COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on Competition Policy 2013
Date: 2014-05-06
Institutions: European Commission
Subjects: State aid, agri-foodstuffs, cartel, competitiveness, control of State aid, energy industry, financial legislation, pharmaceutical industry, single market, telecommunications industry, transport market













EUR-Lex - 52014SC0148 - EN











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52014SC0148

COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on Competition Policy 2013 /* SWD/2014/0148 final */









COMMISSION STAFF WORKING DOCUMENT
Accompanying the document
REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
AND THE COMMITTEE OF THE REGIONS
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE
EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS
on Competition Policy 2013
TABLE OF CONTENTS
I...... LEGISLATION
AND POLICY DEVELOPMENTS. 4
State
aid. 4
1.      State Aid Modernisation:
continued reform in support of growth and jobs. 5
2.      Monitoring, recovery and
cooperation with national courts. 8
3.      Significant judgments by EU
Courts in the State aid area. 11
Antitrust
& Cartels. 13
1.      Technology Transfer Agreements –
on-going review.. 13
2.      Notice on Agreements of Minor
Importance – on-going review.. 14
3.      Proposal for a Directive on
antitrust damages actions adopted. 15
4.      Significant judgments by EU
Courts in antitrust and cartels. 16
5.      A top priority in the fight
against cartels – making use of leniency and settlement 19
6.      Continuing the close cooperation
within the European Competition Network (ECN) and with national courts  21
Merger
control 22
1.      Towards more effective merger
control – on-going review.. 23
2.      Simplifying merger procedures
further – on-going review.. 24
3.      The number of merger
interventions remain stable. 25
4.      Significant judgments by EU
Courts in mergers. 26
Developing
the international dimension of EU competition policy. 26
1.      Bilateral relations. 27
2.      Multilateral cooperation. 27
II..... SECTORAL
OVERVIEW... 29
1.
Energy & Environment 29
2.
Information and Communication Technologies (ICT) and Media. 33
3.
Financial Services. 38
4.
Basic industries and Manufacturing. 46
5.
The agri-food industry. 49
6.
The Pharmaceutical and health services sector. 52
7.
Transport and postal services. 54

I.       LEGISLATION
AND POLICY DEVELOPMENTS
EU competition
policy as the driver of European competitiveness
European
institutions, governments and all stakeholders in the economy have continued to
work hard on bringing Europe out of the economic crisis. This year we have seen
the first signs of these common efforts bearing fruit. The Europe 2020 strategy
for smart, sustainable and inclusive growth provides guidance on the path to
follow: building on the EU's key asset, the Single Market, we have to reinforce
European competitiveness. Competition policy has a major and clear role in that
process. It protects and strengthens the Single Market, it ensures a level
playing field for businesses and it supports innovation. As the European
Parliament's 2013 study[1]
on competition policy has concluded: "Competition plays a crucial role
in promoting productivity and innovation as drivers of economic growth. This
means that competition policy, which intensifies competition, will stimulate growth."
In that spirit, the Commission has continued to consistently enforce all
instruments of competition policy and to keep the legislative framework for those
instruments up to date with the changing economic reality.
 State aid 
2013
brought not only the first signs of recovery for the European economy but also
results for the stabilisation efforts in the banking sector. However, those
first positive signs need to be underpinned by further measures to ensure
sustainability. State aid policy can support recovery by ensuring a better and
more effective use of scarce public resources. At the same time State aid
policy maintains undistorted competition in the Single Market, thereby
contributing to the competitiveness of European companies and EU economy as a
whole. Crisis related State intervention in support of the financial sector has
been essential in saving the European banking system from an uncontrolled
collapse. State intervention continues to be essential in some Member States.
The unprecedented amount of public funds spent on stabilisation of the
financial sector posed a high risk of market distortions. The Commission's
reformed guidance for aid to the financial sector continues to guarantee
compliance with competition rules.
The latest figures on the
scale of crisis and non-crisis State aid
Between October 2008
and 31 December 2012 Member States provided assistance to the financial sector amounting
to EUR 591.9 billion (4.6 % of EU 2012 GDP) for capital support (recapitalisation
and asset relief measures).
Liquidity support (provided
in the form of guarantees and other liquidity measures) reached its peak in
2009 with an EU 27 outstanding amount of EUR 906
billion (7.7 % of EU 2012 GDP). . The crisis intensity
has gradually weakened in many EU countries since then, and the outstanding
amount of liquidity support has dropped down by more than a half to EUR 534.5
billion (4.14 % of EU 2012 GDP) in 2012.
The temporary crisis rules for support of the real economy expired in 2011 and
the aid granted under those provisions in 2012 amounted only to EUR 63 million.

In
2012, non-crisis State aid increased by roughly EUR 3 billion compared to 2011
and reached EUR 67.2 billion or 0.52% of EU GDP (an increase by 0.01%). Member
States mainly sponsored aid measures for regional development, research,
environmental protection and providing risk capital to SMEs, all of which
contribute to the Europe 2020 strategic objectives of smart, sustainable and
inclusive growth.

1.      State
Aid Modernisation: continued reform in support of growth and jobs 

Following
the launch of an ambitious State Aid Modernisation programme ("SAM")
in May 2012[2],
the Commission made major progress in translating the main reform principles
into legislation and guidelines during 2013. 
SAM
aims at directing scarce public funds towards growth- and
competitiveness-enhancing measures and turning State aid policy into a smart
and efficient tool to help Member States "achieve more with less".
The programme has three key objectives, which aim to create a State aid control
system that supports growth policies, preserves the integrity of the Single Market
and works together with Member States and European businesses. The SAM
objectives have also been recognised and supported by the European Parliament
in its January 2013 resolution[3].
The progress achieved under each objective is outlined in turns below.
Foster
growth in a strengthened, dynamic and competitive internal market
The
Europe 2020 Strategy[4]
focuses on creating the conditions for smart, sustainable and inclusive growth.
One of the key goals of the SAM programme is to support the strategy and its
flagship initiatives by facilitating well-designed aid targeted at market
failures and objectives of common European interest ('good aid').
The
Digital Agenda flagship initiative sets ambitious goals for broadband
infrastructure development to support growth in Europe. New guidelines aligning
the State aid rules on aid for broadband with the objectives of the Digital
Agenda came into force in January, marking the first concrete application of
the SAM principles.
In
June, the Commission adopted new regional aid guidelines[5] for
the period 2014-2020. The new guidelines seek to help Europe’s governments
spend better, by ensuring that aid goes to investments that would not take
place without the aid, and that therefore bring real value added for regional
development. 
Well-targeted
aid can also help European competitiveness by stimulating innovation. The rules
on research, development and innovation (R&D&I) and risk
finance aid are particularly important in that respect: the Europe 2020 Strategy
identifies R&D as a key driver to achieve the objectives of smart,
sustainable and inclusive growth. The design of EU Financial Instruments, such
as the Financial Instruments in Horizon 2020 or the Programme for the
Competitiveness of Enterprises and SMEs (COSME), also needs to be coordinated
with State aid law.[6]
The Commission conducted public consultations on new guidelines on
R&D&I and risk finance aid in the second half of 2013, with a view to
their adoption in 2014.[7]
Finally,
the Europe 2020 Strategy sets headline targets for climate change and energy
sustainability. In that light, a clear framework is needed for State aid in the
field of energy and environment. The Commission launched a consultation on
guidelines in that field in the second half of 2013, following a workshop that
took place in April.
Focusing
on cases with the biggest impact on the Single Market 
Simplified
and proportionate rules for cases with limited effect on trade also have a role
to play in helping direct scarce public resources towards 'good aid'. The key
tools in that respect are the Enabling Regulation and the General Block
Exemption Regulation. 
The
amended Enabling Regulation[8],
adopted by the Council in July, is a cornerstone of the SAM programme. It makes
a proportionate approach possible by adding new categories of aid that can be
exempted from prior notification to the Commission. At the same time, it
ensures that the exemption supports the objectives of SAM by covering only
measures where distortions of competition are limited, the aid is 'good aid'
and the Commission has sufficient case experience to be able to set appropriate
conditions in advance. 
The General
Block Exemption Regulation[9]
(GBER) sets out the detailed terms on which aid covered by the Enabling
Regulation is exempt from prior notification. The changes to the Enabling
Regulation make it possible to extend the horizontal and vertical scope of the
GBER. At the same time, the review of the GBER gives the opportunity to support
competitiveness by simplifying and clarifying the rules and going further in
promoting 'good aid' to facilitate growth, while boosting transparency to help
ensure that aid remains properly targeted even in the absence of notification
to the Commission. 
The new
GBER will have a significantly extended scope and simplified conditions. 75% of
today's State aid measures and around 66% of aid amounts would be covered by
the new GBER. If Member States focus their aid policy on the GBER then some 90%
of measures could be covered in the future. The Commission proposes to closely
work with Member States to achieve that goal; inter alia by setting up a
dedicated network of State aid country desks and preparing new guidelines. They
should also help Member States to ensure better respect of the GBER conditions
when designing their aid measures. To complement that significant shift in the
exercise of prior controls, the Commission will monitor aid granted under the
GBER. It will also evaluate the effect of the aid together with Member States. 
Following the
amendment of the Enabling Regulation, six new categories of aid previously not
covered will be included in the GBER: innovation aid to large enterprises,
certain aid to broadband infrastructures, aid for culture and heritage
conservation, including audio-visual works, aid for sport and multifunctional
recreational infrastructures, aid to make good the damage caused by natural
disasters and social aid for transport for residents of remote regions. In
addition, new forms of exempted aid will be introduced for existing categories,
such as: a wider concept of risk finance aid, investment aid for research
infrastructures, a new category on start-up aid, new possibilities for energy
and environmental aid (e.g. aid for remediation of contaminated sites,
operating aid for renewables, energy efficiency schemes), enlargement of the
notion of disadvantaged workers for employment aid to the youngest, and regional
aid for outermost regions and for urban development schemes. 
Moreover,
the revised GBER provides for a significant increase in the notifications
thresholds in key areas linked to the Europe 2020 agenda, such as R&D&I
and risk finance.
Finally,
the proportionate approach is also supported by the de minimis
Regulation[10]
that sets out the conditions on which small amounts of State support (up to EUR
200 000) do not constitute aid. After a careful review of the available
evidence and in view of the support fiscal consolidation and the redirection of
scarce public funds towards objectives of common interest in line with the
Europe 2020 agenda, the Commission decided not to change the de minimis
threshold. However, a number of simplifications and clarifications have been
introduced in the new Regulation that was adopted on 18 December. Those changes
will facilitate access to this instrument for all firms when they need it.
Better targeting
and improved ex-post controls
Enlargement of
the GBER should not be confused with softening control. In the present economic
conditions it is even more important than ever that aid is well-targeted and
addresses real market failures and cohesion needs. For that reason, aid to
large firms in assisted regions should be primarily reserved to green-field
investments, RDI and energy and environmental objectives, if necessary with
higher intensities to compensate for regional handicap (regional bonuses).
Support to ailing firms should only be granted under conditions that ensure
their ability to come back to viability: the new GBER will consider a single and
more precise definition of firms in difficulty, based on clearer and simpler
criteria established in consultation with financial experts and practitioners
so as to reflect market practices.
Such an
important enlargement and simplification of the GBER has to be balanced by
improved ex-post controls. They will be based on greater transparency of aid
awards at the individual level, more systematic monitoring of compliance with
the formal conditions for exemption and by introducing ex-post evaluation,
notably for the largest schemes in key areas relevant for the internal market. Ex-post
evaluation will ensure a more solid and effective method to ensure good aid
with incentive effect, and it will help designing better schemes with more
limited impact on competition and trade. Predefined thresholds will provide
predictability and legal certainty as to the schemes to be evaluated. In order
to ensure a common guidance and the same treatment to all, the Commission
launched a public consultation on a common methodology for ex post evaluation in
the summer of 2013. It aims to adopt the revised regulation in the first half
of 2014.
Streamlined
and clearer rules and faster decisions increase the efficiency of aid distribution
The SAM
programme also involves streamlining the rules, to allow the Commission to
adopt faster and better decisions and concentrate its resources on the most
important cases. 
To that
end, the Council adopted the new Procedural Regulation[11] in
July. The regulation allows the Commission to improve
the handling of complaints. In particular, it introduces new requirements
designed to improve the quality of information received from complainants and
clarifies the requirements to lodge them. For example, a mandatory
complaints form is introduced and the complainant must show the existence of an
interest to act, in order to be able to file a formal complaint. Moreover, a
complaint will be considered withdrawn in case the complainant does not provide
meaningful information or fails to cooperate.
The amended
Procedural Regulation also gives the Commission the power to collect the
appropriate information on a case within business-relevant deadlines. In
particular, the Commission can obtain information directly from market participants
and conduct sector inquiries. 
Lastly,
the regulation will facilitate coherent application of State aid rules across
Member States through its provisions on cooperation with national courts. The
role of the national courts has been reinforced. On the one hand, national
courts can now obtain information from the Commission for the purpose of
applying Article 107(1) and 108 of the Treaty on the Functioning of the European Union (TFEU).
Courts can also ask the Commission for an opinion on a concrete case. On the
other hand, the Commission can make oral or written submissions to national
courts in the EU public interest (amicus curiae).

2.      Monitoring,
recovery and cooperation with national courts

Increased
monitoring of existing State aid to ensure a level playing field
Over the years, the architecture of
State aid control has evolved significantly. Today, roughly 85% 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 regulations[12].
DG Competition monitors the way in which Member States apply existing aid
schemes by doing regular, sample based, ex-post checks. 
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 those sample
checks (from 20 to 30 cases reviewed per "monitoring exercise", to
more than 50). In the context of the 2012/2013 monitoring exercise DG
Competition examined a sample of 63 existing aid schemes involving all Member States, all main types of aid and covering 33% of Member States expenditure under
existing schemes. The investigation of a number of cases is still on-going, but
it can already be noted that issues or at least questions are raised in several
cases. These issues are of varying types and gravity e.g. non-notified
modification of schemes, individual aids exceeding the maximum thresholds,
compatibility conditions not properly reflected in the national legal basis
etc. 
The fact that irregularities are
detected in a number of cases is obviously a source of concern. However, it
must be noted that the detection of an irregularity does not necessarily mean
that incompatible aid was granted and that competition was distorted. For
example an individual aid that did not meet the conditions of the scheme under
which it was granted, although in principle problematic, could be found
compatible on another basis (e.g. as de minimis). Therefore, while
monitoring shows that Member States are not always abiding by the rules and
there is scope for improvement in terms of compliance, at the same time the
actual impact of the detected irregularities on the market should not be
overestimated. 
The Commission follows-up systematically
all irregularities and uses the means at its disposal, as appropriate, to
address the competition distortions that these may have induced. In some cases,
Member States offer to voluntarily redress the problems detected (amend
national legislation, recover the excess aid granted etc.). In other cases,
formal action may be necessary to tackle the detected irregularities. In 2013,
the Commission opened the formal investigation procedure in 2 cases where, in
the context of the monitoring, doubts were raised on the correct implementation
of the examined schemes. The formal investigation procedure is on-going.
Restoring competition through recovery
of State aid granted in contravention of the rules
To ensure the integrity of the Single
Market, the Commission has the power and the duty to request Member States to
recover unlawful and incompatible aid which has unduly distorted competition
and trade between Member States. In 2013, further progress was made to ensure
that recovery decisions are enforced effectively and immediately. 
Continued
efforts to recover illegal aid 
The
most recent figures[13]
show that Member States recover illegal aid much faster in recent years. 69% of
incompatible aid has been recovered (around EUR 13.5 billion since January
2004) thanks to the Commission's action, probably facilitated by the pressure
to consolidate public finances. The percentage of illegal and incompatible aid
still to be recovered has therefore fallen from 75% at the end of 2004 to around
21% on 31 December 2013.  
In 2013, the Commission adopted nine
decisions ordering recovery of incompatible aid, ensuring the recovery of over
EUR 726 million by the Member States. As of the end of December 2013, the
Commission had 52 pending active recovery cases (compared to 94 cases at the
end of 2004).
 Recovery decisions adopted in 2013 || 9 
 Amount recovered in 2013 (in EUR million) || 726 
 Pending active recovery cases on 31 December 2013 || 52 
As a
guardian of the Treaty, the Commission may use all legal means at its disposal
to ensure that Member States implement their recovery obligations, including
launching infringement procedures. In 2013, the Court of Justice condemned three
Member States pursuant to Article 108(2) TFEU (Italy four times, Spain and Greece). 
Moreover,
in 2013, the Commission adopted for the first time a decision fixing an amount
to be paid by a Member State in implementation of a Court ruling requiring that
Member State to make penalty payments, following its failure to implement recovery.

The
case in relation to which that decision was adopted concerns an employment aid
scheme which was introduced by Italy in 1984 and involved employers' exemption
from social security contributions for certain types of contracts. In its
decision adopted on 11 May 1999, the Commission found that part of the aid was
incompatible with the internal market and ordered its recovery. On 1 April
2004, the Court of Justice found that Italy had failed to comply with the
Commission's decision ordering the recovery[14].
Despite the Court's judgement, little progress was made; therefore the
Commission referred Italy to the Court for the second time under Article 260
TFEU[15].
By judgment of 17 November 2011, the Court of Justice found that Italy had failed to implement both the Commission's decision and the Court's 2004 judgment.
The Court therefore ordered Italy to pay a lump sum (EUR 30 million) and
periodic penalty payments, depending on the recovery progress achieved every 6
months by reference to the outstanding aid on the date of the judgement. The
Commission will continue to enforce the Court's ruling as regards the penalty
payments, until Italy fully implements recovery of the illegal and incompatible
aid.
Cooperation
with national courts to ensure the effectiveness of State aid rules on the
ground
The
Commission continued its cooperation with national courts under the Notice on
the Enforcement of State Aid Law by National Courts of 2009 (the 'Enforcement
Notice'). While (so far) no requests for information were received, the
Commission received one request for an opinion from the Oberverwaltungsgericht
Berlin-Brandenburg. The request concerned the calculation of the net grant
equivalent of an approved grant (regional aid) and was treated during 2013.
Furthermore, as a follow-up to the Enforcement Notice, the Commission's
advocacy efforts continued. In 2013, 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
(see also section 6 of the Antitrust & cartels title, on the Cooperation
with National Courts). 

