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 on Competition Policy 2015
Date: 2016-06-15
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, State aid, competition law, electronic commerce, energy policy, mass media, research and development, restriction on competition, single market, telecommunications

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 15.6.2016  SWD(2016) 198 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 on Competition Policy 2015 {COM(2016) 393 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 on Competition Policy 2015 

TABLE OF CONTENTS 

I. 

LEGISLATION AND POLICY DEVELOPMENTS.................................................................................... 4 

State aid ............................................................................................................................................... 4 

1. State Aid Modernisation: Implementation phase ....................................................................... 4 

2. State Aid Modernisation continues ............................................................................................. 9 

3. Monitoring, recovery and cooperation with national courts .................................................... 10 

4. Significant judgments by EU Courts in the State aid area ......................................................... 13 

Antitrust and cartels .......................................................................................................................... 17 

1. Guidance in antitrust and cartel proceedings ........................................................................... 17 

2. Significant judgments by the EU Courts in antitrust and cartels ............................................... 18 

3. Fight against cartels remains a top priority ............................................................................... 25 

4. Continuing close cooperation within the European Competition Network (ECN) and with 
national courts............................................................................................................................... 28 

Merger control .................................................................................................................................. 30 

1. Geographic market definition in European Commission merger control ................................. 30 

2. Guidance on merger control proceedings ................................................................................. 31 

3. Recent enforcement trends ...................................................................................................... 32 

4. Significant judgments by the EU Courts in mergers .................................................................. 33 

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Developing the international dimension of EU competition policy .................................................. 33 

1. Bilateral relations ...................................................................................................................... 33 

2. Enlargement .............................................................................................................................. 34 

3. Multilateral cooperation ........................................................................................................... 35 

II. 

SECTORAL OVERVIEW.................................................................................................................... 36 

1. Energy & environment ...................................................................................................................... 36 

2. Information and communication technologies (ICT) and media ...................................................... 41 

3. Financial services ............................................................................................................................... 48 

4. Taxation and State aid ....................................................................................................................... 56 

5. Basic industries and manufacturing .................................................................................................. 60 

6. Agri-food industry ............................................................................................................................. 64 

7. Pharmaceutical and health services sector ....................................................................................... 68 

8. Transport and postal services ........................................................................................................... 71 

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I. 

LEGISLATION AND POLICY DEVELOPMENTS 

Competition policy boosting innovation and investment across the EU 

The  EU  remains  the  largest  economic  and  trading  area  in  the  world,  with  more  than  half  a 
billion consumers and 20 million companies forming its strongest lever – the internal market. 
The on-going process of improving and expanding the functioning of the single market goes 
hand in hand with developing competition policy. In essence, competition policy ensures that 
companies can compete on equal terms all across Europe.  

Competition can make a real difference by keeping the single market open and turning it into 
a  driver  of  innovation  and  growth  in  Europe.  Competition  policy  enables  competitors  to 
cooperate on innovation without misusing such cooperation to anti-competitive ends. In this 
way it ensures that mergers do not reduce or harm innovation and it enables EU governments 
to  contribute  to  private-sector  investments  in  innovation.  In  addition,  competition-friendly 
regulation  and  competition  culture  create  favourable  conditions  for  investments  and 
innovation,  which  enhances  consumer  welfare  and  efficiently  functioning  markets,  enable 
growth  and  contribute  towards  more  convergence.  A  competitive  EU  internal  market  also 
prepares European companies to succeed on global markets. 

State aid 

State aid control is an integral part of EU competition policy and a necessary safeguard to preserve effective 
competition and free trade in the single market. 

The Treaty establishes the principle that State aid which distorts or threatens to distort competition is prohibited 
in so far as it affects trade between Member States (Article 107(1) TFEU). However, State aid, which contributes 
to well-defined objectives of common interest without unduly distorting competition between undertakings and 
trade  between  Member  States,  may  be  considered  compatible  with  the  internal  market  (under  Article  107(3) 
TFEU).  

The objectives of the Commission's control of State aid are to ensure that aid is growth-enhancing, efficient and 
effective,  and  better  targeted  in  times  of  budgetary  constraints  and  where  aid  is  granted;  it  does  not  restrict 
competition  but  addresses  market  failures  to  the  benefit  of  society  as  a  whole.  In  addition  to  this,  the 
Commission is actively engaged in preventing and recovering incompatible State aid. 

1. State Aid Modernisation: Implementation phase 

In  2014  the  Commission  largely  completed  its  ambitious  State  Aid  Modernisation  (SAM) 
reform.1 The reform, which was launched in 2012,2 aimed at promoting good aid that supports 
investments and spurs growth while contributing to Member States' efforts towards budgetary 
consolidation.  In  2015,  work  continued  on  the  remaining  item  of  the  reform,  namely  the 
guidance on the notion of aid.  

SAM  provides  for  more  efficient  decision-making  and  procedures  for  granting  growth-
supporting  aid  that  is  not  distortive  to  market  functioning  in  the  EU.  Among  the  key 
objectives of the reform are: tangible cuts in red tape, the promotion of a better use of limited 
public resources by Member States and of a higher contribution of aid measures to investment 

1 For a comprehensive overview of State Aid Modernisation see DG Competition webpage: 
http://ec.europa.eu/competition/state_aid/modernisation/index_en.html  
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. 

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and  growth.  For  instance,  the  new  State  aid  rules  under  the  research,  development  and 
innovation (R&D&I) framework encourage and contribute the spread of innovation in the EU 
for the benefit of businesses and consumers. 

One of the  cornerstones  of the State Aid Modernisation reform  was the new General  Block 
Exemption Regulation (GBER)3, which simplifies aid granting procedures for Member States 
by  authorising  without  prior  notification  a  wide  range  of  measures  fulfilling  horizontal 
common interest objectives. Only cases with the biggest potential to distort competition in the 
single  market  will  still  face  ex  ante  assessment  (notification).  As  a  result  of  the  reform,  a 
significantly larger number of smaller and unproblematic measures are exempted from prior 
notification,  in  exchange  for  strengthened  controls  at  Member  State  level,  greater 
transparency and better evaluation of the impact of aid. 

Following the State Aid  modernisation and the entry into force of the new GBER,  Member 
States made extensive use of the possibilities offered by the comprehensive modernisation of 
State aid rules. Notably, a surge in aid excluded from prior Commission scrutiny indicates an 
important reduction of red tape. Indeed, the above chart highlights the fact that about 90 % of 
new  measures  in  2014  were  registered  as  exempted  from  prior  notification  according  to 
GBER.  As  regards  the  share  of  GBER  expenditure  in  total  aid  measures,  this  amounted  to 
approximately 40 % in 2014, and is expected to increase even further in 2015. 

Partnership with Member States 

To  facilitate  the  implementation  of  SAM,  the  Commission  is  supporting  Member  States  in 
various  ways  and  has  started  a  closer  cooperation  with  them.  Under  the  new  partnership 
arrangements  with  Member  States,  the  Commission  provides  pro-active  support  of  Member 

3 Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with 
the internal market in application of Articles 107 and 108 of the Treaty on the Functioning of the European 
Union (TFEU), OJ L 187, 26.6.2014, p. 1. 

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States  by  the  Commission  through  advocacy  work  and  trainings.  The  Commission  services 
have  also  set  up  a  High  Level  Group  (HLG)  together  with  Member  States  and  some  other 
dedicated working groups to oversee implementation and facilitate compliance with the new 
requirements for transparency and evaluations. To facilitate the work of the central authorities 
in  Member  States,  the  Commission  services  have  in  place  a  network  of  State  aid  country 
coordinators.  The  coordinators  help  to  address  systemic  issues  in  State  aid  enforcement  at 
Member  State  level,  help  Member  States  prioritise  their  portfolio  of  cases  and  assist  with 
providing  training  and  guidance.  The  Commission  services  have  also  provided  further 
guidance on the interpretation of the GBER4. 

Collaboration with Member States takes multiple forms. One fruitful form of the multilateral 
partnership  is  the  project  between  the  Commission  services  and  the  Member  States  to 
facilitate compliance with the new transparency provisions of SAM. All Member States have 
committed  to  participating  in  the  development  of  the  Transparency  Award  Module  –  an  IT 
platform  that  will  facilitate  data  collection,  storage  and  visualisation.  Meanwhile,  the 
discussions  with  Member  States  are  ongoing  about  the  institutional  set  up  of  granting 
authorities,  national  information  systems  for  State  aid,  and  methodology  used  for  encoding 
information required by the transparency provisions of GBER (Article 9 and Annex III).  

Evaluation 

Evaluation of aid schemes is a new requirement introduced by SAM. The aim is to gather the 
necessary evidence to better identify impact, improve enforcement and inform future policy-
making by Member States and the Commission.  

Evaluation also complements the major expansion of the GBER and represents a necessary ex 
post safeguard, alongside transparency and monitoring, to promote quality and effectiveness 
of aid policies. Since 1 July 2014, evaluation is required for large GBER schemes in certain 
aid  categories5  as  well  as  for  some  schemes  notified  under  the  new  generation  of  State  aid 
guidelines6. 

By the end of 2015, the Commission had approved evaluation plans covering 17 large State 
aid  schemes  submitted  by  10  Member  States7;  most  of  these  decisions  concerned  either 
regional or R&D&I aid schemes. These schemes account in total for about EUR 10 billion of 
the annual State aid budget. 

General State aid scrutiny supporting innovation and growth 

More  flexible  rules  following  the  finalisation  of  SAM  made  it  easier  in  2015  for  Member 
States to implement R&D&I projects, risk finance schemes and other aid measures, as well as 
enabled the Commission to focus on projects with an important impact on competition. 

4 General Block Exemption Regulation (GBER) Frequently Asked Questions of July 2015, prepared by the 
Commission services available at 
http://ec.europa.eu/competition/state_aid/legislation/practical_guide_gber_en.pdf  
5 Schemes with an average annual State aid budget above EUR 150 million in the fields of regional aid, aid for 
SMEs and access to finance, aid for research and development and innovation, energy and environmental aid and 
aid for broadband infrastructures.  
6 Evaluation might apply to notified aid schemes with large budgets, containing novel characteristics or when 
significant market, technology or regulatory changes are foreseen.  
7 Czech Republic, Germany, Spain, France, Hungary, Austria, Poland, Portugal, Finland, and United Kingdom. 

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Aid for research, development and innovation 

One of the headline targets of Europe 2020 Strategy8 is for R&D&I investments in the EU to 
reach 3 % of GDP. However, R&D spending in Europe has been lagging behind major global 
competitors,  now  standing  a  touch  above  2  %  of  GDP,  compared  with  around  3  %  in  the 
United  States  of  America  and  Japan.  This  is  mainly  the  result  of  lower  levels  of  private 
investment.  

