COMMISSION STAFF WORKING DOCUMENT Accompanying the document […] REPORT FROM THE COMMISSION on Competition Policy 2012
Date: 2013-05-07
Institutions: European Commission
Subjects: Spain, available energy, banking system, cartel, competition policy, economic recession, fine, information technology, transmission network

EUROPEAN 
COMMISSION 

Brussels, 7.5.2013  
SWD(2013) 159 final 

COMMISSION STAFF WORKING DOCUMENT 
Accompanying the document 

[…] 

REPORT FROM THE COMMISSION 
on Competition Policy 2012 

{COM(2013) 257 final} 

EN 

   EN 

 
 
 
 
  
 
I. 

LEGISLATION AND POLICY DEVELOPMENTS 

EU competition policy as a lever of the Single Market: the EU´s main engine for growth 

The key aim of EU competition policy is to protect competition so that markets work better 
for consumers and businesses. In this regard, EU competition policy supports the Europe 2020 
Strategy  for  smart,  sustainable  and  inclusive  growth.  In  particular,  EU  competition  policy 
forms is an essential part of and a complement to the EU's key asset: its Single Market, which 
encompasses over half a billion consumers and some 20 million businesses. Tapping the full 
potential of the Single Market is therefore essential for the EU to recover from the economic 
and  financial  crisis  and  to  launch  a  new  period  of  growth.  During  the  past  year,  EU 
competition  policy  has  made  significant  contributions  in  terms  of  protecting,  strengthening 
and developing the Single Market. Crucially, the enforcement of EU competition policy was 
not relaxed as a result of the crisis, since that would have been directly harmful to the Single 
Market and the process of economic recovery. 

State aid 

The economic and financial crisis entailed greater State involvement in the economy, placing 
burdens  on  Member  States'  budgets  with  increasingly  uneven  spending  capacities.  At  the 
same  time,  such  State  aid  involvement  –  given  its  sheer  size  -  created considerable  risks  of 
distortions for the Single Market.  

The latest figures on the scale of crisis and non-crisis State aid 

The  European  Commission's  2012  State  Aid  Scoreboard  revealed  that  the  volume  of  national  support  to  the 
financial sector actually taken by banks between October 2008 and 31 December 2011 amounted to around EUR 
1.6 trillion (13% of EU GDP). The bulk (67%) of that support came in the form of State guarantees on banks' 
wholesale funding.  

Support to the real economy on the basis of temporary crisis rules dropped to EUR 4.8 billion in 2011, a fall of 
more than 50% compared to 2010, reflecting both a lower uptake by companies and the budgetary constraints of 
most EU Member States.  

Total non-crisis aid decreased and stood at EUR 64.3 billion in 2011, or 0.5% of EU GDP, and continued to re-
focus  on  less  distortive  horizontal  objectives,  such  as  aid  for  research  and  innovation,  protection  of  the 
environment and providing risk capital to SMEs. 

The contribution of  State  aid  policy  has been crucial throughout the crisis in preserving the 
integrity  of  the  Single  Market.  Beyond  that,  State  aid  policy  can  play  an  important 
contribution to overcoming the crisis by supporting the Europe 2020 Strategy, for example by 
favouring a better and more effective use of scarce public resources. In other words, EU State 
aid policy should facilitate the treatment of aid which is well-designed, targeted at identified 
market  failures  and  objectives  of  common  interest,  and  least  distortive  ("good  aid"),  while 
dissuading  aid  which  does  not  provide  real  incentives  for  companies,  crowds  out  private 
investment,  and  keeps  inefficient  and  non-viable  companies  on  life  support  ("bad  aid")  and 
harms the Single Market. 

1 

 
 
 
 
1.  State Aid Modernisation: an overhaul of the State aid rules to strengthen the Single 

Market and support growth in a context of scarce public resources  

On 8 May 2012 the Commission launched an ambitious State Aid Modernisation programme 
("SAM")1.  SAM  aims  at  orienting  scarce  public  funds  towards  growth,  turning  State  aid 
policy into a smart and inexpensive tool to help Member States "achieve more with less". 

SAM  allows  Member  States  to  increase  their  own  level  of  commitment  accordingly.  Three 
key components of the overall objective of SAM – promoting growth in a context of severe 
budgetary constraints – are outlined below. 

Making the Single Market stronger, more dynamic and more competitive to support growth 

SAM  proposes  a  framework  for  assessing  whether  State  aid  is  compatible  with  the  Single 
Market  which  has  been  tailored  to  promote  efficient  and  well-designed  aid  addressing  real 
market failures, directing scarce public resources to common priorities ("good aid"). Priority 
will  be  given  to,  for  example,  aid  for  research  and  development,  aid  facilitating  access  to 
finance  for  SMEs,  aid  providing  the  right  incentives  for  the  development  of  the  digital 
economy, aid that protects the environment, as well as aid that attracts investment to weaker 
regions. 

The  review  of  those  rules  to  ensure  compatibility  with  the  Single  Market  in  the  context  of 
SAM  is  based  on  a  coordinated  approach  rooted  in  common  principles,  so  as  to  ensure 
consistency across the different guidelines and block exemptions. 

First of all, in light of the opportunity costs of State aid in terms of the costs of taxation and 
the potential distortions it can bring about, State aid should be granted only where it adds real 
value.  This  is  the  case  when  aid  is  directed  towards  activities  that  the  market  does  not 
adequately  support2;  when  aid  has  an  incentive  effect  and  when  aid  is  an  appropriate 
instrument  to  tackle  a  market  failure  or  an  equity  objective  compared  to  other  available 
instruments. Finally, State aid should also be efficient, i.e. reach the desired market outcome 
at the least cost. 

At the same time, SAM envisages that the Commission should step up its analysis of potential 
negative effects of aid measures. Such negative effects include windfall profits, the crowding 
out of private investment, public spending when similar projects are undertaken without aid, 
as well as keeping inefficient and non-viable companies on the market. Taxpayers, companies 
and  public  authorities  would  also  benefit  from  more  transparency  on  expenditures  and  aid 
beneficiaries. 

The operational aim of SAM is to translate those essential building blocks into revised State 
aid  guidelines,  thereby  further  aligning  those  guidelines  with  the  Europe  2020  Strategy  and 
the  Multiannual  Financial  Framework  2014-2020.  This  past  year  progress  was  made,  in 
particular,  on  the  review  of  the  guidelines  for  regional  aid,  research  &  development  & 
innovation  aid,  environmental  aid  as  well  as  aid  to  risk  capital.  State  aid  under  those 
instruments accounts for more than two-thirds of all aid granted in the EU. 

1 Communication of 8 May 2012 from the Commission to the European Parliament, the Council, the European 
Economic and Social Committee and the Committee of the Regions, EU State Aid Modernisation (SAM), 
COM(2012) 209 final 
2 For example, State aid for risk capital can leverage private investments to sustain start-ups and aid. Aid to R&D 
has the potential to promote new and otherwise unrealised innovative projects, especially where it increases 
(rather than replaces) private funding of R&D 

2 

 
 
                                                            
The Broadband Guidelines: A concrete example of the philosophy underlying SAM 

This past year the Commission adopted new Broadband Guidelines, a set of rules which illustrate concretely the 
philosophy  underlying  SAM.  The  new  Guidelines  were  designed  to  support  pro-competitive  investments  with 
public  funds  in  line  with  the  Europe  2020  Strategy  in  general  and  the  Europe  2020  Digital  Agenda  flagship 
initiative in particular; for example, through the creation of the additional category of 'ultra-fast networks' in line 
with the Digital Agenda targets. The Guidelines will also lay down revised conditions so as to foster investments 
in rural areas and to ease administrative burdens on smaller projects. Under the Guidelines, aid will always be 
directed to areas of genuine 'market failure' (i.e. where operators do not invest on commercial terms), verified by 
detailed  mapping  and  public  consultation.  The  aid  beneficiary  shall  always  be  selected  through  a  competitive 
tender procedure, so as to ensure that aid is kept to a minimum and that no technology or company receives an 
undue advantage. The 'open access' required from the beneficiary company ensures competition in the subsidised 
area to create optimal conditions for better and cheaper broadband services for consumers. All relevant acts and 
pertinent information about the aid awarded under aid schemes shall be easily accessible on the Internet by the 
Member  States,  economic  operators,  the  interested  public  and  the  Commission.  Finally,  an  evaluation  may  be 
required  for  aid  schemes  with  large  aid  budgets,  containing  novel  characteristics  or  when  significant  market, 
technology or regulatory changes are foreseen. 

Focusing on cases with the biggest impact on the Single Market  

The  SAM  policy  objective  here  is  two-fold:  to  reduce  to  the  minimum  the  administrative 
burdens  related  to  smaller  amounts  of  aid  or  aid  with  a  limited  impact  on  competition  and 
trade  in  the  Single  Market,  and  to  focus  on  aid  which  does  not  provide  real  incentives  for 
companies, crowds out private investment and keeps inefficient and non-viable companies on 
life support ('bad aid'). The reduction of administrative burdens should go hand in hand with 
an  increased  responsibility  of  the  Member  States  and  with  increased  transparency  and 
effective evaluation at both national and EU level. The exclusive competence of assessing the 
compatibility  of  State  aid  measures  will,  as  set  out  in  the  Treaty,  remain  with  the 
Commission. 

In  pursuit  of  that  objective,  the  Commission  adopted  a  draft  Enabling  Regulation3  and  will 
subsequently adopt a revised General Block Exemption Regulation with the aim of cutting red 
tape for small and routine cases. The proposal for a new Enabling Regulation provides for the 
following  new  categories  of  aid  to  be  exempted:  aid  for  innovation,  aid  for  culture  and 
heritage conservation, aid to compensate damages caused by natural disasters, aid to forestry 
as well as certain types of aid for transport and for broadband infrastructure.  

Streamlined and clearer rules and faster decisions  

The SAM Communication emphasises the need to clarify and simplify the existing complex 
legal framework. That challenge will be addressed by providing a better explanation of State 
aid concepts and a consolidation of horizontal and substantive rules. A key part of the SAM 
package  involves  clarifying  and  better  explaining  the  notion  of  State  aid.  The  Commission 
sees  a  substantial  value  added  for  Member  States  and  aid  granting  authorities  by  providing 
guidance on the notion of aid, including the key concepts of "advantage" and "selectivity". 

The  Commission  also  proposes  measures  to  make  its  procedures  more  efficient.  On  5 
December  2012  the  Commission  adopted  a  draft  of  the  new  Procedural  Regulation4  which 
would allow the Commission to handle complaints in a manner that is more consistent with its 
priorities  and  would  ensure  that  the  Commission  obtains  complete  and  correct  information 
from the market (market information tools and sector inquiries).  

3 See MEMO/12/936 of 5 December 2012 
4 See MEMO/12/942 of 5 December 2012 

3 

 
 
                                                            
Moreover,  the  objective  to  strengthen  the  Single  Market  and  promote  growth  can  only  be 
achieved if the Commission has the ability to prioritise its work. This efficiency objective will 
be achieved by introducing filters to improve the quality of the information received from the 
complainants  (e.g.  mandatory  complaints  form)  and  by  making  the  evaluation  of  the 
admissibility of a complaint subject to the existence of an interest to act. Furthermore, under 
SAM,  a  complaint  will  be  considered  withdrawn  where  the  complainant  does  not  provide 
meaningful information or fails to cooperate. 

Another  essential  feature  of  the  procedural  reform  is  the  power  to  collect  the  appropriate 
information  on  a  case  within  business-relevant  deadlines,  which  will  be  achieved  by 
empowering  the  Commission  to  obtain  faster  and  more  reliable  information  from  market 
participants  if  the  information  at  its  disposal  is  not  sufficient  following  the  formal 
investigation procedure. The possibility of conducting sector inquiries to reinforce horizontal 
information will also allow the Commission to focus on the most distortive cases.  

Finally, the role of the national courts shall be reinforced: first, by empowering those courts to 
obtain information from the Commission for the purpose of applying Article 107(1) and 108 
TFEU  and  to  ask  the  Commission  for  an  opinion;  and,  second,  by  empowering  the 
Commission  to  make  oral  or  written  submissions  to  national  courts  in  the  Union  public 
interest (amicus curiae). 

2.  Monitoring, recovery and cooperation with national courts 

Monitoring existing State aid to ensure a level playing field in the Single Market 

Over  the  years,  the  architecture  of  State  aid  control  has  evolved  significantly.  Today,  more 
than  87%  of  aid  granted  to  industry  and  services  is  not  individually  examined  by  the 
Commission, but is granted on the basis of previously approved aid schemes or under block 
exemption.  DG  Competition  monitors  the  way  in  which  Member  States  apply  existing  aid 
schemes.  

To  further  improve  the  effectiveness  of  that  control  which  is  relevant  to  the  proper 
functioning of the Single Market, DG Competition decided, in 2011, to significantly enlarge 
the scope of the monitoring exercise. Although the investigation of a number of cases is still 
on-going, there seems to be an overall an increase in the number of problematic cases. More 
than  one  third  of  the  cases  monitored  in  2011/2012  raise  problems  of  varying  types  and 
gravity  (non-notified  modification  of  schemes,  individual  aids  exceeding  the  maximum 
thresholds,  compatibility  conditions  not  properly  reflected  in  the  national  legal  basis  etc.). 
Keeping  in  mind  the  limited  number  of  cases  monitored  thus  far  (compared  to  the  great 
number of existing aid schemes), the compliance rate seems to vary across Member States and 
across different types of aid. The Commission will systematically follow-up all irregularities. 
At the same time, Member States must step-up their efforts to better comply with the State aid 
rules.  

Restoring competition in the Single Market through recovery of State aid granted in contravention of 
the rules 

To ensure the integrity of the Single Market, the Commission possesses the power to require 
the granting Member State to recover unlawful aid which has been declared incompatible. In 
2012,  further  progress  was  made  to  ensure  that  recovery  decisions  are  enforced  effectively 
and immediately.  

4 

 
 
Much faster recovery of illegal aid  

The  most  recent  figures  also  show  that  Member  States  are  also  recovering  illegal  aid  much  faster,  with  75% 
(around  EUR  11.7 billion  since  December  2004)  recovered  at  the  end  of  December  2012  thanks  to  the 
Commission's action and probably facilitated by the pressure to consolidate public finances. This means that the 
percentage of illegal and incompatible aid still to be recovered was down to 25% by end-December 2012 having 
stood at 75% at the end of 2004. 

By 31 December 2012, the Commission had adopted twelve decisions ordering the recovery 
of  incompatible  aid,  thereby  ensuring  the  recovery  of  over  EUR  2.4 billion  granted  by  the 
Member  States.  As  of  the  end  of  December  2012,  the  Commission  had  49  pending  active 
recovery cases pending5 (compared to 94 cases at the end of 2004). 

Recovery decisions adopted in 2012 
Amount recovered in 2012 (in EUR billion) 
Active recovery cases pending on 31 December 2012 

12 
EUR 2.4 billion 
49 

A  concrete  example  of  aid  that  is  incompatible  with  the  State  aid  rules  and  which  the 
Commission  decided  during  the  past  year  that  should  be  recovered  is  the  aid  granted  by 
Belgium to BPost, as a public service compensation. That compensation exceeded the costs 
related to the delivery of newspapers and magazines for the period 2006-2010. On 23 January 
2012,  the  Commission  ordered  Belgium  to  recover  the  incompatible  aid.  The  Belgian 
authorities diligently fulfilled their obligation by the end of May 2012. 

As  the  guardian  of  the  Treaty,  the  Commission  may  use  all  legal  means  at  its  disposal  to 
ensure that Member States implement their recovery  obligations, including the launching of 
infringement  procedures.  In  the  first  half  of  2012,  the  Court  of  Justice  condemned  two 
Member  States  pursuant  to  Article  108(2)  TFEU  (Italy  and  Greece)  and  one  Member  State 
pursuant to Article 260 TFEU (Spain) for failure to recover illegal State aid. 

Cooperation with national courts to ensure the effectiveness of State aid rules on the ground 

As a follow-up to the 2009 Notice on the Enforcement of State Aid Law by National Courts, 
advocacy efforts by the Commission were intensified. In 2012 the Commission was actively 
involved  in  financing  training  programmes  for  national  judges  following  an  annual  call  for 
projects and also sent trainers to teach at such workshops and conferences. In February 2012, 
a  dedicated  one-day  workshop,  covering  both  antitrust  and  State  aid  issues  relevant  for 
national  courts,  was  organised  by  the  Commission  in  cooperation  with  the  Association  of 
European Competition Law Judges. 

3.  Significant judgments by the EU Courts in the State aid area  

In a number of significant judgments, the EU courts clarified certain aspects of key State aid 
concepts,  such  as  the  notion  of  aid,  the  private  market  economy  investor  principle  and  the 
relationship between State aid and infrastructure. 

In Case C-288/11 P, Mitteldeutsche Flughafen AG et al. v Commission (also referred to as the 
Leipzig  Halle  airport  case),  the  Court  of  Justice,  in  its  judgment  of  19  December  2012, 
dismissed  an  appeal  brought  by  Mitteldeutsche  Flughafen  AG  and  Flughafen  Leipzig‑Halle 
GmbH  (‘FLH’)  against  the  Leipzig-Halle  judgment  the  General  Court6.  The  main  issue  at 

5 Five cases were transferred from the former unit in charge of State aid in DG TREN to DG COMP and are 
included in the present statistics for the first time this year 
6 Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v Commission [2011] ECR II-1311 

5 

 
 
                                                            
stake  in  the  appeal  was  whether  the  General  Court  had  erred  in  law  by  qualifying  the 
financing  of  the  construction  of  a  new  runway  for  the  airport  as  an  economic  activity.  The 
Court of Justice fully confirmed the General Court's judgment, finding that the General Court 
had not erred in law in holding that the Commission had correctly considered the construction 
of the new southern runway by FLH to constitute an economic activity and that, consequently, 
the capital contributions, apart to the amount to be deducted in respect of expenses linked to 
the  performance  of  public  duties7,  constituted  State  aid  for  the  purpose  of  Article  107(1) 
TFEU.  The  Court  of  Justice  held  that  the  General  Court  had  correctly  established  that  the 
construction  of  the  runway  could  not  be  dissociated  from  the  operation  of  the  airport 
infrastructure,  which  constituted  an  economic  activity.  It  had  also  correctly  found  that  the 
construction of the runway was not linked to the exercise of State authority.  