3.     
Significant
judgments by EU Courts in the State aid area

The EU courts clarified certain aspects
of key State aid concepts in a number of significant judgments in 2013. 
In the so-called France Télécom judgment[16] the Court
of Justice clarified in an appeal the link between the conditions of State
resources and advantage needed for State aid to be present. The Court overruled
the General Court's judgment and confirmed that the Commission was correct in
finding that the announcement of State support on 4 December 2002 and a shareholder
loan offer, taken together, constituted State aid in favour of France Télécom
("FT"). The Court of Justice clarified that for establishing the
existence of State aid, several State interventions might, depending on their
links with one another and their effects, be regarded as a single intervention.
The Court noted that it was clear in that case that the announcement was
inseparable from the shareholder loan offered. 
The General Court, in its judgment on nature
conservation areas[17],
upheld the Commission's decision stating that aid was involved in German measures
to support large-scale nature conservation projects and the transfer of natural
heritage sites to environmental protection organisations free of charge. The
Court clarified that although the environmental protection tasks entrusted to
the organisations did not constitute an economic activity, the environmental
protection organisations had to be considered as undertakings to the
extent that they offered goods and services in competitive markets, namely
sales of wood, granting of hunting and fishing leases and touristic services.
As those activities could be dissociated from their non-economic activities,
the organisations qualified as undertakings when carrying out those economic
activities. 
Regarding the market economy
creditor test, the General Court confirmed[18]
the Commission's decision concerning Rousse Industry, a Bulgarian entrerprise.
The Commission refused the authorisation of an agreement on rescheduling a debt
in favour of Rousse Industry pre-dating Bulgaria's accession and ordered
recovery of illegal aid. The judgment clarified the application of the market economy
creditor test in cases of default on debt rescheduling agreements by a debtor
in difficulty without clear prospects of return to viability. In such
situations, a private creditor would not limit itself to 'soft' recovery
actions, but would rather take decisive action, i.e. proceed at least to the
forced execution of the pending debt. It also established that lack of recovery
action following a failure to comply with a debt-rescheduling agreement
constitutes a substantial modification of the initial debt rescheduling
agreement. The judgment recalled the distinction between the general concept of
existing aid in the Procedural Regulation and the specific application of the
concept of 'existing' aid for the new member States. For the new Member States,
the Accession Treaties define a more restrictive concept of 'existing aid',
which covers only: a) aid put into effect before a specified cut-off date (in
the case of Bulgaria, 10 December 1994); b) aid specifically listed in the
annex to the Accession Treaty as 'existing aid', and c) aid that was approved
by the national State aid authority prior to accession and in respect to which
the Commission had not raised objections.
The Court of Justice
confirmed[19]
the negative decision with recovery adopted by the Commission as regards the
incompatible aid granted to the Greek shipyard Ellinika Nafpigeia throughout
the period 1985-2005 in the context of its liquidation and successive
privatisation. The judgment is important for underlining, once again, that the
scope of the exemption from the EU State aid discipline foreseen by Article
346(1)(b) TFEU for military/defence measures must be strictly interpreted. In
particular, a clear distinction must be made between the production and
commercialisation of military material, on the one hand, and any other economic
activity on the other hand, especially in cases where the beneficiary
undertaking is engaged in both types of activities. Undertakings which engage
in both types of activities cannot invoke the military defence exemption for
the whole of their production/activities, i.e. including the civil part, by
arguing that the civil production is necessary for the viability of the
military/defence activity and indissolubly linked to it.
The General Court handed
down two judgments that address the question of the application in time of
State aid rules. In Case T-92-11 – Andersen v Commission, judgment of 20 March
("Danske Statsbaner"), the General Court partially annulled a
Commission decision declaring the State aid contained in the public service
transport contract between the Danish Ministry of Transport and Danske
Statsbaner (the incumbent Danish railway company) compatible with the internal
market. It ruled that the Commission had erred in law in applying Regulation no
1370/2007 instead of Regulation No 1191/69, the latter being the substantive
rule at the time when the aid had been paid. It considered that as a general
principle, aid notified but not paid out should be assessed under the
substantive rules in force at the date on which the Commission takes its
decision. Aid which has been paid out without notification has in principle to
be assessed under the substantive rules in force at the time the aid was paid
out, unless exceptional conditions for retroactive application of the new legal
basis are fulfilled.
In Case T-570/08 RENV - Deutsche Post v
Commission, judgment of 12 November, the General Court found, however, 
that aid which has been paid out without prior notification constitutes an
on-going situation, and not a definitive situation, and that for that reason,
new rules of compatibility apply with immediate effect to the assessment of aid
paid out without prior notification. Such aid therefore has to be assessed on
the basis of the rules in force at the time the Commission adopts its decision.
The Commission has lodged an appeal
against the ruling of the General Court in Danske Statsbaner, inviting
the Court of Justice to review the findings of the General Court with respect
to the application in time of substantive State aid rules. This will be an
opportunity to clarify this important question on which the case law has so far
taken different positions, and provide legal certainty.
In its judgment of 24 October
in Joined Cases C214/12 P, C215/12 P and C223/12 P – Land Burgenland v
Commission, the Court of Justice dismissed the appeals against a ruling of the
General Court which had confirmed the Commission's decision
on the privatisation of Bank Burgenland by the Province of Burgenland through a
tender procedure. In the final phase of the tender two bids were made, one by
the Austrian company GRAWE (EUR 100.3 million), and a much higher one 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
taking the highest bid, the Province of Burgenland did not behave like a
private seller operating in a market economy. The Court of Justice confirmed
that existing public guarantees should not be taken into account in the
evaluation of the bids because the guarantees concerned constituted State aid
(i.e. by definition granted by the State exercising its prerogatives as a
public authority), and a private investor would not grant aid. When there is an
open, transparent and unconditional tender procedure, it can be presumed that
the highest bid corresponds to the market price if the bid is binding and
credible and the consideration of economic factors other than the price is not
justified. In such a case the Commission is not obliged to look at other
methods, such as independent studies, to establish the market price. In
addition, the reasons of a potential buyer for submitting a bid are not
relevant from the perspective of a private vendor. 
Finally, the Court of Justice held in
Case C284/12 – Lufthansa v Flughafen Frankfurt Hahn[20] that
when the Commission has opened a formal investigation procedure, the national
courts are required to enforce the obligation to suspend the implementation of
the relevant aid measure. If the national court has doubts about whether the
measures constitute State aid, it may seek clarification from the Commission
and, in accordance with the second and third paragraphs of Article 267 TFEU, it
may or must refer a question to the General Court for a preliminary ruling.
The Court acknowledges that the
assessment in the opening decision is preliminary in nature, but considers that
the effectiveness of the stand-still obligation in Article 108(3) TFEU and the
preventive character of State aid control require the national courts to take
measures to suspend the implementation of the measure even if the Commission's
final decision were later on to conclude that there were no aid elements. In
addition, the Court refers to the principle of sincere cooperation (Article
4(3) TEU), from which it derives that national courts must refrain from taking
decisions which conflict even with a provisional Commission decision.
 Antitrust & Cartels 

1.      Technology
Transfer Agreements – on-going review 

The
EU aims to achieve a more competitive, connected, greener, knowledge-based and
inclusive society. In particular, innovation and competitiveness are
fundamental to the Commission's Europe 2020 Strategy.[21]
Innovation often results in greater prosperity and a more efficient use of
scarce resources, with knowledge as the key input. 
Efficiency
enhancing technology transfer agreements between competitors or non-competitors
promote innovation and competitiveness in Europe by ensuring that technologies
are disseminated to also other companies than the original inventor.
Dissemination of technology enables more competition and can also increase
follow-on innovation. 
The
review of the existing guidelines and the block exemption regulation for
technology transfer (TTBER) continued in 2013. The goal of that revision is to
strengthen incentives for research and innovation, facilitate the diffusion of
intellectual property and stimulate competition.
A
draft TTBER and draft Guidelines were published for public consultation on 20
February. The public consultation ran until 17 May. The Commission received 58
replies from stakeholders[22]. 

Stakeholders
seem, in general, to be more comfortable in self-assessing the compliance of
their technology transfer agreements with Article 101 TFEU. They support the
current effects-based approach to enforcement that the Commission has been
promoting since modernisation of EU competition law in 2004. The overall
majority of stakeholders indicate that the current system has given them
flexibility to organise their cooperation, notably through the so called
"safe harbours" provided for in the TTBER and the Guidelines.
Therefore, companies welcome that the Commission is keeping the overall
structure of the regime. As regards specific proposed changes in the draft
TTBER and Guidelines, most of the submissions focused on proposed changes as
regards market share thresholds, termination clauses, exclusive grant-back
clauses and patent pools.
The
Commission is now in the process of reviewing the draft TTBER and Guidelines in
light of the input received in the public consultation and aims at adopting
final texts in spring 2014. 

2.      Notice
on Agreements of Minor Importance – on-going review

Article 101 of the Treaty on the Functioning of the
European Union (TFEU) prohibits agreements that aim at, or result in, appreciable
restrictions of competition. The current Notice on Agreements of Minor
Importance (De Minimis Notice)[23], adopted in 2001, creates a
market-share based safe harbour for agreements that the Commission considers as
having a non-appreciable effect on competition. Agreements between competitors
are deemed not to have an appreciable effect on competition if the aggregate
market share of the companies involved does not exceed 10%. For agreements
between non-competitors the relevant market share is 15%. However, if an
agreement, be it between competitors or non-competitors, contains a
particularly serious restriction of competition, known as hardcore restriction,
it will not be able to benefit from the safe harbour.
In July, following a consultation of the Member States,
the Commission launched a public consultation on a revised draft of the De
Minimis Notice. The proposed revision of the Notice seeks to reflect the ruling
of the European Court of Justice in the Expedia case[24], which clarified that an agreement that has
an anti-competitive object constitutes, by its nature and independently of any
concrete effect that it may have, an appreciable restriction on competition.
Accordingly, the revised draft Notice provides that agreements containing a restriction by object will always constitute an
appreciable restriction of competition if they affect trade between Member
States. Secondly, the revised draft proposes technical changes to ensure
that the De Minimis Notice is consistent
with other recently amended competition rules, in particular the 2010 Vertical
and Horizontal Block Exemption Regulations.
The public consultation on the revised draft Notice was
closed in October. The Commission is currently reflecting on the implications
of the responses received and is working towards adopting a revised Notice in
2014. 

3.      Proposal
for a Directive on antitrust damages actions adopted

On 11 June, the Commission adopted a Proposal for a
Directive on antitrust damages actions[25], an initiative which has
long been awaited by stakeholders and which is a policy priority for the
current Commission. Under EU law, any person or company who suffered harm
because of an infringement of EU competition law has a right to full
compensation. The proposal has two complementary goals. First, the proposal
aims at optimising the interplay of private damages claims with the public
enforcement by the Commission and national competition authorities, to
safeguard strong public enforcement and to achieve a more effective enforcement
overall.  Second, to make the EU right to compensation a reality in all Member
States, by removing key practical difficulties which consumers and companies
frequently face when they seek redress.
To achieve these goals, the proposal includes substantive
and procedural rules on crucial aspects of antitrust damages actions, such as
access to evidence, limitation periods for bringing an action, standing and the
burden of proof with regard to compensation for overcharges passed on along the
distribution chain. The proposal seeks to create legal certainty as to the
accessibility of evidence produced for the purposes of public enforcement. For
instance, in order to safeguard the attractiveness of leniency programmes, it
provides that leniency corporate statements should never be disclosed in
private damages litigation. The proposal facilitates follow-on damages claims
by stipulating that final infringement decisions by national competition
authorities have probative effect.
The
legislative proposal has been submitted to the European Parliament and the
Council under the ordinary legislative procedure. On 2 December, the
Competitiveness Council adopted a General Approach on that initiative.[26] In
the European Parliament, the file is shared between three Committees: Economic
and Monetary Affairs (ECON), Legal Affairs (JURI) and Internal Market and
Consumer Protection (IMCO). The latter adopted an opinion on the proposal on 17
December.
In parallel to the proposal, the Commission adopted a
Communication on quantifying antitrust harm in actions for damages based on
breaches of Article 101 or 102 TFEU, to provide guidance to courts and to the parties
in such actions.[27] This is accompanied by a more comprehensive Practical
Guide drawn up by the Commission's services[28] and available in all official EU languages. Finally, the
proposal is complemented by the Commission Recommendation on collective redress[29], which recommends that all Member States introduce
collective redress mechanisms to facilitate the enforcement of the rights that
all Union citizens have under Union law, including the right to compensation
for antitrust harm. 

4.      Significant
judgments by EU Courts in antitrust and cartels

Deutsche Bahn 
In Deutsche Bahn[30], the General Court
confirmed the legality of the Commission's unannounced inspections at the
premises of the German railway incumbent Deutsche Bahn in 2011. The Court ruled
that inspections may be carried out based solely on a Commission decision and
do not require prior authorisation by a judge. The Court also confirmed that
the rules on inspections set out in Regulation no. 1/2003 do not violate
fundamental rights, as protected by the European Charter of Fundamental Rights,
as the Regulation and the system of remedies in the Treaty provide for
sufficient safeguards to protect the company's rights of defence and right to
effective judicial protection. The Court further confirmed that inspectors
cannot be expected to be able to immediately assess whether certain documents
are within the scope of the inspection decision, but they must be able to read
the documents to make that assessment. The applicants have appealed the
judgment before the Court of Justice.
Schindler 
In Schindler[31], the Court of Justice
dismissed an appeal against a 2011 judgment of the General Court upholding the
Commission decision[32] from 2007 fining Schindler
and various subsidiaries for their participation in the "Elevators and
escalators" cartel. With reference to the 2011 Menarini judgment of the
European Court of Human Rights[33], the Court confirmed that
the current EU antitrust enforcement system – in which the Commission as
administrative agency imposes fines subject to judicial review – does not
violate fundamental rights and in particular the principle of effective judicial
protection established by Article 6 of the European Convention on Human Rights.
It stated that in view of Menarini, the review court must have "the power
to quash [the decision] in all respects, on questions of fact and law"[34].
In particular, the Court of Justice held that the notion of full jurisdiction
requires an examination of "all questions of fact and law relevant to the
dispute". The Court of Justice went on to hold that the judicial review
exercised by the EU courts in competition cases meets that standard because:
(a) within the sphere of "review of legality", the EU courts carry
out a "full and unrestricted review"; and (b) within the sphere of
"unlimited jurisdiction", the EU courts can substitute their own
appraisal for the Commission’s and consequently, to cancel, reduce or increase
the fine.
CISAC
In a series of 22 judgments the General Court ruled[35]
on the appeals brought by 21 collecting societies and the International
Confederation of Societies of Authors and Composers (“CISAC”) against the Commission
Decision of 16 July 2008[36].  
The Commission found in the CISAC decision that Art. 101
TFEU prohibits certain provisions in reciprocal representation agreements among
collecting societies in the EEA, which have the effect of restricting
competition among them by limiting their ability to offer their services to
authors and commercial users (such as RTL or Apple) outside their domestic
territory. In the case at hand, authors were forced by virtue of membership
clauses to enrol with the society of their own State, while collecting
societies could not provide their services outside their own allocated
territory due to exclusivity restrictions. The Decision also found that the
collecting societies coordinated their bilateral arrangements to ensure that commercial
users only obtained licenses limited to the domestic territory of each
collecting society. 
The Court gave guidance with regard to the required
standard to prove concerted practices and with respect to the concepts used to
establish the existence of concertation and those used to establish the
existence of a restriction of competition. It endorsed the findings of the
Commission in relation to the "membership clauses" and has also
upheld the principle that collecting societies must be able to provide services
outside their territory. In the judgment on the appeal by the Swedish
collecting society (STIM) the Court addressed the issue of the relationship
between Article 101 and Article 167 TFEU (on cultural aspects), as well as the
treatment of cultural claims under Article 101 TFEU. However, the General Court
found that the Commission had failed to adduce sufficient evidence of a
concerted practice whereby each collecting society was alleged to have limited,
in its reciprocal representation agreements, the right to grant licences
relating to its repertoire in the territory of another collecting society party
to the agreement.
Cartel judgments: the Courts confirm the
Commission´s approach to parental liability
The Courts have
continued to clarify and confirm the Commission's practice on parental
liability. In Portielje[37] the Court of Justice sided
with the Commission and reversed the finding of the General Court, which had
concluded that the presumption had been successfully rebutted. The Court of
Justice clarified that parental liability has to be assessed on the basis of
all relevant factors relating to the economic, organisational and legal links
and not only those related to company law. In the same judgment, the Court of
Justice also clarified that the fact that the parent company itself does not
have any economic activity is irrelevant, as long as it constitutes a single
undertaking with the entity that directly participated in the infringement. 
In two judgments
relating to the Chloroprene Rubber cartel, the Court of Justice confirmed the
Commission's findings on the imputation of parental liability in a joint
venture constellation for a 50/50 joint venture between Dow and DuPont[38].

The General Court
also further clarified the application of parental liability by confirming in the
Bananas cases that Del Monte was liable as a parent company for a limited
partnership under German law (Kommanditgesellschaft), although Del Monte was
only the limited partner in that relationship (case T-587/08, Del Monte).
Del Monte and Dole 
In Del Monte[39] and Dole[40]
the Court also confirmed the Commission's finding that the bilateral exchange
of not publicly available "pre-pricing" information, relating to the
fixing of quotation prices, constituted a concerted practice that had the
object to restrict competition. 
Marine hoses
In the Marine Hoses cartel case, the General Court delivered
three judgments[41] in which it upheld for the
most part the Commission's 2009 decision[42] that a number of companies
active in the business of marine hoses (used to transport crude oil to and from
ships) participated in a world-wide cartel. The General Court endorsed point 18
of the 2006 Fines Guidelines and the method used to calculate the fines in
situations where the EEA sales would not be representative for example because
of the existence of a 'home market' protection rule. 
The General Court partly annulled the Commission's
decision in the Parker case.[43] The General Court found
that the Commission has wrongly interpreted the concept of economic continuity
to the infringing undertakings. The Commission has appealed the judgment at the
Court of Justice.
The General Court also provided guidance on the notion of
repeated infringement in the MRI case[44]. The Court found in
particular that if an undertaking’s participation in the infringement was
interrupted and that the infringement committed by the undertaking before and
after that period has the same features, the infringement in question must be
characterised as a single infringement and as a repeated infringement. In that
case, the Commission cannot impose a fine in respect of the period during which
the infringement was interrupted.[45]
Bathroom fittings
In the Bathroom fittings cartel case, the General Court
confirmed[46] the Commission's finding of
a single overarching cartel, which affected six Member States, lasted from 1992
to 2004, and covered three product groups (ceramics, taps and fittings, shower
enclosures). The coordination took place during meetings of national trade
associations and in bilateral contacts and it consisted of fixing price
increases, minimum prices, rebates, and exchanging sensitive business
information. 

5.      A top
priority in the fight against cartels – making use of leniency and settlement

DG Competition’s strong enforcement record against
hard core cartels continued in 2013. The Commission continued to receive a
constant flow of immunity and leniency applications, close to the long term
trend of around two applications per month. Although the total number is lower
than for 2011 and 2012, those years were exceptional, given the large number of
applications in the car parts sector, where one application and investigation
quickly spurred additional immunity applications.
The wire harnesses decision[47]
is the first decision in the car parts sector; more are likely to follow. It is
the seventh cartel settlement decision adopted by the Commission demonstrating
the increasing success of the settlement system which gives companies a 10%
reduction in the fine if they accept liability for the infringement and do not
contest the Commission’s findings. Settlement is used if the Commission considers
after screening that a case is suitable for settlement and the parties are
willing to cooperate in the procedure. It is an effective resolution tool of
cartel proceedings since it allows freeing up resources more quickly to fight
other cartels and therefore contributes to further deterrence in that respect.
Although settlements can lead to quicker decisions,
the Commission will not pursue settlements at any cost. It has a responsibility
as a public enforcer to take decisions in the public interest; if companies and
the Commission cannot reach a common understanding on the existence and the characteristics
of a cartel, then settlements will not be available. In the smart card chips
case[48] the settlement route was abandoned
due to lack of progress.
The domino effect of the leniency system and the
successful use of the settlements procedure were both further confirmed by the
two cartel cases in the interest rates derivatives industry, EIRD[49]
and YIRD[50]. Additional ongoing cases linked to
the sector will be treated as a priority. 
In a smaller case, but one that was also uncovered
thanks to the leniency system, the Commission fined four North Sea Shrimps
traders a little under €30 million in November for operating a multi-year
cartel in North-Western Europe.
More information on the cartel decisions mentioned
above is available in the sections below, describing the relevant sectors. At
the same time, the Commission has begun a number of other investigations and laid
the groundwork for future enforcement. In addition to the Statements of
Objections in wire harnesses and the EIRD and YIRD cases, which led to the
prohibition decisions mentioned above, the Commission also sent a Statement of
Objections to the smart card chips producers[51] and conducted a number of
inspections.
With four decisions, fines totaling EUR 1 882 975
000, and solid work for enforcement in future years, the Commission’s cartel
enforcement record remains strong and effective.
 Case name || Adoption date || Fine imposed EUR || Undertakings concerned || Procedure 
 Automotive wire harnesses || 10/07/2013 || 141 791 000 || 5 || settlement 
 Shrimps || 27/11/2013 || 28 716 000 || 4 || normal 
 EIRD || 04/12/2013 || 1 042 749 000 || 4 || settlement 
 YIRD || 04/12/2013 || 669 719 000 || 6 || settlement 
Antitrust
and cartel output