The State aid rules for R&D&I aim to ensure that public funding goes to research projects that 
would not have happened otherwise, i.e. projects that truly go beyond the state of the art and 
which bring innovative products and services to the market and ultimately to consumers.  

The new State aid rules, which entered into force on 1 July 2014 aim at market efficiency and 
mobilising  private  investment  in  projects  that  would  have  not  been  implemented  due  to 
market failures. The rules also set the ground for EU companies to combine their efforts with 
Member  States  and  invest  further  in  R&D&I  as  a  gateway  for  sustainable  growth  and  job 
creation  in  Europe.  The  enlarged  scope  of  the  rules,  as  well  as  more  flexible  and  simpler 
criteria  under  which  the  State  aid  is  more  likely  to  be  found  compatible  with  the  internal 
market, facilitate the implementation of R&D projects by Member States. 

Aid measures enabling ground-breaking research 

In  2015,  using  the  new  rules  the  Commission  approved  ambitious  projects  in  areas  such  as  satellite  launchers 
(i.e.  access  to  space),  electricity  transportation  and  aeronautics.  For  instance,  the  SABRE  project  (United 
Kingdom)  can  lead  to  significant  technological  advances  that  would  benefit  consumers  using  products  and 
services  that  depend  on  low  Earth  orbiting  satellites,  such  as  mobile  communications  and  other  services. 
Similarly the Supergrid project (France) has put in place a framework for collaboration between academia and 
industry  over  innovation  in  the  field  of  technology  for  long-distance  electricity  transportation.  Finally,  the  TS 
3000 project (France) will encourage research in the field of aeronautics while putting in place higher standards 
for  performance,  environment  and  new  materials.  Nonetheless,  the  Commission  has  remained  vigilant  and 
decided  to  investigate  further  the  impact  on  competition  of  a  project  establishing  a  test  facility  in  the  railway 
industry in Spain. 

According to the information submitted by the Member States to the Commission in 2015, the Member States 
implemented  603  R&D&I  schemes  covered  by  the  new  GBER  (Articles  25  to  30),  with  an  estimated  annual 
expenditure of EUR 18.8 billion. Finally, in 2015 the Commission also approved eight evaluation plans covering 
research and development measures with an overall annual budget in excess of EUR 150 million. 

Aid to risk finance  

In  addition  to  the  new  R&D&I  State  aid  rules,  the  Commission  has  put  in  place  a  simpler, 
more flexible and generous State aid framework for risk finance for SMEs and mid-caps. The 
new rules, contained in the new Risk Finance Guidelines and in the new GBER, entered into 
force on 1 July 2014.9 

SMEs  across  the  EU  remain  heavily  dependent  on  traditional  bank  lending,  which  is  still 
limited by banks' refinancing capacity, risk appetite and capital adequacy. The financial crisis 
has exacerbated the problem with approximately one third of SMEs being unable to receive 
the necessary finance in recent years. Given the pivotal importance of SMEs and midcaps for 
the  whole  EU  economy,  the  situation  has  a  significant  negative  impact  on  growth  and  job 

8 Communication of 3 March 2010 from the Commission, Europe 2020 A Strategy For Smart, Sustainable And 
Inclusive Growth, COM(2010) 2020 final available at http://eur-lex.europa.eu/legal-content/EN/TXT/?qid= 
1427303331326&uri=CELEX:52010DC2020  
9 Communication from the Commission, Guidelines on State aid to promote risk finance investments, OJ C 19, 
22.1.2014, p. 4 available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014XC0122(04)  

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creation. The new rules aim to offer better incentives for private sector investors - including 
institutional ones – to increase their funding activities in the critical area of SME and midcaps 
financing.  The  rules  also  mirror  other  EU  initiatives  designed  to  promote  wider  use  of 
financial  instruments  in  the  context  of  new  support  programmes  such  as  Horizon  2020  or 
COSME (the Programme for the Competitiveness of Enterprise and SMEs)10.  

The new risk finance regime provides the framework for seamless support for new ventures 
from their creation to their development into global players. The aim is to help new ventures 
to get past the critical stages, namely the “valley of death”, where private financing is either 
unavailable or not available in the necessary amount or form.  

Aid measures encouraging investment and innovation 

In 2015, under the new Risk Finance Guidelines, the Commission adopted several decisions on schemes aimed 
at  encouraging  investment  in  innovative  SMEs  and  midcaps.  It  approved  one  scheme  in  the  United  Kingdom 
(the  EIS-VCT  scheme,  targeting  innovative  SMEs  and  midcaps)  and  two  schemes  in  France  (Amortissement 
exceptionnel des investissements des entreprises dans les PME innovantes and ISF-PME schemes). Taking the 
view that these measures covered a real gap in the market, the Commission worked together with the Member 
States on solutions to limit the impact on competition in the single market. The Commission considered that the 
risks inherent to the activities of these young firms and innovative companies (i.e. products/technologies not yet 
proven to be economically viable) and the lack of financial guarantees limited their capacity to access funding. 
In  addition,  their  small  size  meant  that  they  were  not  in  a  position  to  employ  staff  specifically  dedicated  to 
financial  management.  The  in-depth  analysis  was  performed  on  the  basis  of  substantiated  economic  ex-ante 
assessment provided by the Member States to demonstrate the market failure affecting these specific categories 
of  companies.  The  assessment  showed  that  there  are  still  specific  funding  needs  for  certain  innovative  SMEs 
beyond the criteria set out in the GBER (i.e. wider range of financial instruments, risk finance measure of up to 
EUR 15 million, possibility of capital replacement, tailored private participation ratio). The examination showed 
the  existence  of  a  funding  gap  for  certain  innovative  SMEs  and  that  the  aid  was  necessary  to  stimulate 
investment that would not have been provided by the market unprompted. 

According  to  the  information  submitted  by  the  Member  States  to  the  Commission,  the  Member  States, 
implemented  161  measures,  under  Articles  21  to  24  of  the  new  GBER  to  help  SMEs  to  access  finance.  The 
measures had an estimated annual budget of EUR 7.015 million. Finally, in 2015 the Commission also approved 
four  evaluation  plans  covering  risk  finance  measures  with  an  overall  annual  budget  in  excess  of  EUR  150 
million.  

Regional aid  

Regional aid is an important instrument in the EU's toolbox to promote greater economic and 
social  cohesion.  The  2014-2020  regional  aid  framework  has  been  fully  in  place  since  July 
2014,  following  the  adoption  in  June  2013  of  the  revised  Regional  Aid  Guidelines  for  the 
period  between  July  2014  and  31  December  2020  (RAG  2014-20),  the  adoption  of  the 
regional aid provisions in the GBER and the approval of the 28 regional aid maps in 2014.  

The new GBER has extended the range of regional aid measures, enabling Member States to 
put  in  place  aid  schemes  and  individual  aid  measures  without  having  to  notify  them  to  the 
Commission.  Examples  of  these  are  ad  hoc  regional  investment  aid  measures  below  the 
notification  thresholds,  transport  aid  schemes  and  operating  aid  schemes  for  outermost 
regions. In 2015 the Commission advised Member States' authorities on how to interpret and 
implement the new regional aid provisions of GBER, thus helping them to make a success of 
the reforms introduced under SAM. Since its adoption in June 2014, the Commission services 
have answered some 120 sets of questions on how to interpret the regional aid provisions in 

10 For an overview on the EU programme for the Competitiveness of Enterprises and Small and Medium-sized 
Enterprises available at http://ec.europa.eu/enterprise/initiatives/cosme/index_en.htm  

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GBER,  and  have  provided  guidance  on  how  to  implement  of  GBER  measures  as  part  of 
numerous pre-notification contacts. 

Regional aid measures  

In 2015, the Commission adopted several decisions on regional aid measures under the new provisions, e.g. on 
investment  aid  schemes11,  operating  aid  schemes  in  the  outermost  regions12,  and  on  evaluation  plans  for 
exempted large regional aid schemes13. The Commission also adopted several decisions on regional aid measures 
to support large investment projects under the preceding rules: in particular, it took a final decision authorising 
regional  aid  for  investments  by  Volkswagen  in  Portugal  (cars)  and  approved  aid  for  Nexen  in  the  Czech 
Republic  (tyre  production),  for  Nitrogénművek  in  Hungary  and  for  Duslo  in  Slovakia  (both  in  the  fertiliser 
sector). 

European Fund for Strategic Investments 

In  November  2014,  President  Juncker  announced  the  creation  of  the  European  Fund  for 
Strategic Investments (EFSI), with the objective to generate EUR 315 billion in investment in 
Europe.  The  Regulation  setting  up  the  EFSI  was  adopted  in  July  2015.  In  that  context  the 
Commission  has  put  in  place  an  accelerated  procedure  for  approving  within  six  weeks 
Member State co-financing constituting notifiable State aid. This process should contribute to 
the  necessary  public  and  private  financing  to  reach  concrete  infrastructure  and  innovation 
projects as quickly as possible. 

2. State Aid Modernisation continues 

Notion of aid / effect on trade 

One  building  block  of  SAM  still  needs  to  be  put  in  place,  namely  a  Commission  guidance 
document  on  the  notion  of  State  aid  in  the  light  of  important  changes  in  case  law  and 
enforcement practice. 

Given  the  high  level  of  economic  integration  achieved  within  the  EU,  aid  that  distorts 
competition between companies will in most cases also have an impact on intra-EU trade. 

However, if State support is granted to an activity which has a purely local impact, there may 
not be an effect on intra-EU trade, e.g. where the beneficiary supplies goods or services to a 
limited area within a Member State and is unlikely to  attract  customers from other Member 
States. Moreover, the measure should have no - or at most marginal – foreseeable effects on 

11 Case SA.39869 Corporate tax exemption scheme (BG), Commission decision of 14 September 2015 available 
at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39869 
12 Cases SA.38536 Aide fiscale à l’investissement outre-mer, Commission decision of 2 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38536 and SA.38823 Reduced 
rate of excise duty applied to rum and liqueurs produced and consumed in Madeira (2014-2020), Commission 
decision of 2 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38823 
13 Cases SA.39460 Evaluation plan for the block exempted large aid scheme "Bund-Länder-
Gemeinschaftsaufgabe Verbesserung der regionalen Wirtschaftsstruktur - Gewerbliche Wirtschaft" (DE), 
Commission decision of 22 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39460; SA.39669 Evaluation 
plan of the Development Tax Benefit Scheme (HU), Commission decision of 16 January 2015 available at, 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39669; SA.38830 Evaluation 
plan Polish SEZ scheme (PL), Commission decision of 16 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38830 and SA.42136 
Evaluation Plan: Inovação Empresarial (PT), Commission decision of 19 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_42136 

9 

 
                                                           
cross-border investments in the sector or the establishment of firms within the EU's internal 
market. 