In its judgment of 5 June 2012 in Case C-124/10P, Commission v EDF, the Court of Justice 
dismissed  the  Commission’s  appeal  against  the  EDF  judgment  of  General  Court8,  thus 
confirming the annulment by the General Court of a Commission decision of 2003 on State 
aid granted by France to EDF. The judgment is important for the interpretation of the market 
economy  investor  principle  (MEIP).  The  issue  before  the  Court  was  whether,  in  a  situation 
where  a  Member  State  is  both  a  fiscal  creditor  of  a  public  undertaking  and  its  sole 
shareholder,  that  State  aid  can  rely  on  the  MEIP  where  it  makes  a  capital  injection  in  that 
undertaking by waiving a tax claim, or whether the MEIP is inapplicable (as the Commission 
had considered in its decision) in view of the fiscal nature of the claim. The Court ruled that 
the role of the State as shareholder must be distinguished from its role as public authority and 
the  applicability  of  the  MEIP  depends  on  whether  the  Member  State  conferred  the  fiscal 
advantage on the undertaking in its capacity as shareholder and not in its capacity as a public 
authority. The Court then clarified that, for a Member State to demonstrate that it acted in its 
capacity as a shareholder, it must provide objective and verifiable evidence showing clearly 
that, before or at the same time as conferring the economic advantage, it took the decision to 
make  the  investment  concerned.  Finally,  the  Court  clarified  that  the  MEIP  test  is  not  an 
exception which applies only if a Member State so requests. 

On 28 February 2012, the General Court gave judgment in Case T-268/08, Land Burgenland 
et al v. Commission, concerning a Commission decision in the field of State aid in connection 
with  the  privatisation  of  Bank  Burgenland  by  the  Province  of  Burgenland  through  a  tender 
procedure.  In  the  final  phase  of  the  tender  two  bids  were  submitted,  one  by  the  Austrian 
company  GRAWE  (EUR  100.3 million)  and  a  much  higher  bid  by  a  Ukrainian  Consortium 
(EUR 155 million). The tender was awarded to GRAWE. The Commission found that the sale 
constituted State aid for GRAWE because, by not accepting the highest bid, the Province of 
Burgenland  did  not  behave  like  a  private  seller  operating  in  a  market  economy.  In  its 
judgment, the General Court dismissed the actions brought by the Province of Burgenland, the 
Republic of Austria and the purchaser of the bank. The Court confirmed that in the case of a 
sale of an undertaking by a public authority the market price corresponds to the highest price 
that a private investor operating in normal competitive conditions would be prepared to pay. 
When  the  public  authority  makes  use  of  an  open,  transparent  and  unconditional  tender 
procedure, it can therefore be presumed that the market price corresponds to the highest offer, 
provided that it is established, firstly, that that offer is binding and credible and, secondly, that 
the taking into account of economic factors other than the price is not justified, such as the off 
balance-sheet risks existing between the offers. Therefore, the Commission did not commit a 

7 Expenses for security and police functions, fire-protection, German meteorological service and air-traffic 
control service 
8 Case T-156/04 EDF v Commission [2009] ECR II-4503 

6 

 
 
                                                            
manifest  error  of  assessment  in  concluding  that  the  aid  element  can  be  assessed  from  the 
market price, which itself depends on the offers actually made within the context of the call 
for tenders. 

In  Case  T-154/10  France  v  Commission,  the  General  Court,  in  its  judgment  of  the  General 
Court  of  20  September  2012,  upheld  a  Commission  decision  from  2010  finding  that  La 
Poste's status as an EPIC (Établissement Public à caractère Industriel et Commercial) resulted 
in an advantage to the undertaking in the form of an implicit unlimited guarantee. The Court 
confirmed  the  Commission's  finding  that  French  law,  in  general,  did  not  preclude  the 
possibility for the State to grant an implied guarantee to EPICs. The existence of an unlimited 
State guarantee in favour of EPICs could, in the Court´s view, be derived from the fact that 
insolvency  and  bankruptcy  procedures  under  ordinary  law  do  not  apply  to  EPICs.  The  law 
applicable  to  EPIC  placed  creditors  in  a  more  favourable  situation  as  their  claims  are  not 
cancelled but at the most postponed. Also, the Court found that the Commission was correct 
in concluding that State liability could be incurred for the debts of an EPIC where a creditor 
of  an  EPIC  was  not  able  to  recover  its  claim  from  the  undertaking  which  amounts  to  an 
automatic guarantee mechanism. Finally, the principle of continuity of public service requires 
that the rights and obligations attached to the public service are transferred to the State in the 
event  of  a  wound-up  EPIC  which  triggers  State  liability.  With  regard  to  the  question  of 
whether that unlimited guarantee resulted in an advantage for La Poste, the Court confirmed 
the Commission's finding that the grant of a guarantee on non-market terms is, as a rule, liable 
to confer an advantage on the recipient. The Commission was allowed to refer to the findings 
of  rating  agencies  to  establish  that  La  Poste  enjoyed  more  favourable  terms  of  credit  and, 
therefore, a financial advantage. 

Antitrust & Cartels 

1.  Moving towards a formal proposal on private enforcement of the EU antitrust rules  

In  2012,  the  Commission  continued  preparatory  work  on  a  legislative  proposal  on  antitrust 
damages actions9. As stated in the Commission Work Programme 2012 (Annex I, item 7), the 
objective  of  this  legislative  initiative  would  be  to  ensure  effective  damages  actions  before 
national courts for breaches of EU antitrust rules and to clarify the relationship between such 
private  actions  and  public  enforcement  by  the  Commission  and  the  national  competition 
authorities, notably as regards the protection of leniency programmes, in order to preserve the 
central  role  of  public  enforcement  in  the  EU10.  In  February  2012,  the  European  Parliament 
welcomed  the  initiative  and  underlined  the  need  for  action  at  European  level11.  Insofar  as 
collective redress is concerned, the European Parliament requested that any Union initiative 
should be of a horizontal nature, not limited to specific sectors of Union law. However, the 
Parliament  acknowledged  the  specificity  of  competition  law  enforcement  and  therefore 
considered  that  specific  rules  could  be  laid  down  in  separate  articles  or  chapters  of  the 

9 As stated in the Commission Work Programme 2012 (Annex I, item 7), the objective of this legislative 
initiative would be to ensure effective damages actions before national courts for breaches of EU antitrust rules 
and to clarify the relationship between such private actions and public enforcement by the Commission and the 
national competition authorities, notably as regards the protection of leniency programmes, in order to preserve 
the central role of public enforcement in the EU. The Work Programme is available at: 
http://ec.europa.eu/atwork/key-documents/index_en.htm 
10 The Work Programme is available at: http://ec.europa.eu/atwork/key-documents/index_en.htm 
11 European Parliament resolution of 2 February 2012 on the Annual Report on EU Competition Policy, also 
available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2012-
0031+0+DOC+XML+V0//EN 

7 

 
 
 
                                                            
horizontal  instrument  itself  or  in  separate  legal  instruments  in  parallel  or  subsequent  to  the 
adoption of the horizontal instrument12.  

On  6  December,  Vice  President  Almunia  declared  his  intention  to  submit  to  the  College  a 
legislative  proposal  on  certain  rules  governing  actions  for  damages  under  national  law  for 
infringements of Articles 101 and 102 TFEU. He stated that such a proposal, once adopted, 
would give more legal certainty on a number of issues that lie at the crossroads between the 
public  and  private  enforcement  of  EU  competition  law,  in  particular  regarding  access  to 
evidence relating to leniency requests. Also, the Vice President took due note of the European 
Parliament's call for a European initiative on collective redress to ensure appropriate access to 
justice for all. He declared his willingness to continue to work towards a coherent European 
policy on collective redress, while drawing attention of the Parliament to the specificities of 
competition law. 

2.  Further refining the leniency regime: a core enforcement tool in the fight against secret 

cartels 

Leniency  programmes  constitute  a  key  driver  for  the  detection  of  cartels.  The  European 
Competition Network (ECN) recently strengthened the Model Leniency Programme (“MLP” 
around which the ECN competition authorities align their own leniency procedures. Under the 
refined  MLP,  agreed  in  November  by  the  Heads  of  the  competition  authorities  within  the 
ECN, all leniency applicants applying to the European Commission in cases concerning more 
than  three  Member  States  will  now  be  able  to  submit  a  summary  application  to  national 
competition authorities while in the past only the immunity applicant could do so. Also, the 
ECN agreed on a standard template for summary applications, which companies will be able 
to use in all Member States. A number of clarifications are introduced in the MLP, notably in 
relation  to  the  conditions  which  applicants  must  meet  in  order  to  qualify  for  leniency, 
including  on  the  duty  to  cooperate.  The  revised  text  also  clarified  that  written  leniency 
statements  should  benefit  from  the  same  level  of  protection  against  disclosure  by  the 
competition authorities as oral statements. Furthermore, the ECN underlined the importance 
of the leniency programmes in a  Resolution endorsed on 23 May, in which the competition 
authorities  took  the  joint  position  that  leniency  materials  should  be  protected  against 
disclosure  to  the  extent  necessary  to  ensure the effectiveness  of the leniency programmes13. 
The legislative proposal on antitrust damages actions mentioned above will seek to ensure the 
effectiveness of the leniency system.  

Settlements: an additional tool for the cost-effective resolution of antitrust proceedings 

Settlement  continues  to  be  a  key  tool,  entailing  significant  procedural  benefits.  The  fact  that  the  number  of 
settlement decisions decreased in 2012 as compared to 2011 should not be interpreted as a trend, in view of the 
number  of  cases  where  the  settlement  route  is  pursued  or  considered.  The  Commission's  policy  is  to  use  this 
efficiency-enhancing  instrument  in  the  future  if  a  case  is  suitable  for  settlement  in  order  to  free  more  quickly 
additional resources to fight other cases including via ex officio proceedings. In 2012, the Commission adopted 
one  such  decision, fining  producers  of  water  management  products  EUR  13 million  in  sixth  cartel  settlements 
(Cases COMP/39611 Water Management Products, press release of 27 June 2012). 

12 See points 15 and 17 of European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European 
Approach to Collective Redress’ available at 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2012-
0021&language=EN&ring=A7-2012-0012 
13 Resolution of the Meeting of the Heads of the European Competition Authorities of 23 May 2012 

8 

 
 
 
                                                            
3.  Significant judgments by the EU Courts in the area of antitrust  

In  MasterCard14  the  General  Court  dismissed  an  action  brought  by  MasterCard  against  a 
Commission  decision  of  2007  prohibiting  MasterCard's  cross-border  inter-bank  fees.  The 
judgment  is  important  because  it  confirms  the  Commission's  finding  that  these  fees  restrict 
competition  as  they  inflate  the  cost  of  card  acceptance  by  merchants  without  leading  to 
benefits  for  consumers.  The  judgment  also  confirms  that  banks,  in  the  framework  of  a  card 
payment scheme, cannot restrict competition by agreeing on certain charges to the detriment 
of consumers. 

MasterCard's business model includes a mechanism through which banks indirectly determine 
a  minimum  price  that  merchants  must  pay  for  accepting  the  organisation's  payment  cards. 
This mechanism comprises a complex network of multilaterally agreed inter-bank fees which 
industry refers to as "multilateral interchange fees" or MIFs.  

In December 2007, the Commission prohibited MasterCard's collectively agreed multilateral 
interchange  fees  because  they  inflate  the  base  on  which  acquiring  banks  charge  prices  to 
merchants, as the interchange fees account for a large part of the final price merchants pay for 
accepting MasterCard's payment cards. This restriction of price competition in the form of a 
decision of an association of undertakings was found to harm businesses and their customers, 
in  breach  of  Article  101  of  the  Treaty  on  the  functioning  of  the  EU  (TFEU)  that  prohibits 
anticompetitive  business  practices.  There  was  also  no  evidence  that  such  fees  generated 
benefits that were passed on to consumers.  

In its judgment, the General Court rejected MasterCard's claims and upheld the Commission's 
finding  of  an  infringement.  In  particular,  the  Court  endorsed  the  Commission's  view  that 
multilateral  interchange  fees  constitute  a  restriction  of  competition  as  they  were  found  to 
produce  anticompetitive  effects  and  rejected  MasterCard's  argument  that  such  fees  were 
objectively  necessary  for  the  functioning  of  its  system.  Also,  the  Court  endorsed  the 
Commission's finding that MasterCard constituted an association of undertakings in the sense 
of Article 101(1) TFEU, even after the company's listing at the New York Stock Exchange in 
2006.  The  Court  also  took  the  view  that  the  Commission  did  not  commit  procedural  errors 
and that the prohibition it imposed was proportionate. 

MasterCard  has  appealed  the  General  Court’s  judgment  to  the  Court  of  Justice  (Case  C-
382/12 P pending). 

In AstraZeneca15 the Court of Justice dismissed an appeal brought by AstraZeneca against the 
judgment  by  the  General  Court  of  2010  which  had  upheld  –  to  a  very  large  extent  –  a 
Commission's  decision  from  June  2005.  The  Commission  had  fined  AstraZeneca  EUR 
60 million  for  abusing  its  dominant  position  relating  to  its  best-selling  anti-ulcer  medicine 
Losec. 

The  judgment  concerned  two  types  of  misuses  of  regulatory  procedures  and  systems.  It  did 
not concern abuses or misuses of patents or other intellectual property rights. The first abuse 
upheld  by  the  Court  involved  the  provision  by  AstraZeneca  of  misleading  information  to 
national  patent  offices  with  the  aim  of  preventing  or  delaying  market  entry  of  competing 
generic  products.  On  the  first  abuse  the  Court  found  that  the  assessment  whether 
representations made to public authorities for the purposes of improperly obtaining exclusive 

14 Case T-111/08, MasterCard and Others v Commission,  judgment of 24 May 2012 
15 Case C-457/10 P AstraZeneca v Commission, judgment of 6 December 2012 

9 

 
 
                                                            
rights  are  misleading  must  be  made  in  concreto  and  may  vary  according  to  the  specific 
circumstances of each case.  

The second abuse involved the deregistration by AstraZeneca of its market authorisation for 
its  bestselling  ulcer  medicine  Losec  in  selected  countries  with  the  aim  of  raising  barriers 
against generic entry and parallel trade. The Court stated that an undertaking which holds a 
dominant position has a special responsibility under Article 102 and that it cannot therefore 
use  regulatory  procedures  in  such  a  way  as  to  prevent  or  make  more  difficult  entry  of 
competitors  on  the  market,  in  the  absence  of  grounds  relating  to  the  defence  of  legitimate 
interests of an undertaking engaged in competition on the merits or in the absence of objective 
justification.  

The  Court  found  that  the  illegality  of  abusive  conduct  under  Article  102  is  unrelated  to  the 
compliance or non-compliance by an undertaking of other legal rules and that, in the majority 
of cases abuses of dominant  positions  consist  of behaviour which is otherwise lawful under 
branches of law other than competition law.  

The Court´s judgment also clarifies many issues in relation to the product market definition. 
The  judgment  also  confirms  that  IPRs  constitute  a  factor  relevant  to  the  determination  of 
dominance.  The  Court's  judgment  finds  that  a  dominant  position  is  not  prohibited,  only  its 
abuse and a finding that an undertaking has such a position is not in itself a criticism of the 
undertaking concerned.  

Cartel judgments: the Courts confirm the Commission´s approach to parental liability 

In  a  number  of  judgments  (e.g.  Case  T-344/06  Total  v  Commission,  paras  97-109;  Case  T-347/06  Nynäs 
Petroleum  and  Nynas  Belgium  v  Commission,  paras  30-41,  judgments  of  27  September  2012.),  the  Courts 
confirmed the Commission’s approach to parental liability. For example, the Courts delivered some orders (Case 
404/11P  Elf  Aquitaine  v  Commission,  para  23,  order  of  2  February  2012;  Case  C-421/11P  Total  and  Elf 
Aquitaine  v  Commission,  paras  40-59,  order  of  7  February  2012;  C-493/11P  United  Technologies  v 
Commission,  paras  37-45,  order  of  15  June  2012.)  in  which  it  again  made  clear  that  it  fully  upholds  the 
rebuttable presumption that anti-competitive conduct by a wholly owned or virtually wholly owned subsidiary 
can  be  attributed  to  the  parent  company  unless  the  parent  proves  that  its  subsidiary  decides  its  commercial 
strategy  on  the  market  in  full  autonomy.  The  General  Court  also  accepted  the  application  of  the  rebuttable 
presumption in case of the ownership by two parents which form part of one group and together hold 100% of 
the  subsidiary’s  shares  and  upheld  in  two  other  judgments  the  imputation  of  parental  liability  in  a  50/50  joint 
venture,  applying  the  concept  of  “single  economic  entity”  to  joint  venture  constellations  (Case  T-76/08  EI  du 
Pont  de Nemours  and  Others  v  Commission, paras 59  and  76, judgment  of 2  February  2012;  Case T-77 Dow 
Chemicals v Commission, paras 74, 106-112 and 151, judgment of 2 February 2012). The General Court also 
accepted  that  the  investment  company  can  be  liable  for  the  conduct  of  its  portfolio  company  (Case  T-392/09 
1.garantovana v Commission, judgment of 12 December 2012). 

In the Dutch Bitumen cartel case, the General Court handed down 16 judgments in which it, 
for  the  most  part,  upheld  a  2006  Commission  decision  that  a  number  of  petrochemical 
companies supplying road pavement bitumen and their road building clients had participated 
in  a  cartel  with  regard  to  the  supply  of  road  pavement  bitumen  in  the  Netherlands16.  The 
General  Court  also  provided  guidance  on  the  scope  of  the  obligation  of  undertakings  to 
cooperate during inspections17. 

In  Nexans  and  Prysmian,  it  provided  guidance  on  the  Commission’s  investigatory  powers, 
such  as  the  legal  requirements  of  an  inspection  decision18.  It  also  considered  that  measures 

16 See in particular Case T-357/06 KWS v European Commission, judgment of 27 September 2012 
17 See in particular Case T-357/06 KWS v European Commission, judgment of 27 September 2012 
18 Cases T-135/09 Nexans v Commission and T-140/09 Prysmian v Commission, judgments of 14 November 
2012 

10 

 
 
                                                            
implementing  the  inspection  decision  such  as  taking  copies  and  images  of  electronic 
documents and asking questions during an inspection could not be challenged separately but 
only  in  the  context  of  an  action  for  annulment  of  the  final  decision  adopted  by  the 
Commission under Article 101(1) TFEU19.  

In Bolloré, the General Court found that in a re-adoption scenario following the annulment of 
a  decision  due  to  a  procedural  error,  the  re-imposition  of  a  fine  in  a  new  procedure  which 
remedies the error is neither proscribed nor infringes the party’s rights of defence20. 

In Calcium Carbide, the General Court confirmed the Commission's analysis of the parties’ 
requests for fines reductions because of their alleged inability to pay (ITP) and concluded that 
the Commission made no error when rejecting all ITP claims based on point 35 of the Fining 
Guidelines21. 

4.  The fight against cartels 

The Commission continued its vigorous enforcement of the competition rules against cartels, 
arguably the form of anticompetitive conduct which harms consumers, the Single Market and 
the  economy  to  the  greatest  extent.  In  2012,  the  Commission  adopted  five  cartel  decisions 
imposing  fines  totalling  EUR  1 875 694 000  and  concerning  products  of  importance  for 
consumers.  The  scope  of  some  of  the  cases  was  particularly  large,  with  several  different 
infringements dealt with in one decision. The Commission also launched new investigations 
in a number of sectors, including financial services (derivatives), car parts, the food sector and 
maritime  transport  services.  Several  inspections  were  carried  out  to  that  effect.  The 
Commission furthermore issued three Statements of Objections in cartel cases22. 