6.      Continuing
the close cooperation within the European Competition Network (ECN) and with
national courts 

Regulation
1/2003 empowers the Commission, National Competition Authorities (NCAs) and
national courts to apply Articles 101 and 102 TFEU to agreements and practices
that are capable of affecting trade between Member States. Since May 2004, the
Commission has investigated potential antitrust infringements across almost all
sectors of the economy and has adopted over 120 decisions, many of which
landmark precedents. NCAs have investigated more than 1600 cases in this
period, giving rise to enforcement decisions in more than 600 cases. DG COMP
and the NCAs continued to coordinate competition enforcement in the ECN in 2013.
Convergence
of enforcement powers
In
2013 the ECN discussed the need to further improve the procedural framework for
the enforcement of Articles 101 and 102 TFEU. Procedures and sanctions for the
application of the EU competition rules in the Member States are not harmonised
by EU law. The Commission and NCAs apply the same substantive rules according
to different procedures and sanctions based on national legislation.
Convergence of enforcement powers has been a focus of horizontal ECN work for
several years. The ECN has notably produced detailed comparative reports on
investigation and decision making powers[52]
in 2012. On that basis, a set of ECN Recommendations on investigation and
decision-making powers were adopted in December 2013[53]. As
regards sanctions for breaches of competition law, most NCAs can impose
deterrent administrative fines and calculate those fines based on a similar
methodology. Reforms leading to more convergence of procedures have been
encouraged by country specific recommendations in the framework of the Europe
2020 strategy (European Semester) and in the context of Economic Adjustment
Programmes. 
Leniency
convergence and interface with other areas of law  
Leniency
programmes are generally recognised as an important tool to detect secret
cartels. From the outset, the ECN has given priority to fostering convergence
and smooth interaction in that area. The ECN notably developed the ECN Model
Leniency Programme (MLP)[54],
providing Member States and NCAs a cohesive set of rules and procedures from
which to inspire themselves. Refinements of the MLP were endorsed in late 2012.
As a result, virtually all Member States have introduced leniency programmes
and a significant process of alignment with the MLP has taken place by 2013. 
The
question of the disclosure of leniency material in the context of civil damages
actions[55]
was addressed in the Commission's Proposal for a Directive on Actions for
Damages of 11 June 2013. Some stakeholders pointed out that sanctions on
individuals, including classical criminal sanctions, applied by a number of MS
have an adverse effect on the efficiency of the leniency policies. Particular
concerns are that leniency does not always apply to individuals, or that the
leniency options available for businesses and for individuals are not
harmonised. There is a growing awareness of this issue which has been
explicitly addressed by some Member States in their legislation or leniency
policies.   
Cooperation with national courts
National courts apply national and EU competition rules in a
variety of scenarios. Certain national courts have jurisdiction over lawsuits
between private parties (e.g. actions for damages). Some national courts act as
review courts, hearing appeals which are brought against decisions of the
national competition authorities. There are also courts that act as public enforcement
authorities. Finally, if national courts apply national competition law, they are
also required to apply Article 101 TFEU and Article 102 TFEU, where there is an
effect on trade between Member States. 
Efficient implementation of competition policy requires coherent and
consistent judicial interpretation. The Commission therefore continues to
support the coherent application of competition rules through cooperation with
national courts. This cooperation includes direct case related assistance to national courts when they apply EU competition law. The courts
can ask the Commission to provide case related information, or to provide an
opinion on the application of the competition rules. The Commission may also submit
amicus curiae observations on its own initiative. 
In 2013, the Commission responded to five requests for information
and one request for an opinion pursuant to Article 15(1) of Regulation 1/2003.
The requests for information were issued by courts in Spain, the United Kingdom and Belgium. They concerned the state of the proceedings before the
Commission or the transmission of documents in the possession of the
Commission. The request for an opinion came from a Spanish court and concerned
the application of Articles 101 and 102 TFEU to vertical agreements. DG
Competition publishes opinions issued to national courts as soon as it receives
approval from the requesting court.[56]
Cooperation on a more general level includes DG Competition's
Grant Programme on the "Training of National Judges in EU Competition
Law". The main aim of the Programme is to promote the convergence of
competition policy and of enforcement by national courts throughout the EU and
to boost cross-border exchanges between national judges. In 2013, nine projects
were awarded totalling almost EUR 800 000. These projects make provision for
the training of around 720 judges of 26 nationalities in EU competition law and
are intended to enhance cooperation between them.
 Merger control 
Merger
control is an essential component of competition policy enforcement in Europe. Efficient merger control contributes to the maintenance of competitive pressure on
market participants, which stimulates innovation and efficient distribution of
scarce resources. In order to maintain the recognised high standard of
controlling merger transactions, the Commission continuously evaluates the
substantive and the procedural rules in force. Where the Commission identifies
room for improvement, it does not hesitate to launch policy changes. In 2013
work has progressed on two major policy initiatives in merger control, the
review of the Merger Regulation and the simplification initiative.

1.      Towards
more effective merger control – on-going review

On 20
June, the Commission published a Staff Working Paper "Towards more
effective EU merger control"[57]
in order to seek the views of interested parties on a possible modification of
the Merger Regulation.
First,
the initiative considers whether to apply merger control rules to deal with the
anti-competitive effects stemming from a new category of transactions, namely
acquisitions of non-controlling minority shareholdings (hereafter
"structural links"). Effective competition policy requires having the
appropriate means to tackle all sources of harm to competition and consumers.
Significant harm to competition and consumers can occur not only from
acquisitions of control, but also from structural links, in particular if minority
shareholdings are acquired in a competitor or in a vertically related
undertaking.
Until
now the Merger Regulation has been limited to “concentrations” defined as
acquisitions of control and the Commission has only had the possibility to take
pre-existing minority shareholdings into account if it is competent to analyse
the effects of a separate acquisition of control. Austria, Germany and the United Kingdom currently have national merger control rules that also give them the
competence to review structural links. In addition, in a number of other
countries outside the EU, such as Canada and the United States, structural
links are also subject to competition review under national merger control
rules.
The
Staff Working Paper discusses options to extend EU merger control to the
acquisition of non-controlling minority shareholdings without creating an undue
burden for businesses. This could be done either by extending the current
ex-ante notification system for “full” mergers to minority shareholdings or through
a more selective system, whereby the Commission may “pick and choose” cases
that are most likely to raise competition issues.
Second,
this initiative aims at assessing whether the Merger Regulation should be
amended to improve the effectiveness and smoothness of the case referral system
without fundamentally reforming the basic features of this system or the
allocation of competences between the Commission and Member States. The 2009 Report to the Council on the operation of the Merger Regulation[58] found
that although the existing thresholds and referral mechanisms lead to an
appropriate allocation of cases in most instances, a significant number of
cross border cases are still subject to multiple review in several Member
States (240 cases in 2007). In some cases, where the Commission might have been
the more appropriate authority, companies may also have opted against a
referral to the Commission in order to avoid the Commission's jurisdiction for
reasons of "forum shopping". To render the case referral system
between the Member States and the Commission more effective and
business-friendly, the Staff Working Paper discusses options to streamline
pre-notification referrals to the Commission under Article 4(5) and
post-notification referrals to the Commission under Article 22.
Finally,
this initiative also aims to implement, if need be, several possible further
technical improvements to the Merger Regulation.
The
consultation period ended on 12 September. The Commission received a large
number of replies from various groups of stakeholders (namely businesses and
business associations, law firms, lawyers' and other law associations,
academia, economic consultancies, international organisations, NCAs, national
governments and private citizens). The Commission's services also met with
representatives from EU and EFTA Member States during various meetings and
conferences. Further progress is envisaged for this initiative in 2014 through the
publication of a White Paper.

2.      Simplifying
merger procedures further – on-going review

On 5
December, the Commission adopted the 'merger simplification' package. The
package includes the amendment of the Merger Implementing Regulation[59] and the
adoption of a new Notice on Simplified Procedure[60]. In
parallel, the Commission has updated its model texts for divestiture
commitments. The
Commission's decision followed a public consultation earlier in 2013. 
The
changes aim to make the EU merger review procedures simpler and lighter for
stakeholders and to save costs. They will also allow the Commission to better
focus its resources on those merger cases which merit a more intense review.
These objectives are achieved in three main ways. First, the Commission has
extended the scope of application of the simplified merger review procedure to
cover more cases which are generally unlikely to raise competition concerns. In
particular, the Commission has raised the market share thresholds under
which cases qualify for a simplified merger review. Furthermore,
it has introduced a new category mergers eligible to be considered under the simplified
procedure, namely those mergers between competitors which result in small
increments in market share.
Second,
the Commission has updated and streamlined the information that notifying
parties are required to include in merger notifications and in pre-notification
case referral requests. The required information is now more tailoured to the
particular type of case being notified. Third, the Commission has has made
proivision for more focused pre-notification contacts.
Significant
net benefits are expected to ensue for businesses and their external advisorsin
terms of costs and resources. It is expected that the ratio of cases dealt with
in simplified procedure will be increased by around 10%. That means that
approximately 70% of all cases will be simplified (on the basis of the current
data). 
For
the remaining cases which are reviewed under the normal procedure, the
Commission has clarified, updated and significantly streamlined the information
that the parties need to compile for notification. Additionally, the
information required from parties requesting a referral of a case from the
Commission to Member States or vice-versa (the Form RS) has been reduced to a
strict minimum.
The streamlining
of the information requirements for notification described above is also
expected to make pre-notification processes in both simplified and
non-simplified cases even more focused. In individual cases, the information
requirements can be further reduced at the request of the parties by waivers. The
amended texts clarify that waiver requests will be assessed within the
5-working day timeframe set out in DG Competition's Best Practices on the
handling of merger cases[61].
This is a clear signal of the Commission's willingness to adopt a
non-formalistic approach in its review and grant such waivers in cases that
merit them. 
The
simplification initiative is a concrete example of the Commission's commitment
towards the goals of the Regulatory Fitness and Performance (REFIT) programme[62]. It
makes rules and administrative procedures simpler and less burdensome for
business, thereby stimulating growth and making Europe more competitive. 

3.      The
number of merger interventions remain stable 

The
number of merger notifications in 2013 reflects the average of the last four
years. Overall, 300 cases were notified to the Commission in 2013, including 23
referrals. The Commission opened six new in-depth (i.e. second phase)
investigations covering several sectors such as IT, mobile telephony, air transport
and basic industries.
The
number of decisions and the number of interventions[63] remains
stable (at 15 in 2013) compared with the average of the last four years. The
number of prohibition decisions increased to two in 2013[64]
compared with only one in 2012[65].
In 2013, two decisions[66]
were concluded in second phase with commitments, compared with six in 2012. The
number of clearance decisions adopted in first phase with commitments remained
stable, with eleven in 2013 compared with nine in 2012.
The
recent trend that transactions become more complex has continued in 2013. Second
phase investigations in particular generally require sophisticated quantitative
and qualitative analyses involving large amounts of data.
Merger decisions

4.      Significant
judgments by EU Courts in mergers

In 2013 there was one judgment by
EU Courts in the area of merger control. On 11 December, the General Court dismissed
Cisco Systems' appeal of a Commission decision of October 2011[67]
to clear the acquisition of Skype by Microsoft[68]. The judgment confirmed the
Commission's assessment of new markets and technologies under the EU Merger
Regulation. The Commission's decision to clear the transaction did not put the
development of innovative products and services at risk. The Commission will
continue to ensure that competition in nascent and fast evolving markets is
maintained.
 Developing the international dimension of EU competition policy 
The proliferation in recent years of jurisdictions
with competition legislation and enforcement mechanisms is on the one hand a
positive development. On the other hand diverging competition regimes present a
challenge to businesses acting on an international level. The Commission seeks
to reinforce the role of competition policy in international economic
cooperation and cooperates with competition agencies globally. Such regulatory
and enforcement cooperation helps to ensure a level playing field for European
companies active on global markets.

1.      Bilateral
relations

The EU launched negotiations with the US on a Transatlantic Trade and Investment Partnership Agreement (TTIP) on 8 July. The agreement has a competition
chapter that will include provisions covering antitrust, mergers, State-owned
enterprises, and subsidies. The
high-level bilateral policy dialogue in the framework of the cooperation
agreement[69] continued in 2013. Discussions with
the US federal competition authorities aim, among other things, to improve
cooperation in the area of unilateral conduct, mergers and airline alliances. 
Negotiations on a Free Trade Agreement were also
started with Japan on 25 March. The proposed agreement includes competition
provisions which DG Competition is following closely. DG Competition also met representatives
of the Japanese competition agency in accordance with the existing cooperation
agreement[70]. 
On 17 May, the EU signed a second generation Cooperation
Agreement with Switzerland[71]. It includes an innovative feature
that will enable the competition agencies to exchange information they have
obtained in their investigations. Negotiations on a similar agreement between
the EU and Canada have been progressing well.
A new Memorandum of Understanding for Cooperation in
the area of competition law (MoU) was signed on 22 November with the Competition
Commission of India.[72] The MoU sends a positive signal for
intensified cooperation on competition matters between the EU and India. 
The European Commission continued negotiating Free
Trade Agreements with a large number of third countries, all of which include a
chapter on competition. 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.
In the framework of the accession negotiations, significant
progress was made in 2013 with the screening of Montenegrin legislation and the
identification of opening benchmarks for negotiations of the competition
chapter. The Commission continued to closely monitor the implementation of the
steel and shipbuilding protocol included in the Accession Treaty for Croatia. 

2.      Multilateral
cooperation

The Commission also continued its active engagement
in competition related international fora such as the Competition Committee of
the OECD, the International Competition Network (ICN) and Unctad. In 2013, it
continued co-chairing the Mergers Working Group of ICN and one of the
Sub-Groups of the Cartel Working Group. In 2013, the Commission was the project
leader (together with US FTC) for the Steering Group projects on investigative
processes in competition enforcement activities
II.          SECTORAL OVERVIEW
This
section provides an overview of policy developments and enforcement activities in
a number of selected sectors, which the Commission particularly focused on in
2013: 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 
The energy sector is of significant importance to the EU, as
energy is a key input across all economic sectors. Affordable energy prices and
security of supply are vital for a competitive European industry. While some
progress has been made towards the three central goals of the
European energy policy, that is competitiveness, sustainability and security of
supply, several challenges remain. 
Challenges
facing European competitiveness, sustainability and security of supply
The
Commission's communication "A policy framework for climate and energy
in the period from 2020 to 2030"[73]
is a comprehensive framework aiming to make the Euroepan Union's economy and
energy system more competitive, secure and sustainable. The most important
challenges include the reduction of greenhouse gas emissions, the combat
against climate change, maintaining secure and reliable provision of energy at
competitive prices, reducing our dependence on energy imports and improving
interconnection between European gas and electricity grids. The Commission's
Communication "Energy 2020 – A strategy for competitive, sustainable
and secure energy"[74]
calls for action in several areas, such as energy efficiency, infrastructure,
choice and security for consumers, energy technology and the external dimension
of the internal energy market. The Commission's Communication "Energy
Technologies and Innovation"[75]
calls for particular actions to bring new, high performance low-cost,
low-carbon sustainable energy technologies to the sector. Competition
enforcement and advocacy, along with sector-specific legislative proposals,
constitute the main tools the Commission has at its 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 2012 report on competition policy (the Tremosa i Balcells
report) continued to request that the Commission actively monitors the degree
of competition on the market.
The
three key challenges identified in 2013 are the EU's increasing dependence on
imported energy, increasing energy prices and lack of investment.[76]
EU energy markets still do not function efficiently, as markets remain
segmented along national borders, investments in infrastructure is lacking and
access to networks remains difficult for new entrants. In 2013, EU competition
policy contributed to tackling those challenges in several ways.
Contribution of EU competition policy to
tackling the challenges
Enhancing competitiveness across the
energy sector
Competition
enforcement and advocacy in the energy sector contribute to competitiveness of
EU industry in general and the completion of the Single Market. It does so in
particular by opening energy markets, creating a level playing field between
competitors, preventing incumbents from reinforcing their dominant positions
and creating a framework for investment that avoids distortions and ensures the
efficient allocation of public resources. 
The
competitiveness of European industry is affected by energy prices that are
higher in the EU than in other major trading partners. Antitrust enforcement
actions have contributed to curbing energy prices by combatting the segmentation
of markets, inefficient allocation of energy and abusive or collusive
behaviour. Cases investigated in 2013 include an examination of the behaviour
of companies active in the crude oil, refined oil products and biofuel sectors;[77] Gazprom,
in relation to the supply of gas to Central and Eastern Europe[78]; BEH,
in relation to the supply of electricity in Bulgaria[79]; and
power exchanges[80].

Industrial
competitiveness is also addressed by the State aid Guidelines on the
Emissions Trading Scheme (ETS) which entered into force on 1 January 2013.
Member States can relieve energy-intensive industries from indirect costs of
CO2 in their electricity price. Such measures address the risk of relocation of
energy-intensive industries to countries outside the EU where environmental
regulation is less strict.[81]
During 2013, the Commission approved such schemes in five Member States.[82]
On the other hand, plans of the German authorities to grant such support to
certain non-ferrous metals producers have been declared incompatible, as it
would have entailed serious distortions of competition to the detriment of
producers in other Member States.[83]
Furthermore, to
enhance competition and ensure a level playing field in the energy sector, the
Commission has initiated several in-depth investigations in State aid. The
cases concern either electricity generators or selective and potentially
distortive advantages to electricity consumers. In particular, the Commission
has launched an investigation to examine the role of aid in preventing market
opening in the Portuguese electricity generation market[84] and
it re-opened an inquiry into certain tax measures granted by the French State to Electricité de France (EDF)[85].
In-depth probes were also launched in Germany[86],
 Denmark[87]
and the UK[88].
Contributing to sustainability
Sustainable
development is the long-term use of resources to meet human needs, 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.

During 2013, based
on the provisions of the Environmental Aid Guidelines[89],
the Commission issued a great number of approval decisions for the promotion of
renewable energy.[90]
The Commission is currently revising those Guidelines, with a view of adopting
modernised rules in 2014. The revision will adapt the rules in
light of their application and market developments. It will allow Member States
to design support schemes to reach the EU objectives and help companies to
better bear the costs relating to the support of electricity from renewable
energy sources and contribute to increased environmental protection and growth. The
revised guidelines will therefore also consider negative impacts of environmentally
harmful subsidies, while taking into account the need to address trade-offs
between different areas and policies as recognised by the flagship initiative
for "Resource-efficient Europe".
The Czech Republic notified five individual aid measures in the steel sector within an overall
aid scheme for improving air quality in the Moravia-Silesia Region. The
Commission came to the conclusion that the measures proposed would increase the
level of environmental protection by going beyond the mandatory obligation that
can be imposed on the beneficiary based on applicable Community standards under
Directive 2010/75/EU on industrial emissions and they were approved on this
basis.[91]
Enforcement actions
supporting sustainability include the on-going anti-trust investigation in
relation to the Austrian waste management markets[92]. The
Commission’s intervention will contribute to achieving more efficient ways of
collecting and recovering packaging waste and help achieving environmental
targets.
Contributing to security of supply
The EU energy
sector is increasingly dependent on imports and dependency is expected to grow
to more than 80% in the case of oil and gas by 2035. However, energy dependency
differs greatly among Member States. Some Member States rely on one single
supplier and often on one single supply route for 80%-100% of their gas consumption,[93]
whereas Member States with a diverse portfolio of gas suppliers and supply
routes and with well-developed gas markets reap the benefit by paying less for
imports. The EU energy sector is also characterized by a significant need for
investments, e.g. in electricity generation infrastructure, given the trend for
gas and renewables to contribute more to electricity generation in the EU. 
With the aim of
encouraging investment, the Commission authorised in 2013 State aid for a
number of gas infrastructure projects (in Greece[94]
and Poland[95])
as well as investments
into Liquefied Natural Gas (LNG) infrastructure (in Greece and Lithuania[96]). At
the same time, in the field of merger control, the Commission cleared a number
of transactions involving investments into European energy infrastructure by
companies which are new to this market (e.g. investment funds, trading
companies and industry conglomerates). Many of these investments focussed on
the production of electricity from renewable energy sources (e.g. wind parks[97],
solar parks[98],
waste-to-energy[99]
or biodiesel[100])
as well as on investments into transmission systems (e.g. off-shore electricity
transmission,[101]
off-shore gas transmission[102]
and on-shore gas-transmission[103]).