In  this  context,  the  European  Commission  has  concluded  on  29  April  that  seven  measures 
granting public support to purely local operations did not involve State aid within the meaning 
of  the  EU  rules,  since  they  were  unlikely  to  have  a  significant  effect  on  trade  between 
Member States. The decisions concerned the Czech Republic, Germany, the Netherlands and 
the United Kingdom14. 

These  decisions  provide  Member  States  and  stakeholders  with  additional  guidance  to 
determine which cases do not need to be cleared by the Commission under EU State aid rules. 
They complement the Commission's revised GBER.  

To  provide  further  guidance  to  Member  States,  the  Commission  services  have  updated  the 
analytical grids on the financing of infrastructure projects15. The grids explain when, in view 
of  the  Commission  services,  no  State  aid  is  involved  and  when  notification  for  State  aid 
clearance  is  needed.  They  also  explain  the  framework  for  services  of  general  economic 
interest. 

The analytical grids explain the current rules and the Commission's decisional practice on the 
application of State aid rules to the public financing of infrastructure projects. The grids were 
updated  following  the  State  aid  modernisation.  The  previous  grids  dated  from  2012  and 
followed the Leipzig-Halle16 judgment. 

Further extension of the scope of the GBER 

Recital 1 of the GBER already announced that the Commission planned to propose criteria for 
exempting  port  and  airport  infrastructure  provided  that  sufficient  case  experience  was 
developed. The first public consultations will take place early 2016. 

3. 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. Today, 32 % of aid is granted 
under block-exempted schemes which are not examined by the Commission before entering 
into force17. Overall, 88 % of aid is granted on the basis of previously approved aid schemes 

14 Cases SA.37432 Hradec Králové public hospitals (CZ), Commission decisions of 29 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37432; SA.37904 Medical 
centre in Durmersheim (DE) available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37904; SA.33149 Städtische 
Projektgesellschaft "Wirtschaftsbüro Gaarden - Kiel" (DE) available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33149; SA.38035 Landgrafen-
Klinik (DE); SA.39403 Investment aid for Lauwersoog port (NL) available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38035; SA.37963 Glenmore 
Lodge (UK), available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37963 
and SA.38208 Member-owned golf clubs (UK) available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38208   
15 For further information see analytical grids on the financing of infrastructure projects available at 
http://ec.europa.eu/competition/state_aid/studies_reports/state_aid_grids_2015_en.pdf  
16 Joined cases T-443/08 and T-455/08 Freistaat Sachsen, Flughafen Leipzig/Halle et al v Commission, 
judgment of the General Court of 24 March 2011 [2011] ECR II-1311. 
17 This percentage concerns aid in terms of volume. Banking schemes are not considered here. See latest publicly 
available figures (2012), Scoreboard, EU 27 (2006-2012) available at 
http://ec.europa.eu/competition/state_aid/scoreboard/graph8.jpg  

10 

 
                                                           
or Block Exemption Regulations18. In that context, it is essential for the Commission to verify 
that Member States apply the schemes correctly and that they only grant aid when all required 
conditions are met.  

To that end, the Commission introduced in 2006 a regular, ex post, sample-based control of 
existing aid schemes ("monitoring"). After a modest start covering about 20 schemes and 10 
Member  States  in  each  monitoring  cycle,  the  Commission  has  considerably  stepped  up 
monitoring since 2011. Building on the Court of Auditors recommendations19 and anticipating 
future changes in how State aid is controlled, the Commission has substantially increased the 
size of the monitoring sample in the last three annual cycles to 96 schemes in the current 2015 
review. It also extended the scope of its control.  

The 2015 cycle covered all Member States, all main types of aid approved as well as block-
exempted schemes. Furthermore, the sample contained a number of block-exempted schemes 
under  the  new  GBER20.  Also,  the  Commission  carried  out  two  pilot  projects  on  targeted 
monitoring. First, the Commission assessed aid schemes in one particular Member State21 in 
order to examine whether accumulation rules were correctly observed when aid for the same 
project was granted under different schemes. Second, the Commission monitored a number of 
large investments projects in order to assess whether they had been correctly implemented. 

The  Commission  follows  up  systematically  on  all  irregularities  and  uses  the  means  at  its 
disposal, as appropriate, to address the competition distortions that these may have caused. In 
some cases, Member States offer to voluntarily redress the problems detected, for example to 
amend  national  legislation  or  to  recover  the  excess  aid  granted.  In  other  cases,  the 
Commission  may  need  to  take  formal  action.  In  2015,  the  Commission  adopted  two  final 
decisions  in  cases  where  it  had  opened  a  formal  investigation  procedure  in  2013.  In  those 
cases,  the  Member  States  provided  additional  information  that  removed  the  Commission's 
concerns that the schemes had been misapplied22. It also adopted one final decision, after the 
Member  State  concerned,  France,  committed  itself  to  making  an  incompatible  aid  scheme 
compatible with the State aid rules23.  

Restoring competition through recovery of State aid granted in breach of the rules 

To ensure the integrity of the single market, the Commission has the power and the duty to 
request that Member States recover unlawful and incompatible aid which has unduly distorted 
competition and trade between Member States. In 2015, further progress was made to ensure 
that recovery decisions are enforced effectively and immediately. 

18 See previous footnote. 
19 In its 2011 report on the efficiency of State aid procedures, the Court of Auditors considered that, in view of 
the importance of aids granted under existing aid schemes, the Commission's monitoring activity should be 
reinforced. See the recommendation n° 1 of the Court of Auditors Report recital 96, p. 41, publicly available at 
http://eca.europa.eu/portal/pls/portal/docs/1/10952771.PDF 
20 Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible 
with the internal market in application of Articles 107 and 108 TFEU; OJ L 187, 26.6.2014, p. 1. 
21 United Kingdom. 
22 Cases SA.15373 Enterprise Capital Funds, Commission decision of 9 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_15373 and SA.20326 Mesures 
de dispense partielle de précompte professionnel en faveur de la R&D, Commission decision of 23 January 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_20326 
23 Case SA.14551 Taxation au tonnage, Commission decision of 4 February 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_14551 For further information 
see IP/15/4105 of 4 February 2015 available at http://europa.eu/rapid/press-release_IP-15-4105_en.htm  

11 

 
                                                           
By 31 December, the amount of illegal and incompatible aid recovered from beneficiaries had 
increased to EUR 13.5 billion24, from EUR 8.5 billion in December 200425. This means that 
the percentage of illegal and incompatible aid still to be recovered fell slightly from 74 % at 
the end of 2004 to around 55 % at the end of 2015.  

In  2015,  the  Commission  adopted  17  new  recovery  decisions  and  EUR  6.1  million  was 
recovered by the Member States. As of the end of December, the Commission had 54 pending 
recovery cases.  

Recovery decisions adopted in 2015 

Amount recovered in 2015 (EUR million) 

Pending recovery cases on 31 December 2015 

17 

6.1 

54 

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 2015, the Court of Justice condemned two Member States under Article 108(2) 
TFEU26 (France and Germany)27 and one Member State under Article 260(2) TFEU (Italy)28.  

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

The Commission continued its cooperation with national courts under the Commission Notice 
on the enforcement of State aid law by national courts of 200929 (the "Enforcement Notice"). 
This cooperation includes direct case-related assistance to national courts when they apply EU 
State aid 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 at its own initiative.  

In 2015, the Commission responded to two requests for information and two requests for an 
opinion  under  Article  29  of  the  Procedural  Regulation30.  The  requests  for  information  were 
issued by a Spanish and a German court. They concerned the state of the proceedings before 
the  Commission  of  a  complaint  and  the  transmission  of  documents  in  the  possession  of  the 
Commission as well as questions on how to interpret the notion of State aid. The requests for 
an opinion came from two German courts: one related to the aid element in a bank guarantee 
and the other to the existence of alleged State aid.  

The Commission received also questions from third parties bringing cases to the attention of 
the  Commission  and  asking  the  Commission  to  submit  observations  as  amicus  curiae. 
However,  under  the  Procedural  Regulation,  the  Commission  has  the  duty  to  reply  only  to 
requests  made  by  national  courts,  not  to  requests  made  by  third  parties.  This  provision  is 
intended to preserve the independence of the national courts, even though requests made by 

24 The reference period is 1 January 1999 to 31 December 2015. 
25 The reference period is 1 January 1999 to 31 December 2005. 
26 Consolidated version of the Treaty on the Functioning of the European Union, 2008 OJ C 115, 9.5.2008, p.47. 
27 Cases C-63/14 Commission v France, judgment of the Court of 9 July 2015, ECLI:EU:C:2015:458 and C-
674/13, Commission v Germany, judgment of the Court of 6 May 2015, ECLI:EU:C:2015:302.  
28 C-367/14 Commission v Italy, judgment of the Court of 17 September 2015, ECLI:EU:C:2015:611, and C-
302/09 Commission v Italy, judgment of the Court of 6 October 2011, ECLI:EU:C:2011:634.  
29 Commission Notice on the enforcement of State aid law by national courts, OJ C 85, 9.4.2009, p. 1. 
30 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 
108 TFEU, OJ L 248 of 24.9.2015, p. 9–29. 

12 

 
                                                           
third  parties  can  be  a  useful  tool  to  inform  the  Commission  about  ongoing  cases  where  the 
submission of observations ex officio can be presented. 

As  a  result  of  the  2013  amendment  to  the  Procedural  Regulation,  the  Commission  has  the 
possibility to submit amicus curiae observations on its own initiative before national courts. 
Article  29  of  the  Procedural  Regulation  mirrors  in  that  respect  Article  15  (3)  of  Regulation 
1/2003  in  the  field  of  antitrust.  In  2015,  the  Commission  submitted  observations  before  a 
French  court  on  questions  related  to  the  execution  of  recovery  decisions  and  observations 
were  submitted  to  various  courts  in  Romania,  a  court  in  Belgium  and  in  the  United  States 
concerning  the  recognition  and  enforcement  of  an  arbitration  award,  the  implementation  of 
which  the  Commission  deems  to  constitute  the  grant  of  State  aid.  Further  observations 
regarding  the  recognition  and  enforcement  of  that  award  will  be  submitted,  in  France,  the 
United Kingdom and Luxembourg, but these were not yet filed in 2015. 

The Commission intends to publish its opinions and amicus curiae observations on its website 
as soon as it receives approval from the courts concerned31.  

The Commission also continued its advocacy efforts. In 2015, the Commission was actively 
involved  in  evaluating  the  financing  of  training  programmes  for  national  judges  and  in 
assessing judges' needs. It also sent officials to teach at such workshops and conferences32. 

