  a  prohibition  on  certain  types  of  subsidies.  The  EU  also  concluded 
negotiations  for  FTAs  containing  a  competition  chapter  with  the  Andean  Countries 
(Columbia and Peru) as well as with Central America. 

156. 

Significant  progress  was  made  by  both  Croatia  and  Turkey  in  fulfilling  opening 
benchmarks of the competition chapter for EU admission requirements. In June, the 
Council decided to open the accession negotiations on the competition chapter with 
Croatia while the Turkish Parliament adopted a State aid law in October 2010. 

5. 

DIALOGUE WITH CONSUMER ORGANISATIONS AND STAKEHOLDERS 

157. 

158. 

159. 

The  European  Consumer  Consultative  Group  (ECCG)  subgroup  on  competition, 
consisting of one representative of national consumer organisations for each Member 
State  and  one  representative  from  the  European  consumer  association  (BEUC)  was 
consulted  in  2010  on  important  issues  such  as  vertical  restrains  and  remedies  and 
issued an opinion on actions for damages165, endorsed by the plenary ECCG. 

A  consumer  corner  on  DG  Competition's  website  was  further  developed  and  made 
available in every official language since mid-2010. The website presents in a simple 
language the role of competition policy and the main competition cases. 

DG  Competition  published  the  results  of  the  first  comprehensive  survey  of 
stakeholders  about  their  views  on  the  perceived  quality  of  DG  Competition's 
actions166.  The  survey  was  carried  out  in  two  parts  by  two  independent  market 
research  organisations  among  professional  stakeholders  and  citizens  in  all  EU 
Member  States167.  The  study  highlighted  significant  praise  for  the  effectiveness  of 
DG  Competition's  work  and  the  integrity  of  its  staff.  The  survey  also  provided 
several areas of constructive criticism, together with suggestions for improvement. 

6. 

INTER-INSTITUTIONAL COOPERATION 

160. 

161. 

Following  the  European  Parliament  elections  in  2009,  and  the  start  of  the  new 
Commission  mandate  in  2010,  the  new  Framework  Agreement  between  the  two 
institutions was adopted in October 2010168. 

In  2010,  the  Parliament  adopted  Resolutions  on  the  Report  on  Competition  Policy 
2008, on the Motor Vehicle Block Exemption Regulation, on Horizontal Agreements 
and on the Council decision on State aid for the closure of uncompetitive coal mines. 
In addition to the regular dialogue between the Commissioner and the Economic and 
Monetary  Affairs  Committee  (ECON)  in  June  and  November,  Vice-President 
Almunia  announced  the  prolongation  of  the  temporary  State  aid  rules  adopted  in 

165 
166 
167 

168 

Available at: http://ec.europa.eu/consumers/empowerment/eccg_en.htm  
Available at: http://ec.europa.eu/competition/publications/reports/surveys_en.html  
Flash  Eurobarometer  Survey  "EU  citizens'  perceptions  about  competition  policy"  by  Gallup  Hungary 
and Eurobarometer Qualititive Study "DG Competition stakeholder Study" by TNS qual+ 
Framework  Agreement  of  20 October  2010  on  relations  between  the  European  Parliament  and  the 
Commission 

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39 

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response to the financial and economic crisis to Members of the ECON committee in 
October.  

162. 

163. 

The  Commission  cooperated  closely  with  the  Council  by  informing  it  of  important 
policy initiatives in the field of competition, in particular on the temporary State aid 
measures in the context of the financial and economic crisis. The Council decision on 
State aid for the closure of uncompetitive coal mines was also an important file.  

After having been informed by the Commission, the European Economic and Social 
Committee  adopted  opinions  on  the  Report  on  Competition  Policy  2008,  on 
uncompetitive  coal  mines,  on  shipbuilding,  and  on  the  Motor  Vehicle  BER,  thus 
contributing to the policy debates in the field of competition policy. 

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