Similarly, the
Commission's anti-trust enforcement aims at resolving security of supply issues
by facilitating access to the market and encouraging investment. That is
illustrated by the decision regarding CEZ electricity[104], the
investigations into BEH in relation to Bulgarian gas market[105], into
the Romanian power exchange[106]
and into Gazprom[107]
in relation to the partitioning of markets and the prevention of
diversification of the supply of gas. 
The Commission
has also remained vigilant to maintain competitive market structures when it
assessed proposed merger transactions. In that spirit the Commission
cleared the acquisition of joint control over WINZ and Wintershall Services of
the Netherlands and sole control over Wingas and WIEH of Germany by the Russian
energy company Gazprom[108].
The Commission assessed the potential impact of the transaction on competition
in the markets for the sale of gas in Germany, Austria and the Czech Republic, where Gazprom sells gas to downstream wholesalers and retailers, including
Wingas which is both wholesaler and retailer. The Commission also assessed the
potential effects of the acquisition on competition in the markets for the
storage of gas in Germany and Austria. The Commission concluded that the
transaction would not raise competition concerns as it would not allow Gazprom
to restrict customers' access to gas supplies.
              2.
Information and Communication Technologies (ICT) and Media 
Overview
of key challenges in the sector
Information and
Communication Technologies (“ICT”) play a key enabling role for Europe to achieve its strategic objectives under the Europe 2020 Strategy, in particular, as
regards the objectives under the Digital Agenda flagship initiative[109] and
the revised priorities adopted in December 2012[110].
That role is also recognised in the Communication on e-commerce and other
online services.[111]
Creative content is an essential input into the digital economy and a key
driver of consumer demand for digital services. Europe’s sustainable
competitiveness largely depends on its ability to absorb the potential benefits
of the rapid progress in ICT.
ICT increasingly
affects all segments of society and the economy. It is estimated that half of
all productivity growth derives from investment in ICT[112]. There
is a very considerable growth potential in those sectors. In mature economies, internet-related
expenditure and consumption accounted for 21% of GDP growth during the past
five years.[113]
There
are more than 4 million ICT workers across many sectors in Europe and their
number is growing by 3% annually despite the crisis. The internet is empowering
people to create and share their ideas, giving rise to new content, entrepreneurs
and markets. ICT is the essential transformative technology that supports structural
change in sectors like health care, energy, public services, and education.
In light of the
rapid technological developments which characterise those sectors, effective
competition policy and enforcement are essential to address potential
malfunctioning in the ICT and media sectors.
Contribution
of EU competition policy to tackling the challenges
Competition
policy contributed to key initiatives to boost a European single market for
electronic communication and proposals in the media sector
Competition
policy played an important role in shaping the Commission’s legislative
proposals in the telecom and media sectors in the course of 2013. 
On 11
September, the Commission adopted a legislative package for a "Connected
Continent: Building a Telecoms Single Market".
This package comprises a proposal for a Regulation laying down measures
concerning the European single market for electronic communications and to
achieve a Connected Continent and a Commission Recommendation on consistent
non-discrimination obligations and costing methodologies to promote competition
and enhance the broadband investment environment, as well as a Communication on
the Telecoms Single Market. The package contains a number of safeguards aimed
at ensuring compliance with EU competition law.
On
5 November, the European Parliament and the Council agreed in principle on the
Commission’s proposal for a Directive on collective rights management. The proposed
measures aim to modernise collecting societies that are responsible for the
licensing of copyright-protected music for online use on behalf of the authors.
The proposal also contains a number of important competition law safeguards,
built on the Commission's enforcement experience, including the CISAC decision,
which was largely upheld by the General Court in in April.[114] The
safeguards aim at ensuring compliance with EU competition law in the collective
management of copyright.
Moreover,
on 13 November, the Commission adopted a new Communication on State aid for
films and other audio-visual works.[115]
This new Communication extends the scope of the preceding Cinema Communication.
In particular, it allows aid for a wider scope of activities, reinforces Member
States' discretion in defining cultural activities worthy of support,
introduces a higher aid intensity level for cross-border productions and promotes
film heritage. The new Communication also ensures that territorial obligations
imposed on film producers, which are in potential conflict with internal market
principles, are more proportional to the aid granted.
Enforcement
action in the telecoms sector
The
Commission continued to pursue enforcement actions against telecommunication
operators suspected of engaging in anti-competitive conduct.
On
23 January, the Commission imposed fines of EUR 66 894 000 on Telefónica and
EUR 12 290 000 on Portugal Telecom[116],
as it concluded that their agreement not to compete in the Iberian
telecommunications markets was in breach of Article 101 TFEU. This case is a
good example of the Commission's tough stance against anti-competitive
agreements having as their object or effect the compartmentalisation of the
internal market along national borders.
The
Commission continued to advance its case against Slovak Telekom and its parent
company, Deutsche Telekom[117],
following the Statement of Objections (SO) issued in May 2012. In the SO, the
Commission took the preliminary view that Slovak Telekom may have abused its
dominant position in certain wholesale broadband markets in Slovakia. 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. Broadband access plays a key role in
the competitiveness of the European digital economy. 
Enforcement
linked to digitisation
The
Commission continued in 2013 to pursue enforcement actions related to the
impact of the transition to digital networks.
The
transition from analogue to digital terrestrial broadcasting has a positive digital
dividend. To ensure that this dividend leads to new entry and broader viewer
choice it has to be allocated subject to specific conditions (e.g. open,
transparent and non-discriminatory procedures), required by EU law[118].
In 2013, following interventions by the Commission, France amended its
broadcasting regulations. By contrast, the Commission considered measures
proposed by Bulgaria to address the distortions as insufficient and on 24
January decided to refer Bulgaria to the Court.[119] The
Commission is also closely monitoring steps taken by Italy to assign new
digital frequencies (multiplexes) to new entrants or smaller TV operators.
In June, the Commission concluded its
investigation in relation to the public financing of the digital terrestrial
infrastructure in Spain. The measures at stake included granting State aid for
the transition to digital terrestrial television in remote areas. The public
financing also encompassed aid for the operation and maintenance of the digital
terrestrial infrastructure. However, those subsidies worth EUR 260 million went
exclusively to terrestrial operators and alternative digital transmission
platforms, such as satellite, cable or the Internet, could not effectively
benefit from the subsidies. Therefore, the Spanish measure unduly distorts
competition between DTT players and operators using other technologies. As a
result, the Commission concluded that aid was incompatible with EU State aid
rules and adopted a final negative decision[120]
with recovery obligation.
The
Commission also completed its antitrust proceedings into alleged
anti-competitive practices by five international publishers and Apple affecting
the sale of e-books in the EEA, by adopting a second[121]
Article 9 commitment decision addressed to Penguin Random House. The Commission
suspected that, by jointly switching the sale of e-books from a wholesale model
to an agency model with the same key terms on a global basis (first in the US
and then in the EEA), the publishers, together with Apple, may have engaged in
a concerted practice with the object of raising retail prices of e-books in the
EEA or preventing the emergence of lower prices in the EEA for e-books. The
Commission closed its proceedings against Penguin after the latter proposed
essentially the same commitments as the other four publishers, i.e. (a) the
termination of agency agreements, (b) a 5 year ban on price MFN
(most-favoured-customer) clauses, and (c) a 2 year "cooling-off"
period during which retailers will have the right to discount e-books even if
under an agency arrangement. With the
commitments the potential infringement ended and conditions were created to
allow for a competitive reset as quickly as possible in that nascent and
fast-moving market.
Finally,
the Commission continued to advance its 2012 fact-finding investigation to
examine whether licensing agreements for pay-TV content contain absolute
territorial protection clauses. Such clauses may breach Article 101 TFEU by
preventing consumers from accessing content across borders. [122]
Enforcement in technology markets
The
Commission's enforcement action in technology markets is mainly focused on
unilateral conduct, potentially in breach of Article 102 TFEU.
Protecting consumer's interest on the
Internet
One of the key Commission enforcement
actions in the ICT sector is the on-going investigation concerning Google's
business practices in the markets for online search, online search advertising
(Google's relationship with advertisers) and online search advertising
intermediation (Google's relationship with website owners, known as "publishers").
The Commission has identified four business practices by Google that may constitute
an abuse of a dominant position: (i) the preferential treatment of Google's own
vertical search services to the detriment of competing vertical search services
(including on mobile devices); (ii) the copying of third party content for use
in Google's own vertical search services; (iii) exclusivity agreements with
publishers for search advertising; and (iv) restrictions on the portability and
management of search advertising campaigns across search advertising platforms.
Google submitted a first set of commitments in April and a revised set of commitments
in October. The Commission sought feedback on Google's revised commitments through
formal requests for information. In light of the feedback it has received, the
Commission has come to the conclusion that the revised commitments still fall
short of adequately addressing the competition concerns the Commission
expressed in its Preliminary Assessment and has informed Google of this
conclusion. The Commission has also informed Google that if it wishes to submit
a further revised set of commitments that adequately addresses the Commission's
concerns, it has only a very limited amount of time to do so, failing which the
Commission will revert to the procedure under Article 7 of Regulation 1/2003.
The
Commission continued in 2013 its investigations in relation to the enforcement
of standard essential patents ("SEPs") in the Samsung and
Apple/Motorola cases. SEPs are patents essential for the implementation of an
industry standard and for which companies committed to license the patents on
fair, reasonable and non-discriminatory ("FRAND") terms.
The
Samsung case concerns the compatibility with Article 102 TFEU of Samsung's
enforcement of its mobile communications SEPs by means of injunctions against
Apple before various national courts in the EEA. Following the issuance of a
Statement of Objections in December 2012, in September 2013 Samsung offered
commitments to address the competition concerns identified by the Commission.
Under the proposed commitments, Samsung essentially commits not to seek
injunctions in the EEA on the basis of its smartphone and tablet SEPs for a
period of five years if potential licensees agree to comply with a specified
process for determining appropriate FRAND royalty rates. The Commission has market-tested
these commitments and is taking account of the feedback it has received in
discussing with Samsung possible improvements to the commitments. If at the end
of these discussions, the Commission reaches the conclusion that Samsung’s
commitments adequately address the Commission’s competition concerns, the
Commission may make the commitments binding on Samsung by the adoption of a
decision under Article 9 of Regulation 1/2003.
The
Motorola case concerns the compatibility with Article 102 TFEU of Motorola
Mobility's seeking an enforcement of an injunction in Germany against Apple on the basis of one of Motorola's mobile communications SEPs. The
Commission issued a Statement of Objections in May and is currently examining
the observations received on the Statement of Objections. 
The
Commission continues to be vigilant in other areas of the IT and internet
sector as well. On 6 March, the Commission adopted a decision imposing a EUR561
million fine on Microsoft for failing to comply with its commitment to offer
users a browser choice screen enabling them to easily choose their preferred
web browser. That commitment had been made legally binding on
Microsoft in December 2009 to address competition concerns related to
the tying of Microsoft's web browser, Internet Explorer, to its dominant client
PC operating system, Windows. Microsoft committed to make available for five
years (i.e. until 2014) in the European Economic Area a "choice
screen". This screen would allow users of Windows to choose in an informed
and unbiased manner which web browser(s) they wanted to install in addition to,
or instead of, Microsoft's web browser. The Commission found that Microsoft
failed to roll out the browser choice screen with its Windows 7 Service Pack 1
from May 2011 until July 2012. As a consequence, at least 15 million Windows
users in the EU did not see the choice screen during this period. Microsoft has
acknowledged that the choice screen was not displayed during that time and has
not appealed the decision. 
The
Commission also sent a Statement of Objections regarding an alleged cartel in
smart card chips. The Commission initially explored the possibility of a
settlement with certain companies allegedly involved in the cartel but
discontinued the talks due to lack of progress. Therefore, the normal antitrust
procedure will now run its course. Almost everybody uses smart card chips, be
it in mobile phone SIM cards, bank cards, passports, identity cards, Pay TVs or
in numerous other applications. The Commission has concerns that certain chips
suppliers may have agreed or coordinated their behaviour in the European
Economic Area (EEA) in order to keep prices up. 
ICT in the context of merger control
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.
Significant
merger activity in the telecommunication sector continued in 2013. The
Commission reviewed a number of high profile transactions in this sector,
including Liberty Global's USD 23.3 billion acquisition of Virgin Media[123], the
largest cable operator in the United Kingdom and Vodafone's EUR 8 billion
acquisition of Kabel Deutschland[124],
the largest cable operator in Germany. Both these transactions were ultimately
cleared unconditionally by the Commission in phase I.  The Liberty/ Virgin case
is a cross-border expansion by one telecom operator in another Member State (indeed, Liberty Global was essentially not present at the retail level in the United Kingdom prior to the Virgin Media acquisition). The Vodafone/ Kabel Deutschland case
is an expansion by one operator into one or more sectors in which its
activities were previously limited within the same Member State (indeed, prior
to the Kabel Deutschland acquisition, Vodafone's activities in Germany were mainly focused on mobile communications).
Another
significant transaction in the telecoms industry was the acquisition of most of
Nokia's devices & services business (D&S) by Microsoft. The D&S
business mainly produces and sells smartphones and feature phones. The
Commission concluded that the transaction would not raise any competition
concerns, in particular because there are only modest overlaps between the
parties' activities and the links between Microsoft's mobile operating systems,
mobile applications and enterprise mail server software with Nokia's smart
mobile devices are unlikely to lead to competitors being shut out from the
market.
The
Commission, however, is in the process of reviewing two transactions entailing
a four-to-three consolidation between Mobile Network Operators
("MNOs"). They are active within the same Member States, namely Ireland and Germany. In the first case, on 1 October, Hutchison 3G UK notified to the Commission its
intention to acquire sole control over Telefónica Ireland[125] and
on 6 November, the Commission opened an in-depth investigation into that
transaction. In the second case, on 31 October, Telefónica Deutschland notified
to the Commission its intention to acquire sole control over KPN's mobile
operations in Germany (trading as E-Plus) [126]
and on 20 December, the Commission opened an in-depth investigation of the
transaction. As those cases would result in the reduction in the number of
players in markets (both the wholesale access market and the retail market)
that are already very concentrated, the Commission will carry out in-depth
investigations in the course of 2014.
              3.
Financial Services
Overview
of key challenges in the sector
Financial
services represent about 5% of the EU’s GDP but, more importantly, they 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 2013, for the first
time since the outset of the financial and economic crisis, the instability
surrounding the financial sector showed signs of improvement across the EU. The
Commission has continued to apply its State aid regime for the financial sector
with the aim to ensure that aided financial institutions restructure adequately
to become viable again, to deal with the distortions of competition created by
the aid received while at the same time maintaining financial stability,
safeguarding the internal market and protecting the interests of taxpayers. At
the same time, the Commission continued its antitrust enforcement action, with
the aim of making the financial services markets function better.  
Furthermore,
since its launch in June last year, the project to achieve a "Banking
Union" is right on top of Europe’s agenda[127].
While it is still incomplete to date, progress is moving fast on different
fronts:

 As
     from January 2014, European banks will apply the new rules set out in the
     so-called CRD (Capital requirements Directive) IV package, which
     implements Basel III. Insufficient level of capital – both in quantity and
     in quality – was one of the vulnerabilities shown by banking institutions
     during the crisis; the new capital adequacy rules of the CRD IV will
     address that shortcoming.
 In
     December 2013, the EU co-legislators reached a political agreement to
     revise the EU directive on Deposit Guarantee Schemes ("DGS")
     with the aim to harmonise the set-up and functioning of the Member States'
     national deposit guarantee schemes and to ensure they are provided with
     adequate funds.
 As
     of November 2014, a Single Supervisory Mechanism (“SSM”) for euro-area
     banks will be fully operational. The European Central Bank will become the
     single banking supervisor for the euro area countries and for all those that
     decide to join the Banking Union.
 In
     December 2013, co-legislators also agreed on a text of a new European
     directive on Banking Recovery and Resolution which will provide a common
     tool-box for resolving banks in difficulties. This legislation aims at better
     protecting taxpayers from having to bail-out banks in distress.
 A
     Single Resolution Mechanism applicable to the euro area and to other
     countries willing to join will, in all likelihood, be adopted by the time
     the SSM becomes fully operational.