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

In  2015,  the  EU  Courts  adopted  a  number  of  important  judgments  in  the  State  aid  area  in 
particular  on  the  concept  of  State  resources,  advantage  and  selectivity.  The  following 
overview is based on a selection of Court judgments. 

State resources and effect on trade 

By judgment of 14 January in   Eventech,33 the Court of Justice rendered a preliminary ruling 
in response to a reference by the Court of Appeal of England & Wales by which it concluded 
that the policy by which London taxis (black cabs) were allowed to drive in publicly funded 
bus  lanes,  but  minicabs  were  excluded,  did  not  give  rise  to  State  aid.  The  Court  of  Justice 
ruled, first,  that the policy did  not  involve State resources because, black cab's use of those 
lanes being permitted by law, their "exemption" from fines did not involve additional burdens 
on the public authorities which could entail a commitment of such resources.  

The Court of Justice ruled, next, that since roads and bus lanes are not operated commercially 
by  the  public  authorities  the  policy  does  not  entail  forgoing  revenues  they  would  have 
otherwise received in the absence of that policy. The Court of Justice further elaborated that 
where the State grants a right of privileged access to public infrastructure that is not operated 
commercially  by  the  public  authorities  to  users  of  that  infrastructure  in  order  to  pursue  the 
realisation of an objective laid down by that State’s legislation, the State does not necessarily 
confer an economic advantage on those users. On selectivity, the Court of Justice ruled that 
black  cabs  and  minicabs  were  not  in  a  comparable  factual  or  legal  situation  on  the  basis  of 
physical and licensing characteristics, so that the permission of one and the exclusion of the 
latter from the bus policy did not constitute State aid. Finally, the Court of Justice upheld the 

31 Commission notice on the enforcement of State aid law by national courts, OJ C 85, 9.4.2009, p. 22, paragraph 
98. 
32 See also the dedicated section Cooperation with national courts, Antitrust and Cartels Section, item 7. 
33 Case C-518/13 The Queen, on the application of Eventech Ltd, v The Parking Adjudicator, judgment of the 
Court of 14 January 2015, ECLI:EU:C:2015:9 

13 

 
                                                           
Altmark  case  law  on  the  effect  on  trade  between  Member  States,  although  invited  by  the 
Advocate General and the ESA to revisit that case law, by concluding that it was feasible that 
the policy was liable to affect such trade since it could render less attractive the provision of 
minicab services in London. 

The concept of advantage and quantification 

As  regards  the  concept  of  advantage,  the  Court  of  Justice  ruled  in  OTP  Bank  Nyrt34  on  the 
basis of another reference for  a preliminary  ruling that  a Hungarian aid  scheme to  facilitate 
access  to  housing  via  banks  provided  an  advantage  to  credit  institutions  established  in 
Hungary. This enabled the banks to conclude loan agreements without having to assume the 
financial  risk.  The  Court  of  Justice  also  ruled  that  in  addition  to  the  fact  that  the  scheme 
enabled  banks  to  conclude  loans,  it  allowed  them  to  provide  additional  services  against 
remuneration, such as the opening of a current account. Such advantage was also selective as 
it concerned the economic sector of credit establishments (to the exclusion of other economic 
sectors). 

Also  as  regards  the  concept  of  advantage  and  in  particular  the  issue  of  quantification  of 
advantage,  the  General  Court  handed  down  two  judgments  (Aer  Lingus  v  Commission35, 
Ryanair  v  Commission36)  on  a  Commission  decision  declaring  the  application  by  Ireland  of 
differentiated  air  travel  tax  rates  as  illegal  State  aid.  The  General  Court  confirmed  the 
assessment of the Commission that had found the higher rate of EUR10 per passenger as the 
normal  tax  rate  and  the  lower  tax  rate  of  EUR  2  per  passenger  travelling  to  destinations 
located  at  maximum  300  km  from  Dublin  the  exception  from  the  normal  rate,  constituting 
State  aid  to  certain  airlines.  However,  the  General  Court  found  that  the  Commission  was 
wrong in quantifying the economic advantage as the difference between the two rates, since it 
should have taken into account the degree to which the airlines could have fully or partially 
passed  on  the  advantage  to  the  passengers.  Thus,  the  advantage  actually  obtained  by  the 
airlines did  not  necessarily consist  in  the difference between the two rates, but  rather in  the 
possibility  of  offering  more  attractive  prices  and  thereby  increasing  the  turnover.  Recovery 
should therefore also be limited to what was actually withheld by the airlines. 

Market economy investor principle 

As regards the application of the market economy investor principle, the General Court ruled 
in  a  judgment  of  2  July  in  joined  cases  France  and  Orange  (former  France  Télécom)  v 
Commission37, following a referral from the Court of Justice that the Commission was wrong 
to consider that the offer of a loan made to Orange was a State aid and thereby annulled the 
Commission  decision.  The  General  Court  held  that  the  relevant  moment  at  which  the 
Commission must apply the "Market Economy Investor Principle" (MEIP) is when the State 
financial  support  measure  that  may  be  characterised  as  State  aid  is  adopted  (i.e.  December 
2002) and not to the situation as it existed before July 2002 when the French Minister publicly 
stated that the French State would take the appropriate measures to rescue France Télécom.  

34 Case C-672/13 OTP Bank Nyrt v Magyar Állam, Magyar Államkincstár, judgment of the Court of 19 March 
2015, ECLI:EU:C:2015:185. 
35 Case T-473/12 Aer Lingus Ltd v Commission, judgment of the General Court of 5 February 2015, 
ECLI:EU:T:2015:78. The judgment is under appeal before the Court of Justice (cases C-164/15 P and C-
165/15). 
36 Case T-500/12 Ryanair Ltd v Commission, judgment of the General Court of 5 February 2015, 
ECLI:EU:T:2015:73. 
37 Joined cases T-425/04 RENV and T-444/04 RENV France and Orange v Commission, judgment of the General 
Court of 2 July 2015, ECLI:EU:T:2015:450. 

14 

 
                                                           
While  the  General  Court  accepted  that  it  is  possible  to  take  account  of  prior  events  and 
objective facts,  it did  not  consider that those earlier events  and facts  alone can conclusively 
form the relevant reference framework for the purposes of applying the MEIP. As for the July 
2002 ministerial statement, the General Court noted that the Commission did not succeed in 
proving that the intention of the French authorities was sufficiently genuine, reliable, specific 
and unconditional for them to be legally bound by such statements. 

The concept of selectivity 

On  the  concept  of  selectivity,  the  Court  of  Justice  in  Commission  v  MOL  Nyrt38  upheld  the 
judgment of the General Court that had annulled a Commission decision concerning State aid 
granted to the oil and gas company MOL. The Commission had considered that the agreement 
between  the  Hungarian  government  and  MOL  which  provided  for  a  prolongation  of  the 
mining  authorisation  and  a  2008  amendment  to  the  Mining  Act  constituted  a  selective  aid 
measure. This prolongation significantly increased the mining fees for all mining companies 
except  for  those  which  had  already  signed  a  prolongation  agreement,  i.e.  in  practice  only 
MOL.  

With  reference  to  the  2005  agreement  between  the  Hungarian  government  and  MOL,  the 
Court  of  Justice  concluded  that,  firstly,  the  selectivity  requirement  differs  depending  on 
whether  the  measure  in  question  constitutes  a  scheme  or  individual  aid.  In  the  case  of 
individual  aid,  the  identification  of  the  economic  advantage  is,  in  principle,  sufficient  to 
support the presumption that it is selective. In the case of a scheme, it is necessary to identify 
whether the measure in question, notwithstanding the fact that it confers an advantage, does 
so to the exclusive benefit of certain undertakings or certain sectors of activity. 

Secondly,  there  is  a  fundamental  difference  between  the  assessment  of  the  selectivity  of 
general schemes for  exemption  or relief,  which,  by definition, confer an  advantage, and the 
assessment of the selectivity of optional provisions of national law prescribing the imposition 
of additional charges. In cases in which the national authorities impose additional charges in 
order  to  maintain  equal  treatment  between  operators,  the  simple  fact  that  those  authorities 
enjoy discretion defined by law, and not unlimited discretion, cannot be sufficient to establish 
that the corresponding scheme is selective. As regards both the 2005 agreement and the 2008 
amendment  taken  together,  the  Court  of  Justice  concluded  that  there  was  no  chronological 
and/or  functional  link  between  the  2005  agreement  and  the  2008  amendment  and  could 
therefore not be considered as a single aid measure. 

The concept of Services of General Economic Interest 

The  EU  Courts  also  handed  down  two  important  judgments  on  the  concept  of  Services  of 
General  Economic  Interest  (SGEI).  In  TV2/Denmark  v  Commission39  and  Viasat  v 
Commission40, the General Court confirmed the Commission's assessment that the Altmark41 
conditions were not fulfilled with respect to the financing of the Danish public broadcaster but 

38 Case C-15/14 P Commission v MOL Magyar Olaj- és Gázipari Nyrt, judgment of the Court of 4 June 2015, 
ECLI:EU:C:2015:362. 
39 Case T-674/11 TV2/Denmark v Commission, judgment of the General Court of 24 September 2015, 
ECLI:EU:T:2015:684. 
40 Case T-125/12 Viasat Broadcasting UK Ltd v Commission, judgment of the General Court of 24 September 
2015, ECLI:EU:T:2015:687. 
41 Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft 
Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht, judgment of the Court of 24 July 2003, 
ECLI:EU:C:2003:415. 

15 

 
                                                           
disagreed with the Commission that the second Altmark condition requires the beneficiary of 
the SGEI compensation to be operating efficiently.  

According  to  the  General  Court,  this  would  lead  to  confusion  between  the  second  and  the 
fourth Altmark conditions. In addition, the notion of a typical well-run company as stated in 
the  fourth  Altmark  condition  requires  the  beneficiary  of  the  compensation  to  be  compared 
with another company which is not a beneficiary. It is not sufficient for that purpose to argue 
that there is no comparable company because of the specific public service task entrusted to 
the  beneficiary  and  on  that  basis  argue  that  the  beneficiary  itself  constitutes  such  a  typical 
well-run company. Finally, as regards the question whether advertising revenue generated by 
commercials broadcast by TV2 but channelled to a fund and consequently disbursed back to 
TV2  constitute  State  resources,  the  General  Court  held  that  the  State's  intervention  was 
limited to the fixing of amounts to be channelled to TV2. Thus, the State could only decide 
that  TV2  would  not  receive  all  of  the  funds,  but  only  a  certain  part  of  it,  which  is  not 
sufficient to find that they constitute State resources. The funds keep their character as income 
generated by commercial activities of TV2. 