The TV and computer monitor tubes case: fines of EUR 1.47 billon imposed for a decade-long 
international cartel 

On  5  December,  the  European  Commission  fined  seven  international  groups  of  companies  a  total  of  EUR 
1 470 515 000  for  participating  in  either  one  or  both  of  two  distinct  cartels  in  the  sector  of  cathode  ray  tubes 
("CRT"). For almost ten years, between 1996 and 2006, these companies fixed prices, shared markets, allocated 
customers  between  themselves  and  restricted  their  output.  One  cartel  concerned  colour  picture  tubes  used  for 
televisions and the other one colour display tubes used in computer monitors. The cartels operated worldwide. 
The  infringements  found  by  the  Commission  covered  the  entire  European  Economic  Area  (EEA).  Chunghwa, 
LG  Electronics,  Philips  and  Samsung  SDI  participated  in  both  cartels,  while  Panasonic,  Toshiba,  MTPD 
(currently  a  Panasonic  subsidiary)  and  Technicolor  (formerly  Thomson)  participated  only  in  the  cartel  for 
television tubes. Chunghwa received full immunity from fines under the Commission's 2006 Leniency Notice for 
the  two  cartels,  as  it  was  the  first  to  reveal  their  existence  to  the  Commission.  Other  companies  received 
reductions of their fines for their cooperation in the investigation under the Commission's leniency programme.  

Cathode  ray  tubes  constitute  a  very  important  component  in  the  making  of  television  and  computer  screens, 
accounting for 50 to 70% of the price. The two cartels are among the most organised cartels that the Commission 
has  investigated.  For  almost  ten  years,  the  cartelists  carried  out  the  most  harmful  anti-competitive  practices 
including price fixing, market sharing, customer allocation, capacity and output coordination and exchanges of 
commercial  sensitive  information.  The  cartelists  also  monitored  the  implementation,  including  auditing 
compliance with the capacity restrictions by plant visits in the case of the computer monitor tubes cartel. 

19 Cases T-135/09 Nexans v Commission and T-140/09 Prysmian v Commission, judgments of 14 November 
2012 
20 Case T-372/10 Bolloré, judgment of 27 June 2012 
21 Case T-400/09 Ecka Granulate v Commission, judgment of 12 December 2012. 
22 Cases COMP/39611 Water Management Products, press release of 27.6.2012, IP/12/704; COMP/39633 
Shrimps, press release of 13.7.2012; IP/12/782, COMP/39639 ODD, press release of 24.7.2012, IP/12/830 and 
COMP/39583 Retail Food Packaging, press release of 28.09.2012, IP/12/1044 (with five different infringements 
covered by the same Statement of Objections) 

11 

 
 
                                                            
There are 7 undertakings in TV & Computer Monitor tubes: MTPD and Panasonic (together 
with Toshiba for the JV period) formed only one undertaking 

Case name 

Adoption 
date 

Fine imposed 

Undertakings 
concerned  

Procedure 

Cathode ray tubes 

05/12/2012 

1 470 515 000 

Gas insulated switchgear 

27/06/2012 

136 260 000 

Water 
products 

management 

27/06/2012 

13 661 000 

Freight forwarding 

28/03/2012 

169 382 000 

Mountings for windows and 
window doors 

28/03/2012 

85 876 000 

7 

2 

3 

15 

9 

Normal 

Re-adoption 
(normal) 

Settlement 

Normal 

Normal 

The  Water  Management  Products  decision  was  adopted  following  the  settlement  procedure. 
That  brought  to  six  the  total  number  of  settlement  cases  adopted  since  the  procedure  was 
introduced in 2008.  

Antitrust and cartel output 

5.  Effective cooperation within the European Competition Network and with national 

courts  

Convergence of antitrust enforcement procedures contributes to a more level playing field in the 
Single Market  

Regulation  1/2003  was  a  key  step  in  providing  a  more  level  playing  field  for  businesses 
operating  cross-border  in  the  Single  Market,  as  all  EU  competition  enforcers  including  the 

12 

 
 
 
national competition authorities (NCAs) and national courts are able to apply the EU antitrust 
rules to cases that affect trade between Member States. This has meant that to a large extent 
the  EU  antitrust  rules  have  become  embedded  across  the  Single  Market.  The  European 
Commission  and  the  NCAs  cooperate  closely  within  the  European  Competition  Network 
(ECN) to ensure that the EU antitrust rules are applied coherently. 

While  the  NCAs  now  regularly  apply  the  same  substantive  competition  rules,  they  do  so 
according  to  divergent  procedures  and  they  may  impose  a  variety  of  sanctions.  Even  if 
competition  national  procedures  are  increasingly  converging  in  the  way  they  enforce  EU 
antitrust law, as the 2009 Report on the functioning of Regulation 1/200323 had already found, 
differences  on  important  aspects  still  remain  which  necessitates  further  examination  and 
reflection. 

In  the  field  of  leniency,  already  in  2006  the  ECN  agreed  on  the  ECN  Model  Leniency 
Programme (MLP) which has acted as a major catalyst in encouraging Member States and/or 
NCAs  to  introduce  and  develop  their  own  leniency  policies  and  in  promoting  convergence 
between them. In November 2012, the ECN further refined the MLP, as explained above.  

In November 2012, Reports by the ECN on investigative and decision-making powers were 
published, which for the first time provide an overview of the enforcement procedures within 
the ECN. These Reports demonstrate that national legislators have made clear efforts to make 
their procedures for the enforcement of Articles 101 and 102 TFEU more convergent. Basic 
elements of decision-making powers and procedures, such as the power to take prohibition or 
commitment decisions or to grant interim measures are present in all or in a vast number of 
jurisdictions. Moreover, procedural steps that are crucial in terms of safeguarding the rights of 
defence  of  parties  (such  as  the  right  to  be  heard  through  a  statement  of  objections  or 
equivalent; access to file) are present in all jurisdictions in one form or another.  

However, this has not led to uniformity. Divergence subsists on a few fundamental questions 
such  as  whether  competition  authorities  have  the  power  to  set  priorities  or  the  legal 
framework  for  conducting  interviews,  as  well  as  numerous  aspects  at  a  more  detailed level, 
including  the  criteria  for  adopting  interim  measures  and  sanctions  for  non-compliance  with 
investigatory measures. The Reports are intended to provide a basis for informed debate about 
the need for further procedural convergence within the ECN. The ECN will continue looking 
into this matter, in order to further enhance the level playing field for companies operating in 
the Single Market. 

Continuing the close cooperation with national courts 

As regards cooperation with national courts, the Commission continued to support the coherent and consistent 
application of EU competition rules at national level. The Commission now publishes its opinions and amicus 
curiae observations on its website24 as soon as it receives the approval for publication by the national court to 
which  the  opinion  or  observation  was  submitted.  In  2012,  the  Commission  submitted  three  amicus  curiae 
observations under Article 15(3) of Regulation 1/2003 on different matters to courts in Belgium25, France26 and 

23 See Commission Communication (COM (2009)206 final) 
24 Opinions and amicus curiae observations are available at 
http://ec.europa.eu/competition/court/overview_en.html 
25 In its observation (available at the link in footnote 4) the Commission held that tax deductibility of fines 
imposed by the Commission for infringements of Articles 101 and 102 TFEU would undermine the deterrent 
character of such fines and is contrary to the principle of loyal cooperation as laid down in Article 4(3) TEU 
26 The Commission's observations concerned the interpretation of the notion of a "restriction by object" under 
Article 101 (3) TFEU 

13 

 
 
                                                            
Slovakia27.  The  Belgian  Constitutional  Court  followed  in  its  judgment  of  20  December  2012  the  observations 
submitted  by  the  Commission,  while  the  two  other  cases  are  still  pending.  In  two  of  the  three  amicus  curiae 
observations  submitted  by  the  Commission  in  2011,  the  receiving  courts  followed  the  Commission's 
observations  in  judgments  handed  down  in  2012.  The  first  case  concerned  possible  inter  partes  disclosure  of 
various documents, some of which contained information specifically prepared for the purpose of an application 
under  the  Commission's  leniency  programme28.  The  second  case  concerned  the  interpretation  of  the  notion  of 
"appreciable  effect  on  trade  between  Member  States"29.  In  the  third  case  the  receiving  court  submitted  a 
reference for a preliminary ruling to the ECJ30. 

Cooperation with national courts was furthermore supported by the continued funding of a competition-specific 
training of judges program by the Commission31. 

6.  Developing the international dimension of EU competition policy  

The globalisation of the economy calls for closer cooperation among competition authorities 
not  only  in  Europe,  but  also  across  the  globe.  Such  cooperation  is  essential  to  ensure 
interoperability between and consistency in the outcome of enforcement activities carried out 
by  different  authorities,  to  enhance  the  effectiveness  of  their  investigations  and  to  secure  a 
level playing field for EU businesses in world markets. As in the past, and as encouraged by 
the  European  Parliament,  the  Commission  has  engaged  in  policy  dialogues  with  the 
authorities in a number of other jurisdictions, at both multilateral and bilateral level, so as to 
promote convergence on both substantive and procedural competition rules. The Commission 
has  also  continued  to  cooperate  closely  with  many  competition  agencies  in  concrete 
enforcement activities.  

At bilateral level, in 2012 the Commission strove to further strengthen cooperation with non-
EU  competition  authorities,  focusing  its  efforts  mainly  on  the  EU's  main  trading  partners 
(both traditional trading partners and major emerging economies). In this respect, high-level 
dialogues were held in 2012 with representatives of all the competition agencies with which 
the  EU  has  concluded  a  cooperation  agreement  or  a  Memorandum  of  Understanding32. 
Likewise,  the  Commission  engaged  in  fruitful  discussions  with  the  US  federal  competition 
authorities  with  a  view  to  improving  cooperation  in  the  area  of  unilateral  conduct,  mergers 
and  airline  alliances.  In  the  margin  of  the  EU-China  Summit  on  20  September,  DG 
Competition  signed  a  Memorandum  of  Understanding  for  Cooperation  in  the  area  of  anti-
monopoly  law  with  the  National  Development  and  Reform  Council  (NDRC)  and  the  State 
Administration  of  Industry  and  Commerce  (SAIC),  the  two  Chinese  authorities  responsible 
for  the  enforcement  of  the  antitrust  provisions  of  the  Anti-Monopoly  Law.  On  1  June,  the 
Commission  recommended  to  the  Council  to  sign  and  conclude  a  "Second  Generation" 
cooperation agreement between the EU and Switzerland.  

27 The Commission's observations concerned issues related to the parallel application of Articles 102 TFEU and 
the corresponding provisions in national law and to the possibility for a national competition authority to impose 
a fine for an infringement of the general prohibition of abuse of a dominant position laid down in Article 102 
TFEU 
28 Judgment of the High Court of England and Wales in National Grid on 4 April 2012 (available at 
http://ec.europa.eu/competition/court/overview_en.html) 
29 Judgment of the French Supreme Court (Cour de Cassation) on 31 January 2012 (available at 
http://ec.europa.eu/competition/court/overview_en.html) 
30 Case C-681/11 Bundeswettbewerbsbehörde/Schenker and others, lodged by the Austrian Supreme Court 
(Oberster Gerichtshof) 
31 In 2012, the Commission funded eleven training programs in nine Member States. Further details are available 
at http://ec.europa.eu/competition/court/training.html 
32 USA, Canada, Japan, South Korea, China, Brazil and Russia 

14 

 
 
                                                            
Negotiations on a similar agreement between the EU and Canada have been progressing well. 
The  European  Commission  continued  negotiating  Free  Trade  Agreements  with  a  large 
number of third countries which all include competition chapters. The negotiation of the Free 
Trade Agreement with Singapore was concluded in 2012 and it contains a substantial chapter 
not  only  on  antitrust,  mergers  and  SOEs  but  also  on  subsidies  to  services  and  goods.  In 
addition,  the  Commission  continued  to  engage  in  technical  cooperation activities  with  other 
non-EU  competition  authorities,  in  particular  with  the  Chinese  and  Indian  competition 
authorities. 

With respect to the accession negotiations with candidate countries, significant progress was 
made  in  2012  with  the  opening  and  the  provisional  closure  of  the  competition  chapter  with 
Iceland.  In  2012  the  Commission  continued  to  monitor  closely  the  implementation  of  the 
provisions of the steel and shipbuilding protocol included in the Accession Treaty for Croatia.  

The  Commission  has  also  continued  its  active  engagement  with  international  competition 
related fora such as the Competition Committee of the OECD, the International Competition 
Network and Unctad. In 2012, it took up responsibility as a co-chair of the Mergers Working 
Group  of  ICN  and  moved  to  a  co-chair  position  of  one  of  the  Sub-Groups  of  the  Cartel 
Working Group. In that same year, the Commission was also given responsibility as project 
leader (together with US FTC) for the Steering Group projects on investigative processes in 
competition enforcement activities. 

Merger control 

1.  Deepening cooperation with competition authorities in the Member States and third 

countries  

The  EU  merger  control  regime  is  essential  in  protecting  consumer  welfare  by  preventing 
market structures that could lead to unjustified price increases or reduction of choice, quality 
or innovation. It thus continues to be a key instrument for keeping the Single Market open and 
competitive, particularly in times of economic and financial crisis.  

Merger control by the Commission applies to transactions exceeding the significant turnover 
thresholds set up in the Merger Regulation and which have an impact on the market beyond 
the national borders of a particular Member State. Such mergers are reviewed exclusively at 
EU  level  in  application  of  a  ‘one-stop  shop’  system.  Concentrations  not  covered  by  the 
Merger  Regulation  fall,  in  principle,  within  the  remit  of  the  Member  States.  However,  the 
Merger  Regulation  leaves  scope  for  re-allocating  cases  from  the  national  competition 
authorities  (NCA)  to  the  Commission  and  vice  versa  in  order  to  ensure  that  the  best  placed 
authority deals with a case. In 2012, based on referral requests by two national competition 
authorities, the Commission became competent for reviewing a case33. Cooperation between 
the  Commission  and  the  NCAs  can  also  become  an  important  element  outside  the  referral 
system34. 

33 Case COMP/M.6796 Aegean /Olympic II 
34 Case COMP/M.6497 Hutchison 3G Austria/Orange Austria, decision of 12.12.2012, press release of 
12.12.2012, IP/12/1361 

15 

 
 
 
                                                            
Cooperation  also  proved  important  with  non-EU  countries.  A  number  of  cases35  involved 
intense  cooperation  with  various  competition  authorities  around  the  world.  In  these  cases 
cooperation was particularly close with the authorities in the United States. 

Further,  a  reflection  on  a  review  of  the  Merger  Regulation  itself  has  been  launched,  in 
particular in relation to covering the acquisition of non-controlling minority shareholdings. 

2.  A significant increase in number decisions with commitments from 2011  

The  number  of  merger  notifications  in  2012  remained  relatively  stable.  Overall,  283  cases 
were notified to the Commission in 2012, which represents about the average of the last four 
years.  The  Commission  opened  ten  in-depth  (i.e.  second  phase)  investigations  covering 
several sectors such as IT, mobile telephony, air transport, basic industries and music. 

The  number  of  decisions  by  the  Commission  increased  significantly  in  2012  compared  to 
2011, but remains stable compared to the average of the last four years. Whereas the number 
of  prohibition  decisions  remains  unchanged  compared  to  2011,  with  one  case  concluded  by 
prohibition  decision  in  201236,  six  decisions37  in  second  phase  were  concluded  with 
commitments  in  2012  compared  to  one  in  2011.  In  first  phase,  the  number  of  clearance 
decisions which were adopted with commitments almost doubled with nine compared to five 
in 2011.  

As  reflected  in  the  increased  number  of  second  phase  investigations  and  commitments  in 
second phase decisions the assessment of the notified transactions also became more complex 
in  2012,  a  trend  already  observable  in  2011.  The  review  of,  in  particular,  the  second  phase 
investigations generally requires sophisticated quantitative and qualitative analyses involving 
large amounts of data. 

35 Cases COMP/M.6410 UTC/Goodrich, decision of 26.7.2012 and COMP/M.6381 Google/Motorola, decision 
of 13.2.2012 
36 Case COMP/M.6126 Deutsche Börse/NYSE Euronext, decision of 1.2.2012 
37 Cases COMP/M.6266 J&J/Synthes, decision of 18.4.2012; COMP/M.6286 Südzucker/ED&F MAN, decision 
of 16.5.2012; COMP/M.6410 UTC/Goodrich, decision of 26.7.2012; COMP/M.6458 Universal Music 
Group/EMI Music, decision of 21.9.2012; COMP/M.6471 Outokumpu/Inoxum, decision of 7.11.2012 and 
COMP/M.6497 Hutchison 3G Austria/Orange Austria, decision of 12.12.2012 

16 

 
 
                                                            
Merger decisions 

3.  Simplifying merger procedures further 

In  order  to  increase  efficiency  when  dealing  with  unproblematic  cases  and  to  make  the 
notification system more business friendly, a simplification exercise was launched in 2012, in 
particular with respect to transactions that clearly pose no problems to competition. While the 
current procedures,  which also entail referring cases  from  EU  countries  to  the  Commission, 
work well, there is scope for making them smoother and shorter. 

4.  Significant judgments by the EU Courts in merger control  

In  Electrabel38,  the  General  Court  fully  dismissed  Electrabel's  appeal  of  a  Commission 
decision  of  June  2009  fining  it  EUR  20 million  for  acquiring  control  over  Compagnie 
Nationale  du  Rhône  without  prior  approval  under  the  EU  Merger  Regulation.  This  was  the 
first time that an EU court rules on a Commission decision to impose a fine for implementing 
a  concentration  of  EU  dimension  without  prior  notification  to  and  approval  by  the 
Commission. The GC confirmed that such early implementation constitutes a serious breach 
of  EU  merger  control  law.  The  Court  also  makes  clear  that  the  Commission  is  entitled  to 
adopt effective and deterrent sanctions in case of such infringements.  

In  Editions  Odile  Jacob  and  Agrofert39,  the  Court  of  Justice  ruled  on  appeals  by  the 
Commission  against  two  judgments  of  the  General  Court  that  had  annulled  a  Commission 
decision refusing access to documents related to two merger cases. The ECJ confirmed that it 
is necessary to ensure a coherent application of the Transparanecy Regulation 1049/2001 with 
other  rules  of  EU  Law,  in  particular  regulations  designed  to  ensure  respect  for  professional 
secrecy. The ECJ held in particular that the Commission can rely on the general presumption 

38 Case T-332/09, judgment of 12 December 2012 
39 Cases C-404/10 P and C-477/10 P, judgments of 28 June 2012 

17 

 
 
 
                                                            
that  disclosure  of  the  correspondence  between  the  Commission  and  the  parties  to  merger 
procedures would undermine the protection of the commercial interests of the parties and the 
purpose  of  the  Commission's  merger  investigations,  in  order  to  refuse  access  to  such 
correspondence even after the closure of proceedings. 

II. 

SECTORAL OVERVIEW 

This  section  provides  an  overview  of  policy  developments  and  enforcement  actions  in  a 
number of selected sectors on which the Commission particularly focused in 2012: energy and 
environment,  ICT  and  media,  financial  services,  manufacturing,  the  agri-food  industry, 
pharmaceutical and health services, and transport. 