To
prepare for those changes, the Commission reviewed its State aid banking
guidelines[128]
in 2013, updating the crisis framework put in place five years before. This
update of the State aid crisis rules intends to ensure that future State
interventions are consistent with the key principles of the Banking Union.
Contribution
of EU competition policy to tackling the challenges
Contributing
to seamless, efficient and innovative payment markets
Competition
policy 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, enforcement of competition policy enhances
transparency and reduces entry barriers for new technology and new players. 
Seamless,
efficient and innovative payment markets are essential for the internal market.
Regulation, self-regulation and competition enforcement must work together to
create SEPA ("Single Euro Payments Area"), with open, efficient and
innovative market structures. In 2013, the Commission has continued to make significant
progress in all three areas.
As
a follow up to the Green Paper on cards, internet and mobile payments published
for consultation in early 2012, at the end of July the Commission adopted a
regulatory package including a proposal to revise the Directive on Payment
Services (“PSD”)[129]
and a proposal for regulation on interchange fees for card based payments.[130] In
both cases, legislation follows in the footsteps of antitrust enforcement. Both
proposals are aimed at addressing the barriers to the proper functioning of the
Single Market and to competition in payments. The proposed revised PSD will
cater for non-bank players in internet and card payments to operate in
competition with banks by providing for regulated access to information on
availability of funds in the bank account, while at the same time ensuring
security and data protection by all players. The proposal for regulation on
interchange fees includes caps on interchange fees for consumer credit and
debit cards and measures to increase transparency and to empower consumer and
retailers to make informed choices.
Self-regulation
has played an important role in payments: the European Payments Council, which
consists of credit and payment institutions and the SEPA Council, created to
represent all stakeholders, are engaged in that field. However, the roles and
decision-making powers of EPC and SEPA Council remain controversial. In the
SEPA Regulation[131],
the European Parliament required a review of the governance arrangements. It
has been much discussed during 2013, including from a competition perspective.
Concerning
antitrust enforcement in card payments, the Commission found in 2007 that MasterCard's
Multilateral Interchange Fees (MIFs) for card payments were a restriction under
Article 101(1) TFEU and that MasterCard had not demonstrated that the MIFs were
justified on efficiency grounds under Article 101(3) TFEU. On 24 May 2012 the
General Court fully upheld the Commission's 2007 decision. MasterCard appealed
against that ruling and proceedings continued before the European Court of
Justice in 2013. The Opinion of the Advocate-General was delivered on 30
January 2014. 
As
for the on-going proceedings against VISA[132],
in May, Visa Europe offered commitments to the Commission concerning its MIFs
for credit card payments and the limitations it imposed on cross-border
acquiring; a market test was conducted during May and June. The investigation
of the EPC's work on standardisation for e-payment systems was closed in June[133],
following the announcement by the EPC that it would stop its work on the
e-Payments Framework and following the withdrawal of the complaint by Sofort
AG. The Commission, in close co-operation with national competition
authorities, will continue to monitor that market closely.
Antitrust and cartel investigations in
the financial sector
Since 2011, the Commission has been
carrying out an investigation on the credit default swaps (“CDS”) market. As a
result of that investigation, on 1 July, the Commission issued a Statement of
Objections (“SO”), addressed to 13 investment banks, the International Swaps
and Derivatives Association (“ISDA”) and the data service provider Markit.[134] In
the SO the Commission preliminarily concluded that between 2006 and 2009 the 13
investment banks, ISDA and Markit acted collectively to prevent two exchanges
(Eurex in 2007 and CMDX in 2008) from entering credit derivatives trading by
collectively denying various inputs necessary to launch exchange trading.
Compared to OTC trading, exchange trading is more efficient, less expensive and
less prone to systemic risks. Therefore, if proven, such behaviour of the above
named institutions could, according to the Commission, constitute a serious
breach of competition law and be subject to sanctions.
In
2013, the Commission has also taken a close look at the implementation of the
commitment decisions it adopted in previous years in the financial data
markets. As part of a reinforced policy of compliance monitoring, the
Commission is monitoring the implementation of the commitments Standard and
Poor's offered in 2011 under which it supplies the International Securities
Identification Numbers (US ISINs) unbundled from additional data. Equally, the
Commission started to monitor the compliance by Thomson Reuters with the
commitments adopted by the Commission in 2012 to licence usage rights of the
Reuters Instruments Codes (RICs) to its customers for the purpose of retrieving
data provided by other competing financial data providers.
The
Commission also took steps in 2013 to acquire more in-depth knowledge of the
markets where it granted certain exemptions from the application of general
competition rules, such as risk sharing by insurers. The work preceding leading
up to the most recent renewal of the Insurance Block Exemption Regulation (EU)
No. 267/2010[135]
as well as the conclusions of the Business Insurance Sector inquiry published
in 2007[136]
showed the need for the Commission to both collect empirical information on the
functioning of the insurance markets and to carry out a continuous monitoring
of the BER application. For that purpose, in February the Commission published
a study on co(re)insurance pools and on ad-hoc co(re)insurance agreements
prepared by Ernst & Young.[137]
That study presents an overview of the functioning of subscription markets
across the European Union, as part of the preparation for the review of the
Insurance Block Exemption Regulation (EU)
No. 267/2010, which will expire on 31 March 2017. The results of the
study were presented to and discussed with market participants and stakeholders
in a workshop organized by the Commission in March 2013.
Restoring
confidence in the financial sector – elimination of the financial derivatives
cartels
On 4 December, the Commission fined 8
banks a total of EUR 1,7 billion for participating in cartels in markets for
financial derivatives covering the EEA. Four of them participated in a cartel
relating to interest rate derivatives denominated in the euro currency. Six of
them participated in one or more bilateral cartels relating to interest rate
derivatives denominated in Japanese yen. These collusions are prohibited by
Article 101 TFEU. As both decisions were adopted under the settlement
procedure, fines were reduced by 10%. 
The Euro interest rate derivatives
(EIRD) cartel operated between September 2005 and May 2008. The settling
parties are Barclays, Deutsche Bank, RBS and Société Générale. The cartel aimed
at distorting the normal course of pricing components for those derivatives.
Traders of different banks discussed their bank's submissions for the
calculation of the EURIBOR as well as their trading and pricing strategies. 
The investigation started with
unannounced inspections in October 2011 while the opening of proceedings took
place in March 2013. Barclays was exempted from the fine that otherwise would
have been imposed on it as it benefited from immunity for revealing the cartel.
Deutsche Bank, RBS and Société Générale received a reduction of fines for their
cooperation. 
Proceedings were also opened against
Crédit Agricole, HSBC and JPMorgan and the investigation in respect of those
three companies will continue under the standard cartel procedure. 
In the Yen interest rate derivatives
(YIRD) sector, the Commission uncovered 7 distinct bilateral infringements
lasting between 1 and 10 months in the period from 2007 to 2010. The collusion
included discussions between traders of the participating banks on certain JPY
LIBOR submissions. The traders involved also exchanged, on occasions,
commercially sensitive information relating either to trading positions or to
future JPY LIBOR submissions (once also relating to certain future submissions
for the Euroyen TIBOR – Tokyo interbank offered rate). The banks involved in
one or more of the infringements are UBS, RBS, Deutsche Bank, Citigroup and
JPMorgan. The broker RP Martin facilitated one of the infringements by using
its contacts with a number of JPY LIBOR panel banks that did not participate in
the infringement, with the aim of influencing their JPY LIBOR submissions. 
The Commission opened proceedings in
February 2013. UBS received full immunity for revealing the infringements.
Citigroup also benefited from full immunity for its participation in one
bilateral infringement. For their cooperation, the Commission granted fine
reductions to Citigroup, Deutsche Bank, RBS and RP Martin.
In the context of the same
investigation, the Commission has also opened proceedings against the cash
broker ICAP. This investigation continues under the standard cartel procedure.
Merger investigations in the financial
sector
In
the area of merger control the Commission continued to ensure that
concentrations in the financial services sector do not lead to market
distortions. The Commission looked for example into the acquisition of NYSE
Euronext by the InterContinental Exchange (both operating exchanges providing
trading and clearing services, particularly in the field of derivatives) and
found that the transaction would not raise competition concerns as the two
parties are not direct competitors in the markets concerned and would continue
to face competition from a number of other competitors.
The
same acquisition target, a different outcome
The
Commission investigated two proposed mergers involving NYSE Euronext in 2012
and 2013. The proposed merger between Deutsche Börse and NYSE Euronext
(DB/NYSE) was prohibited in February 2012[138]
while the acquisition of NYSE Euronext by InterContinental Exchange (ICE/NYSE)[139] was
cleared in June 2013.
In the 2012 case
the merger would have created a monopoly, whereas in the 2013 case the merged
entity would continue to face a number of other competitors. The DB/NYSE
decision set a precedent for the analysis of the markets concerned. The
ICE/NYSE Euronext deal was assessed in light of this precedent. However, every
transaction is analysed on its own merits and the factual differences between
the two cases explain the different outcomes.
In
both cases, the Commission’s assessment focused on the impact that each deal
would have on the trading and clearing of derivatives. The core derivative business
of both Deutsche Börse and NYSE Euronext – the companies involved in the 2012
transaction – were European financial derivatives. The Commission’s
investigation showed that each exerted a strong competitive constraint on the
other. Hence, the merger would have led to a near-monopoly in European
financial derivatives worldwide which could not be remedied by the commitments
submitted by the parties. Therefore, the Commission had no alternative than to
block it.
In
contrast, the contracts offered by ICE and NYSE Euronext meet different trading
needs. ICE's core derivatives businesses are in energy. Therefore, the ICE/NYSE
transaction did not lead to a significant impediment of effective competition
and it was authorised. 
Investing
in derivative products is an important risk management tool for companies.
Competitive pricing for derivative products helps keep the costs of companies
down and contributes to their competitiveness. 
State aid investigations in the
financial sector
The
special EU State aid crisis rules, first adopted in 2008 and 2009 and amended
in 2010 and 2011 were materially revamped in August 2013.[140] Those
rules are also largely in line with the Commission’s proposal for a directive
on Banking Recovery and Resolution[141].
They also allow State aid control to continue 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. 
Over the past five years, the
Commission has analysed the restructuring of 68 banks – equivalent to around
one quarter of Europe’s banking sector in terms of assets. Of those banks, 23
were resolved. Today, 27 cases are still pending.
Between 1 October 2008 and 1 October
2013 the Commission took more than 400 decisions authorising State aid measures
to the financial sector. However, only part of this aid was actually used. In
particular, only around one-third of the guarantees approved by the Commission
have been provided by Member States eventually.
In the period 2008-2012, the overall
volume of aid used for capital support (recapitalization and asset relief
measures) amounted to EUR 591.9 billion (4.6 % of EU 2012 GDP). The guarantees
and other form of liquidity supports reached its peak in 2009 with an
outstanding amount of EUR 906 billion (7.7 % of EU 2012 GDP). The crisis
intensity has gradually weakened in many EU countries since then, and the
outstanding amount of liquidity support has dropped to EUR 534.5 billion (4.14
% of EU 2012 GDP) in 2012.
The bulk of the support provided
by Member States to their respective banking systems was precisely in the form
of guarantee measures. In 2012, EUR 492 billion of State guarantees were still
outstanding compared to the peak of EUR 835.8 billion (7.1 % of EU 2012 GDP). Less
than 0.2% – that is, EUR 2 billion – of the total guarantees provided by the
Member States has actually been called to date.
In addition to guarantees on
liabilities, some Member States have been providing a direct short term
liquidity support to banks and other troubled financial institutions. The
outstanding liquidity measures reached their peak of  EUR 70.1 billion (0.6 %
of EU 2012 GDP) in 2009.The EU 27 outstanding amount in 2012 dropped down to
EUR 42.2 billion (0.33 % of EU 2012 GDP).
As regards recapitalisation
measures, over the same period Member States recapitalised their respective
banks for EUR 413.2 billion (or 3.2% of EU GDP in 2012). The four countries
that most supported their banks with capital measures during these years were
the UK (EUR 82 billion), Germany (EUR 64 billion), Ireland (EUR 63 billion),
and Spain (EUR 60 billion). The top receiving banks were RBS (EUR 46 billion),
Anglo Irish Bank (EUR 32 billion), and Bankia (EUR 22 billion).
For the period 2008-2012 Member
States provided asset relief measures for a total of EUR 178.7 billion (1.4 %
of EU 2012 GDP).
However, it is important to point
out that State aid rules ensure that Member States are remunerated for their
aid. For the massive guarantees provided during the past four years, Member
States have received EUR 33 billion in guarantee fees (against EUR 2 billion of
guarantees invoked). As of end 2012, Member States have received a total of EUR
125 billion in revenue in exchange for their support to the banks.
The
new rules introduce three main changes:
•              First,
they establish the principle that before resorting to taxpayers' money, banks
should bear the cost of their restructuring by going to the market, using
internal resources, and asking for the contribution of shareholders, hybrids
holders, and junior debt creditors. Moreover, junior creditors will be treated
in the same way across the EU. Apart from strengthening the level playing
field, it sends a clear message that depositors are protected. The new rules
make sure that banks from stronger EU countries do not benefit from an implicit
guarantee and thus enjoy cheaper funding costs.
•              Second,
no State aid in the form of recapitalisation or impaired-asset relief will in
principle be approved before the burden sharing takes place and the
restructuring plan is approved by the Commission. In the past, banks were
rescued quickly, but the restructuring and stabilization process often took a
long time. Under the new system, the Commission will in principle adopt final
restructuring decisions before any irreversible public funds are disbursed.
•              Third,
a cap on executive remuneration for all aided banks aims at setting the right
incentives for the management to implement the agreed restructuring plans and
have their organisations refund the money received from the public coffers as
soon as possible.
In
2013, the Commission adopted a considerable number of decisions on individual
banks. For example, in the case of Banca Monte dei Paschi di Siena
("MPS")[142],
the Italian government provided EUR 2 billion to cover a capital shortfall
coming from the December 2011 EBA stress test. After Italy ensured that the
bank's business model is less risky the Commission approved MPS' restructuring
plan on 27 November.
In
the case of Hypo Alpe Adria Group (HGAA) [143] the
Commission approved in August a plan to sell the operative parts of the bank in
  Austria and South-Eastern Europe by mid-2015, at the latest. The bank’s non-viable
remainder is put into an orderly wind-down process. Until the sales process is complete,
  Austria commits to a number of restrictions for new business. Restrictions
include risk control, thus ensuring that the marketability of the subsidiaries
is enhanced and that competition distortions are kept to a minimum.
The
Commission also monitored the implementation of a large number of restructuring
decision. It demonstrated its commitment to that task in a number of amendment
decisions. For example, in case of German Landesbank HSH[144], the
Commission reopened an approved restructuring case from spring 2012 after the
owners of the bank, two German Länder had granted an additional State guarantee
to the bank. The bank has now to prove afresh that it can restore its
viability.
The
specific situation of Programme Countries
As
part of the Troika, the Commission continued in 2013 to collaborate with the
IMF and the ECB on the financial sector programmes in the Programme Countries.
The Commission aims to ensure that the massive public support provided to the
banks in the difficult macro-economic environment does not result in undue
distortions of competition.
The
State recapitalisation of the Greek banking sector was completed in summer
2013. Three of the pillar banks (Piraeus Bank, Alpha Bank and National Bank of Greece - NBG) were successful in raising at least 10% of the required capital increase by
private means. Eurobank was fully recapitalised by the Hellenic Financial
Stability Fund (HFSF). Moreover, the consolidation of the Greek banking sector,
which started in 2012, continued in 2013 and has almost been finalised. Two
smaller banks, Probank and First Business Bank (FBB) were resolved and sold to
NBG. Separately, Eurobank acquired the bridge banks New Hellenic Postbank and
New Proton Bank. Following those developments, in the second half of 2013 the
Commission services engaged with the Greek authorities and the banks on the
discussions on their restructuring plans, which aim at ensuring that the banks
improve their efficiency and focus their resources on their Greek banking
operations, in line with State aid rules.
In
  Ireland, the Commission approved amendments to Bank of Ireland´s second
restructuring plan and continues to monitor the implementation of its
commitments. The analysis of the restructuring plan of Allied Irish Banks
progressed, and an updated restructuring plan was presented by permanent tsb bank
in the summer. The plans for both banks were under assessment also taking into
account the Asset Quality Review carried out by the Central Bank of Ireland towards the end of the year. The Irish credit union sector still has to undergo
restructuring and consolidation to ensure the viability of that fragmented
sector.
In 2011 the EU and the IMF agreed to a
EUR 78 billion support package for Portugal. In order to strengthen confidence
in the financial sector, the programme requires banks to achieve high levels of
capital which for the most part was completed in 2012. In 2013, the
restructuring plans of Caixa Geral de Depósitos[145],
Millennium BCP[146],
Banco Português de Investimento[147]
were approved by the Commission. Discussions continue with a fourth bank, Banco
Internacional do Funchal.
In
  Spain, 2013 was the first full year of the implementation of the various
restructuring plans approved for banks that received State aid in the context
of the eighteen-month financial assistance programme which was granted in July
2012. Individual monitoring trustees reported regularly on the implementation
of those plans. During the first half of 2013, the so-called subordinated
liability exercises (“SLE”), for the banks that received State aid were
completed, generating almost EUR 13 billion of capital in these banks and
reducing the need for additional public funds. Finally, the restructuring of
aided banks under the control of the State made significant progress with the
sale of NCG Banco in December.
As regard Cyprus, the two largest domestic banks, Bank of Cyprus and LAIKI (Cyprus Popular Bank),
have been resolved and the latter merged into the former. Both subordinated
debt bond holders and uninsured depositors were bailed-in to recapitalise the
banks, such that no State recapitalisation aid was necessary. Out of the EUR 10
bn programme assistance, EUR 1.5 billion was earmarked for the Cooperative
Credit Institutions. The restructuring of the group was negotiated throughout
2013.
              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 fostering better
exploitation of the industrial potential of policies of innovation, research
and technological development. Competition policy continues to play a key role
in that context.
For
decades, the share of industrial production in EU GDP has been declining but
its importance far outweighs its share in GDP. Industry is the leading
contributor to productivity and to research and innovation, where industry’s
share is four times higher than its GDP share. Industry also accounts for 80%
of EU exports that is the main driver of the recovery that has started in 2013.
The Commission’s 2013 Competitiveness Report[148]
found that the share of manufacturing has reached a critical threshold, below
which the sustainability of the European economic and social model might be at
risk. Industrial policy measures have to build on strengths and address
weaknesses to support the reinforcement of the competitiveness of EU
manufacturing. Competition policy underpins and reinforces the effects of
industrial policy measures.
Contribution
of EU competition policy to tackling the challenges
Competition
policy continued to be applied in 2013 in line with industrial policy
priorities. In particular, enforcement action in antitrust and cartels in basic
industries helps to keep the prices of essential input material affordable.
Antitrust investigations in basic
industries
In
the markets for aluminium smelting technology and related equipment the
Commission concluded its investigation in the Rio Tinto Alcan case. The
Commission was concerned that Rio Tinto Alcan's practice of contractually tying
the licensing of its leading smelting technology to the purchase of handling
equipment from one of its subsidiaries could infringe EU competition rules and
lead to higher prices, hamper innovation and foreclose competitors. In order to
address these concerns, Rio Tinto Alcan committed to enable future licensees of
its technology to purchase specialty cranes from any recommended supplier. The
latter will be selected following an objective and non-discriminatory process,
with Rio Tinto Alcan providing competing suppliers with the necessary technical
specifications to ensure that their cranes are capable of operating in smelters
using Rio Tinto Alcan's technologies. In December 2012, the Commission adopted
a decision rending legally binding Rio Tinto Alcan's commitments.[149]
These commitments will open up the market for equipment used in aluminium
smelters, increasing customers' choice. 
Cartel enforcement investigations into car parts
provide a good example of the strength of the immunity/leniency system. The
system destabilises cartels through the potential domino effect of individual
cases. After an investigation begins, companies that recognise they may have been
involved in cartel activity frequently conduct internal audits. Were such audits
to uncover other cartels, this may lead to further immunity applications often
involving cartels that are otherwise stable. For instance following the wire
harness inspection in February 2010, the Commission confirmed inspections in
the occupant safety systems, bearings, lighting and thermal systems in 2011 and
2012.
The
first domino in the car parts sector 
In
July, the Commission adopted a decision in respect of automotive wire harnesses.
The decision fined the car parts suppliers Sumitomo, Yazaki, Furukawa, S-Y
Systems Technologies (SYS) and Leoni a total of EUR  141 791 000 for taking
part in one or more of five cartels for the supply of wire harnesses to Toyota,
Honda, Nissan and Renault. Wire harnesses represent an assembly of cables
transmitting signals or electric power linking computers to various components
built in a car. They are often described as the 'central nervous system' of the
car. The cartels covered the whole European Economic Area (EEA).
The
companies coordinated the prices and allocation of supplies of wire harnesses
to the respective car manufacturers. The cartel contacts took place both in Japan and in the EEA:
The
coming months and years are likely to lead to further decisions, bringing to an
end an extensive network of anti-competitive practices in the car parts sector.
Merger investigations in basic
industries
Through
the merger control regulation, the Commission continued to safeguard consumers'
interests in this vital sector for productivity, research, and innovation by
making its approval of a number of proposed concentrations subject to
commitments. In case GE/Avio[150],
for example, the Commission's clearance decision was conditional upon the
implementation of a series of measures designed to protect the important
Eurojet military programme. In two cases in the paper industry, Munksjö/Ahlstrom[151] and Kinnevik/Billerud/Korsnäs[152] the
divestiture of production lines was required to address the Commission's
initial concerns. Divestitures were also necessary in two other cases that
brought together two important players in their respective sectors, namely case
Crane Co/MEI Group (unattended payments systems)[153] and
Norsk Hydro/Orkla/JV (aluminium extrusions)[154].
In
the oil refinery and specialty oil products sector the Commission
unconditionally cleared the acquisition of Shell's Harburg refinery by the
naphthenic specialty oils producer, Nynas.[155]
Although Nynas will remain the only naphthenic producer in the EEA, the
acquisition was the only way to save the Harburg production plant from closure.
Therefore, the transaction enables a higher production capacity and lower
prices for naphthenic specialty products in Europe to be maintained.
State aid investigations in basic
industries
In
the manufacturing sector, the most notable State aid case in 2013 concerned the
rescue and restructuring of the PSA Peugeot Citroën group[156].
Following an in-depth investigation, the Commission concluded that
restructuring aid of EUR 571.9 million granted by France to the PSA group is
compatible with the internal market. The aid took form of a State guarantee
covering bond issues by the Banque PSA Finance until 31 December 2016 up to a
maximum of EUR 7 billion for the principal (a gross subsidy-equivalent of EUR
486 million) on the one hand, and a repayable advance of EUR 85.9 million for
the implementation of the ‘50CO2Cars’ R&D project on the other.
The
updating of the group’s restructuring plan based on recent trends on the
vehicle market in Europe eased the Commission’s initial concerns regarding the
group’s return to viability. Should the group’s results be considerably below
those envisaged by the plan, the group has undertaken to take additional
corrective action so as not to exceed a certain level of net debt during the
restructuring period. The group’s return to viability will also help the
situation of the Bank, whose present difficulties are due to its organic links
with the rest of the group. The Commission also considered that the ‘50CO2Cars’
R&D project to develop a ‘mild-hybrid’ diesel engine, which is part of the
restructuring plan, will make a positive contribution to the viability of the
group. In addition, France gave a number of commitments in relation to the
price of the guarantee and the margin for loans granted by Banque PSA Finance
to minimise the competition distortions created by the aid. 
              5.
The agri-food industry
Overview
of key challenges in the sector 
New
landscape for competition policy following CAP reform
The
recently adopted reform of the Common Agricultural Policy significantly modified
the framework for the application of competition rules in this sector, as new
exemptions from the application of competition rules have been introduced.
Article 42 TFEU provides that the competition rules apply to the production and
trade of agricultural products only to the extent determined by the Council and
(with the Lisbon Treaty) the Parliament, "account being taken of the
objectives" set out in Article 39 TFEU. 
Throughout
the reform process, the EU competition authorities have strongly advocated for
the enforcement of competition rules as this helps to ensure a productive,
strong and effective agricultural sector. In that respect, the Heads of the
European Competition Authorities adopted a resolution on 21 December 2012[157].
Ultimately, both legislators agreed with the Commission and the National