Social housing constitute an existing aid scheme 

Finally,  in  an  order  of  12  May  in  RENV  Stichting  Woonlinie  v  Commission42,  the  General 
Court  confirmed  the  Commission's  decision  of  15  December  2009  which  found  the  Dutch 
social housing scheme to constitute an existing aid scheme compatible with the EU State aid 
rules  on  SGEI  further  to  commitments  by  the  Netherlands.  The  General  Court  gave  its 
decision  by  reasoned  order  which  is  available  only  in  cases  where  the  action  is  manifestly 
lacking any foundation in law (or manifestly inadmissible). The General Court rejected all the 
arguments  put  forward  that  were  mainly  directed  against  the  changes  in  the  Dutch  social 
housing scheme, in particular an income limit in order to benefit from social housing. 

42 Case T-202/10 Stichting Woonlinie v Commission, judgment of the General Court of 12 May 2015, 
ECLI:EU:T:2015:287. The judgment is under appeal before the Court of Justice (case C-414/15 P). 

16 

 
 
 
                                                           
Antitrust and cartels 

Articles 101, 102 and 106 TFEU  

According  to  Article  101 TFEU,  anti-competitive  agreements  are  prohibited  as  incompatible  with  the  internal 
market.  Article  101  TFEU  prohibits  agreements  with  an  anti-competitive  object  or  effects  where  companies 
coordinate  their  behaviour  instead  of  competing  independently.  Even  if  a  horizontal  or  a  vertical  agreement 
could be viewed as restrictive (for example by combining the production of two competing companies) it might 
be allowed under Article 101(3) TFEU if it ultimately fosters competition (for example by promoting technical 
progress or by improving distribution).  

Article 102 TFEU prohibits abuse of a dominant position. It is not in itself illegal for an undertaking to be in a 
dominant position or to acquire such a position. Dominant undertakings, the same as any other undertaking in 
the market, are entitled to compete on the merits. However, Article 102 TFEU prohibits the abusive behaviour of 
such  dominant  undertakings  which  prevents  new  entry  or  squeezes  competitors  out  of  the  market.  These 
practices  hamper  competition  and  negatively  affect  incentives  to  innovation  and  growth,  as  well  as  consumer 
welfare.  

Finally, Article 106 TFEU prevents Member States from enacting or maintaining in force any measures contrary 
to  the  Treaty  rules  regarding  public  undertakings  and  undertakings  to  which  Member  States  grant  special  or 
exclusive rights (privileged undertakings). 

1. Guidance in antitrust and cartel proceedings 

In  2015,  in  order  to  further  increase  transparency  and  to  offer  guidance  to  parties  and 
practitioners the Commission published a number of guidance documents on its procedures: 

Based  on  the  experience  gained  in  the  past  years,  the  purpose  of  the  Best  Practices  on  the 
disclosure of information in data rooms43 in proceedings under Articles 101 and 102 TFEU 
and under the EU Merger Regulation is to provide practical guidance on when and how to use 
data  rooms  to  disclose  in  a  restricted  manner  business  secrets  and  other  confidential 
information obtained during antitrust and merger proceedings. 

Guidance on the preparation of public versions of Commission Decisions44 was also adopted 
under  Articles  7  to  10,  23  and  24  of  Regulation  1/2003.  It  sets  out  how  the  Commission 
prepares  the  public  version  of  antitrust  decisions.  It  describes  (i)  what  information 
undertakings can claim should be redacted and how they should substantiate their claims; (ii) 
what the Commission redacts on its own initiative and (iii) the procedure that is followed to 
settle confidentiality claims. 

The guidance paper titled Recommendations for the Use of Electronic Document Submissions 
in Antitrust and Cartel Case Proceedings45 contains guidance in particular on how to submit 
documents  electronically  to  the  Commission  (either  by  e-mail,  via  eTrustEx  or  by  e-
questionnaire),  their  format  and  size,  protection,  encryption,  naming,  languages,  and  non-
confidential versions. 

43 Commission guidance (2015) Best Practices on the disclosure of information in data rooms available at 
http://ec.europa.eu/competition/mergers/legislation/disclosure_information_data_rooms_en.pdf 
44 Commission guidance (2015) Guidance on the preparation of public versions of Commission Decisions 
available at 
http://ec.europa.eu/competition/mergers/legislation/guidance_on_preparation_of_public_versions_mergers_2605
2015.pdf and 
http://ec.europa.eu/competition/antitrust/guidance_on_preparation_of_public_versions_antitrust_04062015.pdf 
45 Commission guidance (2015) Recommendations for the Use of Electronic Document Submissions in Antitrust 
and Cartel Case Proceedings available at http://ec.europa.eu/competition/contacts/electronic_documents_en.pdf 

17 

 
 
                                                           
2. Significant judgments by the EU Courts in antitrust and cartels 

Article 101 TFEU 

Communications between competitors, single and continuous infringement 

In  the  Dole  judgment46,  pertaining  to  the  bananas  cartel,  the  Court  of  Justice  entirely 
dismissed the appeal  brought  by banana importer Dole against the General  Court judgment. 
The  Court  of  Justice  confirmed  that  communications  between  competitors  leading  to 
horizontal price-fixing are anti-competitive by their very object and amount to a violation of 
EU antitrust rules, without requiring an analysis of their effect on competition in the market. 
The Court of Justice agreed with the Commission that the cartelists' communications before 
setting the quotation prices for bananas reduced uncertainty for each of the participants as to 
the  conduct  of  their  competitors.  This  had  the  objective  of  creating  competitive  conditions 
that did not correspond to the normal conditions on the market without such collusive contacts 
and  therefore  gave  rise  to  a  concerted  practice  between  the  companies  with  the  object  to 
restrict competition. 

In  the  Del  Monte  judgment47,  also  pertaining  to  the  bananas  cartel,  the  Court  of  Justice 
dismissed the appeal brought by Del Monte against the General Court judgment and accepted 
the appeal of the Commission brought against the same judgment. The judgment of the Court 
of  Justice  gives  an  important  precedent  clarifying  aspects  of  the  case  law  concerning  the 
concept  of  a  single  continuous  infringement.  The  Court  of  Justice  confirmed  that  parties' 
unawareness  of  certain  elements  of  a  cartel  does  not  alter  the  finding  of  a  single  and 
continuous  infringement.  The  Court  of  Justice  upheld  the  Commission's  appeal  against  the 
fine  reduction  for  cooperation  awarded  by  the  General  Court  and  found  that  a  reply  to  a 
simple request for information is not sufficient for a fine reduction. 

Liability of facilitator 

In AC-Treuhand judgment48 the Court of Justice confirmed the General Court's judgment and 
thus,  the  Commission's  decision  to  hold  AC-Treuhand  liable  as  a  cartel  facilitator  under 
Article 101 TFEU. In its decision, the Commission fined AC-Treuhand because it played an 
essential role in the two infringements (ESBO/esters - Heat Stabilisers). It organised a number 
of  meetings  at  its  Zürich  premises  in  which  it  actively  participated,  collecting  from  and 
supplying to the producers of heat stabilisers data on sales on the relevant markets, offering to 
act as a moderator in the event of tensions between those producers and encouraging the latter 
to find compromises, for which it received remuneration.  

In  the  judgment  the  Court  of  Justice  interpreted  Article  101  TFEU  as  referring  to  all 
agreements and concerted practices which distort competition, irrespective of the markets the 
parties  operate  on.  The  Court  of  Justice  held  that  to  be  held  liable  for  an  infringement  of 
Article 101 TFEU, it is not required to restrict one's freedom of action on a particular market 
and that the effectiveness of Article 101 TFEU would be endangered if undertakings such as 
AC-Treuhand were allowed to escape liability simply because they do not contribute actively 
to the restriction of competition in a particular market. On fines, the Court of Justice agreed 

46 Case C-286/13 P Dole v European Commission, judgment of the Court of 19 March 2015, 
ECLI:EU:C:2015:184. 
47 Joined cases C-293/13 P and 294/13 P Del Monte e.a. v European Commission, judgment of the Court of 19 
March 2015, ECLI:EU:C:2015:416. 
48 Case C-194/14 P AC-Treuhand v Commission, judgment of the Court of 22 October 2015, 
ECLI:EU:2015:717. 

18 

 
                                                           
that the Commission was entitled to deviate from the usual calculation method and to impose 
a lump sum on AC-Treuhand. 

Parental liability, fines calculation 

On 9 September, the General Court handed down five judgments49 in the TV and Computer 
monitor tubes cartel involving seven undertakings which participated in either one or both of 
two  distinct  cartels  in  the  cathode  ray  tubes  sector.  The  General  Court  found  that  the 
Commission had jurisdiction notwithstanding the fact that the cartels were formed outside the 
EEA.  The  cartel  arrangements  directly  influenced  the  setting  of  prices  and  of  volumes 
delivered  to  the  EEA  either  as  direct  sales  or  as  products  processed  by  vertically  integrated 
companies.  

On substance, the General Court upheld the majority of the Commission's findings with the 
exception of the individual participation of Toshiba in the early period of the cartel, for which 
the General Court found that that Commission had not sufficiently established its awareness 
of the overall cartel.  

The  judgments  also  upheld  the  Commission's  decision  regarding  parental  liability.  In 
particular,  the  General  Court  confirmed,  in  line  with  established  case  law,  that  parent 
companies were liable for the illegal anti-competitive behaviour of joint ventures irrespective 
of the ownership shares (regarding both the Philips/LG Electronics and the Toshiba/Panasonic 
joint ventures).  

The  General  Court  also  upheld  the  fines  methodology  and  confirmed  by  reference  to  the 
Innolux  judgment50  of  the  Court  of  Justice  the  Commission's  right  to  consider  sales  of 
finished  products  sold  to  third  parties  in  the  European  Economic  Area  (EEA)  in  which  a 
vertically  integrated  cartelist  had  incorporated  cathode  ray  tubes  into  its  finished  products 
outside  the  EEA.  Finally,  the  General  Court  decided  to  reduce  the  fines  for  Panasonic, 
Toshiba and MTPD as it had found that the companies provided a more detailed value of sales 
figures  than  what  the  Commission  had  used.  The  fine,  however,  set  at  just  over  EUR  1.4 
billion, remains the highest ever total fines imposed in a cartel case. 

Calculation of fines 

In  its  LG  judgment51  of  23  April,  the  Court  of  Justice  upheld  the  judgment  of  the  General 
Court  concerning  the  LCD  panels  cartel52.  The  main  issue  at  stake  was  whether  sales  to 
parents of a joint venture could be taken into account in the calculation of fines. The Court of 
Justice  held  that  the  Commission  was  entitled  to  take  into  account  such  sales.  This  was 
because  even  if  these  sales  were  made  at  a  preferential  price  (and  might  therefore  not  be 
influenced  by  the  cartel),  they  were  made  on  the  market  affected  by  the  infringement  and 
should be included to correctly reflect the importance of the parties on that market. The Court 
of  Justice  further  held  that  these  sales  must  be  regarded  a  sales  made  to  independent  third 
parties  (external  sales)  since  the  joint  venture  and  its  parent  companies  did  not  constitute  a 
single undertaking. 