1. Energy & Environment  

Overview of key challenges in the sector  

This  past  year  was  a  year  in  which  governments  and  industry  worldwide  started  a  complex 
adjustment  process  in  the  wake  of  momentous  events  affecting  the  energy  and  environment 
sector in 2011, such as the Fukushima nuclear disaster in Japan. Coupled with the long-term 
trend  of  rising  fuel  prices  and  the  high  cost  of  renewable  energy,  those  events  added  to  the 
challenges  faced  by  Member  States  to  meet  the  Europe  2020  Strategy  and  the  EU  energy 
policy objectives. The strengthening and building of partnerships with the EU's key partners is 
also  of  strategic  interest  for  secure,  safe,  sustainable  and  competitive  energy.  International 
cooperation with industrialised and fast growing economies is necessary to maintain Europe's 
position in energy research and innovation. 

The three pilars of the EU energy policy: competitiveness, sustainability and security of supply 

The  EU  Energy  policy  is  built  around  three  pillars:  sustainability,  security  of  supply  and  competitiveness. 
Reducing greenhouse gas emissions is vital to combating climate change. European consumers depend heavily 
on the secure and reliable provision of energy at competitive prices. Interconnection between European gas and 
electricity  grids  need  to  be  substantially  improved.  The  Commission's    Communication  "Energy  2020  -  A 
strategy  for  competitive,  sustainable  and  secure  energy"  Communication  calls  for  action  in  areas  where  new 
challenges  are  emerging.  These  areas  are  energy  efficiency,  infrastructure,  choice  and  security  for  consumers, 
energy  technology  and  the  external  dimension  of  the  internal  energy  market.  Competition  enforcement  and 
advocacy,  along  with  sector-specific  legislative  proposals,  constitute  the  main  tools  the  Commission  has  at  is 
disposal to achieve these goals and create a single European energy market by the 2020 target date. Given the 
strategic  importance  of  the  energy  sector,  the  European  Parliament,  in  its  Resolution  on  the  2011  report  on 
competition policy (the Sánchez Presedo report) continued to request that the Commission actively monitors the 
degree of competition on the market. 

EU  Competition  policy  in  the  energy  field  aims  to  ensure  a  secure  flow  of  energy,  in 
particular electricity and gas, at competitive prices to EU households and businesses. An open 
and  competitive  single  EU  energy  market  will  also  guarantee  secure  provision  of  energy  in 
the future by sending the necessary signals for investment and making the European market 
attractive to external suppliers. Such a market should also be open to new energy mixes and 
play  a  major  role  in  developing  and  deploying  new  environmentally  friendly  technologies. 
Prices that reflect costs will help encourage energy efficiency, whilst supporting sustainability 
and  security  of  supply.  However,  we  are  not  there  yet.  The  energy  services  (both  gas  and 
electricity)  performed  below  the  average  in  the  most  recent  Consumer  Markets  Scoreboard, 

18 

 
 
 
 
with  electricity  supply  being  the  5th  worst  assessed  services  market  (out  of  30)40.  Both 
markets  have  particularly  poor  scores  on  choice,  comparability  and  switching  suppliers  and 
tariffs, suggesting that consumers do not actively participate in the market and are not making 
full use of the saving opportunities created by market liberalisation. The Commission´s action 
in the area of competition policy is therefore consistent with and supports the Commission´s 
legislative action to integrate the Single Market in electricity and gas (see the Commission´s 
Communication "Making the internal energy market work"). 

Contribution of EU competition policy in tackling the challenges 

Enhancing competitiveness across the energy sector  

Competition enforcement and advocacy in the field of energy and the environment contribute 
to the competitiveness of EU industry and the integration of the internal market by opening 
markets,  creating  a  level  playing  field  between  competitors,  preventing  incumbents  from 
reinforcing  their  dominant  positions,  inducing  economic  restructuring  and  creating  a 
framework  for  investment  that  avoids  distortions  and  ensures  the  efficient  allocation  of 
resources in the Single Market. 

Examples  of  enforcement  actions  by  the  Commission  in  2012  underpinning  those  strategic 
objectives  include  an  investigation  into  the  conduct  of  power  exchanges41,  the  opening  of 
formal  proceedings  to  investigate  whether  Bulgarian  Energy  Holding  may  be  abusing  its 
dominant  market  position  in  the  wholesale  electricity  market  in  Bulgaria42,  the  opening  of 
formal proceedings against the Romanian power exchange Opcom with respect to a suspected 
abuse  of  dominance  in  discriminating  against  non-Romanian  traders43  and  the  decision  to 
make  binding  commitments  that  reduce  the  product  scope  and  duration  of  a  non-compete 
obligation in  the  sector  for  nuclear  technology (Siemes and Areva44). The Commission also 
fined three European producers of water management products45 for price coordination in an 
infringement  which  lasted  from  June  2006  to  May  2008.  Water  management  products  are 
used  in  heating,  cooling  and  sanitation  systems  and  comprise  pressurisation  systems  and 
products  for  quality  assurance.  The  Commission  used  the  settlement  procedure  to  deal 
effectively  with  this  case  which  was  concluded  on  27  June  2012  with  the  adoption  of  a 
prohibition decision on 27 June 2012 against three undertakings, which were fined a total of 
EUR 13.6 million. 

Moreover,  the  Commission  actively  monitored  the  implementation  of  remedies  in  several 
previous antitrust cases, all aimed at opening up national markets and preventing incumbents 
from abusing their dominant position in several Member States. The monitoring included the 
implementation  of  measures  that  would  remedy  competition  concerns  in  the  form  of 
foreclosure  (ENI46,  E.On  gas47  and  GDF48),  customer  tying  through  long-term  contracts  for 

40 8th Consumer Markets Scoreboard, 2012, Commission, DG SANCO, 
http://ec.europa.eu/consumers/consumer_research/editions/cms8_en.htm 
41 Case COMP/39952 Power exchanges, see MEMO/12/78 of 7.2.2012 
42 Case COMP/39767 BEH electricity, IP/12/1307 of 3.12.2012 
43 Case COMP/39984 Romanian power exchange, IP/12/1355 of 11.12.2012 
44 Case COMP/39736 Siemens/Areva decision of 18.6.2012 
45 Case COMP/39611 Water management products, press release of 27.6.2012, IP/12/704 
46 Case COMP/39315 ENI, decision of 29 September 2010, OJ C352, 23.12.2010, p. 8-10, IP/10/1197 
47 Case COMP/39317 E.ON gas foreclosure, decision of 4 May 2010, OJ C278, 15.10.2010, p. 9-10, IP/10/494 
48 Case COMP/39316 GDF foreclosure, decision of 3 December 2009, OJ C57, 9.3.2010, p. 13-14, IP/09/1872 

19 

 
 
                                                            
large electricity customers (EDF in France49) as well as restrictions on export capacity (SVK50 
in Sweden). 

The  EU  merger  rules  seek  to  ensure  that  mergers  harmful  to  the  competitive  process  are 
altered so that these effects do not occur or are avoided all together whilst allowing beneficial 
restructuring.  During  2012,  the  Commission  was  able  to  approve  a  number  of  mergers, 
including  mergers  connected  to  restructuring  of  gas  and  electricity  networks51  induced  by 
liberalisation,  as  well  as  mergers  linked  to  reneweable  energy  sources52.  While  the 
Commission  did  not  have  to  intervene  in  new  mergers  that  would  have  anti-competitive 
effects  in  2012,  it  devoted  considerable  efforts  to  defending  the  EU's  interests  before  the 
General  Court53  and  in  ensuring  that  commitments  to  avoid  harmful  effects  made  in  earlier 
merger  cases  by  companies,  such  as  EDF  and  GDF  Suez54,  were  effectively  complied  with 
and  enforced.  Strict  post-decision  enforcement  is  critical  as,  otherwise,  the  anti-competitive 
effects that the earlier decisions sought to avoid could nevertheless materialise. 

Using  its  powers  in  the  State  aid  field  to  preserve  the  integrity  of  the  Single  Market  by 
controlling whether Member States use their public resources in a non-distortive manner, the 
Commission undertook enforcement action and adopted new rules in the field of energy and 
the  environment.  For  example,  the  Commission  opened  a  formal  investigation  on  potential 
State aid in Romania in the form of privileged tariffs granted by the main electricity supplier 
to  a  range  of  companies55  and  gave  conditional  approval  to  the  aid  component  in  regulated 
electricity  tariffs  in  France56.  The  Commission  also  adopted  rules  on  national  support  for 
industry electricity costs in the context of the EU Emission Trading Scheme57. 

Contributing to sustainability 

Sustainable development is the long term use of resources to meet human needs for energy, 
while  preserving  the  environment.  Sustainability  was  at  the  heart  of  the  measures  reviewed 
under the State aid rules under which the Commission authorised aid that supports renewable 
energy sources and environmentally friendly businesses. This is justified on the reasoning that 
State aid can correct market failures caused by so-called negative externalities, i.e. situations 
where environmental costs for society are not yet reflected in the production costs borne by 
companies. 

49 Case COMP/39386 Long term electricity contracts in France, decision of 17 March 2010, OJ C133, 
22.5.2010, p. 5-6, IP/10/290 
50 Case COMP/39351 Swedish Interconnectors, decision of 14 April 2010, OJ C142, 1.6.2010, p. 28-29 
51 Such as M.6591 Tennet offshore GMBH / Mitsubishi Corporation / Tenet Offshore 2, M.6698 Cheung Kong 
Holdings / Cheung Kong Infrastructure Holdings / Power Assets Holdings / MGN Gas Networks UK and 
M.6508 GIP / Fluxys G / Fluxys Switserland 
52 Such as M.6669 CDC Infrastructure / Foresight Solar / Adenium Solar / VEI Capital / FOR VEI, M.6679 
Steag / Fronterasol / OHL Industrial / Arenales Solar and M.6540 Dong Energy Borkum Riffgrund I Holdco / 
Boston Holding / Borkum Riffgrund I Offshore Windpark 
53 Cases T-389/12 and T-389/12 R EDF v European Commission 
54 Such as the remedies accepted in M.5224 EDF / BE, M.5549 EDF / Segebel and M.5978 GDF Suez / 
International Power. Related cases were M.6422 Tokyo Gas / Siemens / Tessenderlo Chemie / International 
Power / GDF Suez / T-Power JV and M.6414 ITOCHU / Tessenderlo Chemie / Siemens Project Ventures / T-
Power JV 
55 Cases SA.33451, SA.33475 and SA.33581 (12/C) Alleged preferential tariffs in contracts of Hidroelectrica SA 
with electricity traders, Alleged preferential purchase tariffs of Hidroelectrica SA – thermo, Alleged preferential 
tariffs in contracts of Hidroelectrica SA with industrial producers, decisions of 25 April 2012, OJ C328, 
publication pending 
56 Case SA.21918 (C17/2007) Tarifs réglementés de l'électricité en France, decision of 12 June 2012 
57 Guidelines on certain State aid measures in the context of the greenhouse gas emission allowance trading 
scheme post 2012, decision of 22 May 2012, OJ C154, 5.6.2012, p. 4 

20 

 
 
                                                            
State support for renewable energy remains one of the key drivers for its deployment, based 
on  the  horizontal  rules  set  out  in  the  Environmental  Aid  Guidelines58.  One  set  of  cases 
concerned energy from renewable sources (e.g. in Ireland59, the Netherlands60, Austria61, the 
UK62  and  France63).  Other  cases  relate  to  the  upgrading  of  existing  energy  infrastructure  to 
higher environmental standards (e.g. in Greece64 and Poland65) and the use of environmentally 
friendly  transport  vehicles  (UK66)  and  waste  treatment  (UK67).  Work  on  the  revision  of  the 
Environmental Aid Guidelines started in 2012, aiming both at taking stock of the experience 
of subsidising a range of technologies and at taking account of market developments. 

The  Commission  also  approved  State  aid  for  the  modernisation  of  electricity  generation 
installations  in  Cyprus,  Estonia,  Hungary,  the  Czech  Republic  and  Romania  based  on  the 
regime  established  by  Article  10c  of  the  EU  Emission  Trading  Directive68.  Those  Member 
States  will  be  allowed  to  grant  emission  trading  allowances  free  of  charge  with  a  view  to 
promoting  competition  and  increasing  security  of  supply.  Several  other  Member  States  are 
expected to come forward with similar plans. 

Contributing to security of supply 

The EU energy sector is characterised by a high dependency on imports, as the EU produces 
only  48%  of  its  energy  needs69.  Energy  dependency  differs  greatly  among  Member  States. 
Denmark  appears  to  be  the  only  net  energy  exporter  within  the  EU27,  while  the  Baltic 
countries  rely  on  a  single  source  for  their  gas  imports.  The  EU  energy  sector  is  also 
characterized  by  a  significant  need  for 
in  electricity  generation 
infrastructure,  given  the  trend  for  gas  and  renewables  to  contribute  more  to  electricity 
generation in the EU. 

investments,  e.g. 

The  Commission's  antitrust  enforcement  action  in  the  energy  sector  can  contribute  to 
resolving  security  of  supply  issues  by  facilitating  access  to  the  market  and  encouraging 
investment.  In  2012,  the  Commission  continued  its  investigation  of  a  possible  abuse  of 
dominance on the Czech electricity market through the hindrance of the entry of competitors 
and  assessed  commitments  from  ČEZ  in  the  form  of  the  divestment  of  lignite  fired  power 

58 Community guidelines on State aid for environmental protection, OJ C82, 1.4.2008, p. 1-33 
59 Case SA.31236 Renewable feed In tariff, decision of 12 January 2012 
60 Case SA.34411 SDE +, decision of 7 September 2012 
61 Cases SA.33384 Green Electricity Act 2012, Austria, decision of 8 February 2012; SA.32531 Environmental 
aid in Austria, decision of 21 March 2012 
62 Case SA.34140 Renewable Heat Initiative (Northern Ireland), decision of 12 June 2012 
63 Case SA.33915 Régime cadre d''aides en faveur de la protection de l''environnement, decision of 7 June 2012 
64 Cases SA.34642 Expansion & modernization of Kozani's district heating infrastructure, decision of 10 
September 2012; SA.33621 District heating network infrastructure of Florina, decision of 10 September 2012 
and SA.33405 Expansion of district heating network infrastructure of Amyntaio area, decision of 10 September 
2012 
65 Cases SA.34472 Aid for modernisation of heating distribution networks in Poland, decision of 10 September 
2012; SA.34471 Aid for modernisation and replacement of electricity distribution networks in Poland, decision 
of 10 September 2012; SA.32832 Aid for modernizing the heat network in Dębica, decision of 23 January 2012; 
SA.32831 Aid for modernising the district heating network in Ropczyce, decision of 23 January 2012; SA.32830 
Aid for modernizing the heat network in Krosno, decision of 4 February 2012 and SA.32757 Individual aid for 
the modernisation of the district heating network in Jaslo, decision of 23 January 2012 
66 Case SA.34375 Aid to purchase of ultra-low emission vehicle, amendment to include vans, decision of 22 June 
2012 
67 Case SA.34051 Hull Energy Works, decision of 19 September 2012 
68 Directive 2003/87/EC as amended by Directive 2009/29/EC. During 2012 Poland, Lithuania and Bulgaria pre-
notified similar modernisation plans 
69 Market Observatory for Energy, June 2011 

21 

 
 
                                                            
plants. The Commission also opened proceedings against Gazprom70 in Russia to investigate 
whether it abused its dominant market position in upstream gas supply markets in central and 
eastern European Member States by partitioning market, preventing diversification of supply 
of gas and/or imposing unfair prices on its customers by linking the price of gas to oil prices.  

2. Information and Communication Technologies (ICT) and Media  

Overview of key challenges in the sector 

As  recognised  in  the  Digital  Agenda  for  Europe  (the  "Digital  Agenda")71  and  the 
Communication  on  e-commerce  and  other  online 
(the  “E-commerce 
Communication”)72,  Information  and  Communication  Technologies  ("ICT")  play  a  key 
enabling  role  for  Europe  to  achieve  its  strategic  objectives  under  the  Europe  2020  Strategy 
and, in particular, the objectives under the Digital Agenda flagship initiative. Creative content 
is also an essential input into the digital economy and a key driver of consumer demand for 
digital  services.  There  is  a  very  considerable  growth  potential  in  these  sectors.  In  mature 
economies, internet related expenditure and consumption accounted for 21% of GDP growth 
during the past five years73. 

services 

Furthermore,  in  light  of  the  rapid  technological  developments  which  characterise  these 
sectors,  effective  competition  policy  and  enforcement  are  essential  to  address  potential 
malfunctioning in the ICT and media sectors. 

Competition  policy  also  plays  an  important  role  in  shaping  the  Commission's  legislative 
proposals in the media sector such as the July 2012 proposal for the Directive on collective 
rights  management.  The  proposal's  objective  is  to  improve  transparency  and  governance  of 
collecting  societies  as  well  as  facilitate  multi-territorial  licensing  of  the  rights  managed  by 
collecting  societies  and  consequently  improve  access  to  online  music.  In  light  of  the 
Commission's enforcement experience in competition cases, the proposal contains a number 
of important competition law safeguards aimed at ensuring compliance with competition law 
in the collective management of copyright.  

Contribution of EU competition policy in tackling the challenges 

State  aid  policy  is  of  growing  importance  in  the  ICT  and  media  field.  After  the  public 
consultation on an issues paper in 2011 to prepare the review of the rules for State aid to films 
and  other  audiovisual  works74,  a  new  draft  Cinema  Communication  was  published  for 
consultation  on  14  March.  2012.  The  review  of  the  Broadband  Guidelines75,  which  also 
started with the release of an issues paper in 2011, was pursued with the publication of draft 
Guidelines on 1 June 2012. Around 100 comments received from stakeholders were published 

70 Case COMP/39816, Upstream Gas Supplies in Central and Eastern Europe, opening of proceedings on 31 
August 2012 
71 A Digital Agenda for Europe, COM(2010) 245 final/2 
72 A coherent framework for building trust in the Digital Single Market for e-commerce and online services, 
COM (2011) 942 final 
73 McKinsey Global Institute, “Internet Matters: The Net’s Sweeping Impact on Growth, Jobs, and Prosperity” 
(May 2011) as quoted in an Issues Note on the Digital Economy by the OECD Secretariat (Competition 
Committee) (DAF/COMP(2011)16) 
74 Commission communication on certain legal aspects relating to cinematographic and other audiovisual works 
(Cinema Communication) of 26 September 2001, OJ C43, 16.2.2002, p. 6 
75 Community Guidelines for the application of State aid rules in relation to rapid deployment of broadband 
networks, OJ C235, 30.9.2009, p. 7 

22 

 
 
 
                                                            
on  DG  COMP's  website  in  October  2012.  The  new  Guidelines,  which  mainly  refine  the 
previous guidelines, were adopted on 19 December 2012 and align the rules in this area with 
the targets of the Digital Agenda and accommodate changes in technology. 