Competition Authorities that the newly introduced exemptions from the
application of competition rules should be accompanied by requirements to
ensure not only the consolidation of farmers' position in the value chain but also
the restructuring of the sector and increased efficiencies in farmers'
activities.  
The
food supply chain connects three important sectors of the European economy: (1)
agricultural production: (2) food processing and (3) distribution (wholesale
and retail). Unlike the last two levels of the supply chain, the agricultural
production level is highly atomised and dispersed: farmers are organised in
small structures and do not achieve economies of scale in procurement, storage
or selling while they are (often) facing large buyers. The question of the
farmer's position in the value chain and particularly their lack of bargaining
power vis-à-vis their buyers was at the heart of the recent reform of the Common
Agricultural Policy ("CAP").
Result
of the CAP reform:
In
the framework of the CAP reform, the European Parliament and the Council in
their role as co-legislators decided to introduce an exemption from the
application of competition rules in the new Common Market Organisation
Regulation ("CMO"). The exemption benefits producers in the sectors
for olive oil, beef and certain arable crops who are members of Producer
Organisations (POs) and would like to engage in joint selling (including joint price
negotiation) for part or all of their production through such POs. 
This
exemption is however subject to certain conditions. The volume of production
covered by such negotiations should not exceed certain thresholds so as to
avoid creating excessive market power. Furthermore, benefiting farmers also
need to engage in joint activities other than joint-selling within the POs
concerned so that activities of the POs overall contribute to the achievement
of the CAP objectives. 
This
second condition is designed to encourage farmers to take concrete steps to
increase their economies of scale and scope. They can do so by, for instance,
pooling together at the appropriate scales their input procurement, investments
in storage facilities, or distribution systems. This would enable them to improve
their bargaining power and at the same time reduce their overall production and
supply costs, thus enhancing their competitiveness. 
Contribution
of EU competition policy to tackling the challenges
Retail
distribution is characterised by an increased concentration of retailers, the existence
of buying alliances and the rising success of private label products. These
phenomena raise concerns about the unbalanced bargaining power of retailers in
their commercial relationships with their suppliers. They also lead to a
perceived existence of unfair trading practices within the framework of such
relations. The European Parliament has called for the Commission to investigate
the functioning of competition in the supply chain and in particular at the
retail level of the chain[158].
In addition, members of the High Level Forum[159]
and some operators in the food chain complained that unfair trading practices
have negatively affected choice and innovation in the agri-food industry.
National Competition Authorities have also found in their monitoring reports that
"unfair commercial practices" might have a potential negative impact on
choice and innovation in the long run.[160]
On the basis of a Green Paper and a public consultation on unfair trading
practices in the B2B food and non-food supply chain, the Commission is assessing
whether action at EU level is required in this context. The analysis is now in
its final stages. The Commission also launched a study in December 2012 managed
by the Food Task Force[161],
to assess the economic impact of modern retail supply chains on choice and
innovation in the EU food sector ("retail study")[162].
The
study will measure how choice and innovation in food products has evolved and
identify the drivers of such evolution. In particular, it will aim to identify
the impact of concentration in retail and manufacturing on choice and
innovation in the food supply chain. That study will thus be able to answer the
request of the European Parliament to analyse competition in the supply chain
and will contribute economic evidence on investment in the chain to the
discussion on unfair trading practices within the food supply chain. The final
report of the study is expected by early 2014.
Antitrust and cartel investigations in the
sector
In November, the
Commission fined four European North Sea shrimps traders a total of EUR 28,7
million for operating a cartel in breach of EU antitrust rules[163]. The companies included Heiploeg, Klaas Puul, Kok
Seafood (all of the Netherlands) and Stührk (of Germany). Between June 2000 and
January 2009 Heiploeg and Klaas Puul agreed to fix prices and share sales
volumes of North Sea shrimps in Belgium, France, Germany and the Netherlands. Kok Seafood participated at least from February 2005 and Stührk was involved
in price fixing in Germany in the period from March 2003 to November 2007.
Klaas Puul received full immunity from fines under the Commission's 2006
Leniency Notice, as it was the first to provide information and evidence about
the cartel which enabled the Commission to find an infringement. 
The purpose of
the cartel was to freeze the market by stabilising the suppliers' market shares
in order to facilitate price increases and stimulate profitability. The cartel
affected the EU market and sales in Belgium, Germany, France and the Netherlands in particular. 
The cartel took
the form of a range of informal bilateral contacts primarily between Heiploeg
and Klaas Puul but also involving Stührk and Kok Seafood. The discussions
usually covered a wide range of aspects of their business, including their
purchase prices from fishermen, conduct towards other traders on the market,
market sharing, and prices charged to specific important customers that often
set the benchmark price for other customers.
Merger investigations in the sector
Merger
control in the agri-food business has an important role in protecting the
choice and the quality of the food that European consumers enjoy today. In
2013, the Commission examined a number of merger transactions concerning the
production of agricultural or fisheries products. 
Whilst
the Commission found that some transactions involving cooperatives in the dairy
sector did not raise concerns (e.g. Arla Foods/Milch Union Hocheifel[164]) in
others (e.g. Arla Foods/Milk Link[165]
or Friesland Campina/ Zijerveld&Veldhuyzen and Den Hollander[166]) it
found that the combination of certain activities of the merging parties would
significantly reduce competition and therefore approved the transactions
subject to modifications. In Arla Foods/Milk Link the parties committed
to divest Milk Link's long-life milk and dairy drinks business, including the
transfer of brands and the production facilities while in Friesland
Campina/ Zijerveld&Veldhuyzen and Den Hollander the parties committed
to modify semi-hard goat cheese production and supply arrangements and to make
goat milk available to competitors. 
Those
cases demonstrate that consumers have preferences for dairy products produced
from domestic milk. That market characteristic substantially limits the scope
for competition by imports for some dairy products (e.g. long-life milk in the UK, semi-hard goat cheese in the Netherlands). These cases also show that the Commission allows the
growth of farmers' cooperatives including across borders but carefully ensures
that they do not significantly reduce competition where there is already
concentration.
The
Commission also approved three other cases in the food and drink sector subject
to commitments. In Marine Harvest/Morpol[167], the
parties committed to divest a significant proportion of their salmon farming
activities in Scotland. In Refresco Group/Pride Foods[168],
which concerned the manufacturing and bottling of non-carbonated soft drinks,
the parties committed to sell a bottling plant in Germany. In McCain Foods
Group/Lutosa Business[169]
the parties committed to divest the retail business operated under the
"Lutosa" brand in the EEA to a suitable purchaser.
              6.
The Pharmaceutical and health services sector 
Overview
of key challenges in the sector 
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 that 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 originator companies. Upon
the expiry of the patent, 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 patent protection, competition on price is added to competition on
innovation between originator and generic companies or between generic
companies.
Contribution
of EU competition policy to tackling the challenges
The
Commission's Sector inquiry Report[170]
published in 2009 highlighted a series of concerns in the European
pharmaceutical sector. As a follow-up, the Commission's enforcement focused on
agreements concluded between originator and generic companies, in particular
pay-for-delay deals between competitors. Those agreements typically feature
payments made by the originator to the generic company preparing its entry on
the market in competition with the former. Instead of competing, however, the
companies agree to delay generic entry to the detriment of consumers. In 2013,
the Commission's enforcement action featured two pay-for-delay cases, Lundbeck
and Fentanyl. In the Lundbeck case[171]
a prohibition decision was adopted on 19 June. In the Fentanyl case[172],
further to a Statement of Objections in January, a prohibition decision was
adopted on 10 December.
Antitrust
enforcement actions in 2013:
The
Lundbeck case concerns agreements concluded in 2002 and 2003 between the Danish
pharmaceutical company Lundbeck and a number of generic companies (Alpharma
(now part of Pfizer), Merck KGaA/Generics UK (Generics UK is now part of
Mylan), Arrow (now part of Actavis), and Ranbaxy). These agreements were
concluded at a time when the compound patent for citalopram, an antidepressant
and Lundbeck's then best-selling medicine, had expired. Lundbeck held a number
of related process patents which provided a more limited protection than a
compound patent. Producers of cheaper, generic versions of citalopram therefore
had the possibility of entering the market. Indeed, several generic producers
were preparing to enter the market and one of them had actually started selling
its generic product elsewhere in the EEA. Instead of pursuing their efforts to
enter the market, the generic companies agreed not to do so, in return for
substantial payments from Lundbeck. Lundbeck paid significant lump sums,
purchased generics' stock for the sole purpose of destroying it, and offered
guaranteed profits in a distribution agreement. In exchange, Lundbeck obtained limitations
on the generics' entry also going beyond what it could have obtained through
enforcement of its process patents. The commitment by Lundbeck to refrain from
infringement proceedings against the generic producers when they enter the
market with generic citalopram after the expiry of the agreements was also part
of the agreement. The Commission imposed a fine of EUR 93,8 million on Lundbeck
and fines totalling EUR 52,2 million on the generic companies for violation of
Article 101 TFEU. Currently, the Lundbeck decision is under appeal before the
General Court.
The
Fentanyl case concerns an agreement between Janssen-Cilag, the Dutch subsidiary
of Johnson & Johnson, and its generic competitor, Sandoz, the Dutch
subsidiary of Novartis, which delayed the entry of cheaper generic fentanyl on
the Dutch market. Fentanyl is a pain-killer one hundred times more potent than
morphine. In 2005, Sandoz was on the verge of launching its generic version of
the product in the Netherlands. However, the parties concluded a so-called
"co-promotion agreement" according to which Sandoz received monthly
payments from Johnson & Johnson for as long as there was no generic entry.
The agreement lasted from July 2005 to December 2006 and delayed the entry of a
cheaper generic medicine for seventeen months, keeping prices for fentanyl in
the Netherlands artificially high. Moreover, Janssen-Cilag did not consider any
other existing potential partners for the "co-promotion agreement"
but just focused on its close competitor Sandoz. Sandoz engaged in very limited
or no actual co-promotion activities. The Commission imposed fines of EUR 10.8
million on Johnson & Johnson and EUR 5.5 million on Novartis for violation
of Article 101 TFEU.
The
Office of Fair Trading in the United Kingdom issued a Statement of Objections
in the Paroxetine pay-for-delay case in April 2013[173].
Merger investigations
in the sector
In
the health sector increasing attention is paid to research and health service
budgets. The Commission remained vigilant to the possible effects that the
continued consolidation in the sector may have on competition. In a case
concerning kidney dialysis[174],
the Commission's approval was made conditional on the divestment of Baxter's
global continuous renal replacement therapy business thereby ensuring the
emergence of a credible new player on the market. 
In
the neighbouring life science sector the Commission authorised the acquisition
of Life Technologies Corp. by rival Thermo Fisher Scientific Inc.[175],
both US-based companies active in life science markets. Their activities
overlap in the supply of laboratory instruments and consumables. The clearance
was made conditional on divestments of businesses producing and supplying (i)
media and sera for cell culture, (ii) gene silencing products and (iii)
polymer-based magnetic beads. In those areas, the merger, as initially
notified, would have significantly reduced competition. 
That
case is an example of international cooperation between competition authorities
functioning well. Given the worldwide scope of the parties' activities, the
Commission cooperated closely with the competition authorities of a significant
number of countries outside the EU during the investigation. It involved a
mutual exchange of views and evidence with the Federal Trade Commission in the US and with the Australian Competition and Consumer Commission. The Commission also cooperated
with the Ministry of Commerce of China, the Japan Fair Trade Commission, the Competition
Bureau of Canada and the Commerce Commission of New Zealand.
              7.
Transport and postal services
Overview
of key challenges in the sector
Industrial
consolidation in transport and the competitiveness of European industry
The
transport sector makes an important contribution to the competitiveness of
European industry. If competition in transport is weak and prices are
needlessly high, the international competitiveness of all of European industry
will suffer. Transport and storage account for no less than 10-15% of the cost
of a finished product. The Commission therefore closely tracks developments in
the sector and intervenes where necessary.
Transport
services are very sensitive to overall economic developments. The improvement
in business sentiment and the increase in consumer confidence observed in 2013
have contributed to a gradual increase in GDP growth rates in the second half
of the year. Consequently, growth perspectives in the transport sector have
improved as well, providing new opportunities for investment and industrial
restructuring.
As
a result of the economic crisis, the industrial structure of the transport
sector has been weakened. Overcapacity in air and maritime transport, in
particular, has increased the pressure on companies to find ways to cut costs
and raise additional revenues. In 2013, this has been reflected in a number of
merger notifications, agreements between companies requiring a further
investigation by competition authorities and requests for State support. While
the Commission recognises that a further consolidation of supply in the sector
may be necessary, such consolidation should not result in higher prices for
customers and be detrimental to the competitiveness of European industry.
Contribution
of EU competition policy to tackling the challenges
Potential
anticompetitive effects resulting from increased concentration in the air
transport sector
The
recent trends in the transformation of the air transport sector continued in
2013. The decrease in air traffic linked to the economic and financial crisis
still has a strong effect on the position of airports and airlines alike. Many
regional airports in Europe continue to make 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 air transport will continue to grow and that more and more airports
will become congested, at least during peak hours. Airlines as well, were
strongly hit by the crisis. As a result some of the smaller and less efficient
airlines have gone out of business, been restructured or merged into larger
entities. At the same time the strongest airlines consolidated their position
as market leaders. 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 codeshare[176]
agreements to full-fledged joint ventures. 
An
increase in air fares is particularly likely if the merging parties are close
competitors based at the same airport, such as Ryanair and Aer Lingus at Dublin airport or Aegean Airlines and Olympic Air at Athens airport. In February, the
Commission therefore prohibited Ryanair’s third attempt to take over Aer Lingus[177]. The
acquisition would have combined the two leading airlines operating from Ireland. The Commission concluded that the merger would have harmed consumers by creating a
monopoly or a dominant position on 46 routes where, currently, Aer Lingus and
Ryanair compete vigorously against each other. The remedies proposed by Ryanair
during the course of the investigation fell short of addressing the competition
concerns raised by the Commission. Ryanair appealed the Commission's decision
at the General Court.[178]
However,
when in October the Commission had to rule a second time on the proposed
Aegean/Olympic merger, it decided to unconditionally approve the proposed
transaction.[179]
The reason for that decision was that the Commission's in-depth investigation
had shown that Olympic Air would have been forced to exit the market in the
near future due to financial difficulties if not acquired by Aegean. Once
Olympic went out of business, Aegean would become the only significant domestic
service provider in Greece and would capture Olympic's current market shares.
Therefore, with or without the merger, Olympic would have soon disappeared as a
competitor to Aegean. The Commission therefore concluded that the merger caused
no harm to competition that would not have occurred anyway. 
The
Commission was also called upon to rule on the merger of US Airways and
American Airlines[180].
The transaction would lead in particular to a monopoly on the London-Philadelphia
route, where US Airways and American Airlines through its membership in a metal
neutral[181]
joint venture with British Airways and Iberia (the "Transatlantic Joint
Business") are the only carriers offering non-stop flights (the route is
de facto operated by British Airways). The clearance decision of 5 August was
conditional upon the release of one daily slot pair at London Heathrow and of
other commitments in order to induce entry on the London-Philadelphia route.
As
part of its antitrust enforcement, the Commission continued its work on the
transatlantic airline alliances. In May, the Commission adopted a decision
accepting commitments offered by the Star Alliance members that operate a
revenue-sharing joint venture on transatlantic routes[182]. The
joint venture members[183] 
addressed with those commitments the Commission's concern that the parties'
cooperation might harm premium passengers on the Frankfurt-New York route in
particular. The commitment package facilitates entry to that route by making
landing and take-off slots available to new competitors. The parties also
offered to enter into agreements allowing competitors to get better access to
the parties' connecting traffic. 
State
aid enforcement in air transport
The
Commission is equally concerned that certain State aid measures in favour of
airlines or airport operators affect negatively the competitiveness of other
airlines and airport operators that do not benefit from such measures. For
instance, some of those measures may artificially deviate traffic from
efficient airports to inefficient subsidised airports located in their
vicinity.
Clarifying conditions of "good
aid"
As in any sector, State aid measures in
the air transport sector can only be acceptable when their positive effects for
European citizens outweigh their negative effects on competition and the
internal market. This can be the case under certain circumstances, for example
for aid measures in favour of airport operators when they increase the mobility
of European citizens, combat air traffic congestion at major European hubs or
facilitate regional development. The revision of the State aid guidelines for
airports and airlines, which was in public consultation in July-September 2013,[184] includes
provision concerning: 
                - State aid for investment
in airport infrastructure is allowed if there is a genuine transport need and
the public support is necessary to ensure the accessibility of a region. In
order to ensure the right mix between public and private investment, the
maximum permissible aid intensity is larger for smaller airports.
                - Start-up aid to
airlines to launch a new air route is permitted provided it remains limited in
time.
                - Operating aid to
airports is allowed for a transitional period of 10 years under certain
conditions, thereby giving airports the time required to adjust their business
model.
In response to the public consultation
the Commission received more than 140 reactions from Member States and stakeholders. The Commission analysed the responses and took them into account for
the finalisation of the new guidelines – covering both airlines and the
financing of airport infrastructure.. The new guidelines will help level the
playing field for airports and airlines and be instrumental in combatting
harmful State aid to airlines in the future. Amongst other things, the
guidelines will clarify which arrangements between airports and airlines are
acceptable and which arrangements are not.
In
that context, the Commission opened an in-depth investigation[185] in
July to verify whether Polish plans to fund the conversion of the former
military airport Gdynia-Kosakowo (Poland) into a civil aviation airport are in
line with EU State aid rules. A priori, it would appear difficult to justify
major public investments in an airport that is located at only 25 kilometres
from the existing uncongested Gdansk airport. 
The
Commission has also opened in-depth investigations into a number of
arrangements between airports and airlines with a view to establishing whether
in those cases, airlines have benefited from incompatible State aid. Subject to
final investigation, incompatible aid might be recovered from the airlines
concerned. The experience gained in these on-going investigations fed into the adoption
process for the new State aid guidelines for airports and airlines. 
Aid
measures granted more directly to airlines in difficulty and in need of
restructuring also remained in the focus of the Commission's attention. The
Commission opened an-depth inquiry into a number of public support measures in favour
of Estonian Air in February,[186]
which was later extended in April to cover other additional measures.[187] Similarly,
the Commission opened in-depth inquiries into aid granted to Cyprus Airways[188] and possible
State support to SAS - Scandinavian Airlines.[189] In
May, the Commission temporarily approved rescue aid for LOT Polish Airlines[190]. In the
previous November, the Commission had concluded[191] that
the sale of three of LOT's subsidiaries to State-owned entities did not involve
State aid.
Overcapacity
in maritime transport
The
maritime freight transport sector suffers from of overcapacity, like other
transport sectors. In January the Commission concluded an investigation into
two cooperative schemes bringing together owners of small container vessels
operating in the North Sea. The Commission was concerned with two aspects of those
schemes: (i) the compensation offered to owners laying up their vessels during
periods of overcapacity; and (ii) the exchange of recommendations on vessel
charter rates. Following discussions with the Commission, the cooperatives
agreed to abandon those two aspects and the investigation was closed[192].
Maritime transport – back to the general
competition rules
Competition enforcement in maritime
transport had been for a long time based on the Liner Conference Block
Exemption.[193]
The block exemption was repealed in 2008 and the Commission adopted Maritime
Antitrust Guidelines[194]
to facilitate the transition from a specific to the general competition regime.
These Guidelines expired in September, following a Commission decision in
February not to prolong them. Therefore, since September maritime transport
falls under general competition rules.
In November, the Commission opened
formal antitrust proceedings against 14 container liner shipping companies. The
companies have made regular public announcements of intended price increases
through press releases on their websites and in the specialised trade press.
The companies usually make the announcements following one another, a few weeks
prior to the implementation date. The Commission has concerns that this
practice may allow the companies to signal their future pricing intentions to
each other. It may lead to higher prices and harm customers on the market for
container liner shipping transport services on routes to and from Europe[195] 
In
times of overcapacity it is all the more important that competitors do not gain
an unfair advantage from State aid. In July, for example, the Commission
concluded that a long-running Spanish aid scheme offering tax relief for the
purchase of ships conferred a selective advantage to certain investors over
their competitors[196].
The Spanish authorities must now determine the amounts of incompatible aid to
be recovered.
Enforcement
actions in rail transport
In
order to improve the competitive performance of the rail transport sector and
stimulate rail as a preferred mode of transport, the EU has adopted a number of
'railway packages'. In January, the Commission put forward the Fourth Railway
Package[197],
which foresees the opening of the market for domestic rail passenger services
to competition by 2019. The Package also aims to tackle the continued
fragmentation of rail markets, strengthening the governance structure, as well
as the high barriers to entry associated with the often special status of
national rail incumbents. 
In
fact, some rail incumbents manage the rail infrastructure and are at the same
time active on rail transport markets. Such vertically-integrated rail
incumbents may leverage their position as infrastructure managers to raise
their competitors' costs or delay their entry. 
In
the Deutsche Bahn case, the Commission investigated whether Deutsche Bahn's
charges for traction current, i.e. the special electricity used to power
locomotives, lead to a margin squeeze for its competitors in the rail freight
and long distance passenger transport markets. In response to the Commission's
concerns, Deutsche Bahn offered commitments opening up the market for the
supply of traction current. These commitments were market tested by the
Commission in August. Following amendments to the initial proposal, the
Commission adopted a decision rendering the commitments legally binding on
Deutsche Bahn on 18 December 2013.[198]
In the Baltic Rail case, the Commission opened proceedings against the
vertically-integrated Lithuanian rail incumbent, AB Lietuvos geležinkeliai
("LG") in March[199].
The on-going investigation concerns the removal of a track by LG connecting a
refinery in Lithuania to the border with Latvia. The removal of that track could
have prevented customers from using the services of other rail operators for
the transport of freight between Lithuania and Latvia. 
In
order to increase the attractiveness of rail as a mode of transport the
Commission approved a number of State aid measures. In Poland, for example, the budget of the aid scheme[200]
supporting investments in intermodal transport infrastructure and equipment was
increased, while in Slovakia the construction of an intermodal terminal was
co-financed by public funds[201].
In both cases, the Commission made sure that a significant share of the costs
was born by private investors, thereby ensuring the cost effectiveness of the
projects.
Continuing to
apply the new rules ensuring the viability of SGEIs and fair competition across
the Single Market in postal services
Postal
services is a classic network industry crucial to the functioning of the Single
Market. Many European companies rely increasingly on just in-time deliveries to
keep inventory costs at an optimal level. They often use parcel express
delivery services as part of their logistic chains, notably for cross-border
shipments. From a growth perspective, it is essential that cross-border postal
deliveries operate as efficiently as possible. Efficient postal services are
also a tool to tap the growing potential of cross-border e-commerce. At the
same time, the postal sector constitutes a fundamental service of general
economic interest (SGEI) which may need State aid in situations where the
market by itself would not guarantee universal and affordable services. EU
competition and Single Market rules reconcile those two imperatives.
On
2 May, the Commission approved[202]
EUR 900 million compensation to the Belgian bpost for delivering a series of
SGEIs (mainly a press distribution SGEI consisting in delivering newspapers and
periodicals under specific conditions) between 2013 and 2015. That decision is
emblematic for the application of the stricter compatibility conditions
introduced by the new SGEI Framework: 