49 Cases T-82/13 Panasonic/MTPD, T-84/13 Samsung SDI, T-91/13 LG Electronics, T-92/13 Philips and T-
104/13 Toshiba, judgments of the General Court of 9 September 2015, ECLI:EU:T:2015:612 
50 See section Calculation of fines below. 
51 Case C-227/14 P LG Display and LG Display Taiwan v Commission, judgment of the Court of 23 April 2015, 
ECLI:EU:C:2015:258. 
52 Case AT.39309 LCD – Liquid Crystal Displays, Commission decision of 8 December 2010 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39309  

19 

 
                                                           
In another judgment53 in the LCD panels case adopted on 9 July, the Court of Justice upheld 
the fine imposed on another cartelist (Innolux). The main issue at stake was whether the intra-
group  sales  of  cartelised  products  (LCD  panels)  outside  the  EEA  which  were  incorporated 
into the finished products (TVs) within the group to which the producer belongs and then sold 
in  the  EEA  can  be  taken  into  account  when  calculating  the  fine  (direct  sales  through 
transformed products). The Court of Justice concluded that when the goods concerned by the 
cartel were incorporated into finished products by a vertically integrated undertaking outside 
the EEA, the Commission may take into account, for the purposes of calculating the fine to be 
imposed on that undertaking  and  up to the value of the incorporated panels, the sales of its 
finished products in the EEA to independent third-party undertakings.  

Single and continuous infringement, agent as economic unit 

In  10  judgments  handed  down  on  15  July54,  the  General  Court  dismissed  nearly  all  actions 
brought  against the Commission's Pre-stressing Steel  cartel  decision of 30 June 201055. The 
General  Court  upheld  entirely  the  Commission's  finding  that  the  cartel  involving  17 
undertakings  and  lasting  for  more  than  18  years  constituted  a  single  and  continuous 
infringement of EU competition law. The cartel consisted of a complex set of arrangements at 
European  (Club  Zurich/Club  Europe)  and  regional  (Club  Italia/Club  Spain)  level,  involving 
quota fixing, client sharing, price fixing and exchange of sensitive commercial information on 
pricing, customers and volume/shares in nearly the whole EEA. 

In  voestalpine  and  voestalpine  Austria  Draht56,  the  General  Court  not  only  confirmed 
established case law (notably Suiker unie57) that an agent and its principal can be regarded as 
an  economic  unit  in  analogy  with  an  employee.  It  also  brought  a  novel  finding, 
acknowledging that an agent acting for two principals at the same time (both involved in the 
cartel) can be an economic unit with each principal and thus the latter can be held liable for 
the  conduct  of  the  agent,  despite  the  non-exclusive  relationship  with  each  of  them.  The 
General  Court  clarified  that  such  liability  was  to  be  found  as  long  as  the  commercial  agent 
was acting within his authority: in those cases, he had to be regarded as forming part of the 
undertaking.  On  the  other  hand,  the  General  Court  took  the  view  that  the  liability  for  that 
agent’s  anti-competitive  actions  outside  his  mandate  could  not  be  imputed  to  voestalpine 

53 Case C-231/14 P InnoLux Corp. v European Commission, judgment of the Court of 9 July 2015 
ECLI:EU:C:2015:451. 
54 Cases T-406/10 Emesa-Trefilería and Industrias Galycas v. Commission; ECLI:EU:T:2015:499; T-436/10 
HIT Groep v. Commission; ECLI:EU:T:2015:514; T-391/10 Nedri Spanstaal BV v. Commission; 
ECLI:EU:T:2015:509; T-389/10 SLM v. Commission; ECLI:EU:T:2015:513; T-419/10 Ori Martin v. 
Commission; T-422/10 (ex EMME) now: Trafilerie Meridionali SpA, già Holding SpA v. Commission; 
ECLI:EU:T:2015:512; T-423/10 Redaelli Tecna v. Commission; ECLI:EU:T:2015:511; T-393/10 Westfälische 
Drahtindustrie and Others v. Commission; ECLI:EU:T:2015:515; T-418/10 voestalpine and voestalpine Austria 
Draht v. Commission; ECLI:EU:T:2015:516; T-398/10 Fapricela - Indústria de Trefilaria v. Commission; 
ECLI:EU:T:2015:498; T-413/10, T-414/10 and T-409/13 Socitrel + Companhia Previdente v. Commission, 
ECLI:EU:T:2015:500, judgments of the General Court of 15 July 2015. T-388/10 Proderac v. Commission was 
closed for reasons of bankruptcy. No judgments rendered yet in cases T-429/10, T-578/10 and T-438/12 Global 
Steel Wire, SA v. Commission; and T-427/10, T-576/10 and T-439/12 Trefilerías Quijano, SA v. Commission 
and; T-428/10, T-577/10 and T-441/12 Trenzas y Cables de Acero PSC, SL v. Commission; and T-426/10 and T-
575/10 and T-440/12 Moreda-Riviere Trefilerías, SA v. Commission. 
55 Case AT.38344 Pre-stressing Steel, Commission decision of 30 June 2010, amended by Commission decision 
of 30 September 2010 and Commission decision of 4 April 2011 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_38344 For further information see 
IP/ 11/403 of 4 April 2011 available at http://europa.eu/rapid/press-release_IP-11-403_en.htm?locale=en  
56 Case T-418/10 voestalpine and voestalpine Wire Rod Austria. Note that voestalpine Austria Draht is now 
called Voestalpine Wire Rod Austria. 
57 Case 40/73 et alia Suiker Unie et alia, judgment of the Court of 16 December 1975, ECLI:EU:C:1975:174. 

20 

 
                                                           
Austria Draht and reduced the fine imposed jointly and severally on those two companies for 
those conducts. 

Inconsistency between reasoning of decision and operative part 

In 13 judgments handed down on 16 December 201558 relating to the Airfreight decision the 
General Court found an inconsistency between the reasoning of the contested decision and its 
operative part. On the one hand, the reasoning describes a single and continuous infringement 
in which all of the addressees of that decision participated. On the other hand, the first four 
articles of the operative part do not each set out all of the addressees of the contested decision. 
The General Court therefore fully annulled the decision for all but one party which lodged an 
appeal59. The General Court did not take a position on whether the Commission could prove 
the infringement or not.  

Article 102 TFEU 

Action for injunction constituting an abuse of a dominant position  

In a judgment adopted following a preliminary reference, the Court of Justice provided legal 
clarity  on  certain  controversial  aspects  of  licensing  of  standard-essential  patents60.  It 
concluded that  the bringing of  an action for an injunction  for prohibition against an alleged 
infringer  by  the  proprietor  of  a  standard-essential  patent  holding  a  dominant  position  may 
constitute an abuse of that dominant position under certain circumstances  

The judgment is important because it confirms that competition policy has an important role 
to  play  in  the  standardisation  arena.  It  also  confirms  the  Commission's  approach  in  the 
Motorola61  and  Samsung62  cases.  According  to  this  approach,  seeking  injunctions  based  on 
Standard-Essential  Patents  (SEPs),  where  a  commitment  to  license  on  Fair,  Reasonable  and 
Non-Discriminatory (FRAND) terms has been given, can be an abuse of a dominant position 
where  the  prospective  licensee  is  willing  to  enter  into  a  licensing  agreement  on  FRAND 
terms. 

Standardised retroactive rebate scheme under Article 102 TFEU 

In Post Danmark II63 the Court of Justice gave a preliminary ruling on questions concerning 
the criteria for assessing standardised retroactive rebate schemes under Article 102 TFEU. In 

58 Cases T-9/11 Air Canada v Commission, ECLI:EU:T:2015:994, T-28/11 KLM v Commission, 
ECLI:EU:T:2015:995, T-36/11 Japan Airlines v Commission, ECLI:EU:T:2015:992, T-38/11 Cathay Pacific 
Airways v Commission, ECLI:EU:T:2015:985, T-39/11 Cargolux Airlines v Commission, ECLI:EU:T:2015:991, 
T-40/11 Latam Airlines Group and Lan Cargo v Commission, ECLI:EU:T:2015:986, T-43/11 Singapore Airlines 
and Singapore Airlines Cargo PTE v Commission, ECLI:EU:T:2015:989, T-46/11 Deutsche Lufthansa and 
Others v Commission, ECLI:EU:T:2015:987, T-48/11 British Airways v Commission, ECLI:EU:T:2015:988, T-
56/11 SAS Cargo Group and others v Commission, ECLI:EU:T:2015:990, T-62/11 Air France – KLM v 
Commission, ECLI:EU:T:2015:996, T-63/11 Air France v Commission, ECLI:EU:T:2015:993and T-67/11 
Martinair Holland v Commission, ECLI:EU:T:2015:984, judgments of the General Court of 16 December 2015. 
59 For British Airways, only part of the findings and the whole fine are annulled for procedural reasons. See Case 
C-122/16 P, pending. 
60 Case C-170/13 Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH, judgment of the 
Court of 16 July 2015, ECLI:EU:C:2015:477. 
61 Case AT.39985 Motorola Mobility, Commission decision of 29 April 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39985  
62 Case AT.39939 Samsung, Commission decision of 29 April 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39939  
63 Case C-23/14 Post Danmark A/S v Konkurrencerådet, judgment of the Court of 6 October 2015, 
ECLI:EU:C:2015:651. 

21 

 
                                                           
particular,  the  Court  of  Justice  was  asked  to  provide  guidance  on  what  relevance  should  be 
attached  to  the  fact  that  the  rebate  scheme  is  applicable  to  the  majority  of  customers  in  the 
market and also to the "as efficient competitor test".  

The  Court  of Justice  reiterated  that  the  assessment  of  such  rebate  scheme  should  be  carried 
out in the light of all relevant circumstances, including the rules and the criteria governing the 
grant of the rebates, the number of customers concerned and the characteristics of the market 
in which the dominant undertaking operates. The fact that the rebate scheme concerns a large 
proportion of customers may constitute a useful indication as to the extent and impact of the 
practice and thus  to  the  likelihood of an anti-competitive exclusionary effect,  but  it is  not  a 
necessary  condition  for  the  finding  of  an  abuse.  Such  an  assessment  seeks  to  determine 
whether the conduct of the dominant undertaking is capable of producing an actual or likely 
exclusionary effect to the detriment of competition, and, thereby of consumers' interest. 

The Court of Justice also made clear that the "as efficient competitor test" is not relevant for 
finding a rebate scheme abusive in the context such as that of the main proceeding, but made 
clear  that  the  application  of  the  test  is  not  excluded  on  principle  and  that  the  test  must  be 
regarded as one tool amongst others for the purpose of assessing whether there is an abuse in 
the context of rebate schemes.  