The Commission has continued to use its enforcement tools to ensure unrestricted competition 
and  growth  in  the  ICT  and  media  sectors  to  the  benefit  of  consumers  and  to  support  the 
Commission's broader Digital Agenda goals. In this context, State aid has an important role to 
play  in  accelerating  the  deployment  of  broadband  networks  in  Europe.  Pro-competitive  aid 
measures,  which  complement  private  investments  in  areas  which  are  not  profitable  on 
commercial terms, are necessary to achieve the objectives of the Digital Agenda. The volume 
of State aid approved by the Commission in 21 decisions under the Broadband Guidelines in 
2012 amounted to EUR 6.555 billion in 2012. This is a steep increase compared with the EUR 
1.8 billion budgets approved in 2011 and 2010, notably because more Member States notify 
framework schemes with correspondingly higher budgets. 

Enforcement action against incumbent telecommunicatons operators  

In  May  2012,  the  Commission  sent  a  statement  of  objections  to  Slovak  Telekom  and  to  its 
parent company, Deutsche Telekom, in which the Commission took the preliminary view that 
Slovak  Telekom  may  have  abused  its  dominant  position  on  several  wholesale  broadband 
markets  in  Slovakia  since  May  2004.  In  particular,  Slovak  Telekom  may  have  refused  to 
supply  unbundled  access  to  its  local  loops  and  wholesale  services  to  competitors,  and  may 
have imposed a margin squeeze on alternative operators (Slovak Telekom itself would have 
operated  at  a  loss  if  its  own  wholesale  prices  had  applied  to  it.  The  Commission  also 
considered on a preliminary basis that Deutsche Telekom may be held liable for the conduct, 
because of the nature and degree of its links with its subsidiary Slovak Telekom, in which it 
owns a majority stake of 51%.  

The Commission is also examining the observations received on the statement of objections 
sent to Telefónica and to Portugal Telecom in October 2011, regarding their agreement not to 
compete on the Iberian telecommunications markets, expressing the preliminary view that this 
agreement breaches Article 101 TFEU. This is the first case in the sector concerning a cross-
border market-sharing  agreement, which is of particular importance to avoid that the Single 
Market continues to be artificially compartmentalised along national borders76.  

Ongoing  enforcement  in  the  market  for  internet  search  and  advertising  (Google)  as  well  as  injunctions 
based on standard essential patents (Samsung) 

Another  case  involving  an  alleged  abuse  of  a  dominant  position  concerns  Google.  The  Commission  has 
expressed concerns that four types of Google business practices may constitute an abuse of a dominant position 
within  the  meaning  of  Article  102  TFEU,  namely:  (i)  the  way  in  which  Google’s  vertical  search  services  are 
displayed within general search results as compared to services of competitors; (ii) the way Google may use and 
display third party content on its vertical search services; (iii) exclusivity agreements for the delivery of Google 
search  advertisements  on  other  websites;  and  (iv)  restrictions  in  the  portability  of  AdWords  advertising 
campaigns. Google submitted a detailed commitment text at the end of January 2013. The Commission's services 
are  currently  analysing  Google's  proposal  with  a  view  to  deciding  whether  it  would  allow  the  Commission  to 
commence the process for the adoption of a decision pursuant to Article 9 of Regulation 1/2003.  
It  also  opened  three  proceedings77  concerning  possible  abuses  by  Samsung  and  Motorola  of  their  standard 
essential patents, partly in order to provide more clarity in this field where the Commission received numerous 
complaints during the year. On 21 December 2012, in respect of one of those three proceedings, the Commission 

76 On 23 January 2013 the Commission fined Telefónica and Portugal Telecom EUR 79 million in this case, 
which falls within the scope of next year´s Annual Competition Report 
77 Initiation of proceedings against Samsung on 30 January 2012 (Case COMP/C-3/39.939); initiation of 
proceedings against Motorola on 2 April 2012 (Cases COMP/C-3/39.985  and COMP/C-3/39.986) 

23 

 
 
                                                            
sent a Statement of Objections to Samsung, informing it of the Commission’s preliminary view that Samsung's 
seeking  of  injunctions  against  Apple  in  various  Member  States  on  the  basis  of  its  mobile  phone  standard-
essential patents amounts to an abuse of a dominant position78. 

Enforcement linked to digitisation  

The Commission has also pursued several actions focusing on the impact of the transition to 
digital networks on content sectors.  

To  ensure  that  the  transition  from  analogue  to  digital  terrestrial  broadcasting  and  that  the 
resulting digital dividend lead to new entry and broader viewer choice, EU law79 requires that 
such  dividend  is  allocated  subject  to  specific  conditions  (e.g.  open,  transparent  and  non-
discriminatory  procedures).  Following  intervention  by  the  Commission,  France  assigned 
frequencies to new operators in 2012, Bulgaria took legislative steps to address the breaches 
and Italy took steps with a view to assigning new digital frequencies (multiplexes) in 2013. 

On 12 December 2012, the Commission also adopted a commitment decision in the e-books 
sector,  another  nascent  and  fast-moving  part  of  the  digital  economy,  that  rendered  legally 
binding  commitments  offered  by  Apple  and  four  international  e-book  publishers:  Simon  & 
Schuster (CBS Corp.), Harper Collins (News Corp.), Hachette Livre (Lagardère Publishing) 
and Verlagsgruppe Georg von Holtzbrinck (owner of inter alia Macmillan). 

The Commission had opened proceedings in December 2011 against these companies, as well 
as a fifth international e-book publisher, Penguin (Pearson Group). While the December 2012 
decision was not addressed to Penguin as that publisher chose not to offer commitments to the 
Commission, the Commission is currently engaged in constructive discussions with Penguin 
on commitments that would allow an early closure of proceedings also against that publisher.  

Furthermore,  following  the  Premier  League  judgment80,  the  Commission  conducted  a  fact-
finding investigation to examine whether licensing agreements for premium pay-TV content 
contain  absolute  territorial  protection  clauses  which  may  restrict  competition,  hinder  the 
completion of the Single Market and prevent consumers from cross-border access to premium 
sports and film content.  

ICT in the context of the Merger Regulation 

Finally,  through  the  Merger  Regulation,  the  Commission  ensures  that  the  ICT  and  media 
sectors  remain  competitive  and  open  for  new  entrants,  and  that  access  to  key  elements 
(whether content, technology or interconnection) is not denied. The Commission also aims at 
ensuring  that  consumers  do  not  suffer  from  higher  prices,  less  choice,  poorer  quality  and 
limited innovation as a result of mergers in that sector. 

One  example  of  the  Commission  taking  action  under  the  Merger  Regulation  to  preserve 
competitiveness  and  consumer  choice  in  the  music  sector  is  the  Commission's  conditional 
clearance decision of the proposed acquisition by Universal Music of EMI's recorded music 
assets. The proposed transaction, as originally notified, would have increased Universal's size 
in a way that would likely have enabled it to impose higher prices and more onerous licensing 
terms  on  digital  music  providers.  This,  in  turn,  would  have  negatively  affected  the 
possibilities  for  innovative  providers  to  expand  or  launch  new  music  offerings  and  would 

78 See press release at http://europa.eu/rapid/press-release_IP-12-1448_en.htm 
79 Including Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for 
electronic communications networks and services (OJ L249, p. 21-26) 
80 Joined Cases C-403/08 and C-429/08, judgment of 4 October 2011 

24 

 
 
                                                            
ultimately have reduced consumers' choice for digital music, as well as cultural diversity. To 
remove  the  Commission's  concerns,  Universal  committed  to  divest  significant  assets, 
corresponding to around two thirds of EMI's revenues in the EEA, and including eight of the 
ten EMI top selling artists. Moreover, the commitments provide that at least two thirds of the 
divested assets will have to be sold to a single purchaser, which will have to have the ability 
and the resources to operate in the market as a credible competitor. This case also shows that 
the  Commission's  merger  control  activity  continued  to  contribute  to  the  maintenance  of 
market conditions supportive of innovation. 

Another example of the Commission intervening under the Merger Regulation to ensure that a 
proposed  merger  would  not  have  a  negative  impact  on  end  consumers  in  terms  of  higher 
prices  is  the  Commission's  conditional  clearance  decision  on  12  December  of  Hutchison's 
proposed acquisition of Orange in Austria. The proposed transaction would have led to a four 
to three consolidation on the  Austrian mobile telecommunications  market. The  Commission 
found that the merger of two mobile network operators, such as Hutchison and Orange, with a 
particular  strength  on  the  data  segments,  which  are  of  particular  importance  for  the  future 
telecoms markets, on a market with high barriers to entry and absence of buyer power would 
have  led  to  a  significant  price  increase  for  end  customers  of  mobile  telecommunication 
services.  To  address  these  concerns,  the  parties  submitted  commitments,  including  a 
wholesale access remedy to improve access possibilities for mobile virtual network operators. 
The parties also offered the divestiture of spectrum, which, together with spectrum reserved 
for  new  entrants  by  the  Austrian  regulator  in  the  upcoming  auction  in  2013,  creates  the 
possibility for new mobile network operators to enter the Austrian market. 

3. Financial Services 

Overview of key challenges in the sector 

Financial  services  play  an  essential  role  in  the  economy  in  transforming  short-term  savings 
into long-term lending and directing capital where it is most needed. In 2012, the instability 
and difficulties in the financial sector continued.  

In  2012  the  European  Institutions  took  initiatives  to  deepen  the  Single  Market  in  financial 
services by strengthening the EU financial sector (in line with the EU commitments under the 
G-20) and the European surveillance of the financial system and public finances.  

In  December  2012,  the  European  Council  agreed  on  a  roadmap  for  the  completion  of  the 
Economic and Monetary Union, based on deeper integration and reinforced solidarity81. This 
process  will  begin  with  the  completion,  strengthening  and  implementation  of  the  new 
enhanced economic governance, as well as – in relation to the Banking Union - the adoption 
of the Single Supervisory Mechanism and of the new rules on recovery and resolution and on 
deposit  guarantees.  It  will  be  completed  by  the  establishment  of  a  single  resolution 
mechanism. 

The  arrangements  related  to  banking,  would  allow  direct  recapitalisation  by  the  European 
Supervisory  Mechanism  of  individual  banks  which  would  break  the  vicious  circle  of 
contagion between banks and their sovereign. Since such measures need to comply with the 
State aid rules, the European Commission will continue to play a crucial role in the context of 
the envisaged Banking Union. 

81 See Conclusions of the European Council held on 13-14 December (EUCO 205/12) 

25 

 
 
 
                                                            
Contribution of EU Competition Policy in tackling the challenges 

Antitrust enforcement contributes to the well-functioning of financial markets with incentives 
for market participants to improve efficiency and meet consumer needs. Combined with well-
designed  regulation,  antitrust  enforcement  should  enhance  transparency  and  reduce  entry 
barriers for new technology and new players.  

Action in the area of financial derivatives  

The  European  Commission  pursued  two  antitrust  investigations  in  the  credit  default  swaps 
(CDS)  market82  which  were  opened  in  2011.  The  Commission  continued  to  analyse,  in 
particular, the cooperation between a number of leading investment banks and an information 
service provider. The purpose of the investigation is to establish whether those players acted 
to  preserve  their  stronghold  in  the  profitable  Over-The-Counter  (OTC)  CDS  market  by 
hindering the development of alternative CDS trading platforms in a way which infringed EU 
competition law.  

Action to ensure fair access to financial information 

Access  to  reliable  information  is  crucial  for  the  financial  markets.  On  20  December  2012  the  Commission 
adopted  a  decision  that  renders  legally  binding  the  commitments  offered  by Thomson Reuters  to  create  a  new 
licence  allowing  customers,  for  a  monthly  fee,  to  use  Reuters  Instrument  Codes  (RICs)  for  data  sourced  from 
Thomson Reuters´ competitors. RICs are codes that identify securities and are used by financial institutions to 
retrieve data from Thomson Reuters´ real-time datafeeds. To correctly assess investment opportunities, market 
participants  need  to  access  accurate  and  timely  financial  data,  for  example,  through  consolidated  real-time 
datafeeds. The Commission had concerns that Thomson Reuters might have been abusing its dominant position 
in  the  market  for  such  datafeeds.  The  decision  was  preceded  by  several  rounds  of  commitments  offered  by 
Thomson Reuters and two market tests. In order to correctly assess investment opportunities, market participants 
need  to  access  accurate  and  timely  financial  data,  for  example  through  consolidated  real-time  datafeeds.  The 
commitments  offered  by  Thomson  Reuters  and  rendered  legally  binding  by  the  Commission´s  decision  will 
enhance  competition  in  this  market.  Financial  institutions  that  use  RICs  will  be  able  to  switch  to  alternative 
providers more easily. 

Contributing to seamless, efficient and innovative payment markets 

Payment  markets  are  essential  for  the  Single  Market.  Regulation,  self-regulation  and 
competition enforcement must work together to create open, efficient and innovative market 
structures. In 2012, there have been significant advances in all three areas. 

In  terms  of  regulation,  the  Single  Euro  Payment  Area  (SEPA)  End  Date  Regulation83  was 
adopted in February. This obliges all users to move from the previous national credit transfer 
and  direct  debit  systems  to  the  new  SEPA  systems  established  by  the  European  Payments 
Council by 2014. From a competition perspective, the key element in this regulation is that it 
provides  legal  clarity  on  interchange  fees  for  direct  debit.  This  had  been  a  point  of  much 
discussion  with  the  banking  sector  for  several  years,  and  the  regulation  specified  that 
interchange  fees  for  cross-border  transactions  are  prohibited  from  November  2012  and  for 
domestic  transactions  from  2017.  In  January  2012,  a  Green  Paper  on  cards,  internet  and 
mobile payments was published. It addressed issues such as lack of market access, diverging 
interchange fees, barriers to cross-border acceptance of card payments, lack of transparency, 
lack of European technical and security standards and governance of the SEPA process. 300 
replies were received and published in June. In October, the Commission announced that in 
the  second  quarter  of  2013  it  would  propose  a  revision  of  the  regulatory  framework  (in 

82 Press Release of 29.4.2011, IP/11/509 
83 Regulation 260/2012 

26 

 
 
                                                            
particular  the  Payment  Services  Directive)  and  would  propose  to  regulate  multilateral 
interchange fees (MIFs) for payment card transactions.  

In payments self-regulation has played an important role, particularly with the creation of the 
European Payments Council, which consists of credit and payment institutions, following the 
introduction of the euro. The SEPA Council was created to represent all stakeholders, but the 
roles and decision making powers of the EPC and SEPA Council remain controversial. In the 
SEPA Regulation the Parliament required a review of the governance arrangements. This was 
included  in  the  Green  Paper  and  it  has  been  much  discussed  during  2012,  including  from  a 
competition perspective.  

In  terms  of  competition  enforcement,  in  May  2012  the  General  Court  fully  upheld84  the 
Commission's  decision  which  had  found  that  MasterCard's  MIFs  for  card  payments 
constituted  a  restriction  of  Article  101(1)  TFEU  and  that  MasterCard  had  not  demonstrated 
that  the  MIFs  were  justified  on  efficiency  grounds  under  Article  101(3).  In  July,  the 
Commission issued a supplementary statement of objections to Visa85 concerning its MIFs for 
credit  card  payments  and  the  limitations  it  imposed  on  cross-border  acquiring  where 
merchants  use  banks  in  other  countries  to  benefit  from  better  conditions  and  in  particular 
lower  MIFs.  Investigation  of  the  EPC  work  on  standardisation  for  e-payment  systems 
continued.  The  EPC  announced  in  July  2012  that  it  would  stop  its  work  on  the  e-Payments 
Framework.  

Antitrust investigations in the financial sector 

In  October  2011,  the  Commission  undertook  unannounced  inspections  at  the  premises  of  a 
number  of  companies  active  in  the  sector  of  interest-rate  derivative  products  linked  to  the 
Euro Interbank Offered Rate (EURIBOR) in a number of Member States, as it had concerns 
that  these  companies  may  have  violated  EU  antitrust  rules.  The  Commission  started 
investigating  these  cases  as  a  matter  of  top  priority  before  the  so-called  "LIBOR  scandal" 
triggered by Barclays on the LIBOR/EURIBOR rate manipulation by a number of banks and 
their employees.  

In 2012, the Commission continued to investigate a number of cases related to the benchmark 
rates of LIBOR, EURIBOR, TIBOR – the Tokyo rate – and with regard to a number of banks 
and brokers. The alleged rate-rigging is a major competition concern as it has to be ensured 
that competition in financial markets takes place on a level-playing field. 

Interbank  interest  rate  benchmarks  are  systemic  benchmarks  which  are  important  for  the 
transmission of the euro area’s monetary policy. Besides, the integrity of these benchmarks is 
critical  to  the  pricing  of  many  financial  instruments  such  as  interest  rate  derivatives, 
commercial  and  non-commercial  contracts.  Any  failures  may  cause  losses  for  investors, 
distort  the  real  economy  and  undermine  market  confidence.  The  importance  of  financial 
derivatives, in particular, is immense. In 2011, interest-rate derivatives had a gross value of 
many  trillions  of  euros.  The  products  are  traded  every  day  on  a  global  basis,  involving 
companies such as banks, pension funds and industrial firms seeking to hedge their exposure. 
They play a key role in the management of risk in our economy. 

These  are  cases  that  are  dealt  with  worldwide  (US,  Canada,  Australia,  South  Korea, 
Switzerland, Japan, Brazil, etc.) and on the antitrust, criminal and regulatory law fronts. 

84 Case T-111/08 MasterCard Inc. and Others v Commission, Judgment of the General Court of 24 May 2012 
85 Press release of 31.7.2012, IP/12/871 

27 

 
 
                                                            
Taking action to ensure competitive prices to hedge against investment risk 

On 1 February 2012, the Commission prohibited the proposed merger between Deutsche Börse (DB) and New 
York  Stock  Exchange  Euronext  (NYX).  The  transaction  was  unproblematic  in  a  broad  range  of  markets, 
including the markets for listing, trading and clearing of cash instruments. However, it would have eliminated 
competition and lead to a quasi-monopoly in some derivatives markets, in particular, European single stock and 
equity  index  derivatives  and  European  interest  rate  derivatives,  where  globally  DB  and  NYX  are de  facto  the 
only  credible  players.  The  markets  for  exchange  trading  and  clearing  of  these  derivative  instruments  is 
characterized  by  high  barriers  to  entry  resulting,  in  particular,  from  the  closed  vertical  silo  operated  by  most 
derivatives exchanges. While the transaction would have given rise to certain efficiencies, it was considered that 
these would be insufficient to outweigh the significant harm stemming from the creation of a de facto monopoly, 
namely the loss of actual and potential competition between DB and NYX. The Commission therefore found that 
the merger was likely to lead to higher prices and less innovation for derivatives customers and that the remedies 
proposed by DB and NYX were insufficient to address these concerns. 

In  September  2012,  the  Commission  approved,  following  an  in-depth  investigation,  a  joint 
venture  between  three  large  UK  mobile  telephone  operators86.  The  joint  venture  will,  in 
particular, develop a mobile commerce platform including a mobile wallet for payments. The 
investigation revealed that a number of alternatives for mobile payments already existed and 
that the joint venture was unlikely to hinder the emergence of others in the near future. The 
joint venture was therefore cleared without conditions.  