 The Belgian
     authorities had to organize a wide public consultation to demonstrate the
     importance of the compensated SGEIs for Belgian citizens; 
 The amount
     of aid approved by the Commission is based on the new net avoided cost
     methodology and takes into account strict efficiency requirements;
 In order to
     comply with public procurement rules, Belgium committed to organise a
     competitive, transparent and non-discriminatory tender for the delivery of
     the press distribution SGEI in the future. The winning bidder will take
     over the delivery of the service on 1.1.2016.

Bpost was also
ordered to repay a significant amount of overcompensation (approx. EUR 123
million) that it received in 2011-2012.
Protecting competition in the
sector of delivery services through merger control
On 30 January the Commission
prohibited the proposed acquisition of TNT Express by UPS. The take-over would
have restricted competition in 15 Member States in the express delivery of
small packages to another European country. In these Member States, the
acquisition would have reduced the number of significant players to only 3 or
2, leaving sometimes DHL as the only alternative to UPS. The concentration
would therefore have likely harmed customers by causing price increases. 
On 30 January 2013, the European
Commission prohibited under the EU Merger Regulation the proposed acquisition
of TNT Express by UPS.[203]
TNT Express (the Netherlands) and UPS (USA) both provide small package delivery
services. 
The Commission found that the
take-over would have restricted competition in 15 Member States when it comes
to the express (i.e. within one day) delivery of small packages to another
European country, namely Bulgaria, the Czech Republic, Denmark,
Estonia, Finland, Hungary, Latvia, Lithuania, Malta, the Netherlands, Poland,
Romania, Slovakia, Slovenia and Sweden. 
In these Member States, the
acquisition would have reduced the number of significant players to only 3 or
2, leaving sometimes DHL as the only alternative to UPS. The concentration
would therefore have likely harmed customers by causing price increases. During
the investigation, UPS offered to divest TNT's subsidiaries in these 15
countries and allow the buyer to access its intra-European air network for five
years. The Commission carried out an in-depth assessment, including a market
test where customers and other interested parties were consulted. However,
these remedies proved inadequate to address the identified competition
concerns. 
Annexes
State
aid cases:  Decisions adopted by the Commission in 2013
 Member State || Type of measure / Beneficiary   || Type of Decision || Date of adoption 2013 
 Austria || SA.32745 -      Run-off plan of Kommunalkredit || Decision not to raise objections EXME/13/19.07 || 19 July 
 Austria || SA.32554 - Liquidation of Hypo Group Alpe Adria || Final decision IP/13/811 || 3 September 
 Cyprus || SA.35852 - Prolongation || EXME/13/22.01 || 22 January 
 Cyprus || SA.36930 - Prolongation || EXME/13/25.07 || 25 July 
 Denmark || SA.36811 – Prolongation of the Danish winding-up and guarantee for merging banks schemes || EXME/13/11.07 || 11 July 
 France || SA.35389 - State Aid SA. 35389 (2012/N) Rescue aid in favour of Crédit Immobilier de France || Decision not to raise objections IP/13/148 || 21 February 
 France || SA.37075 - Crédit Immobilier de France – Prolongation of guarantees || Decision not to raise objections EXME/13/14.08 || 14 August 
 France || SA.37029 - Liquidation of Crédit Immobilier de France   || IP/13/1173 || 27 November 
 Germany || SA.29338 - Amendment of HSH Nordbank AG Restructuring || Decision not to raise objections and opening of proceedings IP/13/589 || 21 June 
 Germany || SA.31646 -            Amendment of the restructuring plan for Sparkasse Köln-Bonn   ||   || 23 July 
 Germany || SA.34381 -            Amendment of Restructuring Plan of NordLB || Decision not to raise objections IP/13/788 || 22 August 
 Germany || SA.30062 - Amendment of LBBW || EXME/13/1209 || 9 December 2013 
 Greece || SA.35460 – Liquidation of ATE || IP/13/401 || 3 May 
 Greece || SA.31155 -      Resolution of Hellenic Postbank through the creation of a bridge bank || Decision not to raise objections || 6 May 
 Hungary || SA.36088 - Prolongation || EXME/13/01.03 || 1 March 
 Hungary || SA.36087 - Prolongation || EXME/13/22.03 || 22 March 
 Ireland || SA.36944 - Prolongation ||   || 18 July 
 Ireland || SA.31286 (MC9/2010) - Bank of Ireland || Decision not to raise objections IP/13/669 || 9 July 
 Italy || SA.36175 - MPS - Restructuring || IP/13/1174 || 27 November 2013 
 Latvia || SA.30704 - Additional aid measures to the Latvian Mortgage and Land Bank || Final decision IP/13/705 || 17 July 
 Lithuania || SA.36248 -Resolution of AB Ukio Bankas || Decision not to raise objections EXME/13/14.08 || 14 August 2013 
 The Netherlands || SA.35382 - Rescue aid for SNS REAAL || IP/13/150 || 22 February 
 The Netherlands || SA.29832 - Amendment of ING ||   || 5 November 2013 
 The Netherlands || SA.29832 - Monitoring of ING || EXME/13/1211 || 11 December 2013 
 Poland || SA.35943 -  Prolongation || EXME/13/11.02 || 11 February 
 Portugal || Rescue recapitalisation of Banif || Decision not to raise objections IP/13/31 || 21 January 
 Portugal || SA.36180 - Portuguese Guarantee Scheme on EIB lending ||   || 27 June 
 Portugal || SA.35338 - Restructuring of Caixa Geral de Depósitos, S.A. (CGD)   || Final decision IP/13/738 || 24 July 
 Portugal || SA.36869 - Prolongation of the Portuguese guarantee scheme || EXME/13/01.08 || 1 August 2013 
 Portugal || SA.34724 - Restructuring of Millennium BCP / Portugal || Decision not to raise objections EXME/13/02.09 || 29 September 2013 
 Portugal || SA.37417 - Amendment of the Guarantee Scheme on EIB lending ||   || 7 October 2013 
 Slovenia || SA.37315 - Rescue aid in favour to Factor Banka || Decision not to raise objections IP/13/822 || 6 September 
 Slovenia || SA.37314 - Rescue aid in favour of Probanka || Decision not to raise objections IP/13/822 || 6 September 
 Spain || SA.36500            Restructuring of Banco Gallego || Decision not to raise objections IP/13/745 || 25 July 
 Spain || SA.36249 - CEISS – Amendment decision ||   || 25 July 
Cases
currently under formal investigation procedure 
(in-depth investigation under the rules of the
Treaty on the Functioning of the European Union on State aid)
 Country || Type of measure / Beneficiary   || Date of decision regarding the opening of formal investigation   ||   
 Belgium || SA.33927 (2012/C) (ex 2011/NN) –Guarantee scheme protecting the shares of individual members of financial cooperatives || 3 April 2012 IP/12/347 || Case under assessment 
 Slovenia || SA.33229 - Restructuring of NLB || 2 July 2012 IP/12/724 || Case under assessment 
 Greece || SA.34488 - Restructuring aid to Proton bank through creation and capitalisation of Nea Proton || 27 July 2012 IP/12/854 || Case under assessment 
 Greece || SA.34823 - HFSF Recapitalisation commitment to Alpha Bank || 27  July 2012 IP/12/860 || Case under assessment 
 Greece || SA.34824 - HFSF Recapitalisation commitment to National Bank of Greece || 27  July 2012 IP/12/860 || Case under assessment 
 Greece || SA.34825 - HFSF Recapitalisation commitment to EFG Eurobank || 27  July 2012 IP/12/860 || Case under assessment 
 Greece || SA.34826 - HFSF Recapitalisation commitment to Piraeus Bank || 27  July 2012 IP/12/860 || Case under assessment 
 Greece || Resolution of Hellenic Postbank through the creation of a bridge bank || 6 May 2013 || Case under assessment 
 Germany || SA.29338 - HSH Nordbank AG || 21 June 2013 IP/13/589 || Case under assessment 
[1] The Contribution of
Competition Policy to Growth and the EU2020 Strategy, IP/A/ECON/ST/2012-25, available
at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/492479/IPOL-ECON_ET(2013)492479_EN.pdf

[2] 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
[3] European Parliament
resolution of 17 January 2013 on State aid modernisation (2012/2920(RSP))
[4] COM(2010) 2020 final
of 3.3.2010
[5] OJ C209, 23.07.2013
[6] In
accordance with Article 140. 2. (c) of Regulation (EU, EURATOM) No 966/2012 of
25 October 2012
[7] Risk
finance guidelines were adopted on 15 January 2014. See http://europa.eu/rapid/press-release_IP-14-21_en.htm?locale=en.

[8] Council Regulation
(EU) No 733/2013 of 22 July 2013
[9] Commission
Regulation (EC) No 800/2008 of 6 August 2008
[10] Commission
Regulation (EC) No 1407/2013 of 18 December 2013 on the application of Articles
107 and 108 of the Treaty on the Functioning of the European Union to de
minimis aid, OJ L 352, 24.12.2013. p. 1
[11] Council Regulation
(EU) No 734/2013 of 22 July 2013, OJ L 204 31 July 2013, p.15, available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:L:2013:204:SOM:EN:HTML
[12] See
the State Aid scoreboard, available at http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html

[13] More details on recovery
data, is available at the dedicated section of the State aid Scoreboard, http://ec.europa.eu/competition/state_aid/studies_reports/recovery.html

[14] Case
C-99/02 Italy v Commission, judgment of 1 April 2004
[15] Case
C-469/09 Italy v Commission, judgment of 17 November 2011
[16] Joined
Cases C-399/10P and C-401/10P Bouygues SA, Bouygues Télécom SA v Commission,
judgment of
19 March 2013
[17] Case
T-347/09 Germany v Commission, judgment of 12 October 2013
[18] Case T-489/11 Rousse Industry AD v
Commission, judgment of 20 March 2013 
[19] Case C-246/2012 P Ellinika
Nafpigeia AE v. Commission, judgment of 28 February 2013
[20] Case C284/12 –
Lufthansa v Flughafen Frankfurt Hahn[20], 
judgment of 21 November 2013.
[21] Communication from
the Commission, Europe 2020, A strategy for smart, sustainable and inclusive
growth, 3.3.2010, (COM) 2010 2020 , available at http://ec.europa.eu/eu2020/pdf/COMPLET%20EN%20BARROSO%20%20%20007%20-%20Europe%202020%20-%20EN%20version.pdf

[22] The replies are
available on the Commission's website at http://ec.europa.eu/competition/consultations/2013_technology_transfer/index_en.html 

[23] Commission Notice on
agreements of minor importance which do not appreciably restrict competition
under Article 81(1) of the Treaty establishing the European Community (de
minimis), Official Journal C 368, 22.12.2001, p.13-15
[24] Case C-226/11 Expedia
v Autorité
nationale de la concurrence, Judgement of 13 December
2012
[25] Proposal
for a Directive of the European Parliament and of the Council on certain rules
governing actions for damages under national law for infringements of the
competition law provisions of the Member States and of the European Union,
COM(2013) 404 final, available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0404:FIN:EN:PDF
[26] The
General Approach is available at http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%2017317%202013%20INIT&r=http%3A%2F%2Fregister.consilium.europa.eu%2Fpd%2Fen%2F13%2Fst17%2Fst17317.en13.pdf 
[27] Communication from the
Commission on quantifying harm in actions for damages based on breaches of
Article 101 or 102 of the Treaty on the Functioning of the European Union, OJ
2013/C 167/07,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:167:0019:0021:EN:PDF
[28] Practical
Guide: Quantifying harm in actions for damages, Commission Staff Working
Document, C(2013) 3440, http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_guide_en.pdf
[29] Commission
Recommendation of 11 June 2013 on common principles for injunctive and
compensatory collective redress mechanisms in the Member States concerning
violations of rights granted under Union Law, OJ 2013 L 201/60, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:201:0060:0065:EN:PDF
[30] Joined cases T-289/11, T-290/11 and T-521/11, Deutsche Bahn AG and
Others v European Commission, judgment of the General Court of 6 September 2013
[31]  Case C-501/11 P Schindler Holding and Others v
Commission, judgement of Court of Justice of 18 July 2013.
[32] Case
COMP/E1/38.823 PO/Elevators and Escalators, Commission
Decision of 21 February 2007, C
(2007) 512 final
[33]  Case 43509/08 A. Menarini Diagnostics S.R.L v Italy, judgment of the European Court of Human Rights of 27 September 2011
[34] Case C-501/11 P Schindler Holding and Others v
Commission, judgement of Court of Justice of 18 July 2013, paragraph 35.
[35] Cases
T-392/08, T-398/08, T-401/08, T-410/08, T-411/08, T-413/08 to T-422/08,
T-425/08, T-428/08, T-432/08, T-433/08, T-434/08, T-442/08, T-451/08, judgments
of the General Court of 12 April 2013.
[36] Case
COMP/C2/38.698 CISAC, Commission Decision of 16 July 2008, C(2008) 3435 final
[37] Case C-440/11 P Commission v Stichting
Administratiekantoor Portielje and Gosselin Group NV, judgment of the Court
of Justice of 11 July 2013
[38] Case C-172/12 P EI du Pont de Nemours and Case
C-179/12 P Dow Chemical Company v Commission, judgment of the Court of
Justice of 26 September 2013
[39] Case T-587/08 Fresh Del Monte Produce v Commission,
judgment of the General Court of 14 March 2013
[40] Case T-588/08 Dole Food and Dole Germany v Commission, judgment
of the General Court of 14 March 2013
[41] Case T-146/09 Parker v Commission, judgment
of the General Court of 17 May 2013; Joined Cases T-147/09 and T-148/09 Trelleborg
v Commission, judgment of the General Court of 17 May 2013; and Case
T-154/09 MRI v Commission, judgment of the General Court of 17 May 2013
[42] Case COMP/39406 -
Marine Hoses, Commission Decision of 28 January 2009
[43] Case T-146/09 Parker v Commission, judgment of the
General Court of 17 May 2013
[44] Case
T-154/09 MRI v Commission, judgment of the General Court of 17 May 2013
[45] Case
T-154/09 MRI v Commission, judgment of the General Court of 17 May 2013,
paragraphs 199, 200.
[46] Case T-411/10 Laufen Austria v Commission, judgment
of the General Court of 16 September 2013
[47] See the section on basic industries and manufacturing
[48] See the section on enforcement in technology markets
[49] Case 39914 Euro Interest Rate Derivatives (EIRD,)
Commission decision of 4 December 2013, See MEMO/13/1090 of 4
December2013
[50] Case 39861 Yen
Interest Rate Derivatives (YIRD), Commission decision of 4 December 2013, See MEMO/13/1090 of 4 December2013
[51] For
further information, see the section on Information and Communication
Technologies (ICT) and Media 
[52] The
reports are available at http://ec.europa.eu/competition/ecn/investigative_powers_report_en.pdf
and http://ec.europa.eu/competition/ecn/decision_making_powers_report_en.pdf

[53] The ECN
recommendations are available at http://ec.europa.eu/competition/ecn/documents.html

[54] The model set of rules and procedures developed within the ECN
are available at http://ec.europa.eu/competition/ecn/mlp_revised_2012_en.pdf

[55] Proposal
for a Directive of the European Parliament and of the Council on certain rules
governing actions for damages under national law for infringements of the
competition law provisions of the Member States and of the European Union,
COM(2013) 404 final, available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0404:FIN:EN:PDF
[56] The
Commission's opinions are available at http://ec.europa.eu/competition/court/antitrust_requests.html

[57] See Commission Staff
Working Document: "Towards more effective EU merger control", SWD(2013) 239 final, available at http://www.acceptance.ec.europa.eu/competition/consultations/2013_merger_control/index_en.html
[58] See Communication of
the 18 June 2009 from the Commission to the Council: "Report on the
functioning of Regulation No 139/2004, COM(2009) 281 Final, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0281:FIN:EN:PDF
[59] Commission
Implementing Regulation (EU) No 1269/2013 of 5 December 2013 amending Regulation
(EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the
control of concentrations between undertakings
[60] Notice
on a simplified procedure for treatment of certain mergers under the Merger
Regulation
[61] The
Best Practices are available at: http://ec.europa.eu/competition/mergers/legislation/proceedings.pdf

[62] Communication
from the Commission to the European Parliament, the Council, the European Economic
And Social Committee and the Committee of the Regions, Regulatory Fitness and
Performance (REFIT): Results and Next Steps, Brussels, 2.10.2013, COM(2013)
685 final, available at http://ec.europa.eu/refit
[63] The term
"interventions" in mergers cover prohibition decisions and decisions
with commitments.
[64] Case
COMP M.6570 UPS / TNT EXPRESS, decision of 30 January 2013 and Case COMP
M.6663 RYANAIR / AER LINGUS III, decision of 27 February 2013 
[65] Case COMP/M.6126 Deutsche
Börse/NYSE Euronext, decision of 1 February 2012
[66] Cases
COMP/M.6576 Munksjö / Ahlstrom, decision of 24 May 2013 and M.6690 Syniverse
/ Mach, decision of 29 May 2013
[67] Case M.6281 Microsoft
/ Skype, Commission decision of 7 December 2011, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6281