The Court of Justice also took a position on whether there is  an appreciability (de minimis) 
threshold  in  the  application  of  Article  102  TFEU.  The  Court  of  Justice  ruled  that  if  a 
dominant  position  is  present,  competition  in  the  market  is  already  restricted  and  therefore 
abuses  should  be  considered  by  their  very  nature  liable  to  give  rise  to  an  appreciable 
restriction of competition. 

Article 106 TFEU  

On 25 March the General Court in its judgment in Slovenská pošta64 rejected an application 
for  annulment  brought  against  a  Commission  decision  concerning  the  application  of  Article 
86(1) EC.  

The  General  Court  dismissed  all  the  pleas  of  the  applicants.  Most  importantly  the  General 
Court  found  that  an  infringement  of  Article  106(1)  TFEU  in  conjunction  with  Article  102 
TFEU may be established irrespective of whether any abuse actually materialises. All that is 
necessary is for the Commission to identify a potential or actual anti-competitive consequence 
liable to result from the State measure at issue. Such an infringement may thus be established 
where  the  State  measure  at  issue  affects  the  structure  of  the  market  by  creating  unequal 
conditions  of  competition  between  companies,  by  allowing  the  public  undertaking  or  the 
undertaking  which  was  granted  special  or  exclusive  rights  to  maintain  (for  example  by 
hindering  new  entrants  to  the  market),  strengthen  or  extend  the  dominant  position  over 
another, but neighbouring market, without objective justification.  

Procedural issues 

Rejection of complaints 

In  its  judgments  in  Si.mobil  and  EasyJet  the  General  Court  interpreted  Article  13  of 
Regulation  (EC)  No  1/2003  for  the  first  time.  This  provision  allows  the  Commission  and 

64 Case T-556/08 Slovenská pošta a.s. v European Commission, judgment of the General Court of 25 March 
2015, ECLI:EU:T:2015:189. Article 86 EC has since become Article 106 TFEU, without material changes. The 
judgment is under appeal before the Court of Justice (case C-293/15P). 

22 

 
                                                           
National  Competition  Authorities  (NCAs)  to  reject  a  complaint  on  the  grounds  that  another 
NCA "is dealing" or "has dealt" with the same case.  

In Si.Mobil the General Court held that the Commission can reject a complaint solely on the 
basis of Article 13, without the need to also show a lack of EU interest in the case. Moreover, 
the General Court emphasised that Article 13 does not create individual rights for companies 
to have their case dealt with by a particular authority. The General Court further clarified that 
for  the  purpose  of  Article  13;  "the  same  case"  means  the  same  infringement,  in  the  same 
market  and  within  the  same  time  frame.  The  condition  "dealing  with"  the  same  case  is  met 
when  the  NCA  has  taken  follow-up  steps,  but  not  when  the  NCA  has  merely  received  the 
complaint or has decided to open an investigation.  

In  EasyJet,  the  General  Court  clarified  that  the  Commission  can  reject  a  complaint  on  the 
grounds  that  an  NCA  has  dealt  with  the  same  case,  even  if  the  NCA  has  rejected  the 
complaint  on  priority  grounds  and/or  has  not  adopted  a  formal  decision  in  the  meaning  of 
Article 5 of Regulation 1/2003. 

Inspections 

The  Court  of  Justice  confirmed  in  its  Deutsche  Bahn65  judgment  the  Commission's  position 
that inspections may be carried out based solely on a Commission decision and do not require 
a prior judicial authorisation. This does not infringe the rights of defence or the protection of 
the home as safeguarded in the European Charter of Human Rights.  

The Court of Justice annulled the second and third inspection decisions. These two decisions 
were based on information found during the first inspection at Deutsche Bahn. However, this 
information  was  outside  the  scope  of  the  first  inspection  decision.  The  Commission  can 
actively search only for information that falls within the scope of the inspection decision. If 
the Commission  happens to  obtain information  which is  outside the scope of the inspection 
decision,  it  can  use  this  information  to  justify  a  further  inspection  in  order  to  verify  or 
supplement  this  information.  In  this  specific  case  the  Court  of  Justice  found  that  the 
Commission had informed its inspectors prior to the first inspection about another complaint 
lodged  against  Deutsche  Bahn  without  referring  to  it  in  the  first  inspection  decision.  The 
Commission  thereby  infringed  the  obligation  to  state  reasons  and  the  rights  of  defence  of 
Deutsche Bahn and was barred from using the information found outside the scope of the first 
inspection decision to justify a further inspection. 

Publication of Commission decisions 

The publication of cartel decisions is an important element in the Commission's enforcement 
activities. On 28 January, the General Court handed down two judgments66 concerning a more 
extensive  publication  of  a  2006  cartel  decision  of  the  Commission67.  For  the  first  time,  the 
General Court provided guidance on the application of Article 30 of Regulation 1/2003 on the 
publication  of  Commission  decisions  and  the  publication  of  certain  leniency  information. 

65 Case C-583/13 P Deutsche Bahn e.a. v Commission, judgment of the Court of 18 June 2015, 
ECLI:EU:C:2015:404. 
66 T-341/12 Evonik Degussa GmbH v Commission, judgment of the General Court of 28 January 2015, 
ECLI:EU:T:2015:51 and T-345/12 Akzo Nobel NV and others v Commission, judgment of the General Court of 
28 January 2015, ECLI:EU:T:2015:50. 
67 Case AT.38620 Hydrogen Peroxide and Perborate, Commission decision of 3 May 2006 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_38620  

23 

 
                                                           
Both  applicants  had  appealed  the  Hearing  Officer´s  decisions  in  which  most  of  their 
confidentiality claims had been rejected.  

The  General  Court  dismissed  both  applications  in  their  entirety  and  found  that  the  disputed 
information, which was based on material voluntarily provided by the applicants in order to 
benefit from the leniency programme, was not confidential. The General Court confirmed that 
the publication of this information would not result in the communication to third parties of 
the  leniency  material  provided  by  the  parties.  The  General  Court  further  confirmed  that  the 
applicants  cannot  legitimately  oppose  the  publication  by  the  Commission  of  information 
revealing the details of their participation in the infringement penalised in the decision on the 
ground  that  such  publication  would  expose  them  to  increased  risk  of  civil  liability.  It 
highlighted the wide discretion of the Commission to decide whether to publish information 
which does not benefit from the protection of professional secrecy.  

The July judgments in the Carglass case68 also confirm the Commission's right to publish its 
decisions,  including  information  received  in  the  context  of  leniency  applications,  as  well  as 
names of customers and models exchanged by the cartel, pricing information and the number 
of  parts  and  shares  of  customers'  business  allocated  among  the  members  of  the  cartel.  The 
General  Court  dismissed  almost  entirely  the  action  brought  by  Pilkington  and  entirely 
dismissed  the  action  brought  by  AGC  against  the  Hearing  Officer's  decisions  of  6  August 
2012 concerning the publication of a detailed version of the Commission's cartel decision of 
12 November 2008 in Carglass. 

The General  Court ruled,  inter alia, that the publication of facts  on AGC's  and Pilkington’s 
participation  in  the  Carglass  cartel  did  not  breach  the  Commission's  obligations  of 
professional  secrecy  or  the  various  rights  of  defence  invoked  by  the  applicants,  such  as  the 
rights to equal treatment and legitimate expectations. The General Court also confirmed that 
the Commission is entitled to publish the information acquired from leniency applications in 
its cartel decisions. 

Public access to table of contents  

The  AXA69  judgment  of  7  July  is  closely  related  to  the  Carglass  decisions  and  is  of 
importance to the Commission's policy on publications.  In this  case, AXA requested, under 
Regulation  (EC)  No  1049/2001,  access  to:  (i)  the  table  of  contents  (TOC);  and  (ii)  a  large 
number  of  documents  contained  in  the  Carglass  file.  The  Commission  gave  access  to  a 
version of the TOC in which, inter alia, all items with leniency-related information had been 
redacted. It based its decision on a general presumption of non-disclosure accepted by the EU 
Courts for documents in the case file and performed no individual analysis of the entries in 
question. The Commission also refused access to the documents requested by AXA, based on 
the same general presumption. 

According  to  the  General  Court,  the  Commission  applied  correctly  the  general  presumption 
that disclosure of the documents in its file would undermine the protection of the purpose of 
inspections. However, the General Court annulled the part of the Commission's decision that 
rejected  AXA's  request  for  access  to  references  to  leniency  documents  in  the  TOC  of  the 
Carglass  file. The TOC  was not  part of the  case file and was, therefore,  not  covered by the 

68 Cases T-462/12 Pilkington v Commission, judgment of the General Court of 15 July 2015, 
ECLI:EU:T:2015:508 and T-465/12 AGC v Commission, judgment of the General Court of 15 July 2015, 
ECLI:EU:T:2015:505. 
69 Case T-677/13 Axa Versicherung AG v Commission, judgment of the General Court of 7 July 2015, 
ECLI:EU:T:2015:473. 

24 

 
                                                           
general  presumption.  The  General  Court,  meanwhile,  did  uphold  the  Commission's  refusal, 
when  making  an  individual  examination, to  disclose  information  on  the  identity  of  physical 
persons,  the  names  of  third-party  undertakings  and  sensitive  commercial  information 
contained in the TOC. 

Hybrid settlement in cartels 

The  judgment  in  Timab70  was  the  first  time  the  General  Court  reviewed  a  Commission 
decision in the context of a hybrid settlement procedure. This is the first "hybrid" cartel case, 
in which both the settlement procedure and the standard procedure were used, in this case in 
parallel.  Timab  was  the  only  undertaking  that  decided  not  to  make  a  settlement  submission 
after having participated in settlement talks and the case reverted to the ordinary procedure as 
regards Timab.  

The General Court held that in the ordinary procedure, the Commission was not bound by the 
fines  ranges  discussed  during  settlement  discussion,  especially  since  the  Commission  must 
establish the liabilities of the undertakings concerned while taking account of new arguments 
on evidence brought to its attention (which may have an impact on the size of the fine to be 
imposed).  The  General  Court  also  rejected  Timab's  claims  that  the  Commission  penalised 
them with a higher fine because they did not settle. The General Court reviewed in detail how 
the  fines  were  calculated  in  both  procedures,  checked  that  the  Commission  had  not 
discriminated compared with other companies in the same cartel case and concluded that the 
Commission had applied the Fines Guidelines correctly. 