Resolving the situation of banks that cannot become viable without continuing taxpayer support  

In  2012,  the  extraordinary  State  aid  crisis  rules  had  to  be  prolonged  due  to  the  continuing  uncertainties  in 
financial  markets.  With  those  rules,  State  aid  control  continued  to  ensure  a  consistent  policy  response  to  the 
financial  crisis  throughout  the  EU  and  played  an  important  role  in  limiting  distortions  of  competition  in  the 
internal market. 

As has been the case throughout the financial crisis, the Commission in 2012 adopted a considerable number of 
decisions  on  individual  banks  in  2012.  For  example  in  the  case  of  Dexia  on  28  December  the  Commission 
approved  a  resolution  plan  for  Dexia  submitted  on  28  December  2012  by  the  French,  Belgian  and 
Luxembourgish authorities. Under the plan, as endorsed in the Commission decision, the Luxemburg part was 
sold and the Belgian lending activities were taken over by Belgium and will be continued as the newly created 
and restructured retail lender Belfius. The French business is to be wound down with the exception of the lending 
activities  to  municipalities  and  hospitals,  which will  be continued  through  a development  bank. In the  case of 
BayernLB the Commission approved a plan based on a substantially changed business model and a reduction of 
assets  by  50%.  The  Commission  also  required  the  bank  to  pay  back  EUR  5 billion  of  the  rescue  aid  received 
earlier, which exceeded the minimum amount required for the restructuring. 

In a number of Member States, the Commission authorised the prolongation of existing bank 
guarantee  and  recapitalisation  schemes.  Moreover,  the  Commission  always  verified  that  aid 
(under schemes or granted on an individual basis) was limited to the minimum necessary and 
that moral hazard was properly addressed by ensuring that shareholders and subordinated debt 
holders were not bailed out through such state interventions. 

The specific situation of Programme Countries 

Extensive  financial  sector  conditionality  was  included  among  the  policy  requirements 
addressed to the Member States that have received international financial assistance, i.e. the 
so-called  Programme  Countries.  In  that  context,  DG  Competition  continued  to  collaborate 
with DG ECFIN, the IMF and the ECB regarding the financial sector in programme countries 
in  order  to  ensure  that  the  massive  support  necessary  to  keep  a  number  of  such  institutions 
alive  in  a  difficult  macro-economic  environment  will  not  result  in  undue  distortions  of 

86 Case COMP/M.6314 — Telefónica UK/Vodafone UK/Everything Everywhere/JV 

28 

 
 
                                                            
competition.  In  addition  to  the  existing  programmes  in  Greece,  Portugal  and  Ireland,  a 
programme for the banking sector in Spain was adopted. 

As  regards  Greece,  following  the  2011  write  downs  in  the  Private  Sector  Involvement  the 
capital  of  the  banks  was  seriously  depleted.  To  fill  the  resulting  capital  needs,  an  increased 
budget  of  EUR  50 billion  for  aiding  banks  was  agreed.  EUR  18 billion  of  those  funds  was 
advanced to the four main Greek banks (National Bank of Greece, Alpha Bank, Eurobank and 
Piraeus  bank)  in  May  2012.  On  27  July  2012,  the  Commission  temporarily  approved  the 
bridge  recapitalisations  while  at  the  same  time  initiating  formal  investigation  procedures. 
Moreover, in 2012, the consolidation of the Greek banking sector started to take shape. The 
Agricultural  Bank  of  Greece  (ATE)  was  resolved  with  a  transfer  of  its  good  assets  and 
deposits to Piraeus Bank and the previously French-owned banks Emporiki and Geniki were 
acquired by Alpha and Piraeus bank respectively. 

In 2011, the banks in Ireland were recapitalised in the context of the EU/IMF Programme, and 
a  number  of  actions  to  restore  their  viability  were  identified.  In  2012,  DG  Competition 
continued to monitor the implementation by Bank of Ireland of its commitments as well as the 
progress of Allied Irish Banks and Permanent TSB to deleverage their balance sheets. 

In  2011  the  EU  and  the  IMF  agreed  to  a  EUR  78 billion  support  package  for  Portugal.  To 
strengthen confidence in the financial sector, the Programme requires banks to achieve high 
levels of capital. While Banco Espírito Santo managed to raise all the capital it needed from 
private  investors,  Caixa  Geral  de  Depósitos,  Millennium  BCP,  Banco  Português  de 
Investimento and Banif needed public support and their restructuring plans are currently being 
assessed by the Commission. In March 2012, a decision was taken regarding the restructuring 
aid  granted  to  Banco  Português  de  Negócios,  which  entailed  its  integration  into  Banco  BIC 
Português. 

In July 2012, the EU and the ECB concluded a Memorandum of Understanding for a sector 
programme for the banking sector in Spain. It made Spanish banks subject to a rigorous stress 
test  over  a  three-year  period.  Banks  with  a  capital  shortfall  that  could  not  be  met  by 
mobilising  private  resources  were  recapitalised  with  programme  funds  and  were  subject  to 
restructuring  under  State  aid  rules.  Two  groups  of  banks  were  involved  in  that  process:  the 
first group was composed of banks already controlled by the Spanish authorities: BFA/Bankia, 
Catalunya  Caixa,  Nova  Caixa  Galicia  and  Banco  de  Valencia,  for  which  the  restructuring 
plans were approved in November 2012. The second group was composed of other banks that 
needed State aid following the stress test: Ceiss, Banco Mare Nostrum, Caja 3 and Liberbank. 
The restructuring plans of these banks were approved in December 2012. 

Cyprus  and  the  Cypriot  banks  lost  access  to  international  funding  markets  and  requested 
external  financial  assistance  in  June  2012.  The  Cypriot  banks  faced  significant  capital 
shortfalls due to their large exposure to  Greek sovereign  and private sector debt and excess 
lending to the domestic real estate sector.  

4. Basic industries and Manufacturing 

Overview of key challenges in the sector 

The EU and the Member States shall, in accordance with Article 173 TFEU, ensure that the 
conditions necessary for the competitiveness of the Union's industry exist. For that purpose, in 
accordance  with  a  system  of  open  and  competitive  markets,  their  actions  shall  be  aimed  at, 
among  other things,  speeding  up  the  adjustment of industry to structural changes as well as 

29 

 
 
 
fostering better exploitation of the industrial potential of policies of innovation, research and 
technological  development.  The  Treaty  framework  was  given  more  shape 
the 
Communication  "An  Integrated  Industrial  Policy  for  the  Globalisation  Era:  Putting 
Competitiveness and Sustainability at Centre Stage" adopted by the Commission in October 
2010.  Industry  accounts  for  four-fifths  of  Europe's  exports  and  private  sector  R&D 
investment87. 

in 

Contribution of EU competition policy in tackling the challenges  

During  2012  EU  competition  policy  was  applied  in  the  area  of  manufacturing  and  basic 
industry in line with the EU´s industrial policy centred around competitiveness; for example, 
in  the  field  of  State  aid,  State  aid  rules  were  adopted  which  enable  the  Member  States  to 
support industrial sectors at significant risk of carbon leakage in the context of the third phase 
of  the  European  Emission´s  System  (ETS)88.  The  Commission´s  actions  against  cartels  and 
abuses of dominant positions are particularly beneficial to European manufacturing and basic 
industries  since  such  enforcement  actions  deters  and  sanctions  anticompetitive  conduct 
resulting in excessive input prices (see for example the Commission´s fining decisions in the 
Cathode  ray  tubes  cartel  case89  and  the  Freight  Forwarding  cartel90,  which  entailed 
surcharges  for  freight  forwarding  services  by  air  along  key  trade  lines  between  Europe  and 
North American and Asian trade lines).  

Such  considerations  also  guide  the  Commission's  assessment  of  mergers.  On  7  November 
2012,  following  an  in-depth  review,  the  Commission  approved,  subject  to  conditions,  the 
Finnish  firm  Outokumpu's  acquisition  of  Inoxum91, 
the  stainless  steel  division  of 
ThyssenKrupp  of  Germany.  The  approval  is  conditional  upon  the  divestiture  of  Inoxum's 
stainless  steel  production  facility  in  Terni,  Italy.  The  Commission  had  concerns  that  the 
combination  of  the  two  largest  suppliers  of  cold  rolled  steel  products  would  have  given  the 
merged  entity  the  power  to  raise  prices.  The  commitments  offered  address  those  concerns. 
Stainless  steel  is  a  key  material  for  a  wide  range  of  products,  from  household  goods  to 
industrial equipment, and an essential input for many European industries. The divestment of 
the Italian Terni plant ensures that the creation of a new European market leader will not be 
detrimental to consumers and businesses in Europe. 

The  Commission's  in-depth  investigation  focused  on  the  production  of  cold  rolled  stainless 
steel  products  in  the  European  Economic  Area  (EEA).  In  that  market,  the  merger  will 
combine the first and the second largest supplier. The transaction, as initially notified, would 
have created a player three times as big as Aperam of Luxembourg and five times as big as 
Acerinox of Spain, the closest competitors, and respectively the third and fourth player in the 
market. The Commission's investigation found that while imports account for an appreciable 
part  of  the  EEA  market,  they  are  insufficient  to  constrain  price  increases,  because  they  are 
generally not considered fully substitutable by final customers. Moreover, despite their level 
of spare capacity, it is likely that the two main European competitors of the parties, Aperam 
and Acerinox, would have found it more profitable to follow price increases by the merged 
entity  rather  than  competing  sufficiently  aggressively  to  prevent  such  increases.  Price 

87 Industrial Policy Communication Update of 10 October 2012 (COM(2012) 582 final) 
88 Press release of 22.5.2012, IP/12/498 
89 Case COMP/39437 TV and computer monitor tubes, press release of 5.12.2012, IP/12/1317 
90 Case COMP/39462 Freight forwarding, Summary of Commission Decision of 28 March 2012 relating to a 
proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA 
Agreement 
91 Case COMP/M.6471 OUTOKUMPU / INOXUM, press release of 7.11.2012, IP/12/1185 

30 

 
 
                                                            
increases  resulting  from  the  transaction,  as  initially  notified,  would  have  likely  been  much 
higher than any potential synergies. 

Two weeks after the Outokumpu decision, on 22 November 2012, the European Commission 
cleared under the EU Merger Regulation the proposed acquisition of Xstrata, the world's fifth 
largest metals and mining group, by Glencore92, the world's leading metals and thermal coal 
trader. The clearance was conditional on the termination of Glencore's off-take arrangements 
for zinc metal in the European Economic Area (EEA) with Nyrstar, the world's largest zinc 
metal  producer,  and  the  divestiture  of  Glencore's  minority  shareholding  in  Nyrstar.  The 
Commission had concerns that the merged entity would have the ability and incentive to raise 
prices  for  zinc  metal,  an  important  input  for  many  EU  industries.  The  commitments  ensure 
that competition in the European zinc metal market is preserved, so that European customers 
such as steel galvanisers and car makers can continue to produce valuable consumer goods at 
low prices and good quality. Without the commitments, the merged entity would have had an 
even greater ability and incentive to control the level of zinc metal supplies in the EEA, for 
example by exporting material to LME93-certified warehouses outside the EEA or otherwise 
withholding supplies from the EEA market. The reaction by competitors, including imports, 
would  not  have  been  sufficient  to  prevent  the  risk  of  a  significant  price  increase  for  zinc 
metal.  

In the area of State aid, on 11 July 2012 the Commission opened a formal investigation on 11 
July 2012 into whether notified regional aid in favour of an investment project by German car 
maker Porsche in Leipzig, Saxony, is in line with EU State aid rules. Given the high market 
shares of Volkswagen-Porsche and the capacity increase brought about by the investment, the 
Commission has to undertake an in-depth assessment of the aid. The Commission will check 
whether the aid is necessary and proportionate to provide an incentive for the investment and 
whether its contribution to regional development outweighs the distortion of competition and 
trade.  The  project  aims  at  manufacturing  a  new  passenger  car  model.  The  total  investment 
costs  amount  to  EUR  521.56 million.  Germany  intends  to  support  the  project  with  EUR 
43.67 million in the form of a direct grant and an investment premium. The investment project 
started in April 2011 and its completion is planned for 2014. Leipzig is eligible for regional 
aid  to  further  the  development  of  certain  economic  activities  or  sectors,  pursuant  to  Article 
107(3)(c) of the TFEU. 

Sanctioning cartels which raise input costs for European manufacturers 

On 28 March 201294, the Commission fined nine European producers of mountings for windows a total of EUR 
86 million for operating a cartel by which they agreed on common yearly price increases. The collusion lasted 
from November 1999 to July 2007 and affected European buyers of windows across the whole EEA. For most of 
the parties to this case, mountings for windows constitute a large fraction of their turnover. For this reason, the 
fines  of  nearly  all  parties  would  have  been  capped  at  10%  of  their  worldwide  turnover.  Exceptionally,  the 
Commission exercised its discretion in accordance with point 37 of its Guidelines on fines and reduced the fines 
in a way that takes into account the concentration of the total turnover in the sales of cartelized products as well 
as differences between the parties in view of their individual participation in the infringement. 

92 Case COMP/M.6541 GLENCORE / XSTRATA, press release of 22.11.2012, IP/12/1252 
93 London Metals Exchange 
94 Case COMP/39452 Mountings for windows and window-doors, Press Release of 28.3.2012, IP/12/313, 
Summary of Commission Decision of 28 March 2012 relating to a proceeding under Article 101 of the Treaty 
and Article 53 of the EEA Agreement (notified under document C(2012) 2069 final) 

31 

 
 
                                                            
On  26  June  2012,  the  Commission  re-imposed  fines  on  Mitsubishi  Electric  Corporation  and  Toshiba 
Corporation for their participation in the Gas Insulated Switchgear cartel95. The fines originally imposed on two 
companies  by  the  Commission  in  January  2007  were  annulled  by  the  General  Court  on  account  of  the 
Commission´s use of 2001 as reference year in calculating the fines while upholding all the other findings of the 
Commission on the infringement committed by those companies and their liability. The June 2012 decision thus 
ensured that Mitsubishi and Toshiba received an appropriate fine for their participation in the cartel. 

5. The Agri-food industry 

Overview of key challenges in the sector  

The  food  supply  chain  connects  three  important  sectors  of  the  European  economy:  (1) 
agricultural production: (2) food processing and (3) distribution (wholesale and retail). They 
play  a  significant  role  in  Europe's  economic,  social,  and  political  life  and  are  considerable 
contributors  to  EU  added  value,  trade  and  employment,  especially  in  rural  areas96.  Food 
purchases also represent a significant part of the household expenditure97. 

Agriculture  and  fisheries  are  among  the  major  policies  of  the  EU.  In  both  sectors,  a 
comprehensive  reform  is  underway  that  will  have  a  significant  impact  upon  the  food  chain 
and  consumers.  The  ongoing  reform  has  also  fuelled  the  debate  on  the  position  of  different 
actors in the food chain in general and the relationship between the farming community and 
retail level in particular.  

On  1  January  2012,  a  Food  Task  Force  was  set  up  in  DG  COMP  to  better  focus  on  the 
developments in this increasingly topical sector. 

At  EU  level,  the  Commission  set  up  in  2010  a  High  Level  Forum  for  a  Better  Functioning 
Food  Supply  Chain  (HLF)98  in  2010.  The  HLF  brings  together  a  number  of  Commission 
initiatives in different policy fields which seek to address the challenges in the sector. It has 
established a number of expert platforms to focus on different aspects of the food chain. The 
work of the platform on Business-to-Business (B2B) contractual practices deals with concerns 
about  uneven  bargaining  power  in  the  food  supply  chain,  which  might  also  involve 
competition  aspects.  In  December  2012,  all  operators  but  farmers  agreed  on  an 
implementation  mechanism  of  the  code  of  good  practices  agreed  in  2011,  which  will  be 
introduced in the second quarter of 2013.  

Given  the  many  complaints  it  has  received  and  the  reports  by  some  national  competition 
authorities (NCAs) that concentration and practices in the chain may be negatively affecting 
choice  and  innovation  in  the  food  supply  chain,  DG  COMP  has  designed  and  launched  the 
tender  for  a  retail  study99  to  assess  the  evolution  and  drivers  of  the  evolution  of  choice  and 
innovation. The study will (1) provide quantitative evidence into the Impact Assessment that 

95 Case COMP/39966 Gas Insulated Switchgear re-adoption, Prohibition Decision of 27.6.2012, C(2012) 4381 
final 
96 For an overview, see the Report on the Competitiveness of the European Agro-Food Industry of 17 March 
2009 (“Competitiveness Report”), p. 59, available at http://ec.europa.eu/enterprise/ 
sectors/food/files/high_level_group_2008/documents_hlg/final_report_hlg_17_03_09_en.pdf 
97 The share of food and non-alcoholic beverages in the household budget differs across countries. For EU27 it 
accounted for almost 13%; http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-13-002/EN/KS-SF-13-
002-EN.PDF 
98 http://ec.europa.eu/enterprise/sectors/food/competitiveness/forum_food/index_en.htm; 
http://europa.eu/rapid/press-release_MEMO-12-941_en.htm 
99 COMP/2012/015 study on "The economic impact of modern retail on choice and innovation in the EU food 
sector", published in the Official Journal OJ/S S244 on 19.12.2012 (Reference: 2012/S - 244 400412) 

32 

 
 
 
                                                            
the Commission will carry out in 2013 on possible actions (including possibly regulation) at 
EU level on unfair  commercial  practices, and (2) build  further on the  work of  the NCAs to 
find  out  whether  certain  local  areas  and/or  specific  product  categories  face  competition 
problems.  

The reforms of the Common Fisheries (CFP) and Agricultural Policies (CAP) put forward by 
the Commission in 2011 have important repercussions for competition in these sectors100. In 
particular, the CAP rules play a significant role for competition in the upstream food supply 
chain. To remedy  the  perceived  lack  of bargaining power of the farmers,  the  CAP proposal 
seeks  to  strengthen  the  role  of  Producer  Organisations  (POs)  in  all  sectors  of  agricultural 
production.  As  the  members  of  POs  are  independent  agricultural  producers  and  their 
production is integrated to varying degrees in the POs, it is essential to ensure that the POs 
function  in  a  pro-competitive  way.  The  proposal  confirms  that  Articles  101  and  102  TFEU 
apply to agricultural production, and keeps the current, limited derogations from Article 101 
to agreements between farmers essentially in their present form.  

The amendments put forward in the European Parliament draft report on the CAP legislative 
proposals  go  considerably  beyond  the  Commission's  proposal  to  exempt  agreements  and 
practices  of  farmers  from  competition  rules.  These  amendments  contain  measures  that  e.g. 
would  confer  to  POs  powers  to,  under  certain  circumstances,  fix  prices,  control  output  and 
adopt far-reaching crisis measures without any antitrust control101. 

Contribution of EU competition policy in tackling the challenges 

The Commission, in close cooperation with the NCAs, has been an active participant in the 
legislative process advocating a procompetitive policy vis-à-vis other actors in the legislative 
process and the actors of the food chain. 