[68] Case T-79/12 Cisco Systems,
Inc. and Messagenet SpA v Commission, judgment of 11 December 2013
[69] Agreement
between the Government of the United States of America and the Commission of
the European Communities regarding the application of their competition laws -
Exchange of interpretative letters with the Government of the United States of America, OJ L
095, 27.04.1995, p. 47
[70] Agreement between the European Community and the Government of Japan
concerning cooperation on anti-competitive activities, OJ L 183, 22.7.2003, p. 12
[71] For
further information see press release: IP/13/444 of 17/5/2013, available at  http://europa.eu/rapid/press-release_IP-13-444_en.htm
[72] For further
information see press release: IP/13/1143 of 21/11/2013, available at http://europa.eu/rapid/press-release_IP-13-1143_en.htm

[73] Available
at http://ec.europa.eu/clima/policies/2030/docs/com_2014_15_en.pdf

[74] Available
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0639:FIN:EN:HTML
[75] Available at http://ec.europa.eu/energy/technology/strategy/doc/comm_2013_0253_en.pdf

[76] See Commission
contribution to the European Council of 22 May 2013, available at
http://ec.europa.eu/europe2020/pdf/energy2_en.pdf
[77] Case AT.40054 Oil
and Biofuel Markets, see MEMO/13/435 of 14 May 2013 
[78]Case AT.39816 Upstream
Gas Supplies in Central and Eastern Europe, see MEMO/12/937 of 4 September
2012
[79] Case AT.39767 BEH
electricity, see IP/121307 of 3 December 2012
[80] Case AT.39952 Power
Exchanges, see MEMO12/78 of 7 February 2012
[81] Guidelines on certain
State aid measures in the context of the greenhouse gas emission allowance trading
scheme post 2012,
OJ C154, 5 June 2012, p. 4
[82] Belgium, Germany, the Netherlands, Spain and the UK, respectively case numbers SA.37017, SA.36103, SA.37084,
SA.36650 and SA.35543
[83] SA.30068 Aid to
non-ferrous metals producers for CO2 costs of electricity, see IP/13/704 of
17 July 2013
[84] SA.35429 Extension
of use of public water resources for hydro electricity generation, see
IP/13/842 of 18 September 2013
[85] SA.13869 EDF: Requalification
en capital des provisions comptables en franchise d’impôt pour le
renouvellement du Réseau d’Alimentation Générale. This followed a judgment handed
down by the Court of Justice of the European Union in Case C-124/10 P.
[86] SA.34045 Exemption
from network charges for large electricity consumers ($19 StromNEV) and
SA.33995 Reduction of the EEG-surcharge for energy intensive users and
support of RES electricity
[87] SA.32184 Alleged State aid to an electricity supplier and SA.32669 Aid
granted to CHP plants and an electricity supplier which affect the market for
regulation power
[88] SA.34947
Electricity Market Reform – Investment Contract (early Contract for
Difference) for the Hinkley Point C New Nuclear Power Station
[89] Community
guidelines on State aid for environmental protection, OJ C 82, 1.4.2008, p.
1.
[90] For instance,
SA.35073 – Belgium - Reduced excise duties for sustainable biofuels;
SA.35089 – Denmark - Supplement for electricity from new wind turbines;
SA.33567 – Finland - Production aid for electricity from renewable energy
sources in Åland; SA.34889 – Germany - Scheme for the promotion of
energy-efficiency and the use of renewable energy in the sectors of commerce
and industry;
SA.35767 – Hungary - Replacing the existing excise duty exemption for
biofuel E85 with an excise duty reduction; SA.35079 – Ireland - RES-E
Support Programme; SA.36516 – the Netherlands - Aid for wind farm Zuidermeerdijk;
SA.35414 – Sweden - Changes in the Swedish Energy taxation regarding
biofuels for low-blending; SA.35565 – UK - Amendments to the Renewables Obligation
scheme. 
[91] SA.35597 – Czech
Republic - Reduction of emissions by up-grading dedusting system of sinter
plant south of ArcelorMittal Ostrava a.s.; SA.35598 – Czech Republic -
Reduction of fugitive emissions from sinter handling and cooling at sinter
plant south of ArcelorMittal Ostrava a.s.; SA.35599 – Czech Republic – Arcelor
Mittal Ostrava a.s. – Reduction of fugitive emissions from VP3 foundries;
SA.35600 – Czech Republic – Třinecké železárny, a.s. –   De-dusting of
waste gases and de-dusting of junctions at sintering plant 2 and SA.35600 –
Czech Republic – Třinecké železárny, a.s. –  De-dusting of waste gases and
de-dusting of junctions at sintering plant 2
[92] Case AT.39759 ARA
foreclosure, , see IP/13/711 of 18 July 2013
[93] See Commission
contribution to the European Council, Energy challenges and policy,
available at http://ec.europa.eu/europe2020/pdf/energy2_en.pdf

[94] SA.35164 Compressor
Station in Nea Messimvria; SA.35166 High pressure natural gas pipeline
to Aliveri; SA.35167 High pressure natural gas pipeline to Ag Theodori –
Megalopoli; and SA.35976 Metering/Regulating stations 
[95] SA.34982 Individual
aid to Gas-System S.A.; SA.34235 Gas pipeline Rembelszczyzna-Gustorzyn;
SA.34938 Gas storage Husów
[96] SA.35165 1st
upgrade LNG terminal at Revithoussa and SA.35977 2nd Upgrade of LNG
Terminal in Revithoussa and SA.36740 “Klaipėdos nafta“ (hereinafter –
„KN“)
[97] Case M.6870 GE / Munich RE / Iberdrola Renovables France; M.7046 Parkwind / Summit Renewable Energy
Belwind 1 / Belwind,
[98] Case M.6864
DSE/INCJ/Solar Ventures/JV
[99] Case M.6820 Eqt
Infrastructure II/E.On Energy From Waste 
[100] Case M.6807 BUNGE
GROUP / MBF / NOVAOL AUSTRIA
[101] Case M.6875 TENNET
OFFSHORE / MITSUBISHI CORPORATION / TENNET OFFSHORE 8
[102] Case M.7039 PGGM /
GDF SUEZ / EBN / NOGAT
[103] Case M.6887 SNAM /
GICSI / TIGF; M.6925 ALLIANZ GROUP / OMERS GROUP / NET4GAS 
[104] Case AT.39727 CEZ,
see IP/13/320 of 10 April 2013
[105] Case AT.39849 BEH
Gas, see IP/13/656 of 5 July 2012 
[106] Case AT.38884 OPCOM/Romanian
Power Exchange, see IP/13/486 of 30 May 2013.
[107] Case AT.39816 Upstream
Gas Supplies in Central and Eastern Europe, see MEMO/12/937 of 4 September
2012.
[108] Case M.6910 GAZPROM /
WINTERSHALL
/ TARGET
COMPANIES, decision of 4 december 2013,  available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6910

[109] A Digital Agenda for
Europe, Brussels, 26 August 2010, COM(2010) 245 final/2., available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC0245R%2801%29:EN:NOT

[110] The
Digital Agenda for Europe - Driving European growth digitally, Brussels, 18
December 2012, COM(2012) 784 final, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0784:FIN:EN:PDF

[111] A coherent framework
for building trust in the Digital Single Market for e-commerce and online
services, Brussels, 11 January 2012, COM (2011) 942 final, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0942:FIN:EN:PDF

[112] The Digital Agenda for
Europe - Driving European growth digitally, Brussels, 18.12.2012,
COM(2012) 784 final.
[113] 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)
[114] Commission Decision
C(2008) 3435 final of 16th July 2008  in case COMP/C2/38.698 – CISAC; and
judgments of the General Court of 12 April 2013, in Cases T-392/08, T-398/08,
T-401/08, T-410/08, T-411/08, T-413/08 to T-422/08, T-425/08, T-428/08,
T-432/08, T-433/08, T-434/08, T-442/08, T-451/08, not yet reported.
[115] Communication from
the Commission on State aid for films and other audiovisual works, OJ 2013 C
332 of 15 November 2013, p. 1-11
[116] Case
AT-39839 Telefónica and Portugal Telecom, decision of 23 January 2013.
[117] Case AT.39523 Slovak
Telekom
[118] Including Commission
Directive 2002/77/EC of 16 September 2002 on competition in the markets for
electronic communications networks and services, OJ L249, 17 September 2002, p.
21.
[119] See IP/13/46 of 24
January 2013.
[120] Case
SA.28599 – Aid for the deployment of digital terrestrial television (DTT) - Spain, decision of 19 June 2013.
[121] Case
AT.39847 Ebooks, decision of 25 July 2013. The decision follows the
first Article 9 commitment decision of December 2012, by which the Commission
made legally binding commitments offered by Apple and the other four
international publishers involved, namely, Simon & Schuster, HarperCollins,
Hachette and Holtzbrinck/Macmillan
[122] The fact-finding
followed the Premier League/Murphy judgment, Joined Cases C-403/08 and
C-429/08, judgment of 4 October 2011. 
[123] Case
M.6880 Liberty Global / Virgin Media, decision of 15 April 2013
[124] Case
M.6990 Vodafone / Kabel Deutschland, decision of 20 September 2013
[125] Case M.6992 Hutchison 3G UK /
Telefónica Ireland, decision of 6 November 2013
[126] Case M.7018 Telefónica
Deutschland / E-Plus, decision of 20 December 2013
[127] In his annual State
of the Union speech to the European Parliament on September 11, President
Barroso described it as “the first and most urgent phase on the way to
deepen our economic and monetary union".
[128]
Communication from the Commission on the application, from 1 August 2013,
of State aid rules to support measures in favour of banks in the context of the
financial crisis ('Banking Communication'), 
[129] Commission
proposal for a Directive of the European Parliament and the Council on payment
services in the internal market and amending Directives 2002/65/EC, 2013/36/EE
and 2009/110/EC and repealing Directive 2007/64/EC, Brussels 24 July 2013,
COM(2013) 547 final, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0547:FIN:EN:PDF

[130] Commission
Proposal for a Regulation of the European Parliament and of the Council on
interchange fees for card-based payment transactions, COM/2013/0550 final –
2013/0265 (COD) of 24 July 2013, available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0550:FIN:EN:HTML
[131] Commission
Proposal for a Regulation of the European Parliament and of the Council
amending Regulation (EU) No 260/2012 as regards the migration to
Union-wide credit transfers and direct debits, Brussels, 9 January 2014,
COM(2013) 937 final, available at http://ec.europa.eu/internal_market/payments/docs/sepa/1401069_proposal_en.pdf

[132] See
Memo/13/431 of 14 May 2013, available at http://europa.eu/rapid/press-release_MEMO-13-431_en.htm?locale=en

[133] See
Memo/13/553 of 13 June 2013, available at http://europa.eu/rapid/press-release_MEMO-13-553_en.htm

[134] See
IP/13/60 of 1 July 2013, available at http://europa.eu/rapid/press-release_IP-13-630_en.htm

[135] See 
IP/12/777 of 12 July 2012, available at
http://europa.eu/rapid/press-release_IP-12-777_en.htm
[136] See
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions on
Sector Inquiry under Article 17 of Regulation (EC) No 1/2003 on business
insurance (Final Report), Brussels, 25 September 2007, COM(2007) 556 final,
available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0556:FIN:EN:PDF
[137] Ernst
& Young, "Study on co(re)insurance pools and on ad-hoc co(re)insurance
agreements on the subscription market" (February 2013), available at http://ec.europa.eu/competition/sectors/financial_services/insurance.html

[138] Case M.6166 Deutsche
Börse / NYSE Euronext, decision of 1 February 2012.
[139] Case M.6873 Intercontinental
Exchange / NYSE Euronext, decision of 24 June 2013.
[140] Communication from
the Commission of 30 July 2013 on the application, from 1 August 2013, of State
aid rules to support measures in favour of banks in the context of the
financial crisis ("Banking Communication", OJ C 216, P. 1-15,
available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:216:0001:01:EN:HTML.

[141] Commission
Proposal for a Directive of the European Parliament and of the Council
establishing a framework for the recovery and resolution of credit institutions
and investment firms and amending Council Directives 77/91/EEC and 82/891/EC,
Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, Brussels, COM(2012)
280/3, available at 
http://ec.europa.eu/internal_market/bank/docs/crisis-management/2012_eu_framework/COM_2012_280_en.pdf 
[142] Case SA.36175 MPS – Restructuring, decision of 27 November 2013
[143] Case SA.32554 Restructuring aid for Hypo Group
Alpe Adria of
3 September 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_32554

[144] Case
SA.29338 € - $ - Increase of the ceiling amount
of a second-loss guarantee for HSH Nordbank AG, decision of 21 June 2013
[145]  Case SA.35062
Restructuring of CGD, decision of 24 July 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35062

[146]  Case SA.34724 Restructuring
of Banco Comercial Português
(BCP) Group, decision of 30 August 2013, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result

[147] Case SA.35238 BPI
Restructuring, decision of 24 July 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35238

[148] See Commission Staff
Working Document: 'European Competitiveness Report 2013 – Towards a
knowledge-driven reindustrialisation', SWD(2013)347 final, available at http://ec.europa.eu/enterprise/policies/industrial-competitiveness/competitiveness-analysis/european-competitiveness-report/files/eu-2013-eur-comp-rep_en.pdf
[149] Case
AT.39230 Rio Tinto Alcan, decision of 20 December 2013
[150] Case M.6844 GE /
AVIO, decision of 1 July 2013, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result
[151] Case M.6576 Munksjô
/ Ahlstrom, decision of 4 May 2013, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result
[152] Case M.6682 Kinnevik/Billerud/Korsnäs,
decision of 27 November 2012, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result
[153] Case M.6857 Crane
Co/MEI Group, decision of 19 July 2013, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result
[154] Case M.6756 Norsk
Hydro/Orkla/JV, decision of 13 May 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6756
[155] Case M.6360 Nynas/Shell/Harburg
Refinery, decision of 2 September 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6360
[156] Case SA.35611 Aide à la restructuration du groupe PSA,
decision of 2 May 2013, available at http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result
[157] Resolution of the
Meeting of the Heads of the European Competition Authorities of 21 December
2012, available at http://ec.europa.eu/competition/sectors/agriculture/documents_en.html

[158] European Parliament
resolution of 19 January 2012 on the imbalances in the food supply chain, available
at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2012-0012&language=EN&ring=B7-2012-0013

[159] The High Level Forum for a
Better Functioning Food Supply Chain, was set by the Commission to implement
a roadmap of initiatives to improve the competitiveness of the agro-food
industry in cooperation with the stakeholders. See: Commission Decision 2010/C 210/03 of 30 July 2010, amended by Commission Decision 2012/C 396/06 of 19 December 2012
[160] ECN Activities in the
Food Sector" – Report on competition law enforcement and market monitoring
activities by European competition authorities in the food sector, May 2012,
available at http://ec.europa.eu/competition/ecn/food_report_en.pdf

[161] On
1 January 2012 DG COMP set up a Food Task Force to better focus on the
developments in the agri-food sector
[162] Study on "The
economic impact of modern retail on choice and innovation in the EU food
sector", COMP/2012/015, OJ/S S244 of 19 December 2012
[163] Case Comp 39633,
Shrimps, decision of 27 November 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39633

[164] Case M.6627 Arla
Foods/Milch Union Hocheifel, decision of 28 September 2012, IP/12/1039
available at http://europa.eu/rapid/press-release_IP-12-1039_en.htm
[165] Case M.6611 Arla
Foods/Milk Link, decision of 27 September 2012, IP/12/1038 available at
http://europa.eu/rapid/press-release_IP-12-1038_en.htm
[166] Case M.6722 Friesland  Campina/ Zijerveld&Veldhuyzen and Den Hollander, decision of
12 April 2013, see IP/13/319 available at
http://europa.eu/rapid/press-release_IP-13-319_en.htm
[167] Case M.6850 Marine
Harvest/Morpol, decision of 30 September 2013, see IP/13/896 available at
http://europa.eu/rapid/press-release_IP-13-896_en.htm
[168] Case M.6924 Refresco
Group/Pride Foods, decision of 4 October 2013, see IP/13/913 available at
http://europa.eu/rapid/press-release_IP-13-913_en.htm
[169] Case M.6813 McCain
Foods Group/Lutosa Business, decision of 28 May 2013, see IP/13/470
available at http://europa.eu/rapid/press-release_IP-13-470_en.htm
[170] For
further information see Commission communication of 8 July 2009, available at
http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/
[171] Case AT.39226 Lundbeck,
decision
of 19 June 2013, see press release IP/13/563 of 19 June 2013 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39226

[172] Case AT.39685 Fentanyl,
decision of 10 December 2013, see press release of 10 December 2013 available
at http://europa.eu/rapid/press-release_IP-13-1233_en.htm
[173] See press release of
19 April 2013, available at
http://www.oft.gov.uk/news-and-updates/press/2013/36-13#.Uqiob6uQzQM
[174] Case M.6851 Baxter
International/ Gambro, decision of 22 July 2013, available at http://ec.europa.eu/competition/mergers/cases/decisions/m6851_20130722_20212_3384737_EN.pdf

[175] Case M.6944 Thermo
Fisher Scientific/Life Technologies, decision of 26 November 2013,
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6944

[176] Agreement
between two or more airlines to list certain flights in a reservation system
under each other´s names
[177] Case M.6663 Ryanair
/ Aer Lingus III, decision of 27 February 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6663

[178] Case
T-260/13 Ryanair Holdings v Commission 
[179] Case M.6796 Aegean
/ Olympic II, decision of 9 October 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6796

[180] Case M.6607 US
Airways / American Airlines, decision of 5 August 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6607

[181] "Metal
neutral" refers to joint ventures where it doesn't matter which airline's
plane, or "metal" in industry lingo, a passenger flies on because
each carrier will get the same amount of revenue, and spend just as much to
provide service on that route
[182] Case 39595 Continental/Untied/Lufthansa/Air
Canada, decision of 23 May 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39595

[183] Air Canada, United and Lufthansa
[184] Consultation of the
draft Guidelines on State aid to airports and airlines, see IP/13/644 and
MEMO/13/639 of 3 July 2013, available at http://ec.europa.eu/competition/consultations/2013_aviation_guidelines/

[185] Case SA.35388 Setting
up the Gdynia-Kosakowo Airport, decision of 2 July 2013, see IP/13/637 of 2
July 2013 available at http://europa.eu/rapid/press-release_IP-13-637_en.htm

[186] Case SA.35956 Rescue
aid to Estonian Air, decision of 20 February 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35956

[187] See IP/13/332 of 16
April 2013.
[188] See IP/13/190 of 6
March 2013.
[189] See IP/13/567 of 19
June 2013.
[190] See IP 13/431 of 15
May 2013.
[191] See IP/12/1243 of 20
November 2012.
[192] See IP/13/82 of 31
January 2013. available at http://europa.eu/rapid/press-release_IP-13-82_en.htm

[193] Council Regulation
(EEC) No 4056/86 of 22 December 1986.
[194] Commission Guidelines
No 2008/C 245/02 of 26 September 2008.
[195] Case 39850 Container
Shipping, see IP/13/1144 of 22 November 2013, available at http://europa.eu/rapid/press-release_IP-13-1144_en.htm
[196] Case SA. 21233
Spanish Aid for the acquisition of ships – Spanish Tax Lease, decision of
17 July 2013, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_21233

[197] See Communication
from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions: The Fourth
Railway Package – Completing the Single European Railway Area to Foster
European Competitiveness and Growth, COM(2013)25 final of 30 January 2013,
available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0025:FIN:EN:PDF

[198] Case AT.39678 Deutsche
Bahn 1, see IP/13/1289 of 18 December 2013 available at http://europa.eu/rapid/press-release_IP-13-1289_en.htm

[199] See IP/13/197 of 6
March 2013, available at http://europa.eu/rapid/press-release_IP-13-197_en.htm
[200] Case SA.36485 Investment
aid for the development of intermodal transport under the Infrastructure and
Environmental Operational Programme, decision of 31 May 2013, see OJ
C/204/2013 p. 6
[201] Case SA.34369
Construction and operation of public intermodal transport terminals,
decision of 21 January 2013, see OJ C/45/2013 p. 13.
[202] Case
N1/2013
State compensations to bpost for the delivery of public services over
2013-2015, Decision of the Commission of 2 May 2013, available
at http://ec.europa.eu/competition/state_aid/cases/247935/247935_1463096_76_3.pdf

[203] Case
COMP M.6570 UPS / TNT EXPRESS, decision of 30 January 2013; see IP
13/68, available at http://europa.eu/rapid/press-release_IP-13-68_en.htm