Enforcement and cooperation with the NCAs 

Agricultural and food markets are often national or regional in scope. Therefore, NCAs play a 
key role in applying competition law in this sector. DG Competition has cooperated closely 
with  NCAs  within  the  framework  of  the  European  Competition  Network  (ECN)  in  order  to 
further  develop  a  coherent  and  common  approach  and  to  ensure  that  food  markets  remain 
competitive  and  work  efficiently.  In  this  context,  on  21  December  2012,  the  Heads  of  the 
European Competition Authorities adopted a resolution on the CAP in which they underlined 
that  the  enforcement  of  competition  rules  helps  to  ensure  a  productive,  strong  and  effective 
agricultural sector. 

100 http://ec.europa.eu/fisheries/reform/index_en.htm and http://ec.europa.eu/agriculture/cap-post-2013/legal-
proposals/index_en.htm 
101 In particular the Dantin report of 5 June 2012 on the proposal for a regulation of the European Parliament and 
of the Council establishing a common organisation of the markets in agricultural products (Single CMO 
Regulation), http://www.europarl.europa.eu/committees/en/agri/draft-
reports.html?linkedDocument=true&ufolderComCode=AGRI&ufolderLegId=7&ufolderId=07522&urefProcYea
r=&urefProcNum=&urefProcCode=#menuzone 

33 

 
 
                                                            
Report by the European Competition Network: competition enforcement intensified after the food price 
crisis in 2007102 

On 24 May 2012 the Commission published a report of the ECN on the enforcement of competition law in the 
food sector by competition authorities across Europe. The report showed that the food sector has been a priority 
of competition authorities over the last few years and that their action has intensified since the food price crisis 
broke  out  in  2007. From  2004  to  2011,  NCAs  have  investigated  more  than  180  antitrust  cases,  taken  close  to 
1,300  merger  decisions  and  undertaken  more  than  100  monitoring  actions.  The  report  also  made  clear  that 
antitrust and merger activity has benefited all levels in the chain, in particular farmers, suppliers and consumers. 
The majority of cases concerned processing and manufacturing and, to a lesser extent, the retail level. More than 
50 cartels involving price fixing, market and customer allocation as well as the exchange of sensitive business 
information  have  been  prohibited,  as  have  exclusionary  practices  that  were  to  the  detriment  of  farmers  or 
suppliers. 

Merger decisions by the Commission in the food sector  

The  food  sector  is  subject  to  on-going  globalisation  and  consolidation,  as  reflected  in  the 
number  of  mergers  the  Commission  dealt  with  in  2012.  Particular  attention  was  paid  to  the 
sugar  markets.  The  current  high  prices  and  scarcity  of  sugar  across  the  EU  make  it  all  the 
more important to maintain competition in the already concentrated European sugar markets 
and to ensure that supplies are available to consumers at reasonable prices. In the Südzucker / 
ED&F  MAN  decision103  on  16  May  2012  the  Commission,  following  an  in-depth  review, 
cleared on 16 May 2012 under the EU Merger Regulation the proposed acquisition of control 
by Südzucker of Germany, Europe's largest sugar producer, over ED&F MAN of the UK, the 
second largest sugar trader worldwide, which is also active in sugar production. The approval 
was made conditional upon the divestiture of ED&F MAN's interests in the Brindisi refinery, 
the biggest and most modern production facility in Italy. Those commitments ensure that the 
Brindisi  refinery  will  remain  a  viable  and  competitive  force  in  Italy,  independent  from  the 
merged entity.  

6. The Pharmaceutical and health services sector 

Overview of key challenges in the sector 

Both pharmaceuticals and health exhibit a number of common characteristics: the prescribers 
of the goods or services in question (i.e. the physicians) are different from the consumers (i.e. 
the patients). Similarly, the payers (i.e. usually sickness funds within the Member States) are 
different from the prescribers and the consumers. Thus, prescribers and consumers will be less 
price sensitive than in other markets. Furthermore, the pharmaceutical and health care sectors 
are  both  fragmented  by  national  regulations  regarding  authorisation,  pricing  and 
reimbursement  status  of  the  goods  or  services  concerned.  That  fragmentation  of  the  Single 
Market  can  give  rise  to  artificial  barriers  to  entry.  EU  competition  policy  has  a  key  role  to 
play  in  contributing  to  competitive  outcomes,  cost-containment  and  innovation  in  this 
important area. 

The pharmaceutical sector is highly regulated and R&D driven. On the supply side, originator 
companies  aim  to  bring  innovative  products  to  the  market.  The  patent  system  provides  the 
legislative  framework  allowing  the  companies  to  reap  the  benefits  of  their  successful  R&D 
activities.  During  patent  protection,  competition  mainly  takes  place  on  innovation  between 

102 ECN activities in the food sector - Report on competition law enforcement and market monitoring activities 
by European competition authorities in the food sector (24 May 2012) Drafted by the ECN food subgroup, 
Available at http://ec.europa.eu/competition/ecn/food_report_en.pdf See MEMO/12/373 of 24.5.2012 
103 Case COMP/M.6286 SÜDZUCKER / ED&F MAN, press release of 16.5.2012, IP/12/486 

34 

 
 
 
                                                            
originator companies. Upon loss of exclusivity, generic companies typically enter the market 
with  much  lower  price  bio-equivalent  versions  of  the  originator  products.  Generic  entry  on 
patent expiry entails savings for public budgets. The threat of generic entry also incentivises 
originator companies to pursue their R&D efforts to develop new and innovative proprietary 
medicines.  Thus,  at  the  point  of  loss  of  exclusivity,  competition  on  price  is  added  to 
competition  on  innovation  between  originator  and  generic  companies  or  between  generic 
companies. 

A key issue of concern from the perspective of competition policy is conduct which is aimed 
at  unduly  delaying  or  blocking  generic  entry  or  the  development  and  launch  of  innovative 
medicines. Such practices were analysed in general terms in the Commission's sector inquiry, 
the  findings  of  which  were  published  in  the  final  report  in  2009104.  As  set  out  in  the  final 
report, such practices can inter alia involve  misuses  of  regulatory  systems applicable to the 
pharmaceutical  market,  misuses  of  the  patent  system  and  misuses  of  patent  rights  (e.g.  in 
connection  with  patent  settlement  agreements).  The  judgment  by  the  Court  of  Justice  on  6 
December 2012 in the AstraZeneca case, upholding to a very large extent the Commission's 
finding  decision  from  2005,  confirmed  that  misuses  of  the  patent  system  and  the  regulatory 
system  applicable  to  the  pharmaceutical  market  may,  in  certain  circumstances,  constitute 
abuses of a dominant position within the meaning of Article 102 TFEU. 

Improving  competition  in  the  pharmaceutical  sector  may  also  require  improvements  in  the 
regulatory  framework.  For  example  on  1  March  2012  the  Commission  tabled  a  proposal  to 
repeal  and  replace  the  Council  Directive  89/10/EEC  (also  known  as  the  Transparency 
Directive)105.  The  aim  is  to  make  sure  that  medicines  enter  the  market  faster  by  further 
streamlining  and  reduce  the  duration  of  national  decisions  on  pricing  and  reimbursement  of 
medicines.  In  the  future,  such  decisions  should  be  taken  within  120  days  for  innovative 
medicines, as a rule, and for generic medicinal products within only 30 days, instead of 180 
days  as  is  currently  the  case.  The  sector  inquiry  concluded  in  2009  had  identified  national 
pricing and reimbursement decisions as a bottleneck to market entry.  

The  organisation  of  the  health  care  sector  is  primarily  the  responsibility  of  Member  States 
under  Article  168  TFEU.  However,  to  the  extent  that  the  activities  in  question  involve  the 
offering of goods or services in the market106, the provision of health care goods or services is 
generally subject to EU competition rules, as reflected in the Commission's antitrust decision 
of 2010 sanctioning the French Association of Pharmacists (ONP)107. 

Contribution of EU competition policy in tackling the challenges  

In  2012,  the  Commission  continued  to  investigate  the  pharmaceutical  sector  to  detect  and 
pursue  possible  collusive  or  otherwise  anticompetitive  conduct  by  originator  and  generic 
companies.  Anticompetitive  conduct  can  take  place  in  the  context  of  competition  between 
originator firms, competition between originator, generic firms and between generic firms. In 
particular, as a follow up to the sector inquiry concluded in 2009, it launched investigations in 
several individual cases. 

104 Available at http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/index.html 
105 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 public health insurance systems. 
(OJ No 40, 11.2.1989, p. 8) 
106 Cases C-118/85 Commission v Italy [1987] ECR 2599, paragraph 7; C-35/96 Commission v Italy [1998] ECR 
I-3851, paragraph 36; Joined cases C-180/98 to C-184/98 Pavlov, [2000] ECR I-6451 
107 Commission Decision of 8 December 2010, Case COMP/39510 Ordre National des Pharmaciens 

35 

 
 
                                                            
As regards possible anticompetitive conduct delaying generic market entry, the Commission 
issued statements of objections in two cases in 2012. According to the statement of objections 
in  the  Perindopril  case,  the  Commission  takes  the  preliminary  view  that  Les  Laboratoires 
Servier  and  several  generic  competitors  entered  into  agreements  where  in  exchange  for 
payments by Servier the generic companies agreed not to enter the market with their cheaper 
generic  products  and/or  not  to  further  challenge  the  validity  of  the  patents  that  protected 
Servier's  more  expensive  medicine.  In  addition,  Servier,  in  the  Commission's  preliminary 
view, bought technologies that would have enabled generic competitors to enter the market. 

According  to  the  statement  of  objections  in  the  Citalopram  case,  the  Commission  took  the 
preliminary  view  that  Lundbeck  and  several  generic  competitors  concluded  agreements  at  a 
time  when  generic  entry  became  possible  in  principle  and  where,  in  exchange  for  value 
transfers  from  Lundbeck,  the  generic  companies  abstained  from  entering  the  market  with 
generic citalopram. 

Two further cases, Cephalon108 and Fentanyl109, which were opened in 2011 and continued to 
be investigated during 2012, predominantly concern agreements and contractual arrangements 
that  potentially  delayed  market  entry  of  generic  medicines,  i.e.  potential  infringements  of 
Article  101  TFEU.  The  Commission  also  pursued  a  number  of  investigations  into  cases  of 
generic delay where no official openings have taken place yet110. 

In addition, in 2012, the Commission ceased its antitrust investigation into the pharmaceutical 
companies  AstraZeneca  and  Nycomed111.  The  investigation  focused  on  suspected  individual 
or joint action to delay the market entry of generic medicines. 

The  sector  inquiry  and  its  follow-up  have  not  chilled  recourse  to  prima  facie  unproblematic  patent 
settlements  

The  European  Commission  continued  to  monitor  the  market  and  obstacles  to  generic  entry  with  particular 
emphasis  on  patent  settlements.  Following  the  sector  inquiry,  the  Commission  had  already  carried  out  two 
exercises of monitoring patent settlements in the EU in 2010 and 2011. A third monitoring exercise was carried 
out  in  2012.  It  confirmed  the  positive  trend  of  potentially  problematic  patent  settlements  stabilizing  at  a  low 
number.  In  fact  the  share  of  potentially  problematic  settlements  decreased  to  11%  of  the  overall  number  of 
settlements in the period of 2011, compared to 22% in the period of January 2000-June 2008, (i.e. as investigated 
during  the  sector  inquiry)112.  At  the  same  time,  resource  to  prima  facie  unproblematic  patent  settlement  types 
continued to increase by 500% in comparison with the results of the sector inquiry. 

108 See Press Release IP/11/511 under: 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/511&format=HTML&aged=0&language=EN&g
uiLanguage=fr 
109 See Press Release IP/11/1228 under: 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1228&format=HTML&aged=0&language=EN&
guiLanguage=en 
110 See press releases: MEMO/10/647 of 3/12/2010: 
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/647&format=HTML&aged=1&language=
EN&guiLanguage=en ; MEMO/09/435 of 6/10/2009: 
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/435&format=HTML&aged=1&language=
EN&guiLanguage=en 
111 See press release: IP/12/210 of 1/3/2012:http://europa.eu/rapid/press-release_IP-12-210_en.htm?locale=en 
112 For further information on patent settlement monitoring see: 
http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/index.html 

36 

 
 
                                                            
7. Transport 

Overview of key challenges in the sector  

The  transport  sector  is  one  of  the  engines  of  the  Single  Market.  It  enables  the  free  flow  of 
people,  goods  and  services  within  the  Single  Market,  thereby  contributing  to  the 
competitiveness of European industry and the achievement of the Europe 2020 objectives.  

The  transport  sector  provides  essential  inputs  for  other  economic  activities.  Transportation 
costs represent on average 10-15% of the costs of a finished product. That figure includes the 
costs of own account transport operations as well as the costs of purchasing transport services 
from specialised companies. Companies whose main activity is the provision of transport (and 
transport  related)  services  generate  around  5%  of  EU  GDP.  They  employ  more  than  10 
million persons, which is around 5% of the EU labour force.  

To improve the performance of the transport sector, the EU has promoted the integration and 
liberalisation  of  transport  markets.  There  is  much  variation  between  the  different  transport 
sectors regarding the speed and scope of the liberalisation process. While the air and maritime 
transport markets have been open to competition for many years, the market for international 
passenger  services  by  rail  was  only  liberalised  in  2010.  Markets  for  national  rail  passenger 
services have not yet been opened to competition in many Member States. Railway services 
are  also  perceived  by  consumers  as  unsatisfactory.  In  the  2012  Consumer  Markets 
Scoreboard, train services ranked 27th among 30 consumer services markets113. 

An  overarching  objective  of  rail  transport  policy  is  to  increase  the  share  of  freight  and 
passengers transported via rail. 

Contribution of EU competition policy in tackling the challenges 

Fighting remaining regulatory constraints and entry barriers  

Competition  policy  aims  to  ensure  that  markets  operate  efficiently  to  the  benefit  of  the  end 
consumer.  This  is  particularly  important  in  the  transport  sector  where  newly  competitive 
markets have been emerging as a result of the market integration and liberalisation process. 
On the one hand, the Single Market has created new opportunities for cross-border entrants, 
resulting  in  increased  competition  on  fares  and  services  offered  between  different  transport 
service  providers.  On  the  other  hand,  regulatory  constraints  and  entry  barriers  in  the  sector 
remain  quite  common,  contributing  to  a  concentration  of  supply  and  a  weakening  of 
competition. In addition, State aid given to transport companies may lead to undue distortions 
of competition. 

Potential anticompetitive effects resulting from increased concentration in air transport sector  

In air transport, the emergence of low-cost carriers has contributed to a significant reduction 
in fares and a proliferation in the number of regional airports served, which in turn resulted in 
an increase in passenger numbers. The economic and financial crisis, however, caused a sharp 
drop  in  traffic.  As  a  result,  many  regional  airports  in  Europe  are  making  losses  and  only 
survive  thanks  to  the  subsidies  they  receive  from  local  authorities.  The  large  European  hub 
airports, on the other hand, remain congested. The long term outlook indicates that the share 
of air transport will continue to grow and that more and more airports will become congested, 
at least during peak hours. In addition, the crisis allowed the strongest airlines to consolidate 

113 27th position out of 30 markets 

37 

 
 
 
                                                            
their position as market leaders. Some of the smaller and less efficient airlines have exited the 
market,  been  restructured  or  merged  into  larger  entities.  Most  of  the  remaining  European 
airlines have decided to join one of the three big alliances – Star, SkyTeam and oneworld – as 
national  restrictions  on  ownership  and  control  prevent  cross-border  consolidation  through 
airline  mergers.  The  main  competition  concerns  relate  to  the  concentration  of  supply  on 
certain routes resulting from airline mergers within the EU and the possible anticompetitive 
impact  of  different  forms  of  collaboration  within  alliances,  which  range  from  bilateral 
codeshare114  agreements  to  full-fledged  joint  ventures.  In  cases  involving  transatlantic 
alliances, the Commission worked closely with the US Department of Transportation. 

One of the purposes of merger control in air transport is to ensure that airlines do not undo the 
pro-competitive effects of liberalisation by acquiring close competitors. On 10 February 2012, 
the International Airlines Group (IAG), the holding company of British Airways and Iberia, 
notified its intention to acquire British Midlands Limited (bmi), which had a strong presence 
in the UK as well. On 30 March 2012, the Commission decided115 to approve the proposed 
transaction following IAG's commitment to release 14 daily slot pairs at London Heathrow to 
competitors  and  to  carry  connecting  passengers  feeding  long-haul  flights  of  competing 
airlines.  On  24  July  2012,  Ryanair  notified116  its  third  attempt  to  take  over  Aer  Lingus,  its 
main  rival  at  Dublin  airport.  In  November  2012,  the  Commission  issued  a  statement  of 
objections outlining its preliminary assessment of the impact of the proposed transaction.  

On  23  January  2012,  the  Commission  re-opened  its  investigation117  into  the  SkyTeam 
alliance. The new investigation is more limited in scope and focuses exclusively on the joint-
venture agreement between Delta, Air France/KLM and Alitalia, which co-operate closely on 
prices, capacity and schedules for passenger air transport services on the transatlantic market. 
The  investigation118  of  the  Star  Alliance  transatlantic  joint-venture  was  opened  in  2009  and 
has reached a more advanced stage. On 21 December 2012, the Commission decided to test 
the commitments proposed by Lufthansa, Air Canada and United Airlines. The commitments 
included  slot  releases  at  the  Frankfurt  and  New  York  airports,  competitors'  access  to  the 
parties' connecting traffic, and the ability of competitors to combine their fares with those of 
the parties. The Commission also continued monitoring the commitments offered by British 
Airways, Iberia and American Airlines in the oneworld investigation119, which was concluded 
in  2010.  All  three  alliances  are  therefore  currently  under  investigation  or  have  been 
investigated by the Commission. 

Increased scrutiny of State aid to regional airports and low cost carriers  

In 2012 the Commission increased its scrutiny of aid granted to regional airports and low-cost carriers. Against 
that backdrop, the Commission adopted 16 decisions to open a new formal investigation procedure or to extend 
the  scope  of  pending  investigations  of  investment  aid  to  airlines  or  regional  airports120.  Most  of  those  cases 
involved  discount  schemes  on  airport  charges  given  to  low  cost  carriers,  often  in  combination  with marketing 
agreements  of  doubtful  value  to  the  airports.  The  Commission  also  adopted  three  final  State  aid  decisions, 

114 Agreement between two or more airlines to list certain flights in a reservation system under each other´s 
names 
115 Case COMP/M.6447 IAG/ BMI; IP/12/338, 30.3.2012 
116 Case COMP/M.6663 Ryanair/Aer Lingus III 
117 Case COMP/39964 AF-KL/DL/AZ, IP/12/79, 27.1.2012 
118 Case COMP/39595 Continental/United/Lufthansa/Air Canada 
119 Case COMP/39596 BA/AA/IB 
120 See IP/12/44 of 25.1.2012, IP/12/108 of 8.2.2012, IP/12/156 of 22.2.2012, IP/12/265 of 21.3.2012, IP/12/350 
of 4.4.2012, IP/12/400 of 25.4.2012, IP/12/519 of 30.5.2012 and IP/12/698 of 27.6.2012 

38 

 
 
                                                            
concerning  notably  Tampere-Pirkkala  airport  and  its  agreement  with  Ryanair,  the  Irish  travel  tax  and  the 
financing arrangements concerning Munich airport Terminal 2121. In the first of those decisions, the Commission 
considered  that  the  agreement  between  Tampere-Pirkkala  airport  and  Ryanair  was  concluded  on  terms  that  a 
private investor operating under market conditions would have accepted. In particular, the Commission was able 
to conclude that the diversification of airlines operating from the airport, a better allocation of resources as well 
as  the  reduced  overcapacity  positively  contributed  to  the  operational  and  financial  situation  of  the  airport  and 
increased the market value of the airport for its shareholders. 

As regards cartels, in the Freight Forwarding case122 the Commission fined 15 companies a 
total  of  EUR  169 million  on  28  March  2012.  The  decision  sanctioned  four  separate  cartels 
aimed  at  fixing  prices  and  other  trading  conditions  for  international  air  freight  forwarding 
services. Four different surcharges and charging mechanisms applied by freight forwarders to 
the  air  transport  of  goods  on  important  trade  lanes  (in  particular  the  Europe-USA  and  the 
China/Hong Kong-Europe lanes) were subject to the collusive arrangements. The individual 
infringements took place in different geographical areas during various periods between 2002 
and 2007. The infringements were relatively short in duration, between five months and one 
year and nine months.  

Competition concerns resulting from State support and barriers to entry in rail transport  

An  overarching  objective  of  rail  transport  policy  is  to  increase  the  share  of  freight  and 
passengers  transported  via  rail.  Within  this  context,  the  Commission  received  a  number  of 
notifications of State aid for investment and operating expenditures in rail transport. In 2012, 
the  Commission  adopted  six  decisions  approving  aid  for  the  construction  of  sidings  and 
intermodal terminals, for rolling stock specific to combined transport as well as for offsetting 
network access charges123.  

According to current EU regulation, non-discriminatory access to rail infrastructure should be 
ensured  for  railway  undertakings.  Nevertheless,  from  a  competition  policy  perspective  the 
Commission  is  concerned  that  railway  undertakings  that  are  controlled  by  holdings  with 
subsidiaries  that  are  also  active  on  rail  transport  markets  will  leverage  their  position  as 
subsidiary of the holding and provider of associated services to hamper potential competitors 
and  benefit  other  subsidiaries  of  the  holding.  The  Commission  has  been  investigating  such 
issues in the case against Deutsche Bahn, the German railway incumbent124. The Commission 
initiated  proceedings  in  the  Deutsche  Bahn  case  on  13  June  2012  following  unannounced 
inspections in March 2011. 

The  Deutsche  Bahn  case  concerns  the  supply  of  traction  current  by  DB  Energie,  a  wholly-
owned  subsidiary  of  Deutsche  Bahn.  DB  Energie  is  the  only  provider  of  an  input  that  is 
indispensable for railway undertakings to operate in Germany: traction current, i.e. the special 
type of electricity that powers trains. The Commission considers that the pricing system used 
by DB Energie for selling traction current to railway undertakings may constitute an abuse of 
a  dominant  position  on  the  market  for  the  supply  of  traction  current  and  thereby  infringe 
Article 102 TFEU.  

Access to port facilities and fiscal advantages in maritime transport  

In  maritime  transport,  competition  policy  ensures,  inter  alia,  that  shipping  companies  have 
equal  access  to  essential  (port)  infrastructures  and  benefit  equally  from  fiscal  advantages 
offered by the public sector in light of their high exposure to competition from third countries.  

121 See IP/12/833 of 25.7.2012 and MEMO/12/597 of 25.7.2012, IP/12/1057 of 3.10.2012 
122 COMP/39462 
123 See for example IP/12/831 of 25.7.2012 
124 Cases COMP/39678 Deutsche Bahn I, COMP/39731 Deutsche Bahn II and COMP/39915 Deutsche Bahn III 

39 

 
 
                                                            
During its investigation of the acquisition of the Swedish sea port terminal Älvsborg by the 
shipping  company  DFDS  and  the  terminal  operator  C.RO  Ports,  the  Commission  addressed 
concerns that rivals of the merging entities might find their access to the Port of Gothenburg 
restricted  or  even  closed  off  completely.  On  2  April  2012,  the  Commission  decided125  to 
approve the acquisition because: (1) the Port has alternative terminals to the one operated by 
Älvsborg  and  (2)  the  concession  agreement  concluded  between  the  Gothenburg  Port 
Authority and Älvsborg requires a non-discriminatory treatment of all shipping companies. 

In 2012, the Commission approved the prolongation of Swedish and Dutch State aid schemes 
reducing  the  social  charges  borne  by  shipping  companies,  because  it  considered  them  to  be 
compatible with the Single Market126. The Commission also initiated a formal investigation of 
the  Maltese  tonnage  tax  as  it  had  doubts  that  not  only  genuine  shipping  companies  were 
benefiting from that special State aid regime, but also non-maritime companies127. Finally, the 
Commission approved a modification of a Spanish scheme128 providing for early depreciation 
of  certain  assets  acquired  via  a  financial  leasing.  The  Commission  found  that  limiting  the 
scope of that measure to tailor-made assets with a construction period of at least 12 months 
makes it possible to address the concerns of the Spanish shipbuilding sector without distorting 
competition  in  the  Single  Market.  As  the  scheme  was  otherwise  available  to  all  companies 
with respect to all categories of assets and without any distinction as to the origin of the asset, 
the Commission considered that the scheme did not amount to State aid.  

Public consultations on antitrust and State aid guidelines in the transport sector  

In December 2012 the Commission decided – following a public consultation – to let the 2008 
Maritime Antitrust  Guidelines lapse  with effect from  26 September 2013. The decision was 
also  taken  against  the  background  of  the  adoption  of  more  recent  horizontal  rules  –  which 
apply  across  different  sectors  –  which  are  more  up  to  date  in  terms  of  legal  and  economic 
standards,  notably  the  Horizontal  Guidelines  from  2010  which  contain  a  chapter  on 
information exchanges, i.e. the main focus of the Maritime Antitrust Guidelines.  

In  2012,  the  Commission  also  carried  out  a  public  consultation  on  the  application  of  the 
guidelines on State aid to maritime transport. The Commission will decide on the follow up of 
that public consultation when the responses are fully analysed. 

The responses to the public consultation on the application of  the guidelines on State aid in 
the  aviation  sector  carried  out  in  2011  were  analysed  with  a  view  to  the  adoption  of  new 
guidelines in 2013, which will need to better address the public financing of regional airports 
and  airlines.  In  that  context,  the  Commission  will  take  into  account  the  role  of  regional 
airports for accessibility and local development while limiting the distortions of competition 
and avoiding a duplication of unprofitable airports and a waste of public resources. 

125 Case COMP/M.6305 DFDS/C.RO Ports/Älvsborg, IP/12/343, 2.4.2012 
126 Cases COMP/SA.33609 Sweden Maritime Transport Aid, OJ C142, 26.1.2012 and COMP/SA.34004 
Netherlands Prolongation of the extension of reduced remittances for maritime navigation to commercial 
cruising vessels, adopted on 10.5.2012 
127 Case COMP/SA.33829 Tonnage tax scheme and other State measures in favour of shipping companies in 
Malta, IP/12/843, 25.7.2012 
128 Case COMP/SA.34736 Early depreciation of assets acquired through a financial leasing, IP/12/1241, 
20.11.2012 

40 

 
 
 
 
 
                                                            
III. ANNEXES 

(1) List of DG Competition initiatives adopted under CWP 2012 

(2)  List of State aid banking cases

41 

 
 
 
 
 
 
 
ANNEX 1: List of DG Competition initiatives adopted under CWP 2012 

•  Guidelines on certain State aid measures in the context of the greenhouse gas emission 
allowance trading scheme post-2012 - SWD(2012) 130 final, SWD(2012) 131 final 

•  Commission  Regulation  (EU)  No  360/2012  of  25  April  2012  on  the  application  of 
Articles  107  and  108  of  the  Treaty  on  the  Functioning  of  the  European  Union  to  de 
minimis aid granted to undertakings providing services of general economic interest 

•  Communication on EU State Aid Modernisation - COM/2012/ 209 final 

•  Report on Competition Policy 2011 – COM(2012) 253 final* 

•  Communication on short term export credit insurance – (2012/C 398/02) 

•  EU Guidelines for the application of state aid rules in relation to the rapid deployment 

of broadband networks - C(2012) 9609/2 

http://ec.europa.eu/competition/state_aid/legislation/broadband_guidelines_en.pdf 

•  State aid Scoreboard: Autumn 2012 update129 – COM(2012) 778 final* 

* relates to other measures not included in the CWP 2012 

129 From 2012 only once/year 

42 

 
 
 
 
 
 
 
                                                            
ANNEX 2: List of State aid banking cases 

DECISIONS ADOPTED BY THE COMMISSION IN 2012130 

AUSTRIA 

Type of measure / Beneficiary 

Type of Decision 

Date of adoption 

SA.31883 Restructuring of Österreichische 
Volksbanken AG 
SA.34716 Recapitalisation of Hypo Tirol 

SA.32554 Temporary approval of an emergency 
recapitalisation in favour of Hypo Group Alpe Adria 

Final decision 
IP/12/982 
Decision not to raise objections 
IP/12/1067 
Decision not to raise objections 
IP/12/1315 

19 September 2012 

4 October 2012 

5 December 2012 

BELGIUM 
Belgium 
SA.9833 (MC11/2009) KBC – phasing out and 
divestment 

Belgium/France/Luxembourg 
SA.33760, SA.33763, SA.33764 (2011/C) Dexia – 
prolongation of guarantees and extension of the in 
depth investigation 
SA.34925 Dexia – Increase of guarantee ceiling 
SA.34925-SA.34927- SA.34928 (2012/C) Dexia – 
prolongation of guarantees 
SA.33751, SA.33760, SA.33763, SA.33764 
(2011/C) and SA.30521 (MC2/2010) Dexia and 
Belfius 

Decision not to raise objections 
EXME/12/21.12 

20 December 2012 

IP/12/523 

31 May 2012 

IP/12/578 
MEX/12/0926 

IP/12/1447 

6 June 2012 
26 September 2012 

28 December 2012

CYPRUS 
SA.34827 Rescue recapitalisation of Cyprus Popular 
Bank (ex-Marfin) 
SA.35499 State guarantee scheme for Cypriot banks  Decision not to raise objections 

Decision not to raise objections 
IP/12/958 

13 September 2012 

6 November 2012 

IP/12/1171 

DENMARK 
SA.35741 Prolongation 
SA.34943 Prolongation of the winding-up scheme 
and extension of the guarantee scheme for merging 
banks 
SA 33485 Restructuring plan of Amagerbanken  
SA.34227 Guarantees for merging banks 
SA.34423 Support for the merger of Vestjysk Bank 
and Aarhus Lokalbank 
SA.34445 (2012/N) The transfer of property-related 
assets from FIH to the FSC 

EXME/12/14.12 
EXME/12/26.06 

14 December 2012 
26 June 2012 

EXME/12/01.25 
EXME/12/02.17 
Decision not to raise objections 
EXME/12/04.25 
IP/12/723 

25 January 2012 
17 February 2012
25 April 2012 

29 June 2012 

GERMANY 
SA.34345 Reactivation  
SA.34897 Prolongation  
SA.35748 Prolongation 

EXME/12/05.03 
EXME/12/29.06 
EXME/12/07.12 

5 March 2012 
29 June 2012 
7 December 2012 

130 As a general rule, aid schemes are reviewable six months after approval. Some individual decisions are 
subject to a review and possible restructuring plan 

43 

 
 
 
 
 
 
 
 
 
 
                                                            
25 July 2012 

25 July 2012 

6 February 2012 
6 July 2012 
6 February 2012 
16 May 2012 
27 July 2012 

27 July 2012 

27 July 2012 

27 July 2012 

27 July 2012 

8 March 2012 
30 July 2012 
7 March 2012 
30 July 2012 
22 February 2012 

1 June 2012 
12 December 2012 

3 September 2012 

14 December 2012 

SA.34539 (2012/N) Amendment of restructuring 
plan of Commerzbank  
SA.34381 Restructuring of NordLB 

SA.28487 Restructuring aid to BayernLB 

Decision not to raise objections 
IP/12/838 
Decision not to raise objections 
IP/12/847 

EXME/12/03.30 

30 March 2012 

GREECE 
SA 34149 Prolongation 
SA.35002 Prolongation 
SA 34148 Prolongation 
SA.34115 Resolution of T bank 
SA.34488 Restructuring aid to Proton bank through 
creation and capitalisation of Nea Proton 
SA.34823 HFSF Recapitalisation commitment to 
Alpha Bank 
SA.34824 HFSF Recapitalisation commitment to 
National Bank of Greece 
SA.34825 HFSF Recapitalisation commitment to 
EFG Eurobank 
SA.34826 HFSF Recapitalisation commitment to 
Piraeus Bank 

HUNGARY 
SA 34077 Extension 
SA.35145 Prolongation  
SA 34078 Extension 
SA.35144 Prolongation  
SA.29608 (C37/2010) Recapitalisation of FHB  

EXME 12/06.02 

EXME 12/06.02 
IP/12/485 
IP/12/854 

IP/12/860 

IP/12/860 

IP/12/860 

IP/12/860 

EXME//08.03 
EXME/12/30.07 
EXME/12/07.03 
EXME/12/30.07 
EXME/12/22.02 

IRELAND 
SA.34746 Prolongation 
SA.35744 Extension 

SA.35209 Prolongation 

SA.35819 Prolongation 

ITALY 
SA.34344 Amendment 
SA.35137 MPS recapitalisation 

Decision not to raise objections 
Decision not to raise objections 
12/12.12 
Decision not to raise objections 
EXME/12/03.09 
Decision not to raise objections 
EXME/14.12 

EXME/12/22.02 
IP/12/1383 

22 February 2012 
17 December 2012 

LATVIA 
SA.30704 Temporary approval of support to Latvian 
Mortgage and Land Bank and opening of in-depth 
procedure into the measures for the bank's 
transformation 
SA.34747 Amendments to Parex restructuring plan 

Opening decision 
IP/12/77 

26 January 2012 

EXME/12/10.08 

10 August 2012 

LITHUANIA 
SA 34288 Extension 
SA.35129 Prolongation 
SA.34208 Rescue of the Lithuania's Central Credit 
Unions 

EXME/12/06.03 
EXME/12/27.07 
MEX/12/0926 

6 March 2012 
27 July 2012 
26 September 2012 

44 

 
 
 
 
 
 
 
 
 
 
LUXEMBOURG 
SA.34440 (2012/C) (ex 2012/N) – Sale of Dexia 
SA.34440 (2012/C) (ex 2012/N) – Sale of Dexia BIL  Final no aid decision  

Opening decision 

IP/12/840 

3 April 2012 
25 July 2012 

NETHERLANDS 
SA.28855 (N 373/2009) ING approval of 2009 
restructuring plan 
SA.33305 and SA.29832 Re-notification of 
recapitalisation aid to ING  
SA.33305 and SA.29832 Amendment of the ING 
restructuring 

Decision not to raise objections 
IP/12/468 
Opening decision 
IP/12/468 
Final decision 
IP/12/1226 

11 May 2012 

11 May 2012 

16 November 2012 

POLAND 
SA.34081 Prolongation 
SA.34811 Prolongation 
SA.34066 Prolongation 
SA.34812 Prolongation 

PORTUGAL 
SA.34958 Prolongation 
SA.35743 Prolongation 
SA.34055 Prolongation  
SA.35747 Prolongation 
SA.26909 Banco Português de Negócios  

SA.34055 (2011/N) - New recapitalisation scheme 
for banks in Portugal 
SA.35062 Recapitalisation of Caixa Geral de 
Depósitos, S.A. (CGD) 

SLOVENIA 
SA.34937 Second Recapitalisation of NLB 

SA.35709 Recapitalisation of NKBM 

SPAIN 
SA.34224 Prolongation 
SA.34904 Extension 
SA.35069 New recapitalisation Scheme for credit 
institutions  
SA.34255 Restructuring of CAM 

SA.34820 Rescue aid to BFA/Bankia 

SA.33733 Adjudicación UNNIM Banc a favor de 
BBVA por el FROB. Continuación de SA.33095 
(2011/N) Spain Recapitalisation of UNNIM Banc  
SA.35369 Urgent recapitalisation of BFA Group 
SA.33735 Restructuring of CatalunyaCaixa  

SA.35253 Restructuring of BFA/Bankia  

SA.33734 Restructuring of NovaCaixaGalicia  

EXME/12/08.02 
EXME/12/09.07 
EXME/12/27.2 
EXME/12/29.06 

EXME/12/27.06 
EXME/12/17.12 
EXME/12/30.05 
EXME/12/17.12 
Approval of the restructuring 
IP/12/315 
Decision not to raise objections 
EXME/12/30.5 
Decision not to raise objections 
IP/12/805 

8 February 2012 
9 July 2012 
27 February 2012 
29 June 2012 

27 June 2012 
17 December 2012 
30 May 2012 
17 December 2012 
27 March 2012 

30 May 2012 

18 July 2012 

Decision not to raise objections 
IP/12/724 
Decision not to raise objections 
EXME/12/20.12 

2 July 2012 

20 December 2012 

EXME/12/09.02 
EXME/12/29.06 
Decision not to raise objections 
IP/12/849 
Decision not to raise objections 
IP/12/517 
Decision not to raise objections 
IP/12/699 
Decision not to raise objections 
IP/12/839 

Decision not to raise objections 
Decision not to raise objections 
IP/12/1277 
Decision not to raise objections 
IP/12/1277 
Decision not to raise objections 
IP/12/1277 

45 

9 February 2012 
29 June 2012 
25 July 2012 

30 May 2012 

27 June 2012 

25 July 2012 

7 September 2012 
28 November 2012 

28 November 2012 

28 November 2012 

 
 
 
 
 
 
 
SA.34053 Restructuring of Banco de Valencia  

SA.34536 Restructuring of CEISS 

SA.35488 Restructuring of Banco Mare Nostrum 

SA.35489 Restructuring of Caja3  

SA.35490 Restructuring of Liberbank  

Decision not to raise objections 
IP/12/1277 
Decision not to raise objections 
IP/12/1432 
Decision not to raise objections 
IP/12/1432 
Decision not to raise objections 
IP/12/1432 
Decision not to raise objections 
IP/12/1432 

UNITED KINGDOM 
SA.34218 UK Credit Easing Schemes  
SA.34908 Extension 
SA.35755 Prolongation 

EXME/12/14.03 
EXME/12/26.06 
EXME/12/14.12 

28 November 2012 

20 December 2012 

20 December 2012 

20 December 2012 

20 December 2012 

14 March 2012 
26 June 2012 
14 December 2012 

46