3. Fight against cartels remains a top priority 

Well-functioning,  competitive  markets  give  rise  to  innovation  and  investment  because 
companies  are  forced  to  innovate  and  to  use  their  resources  in  the  most  efficient  way. 
Collusive  arrangements  may  have  the  effect  of  preventing  the  restructuring  of  economic 
sectors, thereby reducing innovation. The surplus paid by the cartel victims also reduces the 
victims' ability  to  invest in  new areas or purchase other products  As the  object  of cartels  is 
precisely  to  eliminate  differences  between  competitors  in  critical  parameters  of  competition 
such  as  prices, 
the  Commission's  anti-cartel  enforcement  has  positive  effects  on 
differentiation between companies. 

The Commission's strong enforcement record against hard core cartels continued in 2015. As 
in  preceding  years,  the  Commission  adopted  cartel  decisions  in  important  sectors  for 
innovation and investment, such as the financial markets and the automotive industry.  

Settlement  cases  have  accounted  for  a  significant  proportion  of  the  decisions  adopted  this 
year,  confirming  that  this  instrument  is  now  fully  established.  As  discussed  above,  it  is  of 
major  importance  for  the  Commission's  enforcement  practice  that  the  General  Court 
confirmed  in  Timab  the  legality  of  "hybrid"  cases  in  which  both  ordinary  and  settlement 
decisions are adopted in the same investigation. This is because some parties do not wish to 
follow the settlement route.  

The flow of immunity and leniency applications continues to be substantial in a large number 
of economic sectors. The Antitrust Damages Directive that entered into force on 26 December 

70 Cases T-456/10 Timab Industries and Cie financière et de participations Roullier (CFPR) v Commission, 
judgment of the General Court of 20 May 2015, ECLI:EU:T:2015:296 and T-456/10 Timab Industries and Cie 
financière et de participations Roullier (CFPR) v Commission, judgment of the General Court of 20 May 2015, 
ECLI:EU:T:2015:296. 

25 

 
                                                           
2014 endorsed the effectiveness of the public enforcement system by setting out that leniency 
statements  and  settlement  submissions  can  never  be  disclosed  in  the  context  of  private 
damages litigation. 

This year, the Commission adopted two settlement decisions against all of the participants in 
the cartels concerning Parking Heaters71 (17 June) and Blocktrains72 (15 July). 

The Blocktrains settlement case 

The Blocktrains case is the first cartel case in the rail cargo transport services sector. 

The  Commission  imposed  fines  of  EUR  49.1  million  on  three  companies  for  operating  a  cartel  for  so-called 
cargo "blocktrain" services. "Blocktrains" are a rail shipping system to transport cargo from one hub to another 
without wagons being split up or stored on the way. This saves time and money for customers from a wide range 
of industries, in particular those with large volumes to transport. In principle, blocktrains are economically more 
efficient than traditional rail cargo transport, particularly for single commodity shipping. 

The  "blocktrains"  covered  by  the  cartel,  named  "Balkantrain"  and  "Soptrain",  were  jointly  operated  by 
Kühne+Nagel, Express Interfracht and Schenker and connect central Europe with south eastern Europe. 

The  three  undertakings  fixed  prices  and  allocated  customers  of  their  "Balkantrain"  and  "Soptrain"  services  in 
Europe between July 2004 and June 2012. The infringement concerned the down-stream sales of cargo transport 
services in connection with the blocktrains mentioned above. 

The Commission's investigation in this case started with unannounced inspections in June 2013. The Blocktrains 
decision  was  adopted  under  the  settlement  procedure  concerning  all  three  parties.  Kühne+Nagel  received  full 
immunity under the Commission's Leniency Notice for revealing the existence of the cartel, while the two other 
undertakings received fines reductions as leniency applicants. 

On  4  February,  the  Commission  completed  its  investigation  of  seven  cartels  in  the  Yen 
interest rate derivatives (YIRD) sector by adopting an ordinary decision against the UK-based 
broker  ICAP,  who  acted  as  a  facilitator  in  six  of  those  collusions73.  In  December  2013,  the 
Commission imposed fines on a number of major banks that decided to  settle the case with 
the Commission. 

Ordinary  procedures  remain  significant  because  not  all  investigations  may  be  eligible  for 
settlement  discussions.  Relevant  factors  include  the  number  of  parties,  the  proportion  of 
leniency  applicants  in  relation  to  the  total  number  of  parties,  the  degree  of  contestation, 
conflicting  positions  between  the  parties  and  the  existence  of  novel  features  or  aggravating 
circumstances in the investigated practices.  

When the right circumstances are not met, the Commission will apply the ordinary procedure. 
Two ordinary decisions were adopted in 2015: Retail Food Packaging74 (24 June) and Optical 
Disc Drives75 (21 October). 

71 Case AT.40055 Parking Heaters, Commission decision of 17 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40055 For further information see 
IP/15/5214 of 17 June 2015 available at http://europa.eu/rapid/press-release_IP-15-5214_en.htm and Section 5 
"Basic industries and Manufacturing".  
72 Case AT.40098 Blocktrains, Commission decision of 15 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40098 For further information see 
IP/15/5376 of 15 July 2015, available at  http://europa.eu/rapid/press-release_IP-15-5376_en.htm  
73 Case AT.39861 Yen Interest Rate Derivatives, Commission decision of 4 February 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39861 For further information see 
IP/15/4014 of 4 February 2015 available at http://europa.eu/rapid/press-release_IP-15-4104_en.htm and Section 
3 "Financial Services". 
74 Case AT.39563 Retail Food Packaging, Commission decision of 24 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39563 For further information see 

26 

 
                                                           
The Optical Disc Drives (ODDs) case 

ODDs  are  devices  where  optical  discs  (such  as  CDs,  DVDs  or  Blu-ray)  are  inserted  in  order  to  read  and/or 
record  data.  They  are  used  for  instance  in  personal  computers,  CD  and  DVD  players  or  even  video  game 
consoles.  

In this case, the cartel related to ODDs used for laptops and desktops. Leading suppliers of ODDs (Philips, Lite-
On,  their  joint  venture  Philips  &  Lite-On,  Hitachi-LG  Data  Storage,  Toshiba  Samsung  Storage  Technology, 
Sony,  Sony  Optiarc  and  Quanta  Storage)  manipulated  the  procurement  events  organised  by  two  major 
customers, Dell and Hewlett-Packard. The investigation revealed that between June 2004 and November 2008, 
the companies discussed their intentions regarding bidding strategies, shared the results of procurement events, 
and exchanged other commercially sensitive information. The cartel consisted of a network of parallel bilateral 
contacts, which pursued a single plan of avoiding aggressive competition.  

The  ODD  decision  was  adopted  in  ordinary  (non-settlement)  procedure  on  21  October.  The  aggregate  fine 
imposed amounted to EUR 116 million. Philips, Lite-On and Philips & Lite-On jointly received full immunity 
from fines as they were the first to reveal the cartel to the Commission, thereby avoiding a total fine of EUR 63.5 
million. No inspections were conducted in this case because the participants were based outside the EU. 

The  Commission  remains  committed  to  pursuing  all  cartels  across  all  sectors  where  it  has 
sufficient evidence of an infringement (more information on the cartel decisions is available 
in  the  sectoral  overview).  A  number  of  statements  of  objections  were  also  adopted  by  the 
Commission,  such  as  against  the  non-settling  parties  in  mushrooms76,  in  car  battery 
recycling77 and capacitors78.  

The  Commission's  cartel  enforcement  record  remains  strong  and  effective,  with  five 
decisions, fines totalling approximately EUR 365 million and solid work for enforcement in 
future years. 

Case name 

Yen interest rates 
derivatives  

Adoption 
date 

Fine imposed 
EUR 

Undertaking
s concerned  

Prohibition 
Procedure 

04/02/2015 

14 960 000 

Parking heaters 

17/06/2015 

68 175 000 

Retail food packaging 

24/06/2015 

115 865 000 

Blocktrains 

15/07/2015 

49 154 000 

Optical disc drives 

21/10/2015 

116 377 000 

1 

2 

10 

3 

7 

Hybrid* 

Settlement 

Normal 

Settlement 

Normal 

*normal procedure part of a hybrid case with a settlement decision in December 2013 

IP/15/5253 of 24 June 2015 available at http://europa.eu/rapid/press-release_IP-15-5253_en.htm and Section 5 
"Basic industries and Manufacturing". 
75 Case AT.39639 Optical Disc Drives, Commission decision of 21 October 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39639 For further information see 
IP/15/5885 of 21 October 2015 available at http://europa.eu/rapid/press-release_IP-15-5885_en.htm  
76 For further information see IP/15/5065 of 28 May 2015 available at http://europa.eu/rapid/press-release_IP-15-
5065_en.htm  
77 For further information see IP/15/5254 of 24 June 2015 available at http://europa.eu/rapid/press-release_IP-15-
5254_en.htm  
78 For further information see IP/15/5980 of 4 November 2015 available at http://europa.eu/rapid/press-
release_IP-15-5980_en.htm  

27 

 
 
                                                                                                                                                                                     
Antitrust and cartel output 

4. Continuing close cooperation within the European Competition Network (ECN) 
and with national courts  

The  national  competition  authorities  (NCAs)  are  essential  partners  of  the  Commission  for 
enforcing the EU competition rules. Since the entry into force of Regulation 1/2003 in 2004, 
NCAs are empowered to apply the EU  competition  rules in  full alongside the Commission. 
This is done in close cooperation in the European Competition Network (ECN). Together the 
Commission and the NCAs have adopted more than 1000 decisions in antitrust cases of which 
85 % have been taken by NCAs. Through their enforcement work, the NCAs play a key role 
in making sure that the single market works well and fairly for the benefit of consumers and 
businesses  and  driving  economic  growth.  However,  while  Regulation  1/2003  focused  on 
giving  the  NCAs  the  power  to  co-enforce  the  EU  competition  rules,  the  2014  Commission 
Communication on Ten Years of Regulation 1/200379 identified a number of areas of action to 
strengthen  the  enforcement  powers  of  NCAs.  It  showed  that  there  is  still  room  for 
improvement  to  further  boost  competition  enforcement  in  Europe,  make  markets  more 
competitive and give consumers a better choice of goods and services at lower prices. 

Therefore, in November the Commission launched a public consultation on empowering the 
NCAs to be more effective enforcers80. The Commission invites feedback from a broad range 
of stakeholders on potential improvements to guarantee that NCAs (i) have the right tools to 
detect  and  sanction  violations  of  the  EU  competition  rules;  (ii)  have  effective  leniency 
programmes  that  encourage  companies  to  come  forward,  possibly  in  several  jurisdictions, 
with  evidence  of  illegal  cartels;  and  (iii)  have  adequate  resources  and  are  sufficiently 
independent when enforcing EU competition law. The Commission will carefully review all 

79 Communication from the Commission of 9 July 2014, Ten Years Of Antitrust Enforcement Under Regulation 
1/2003: Achievements And Future Perspectives, COM/2014/0453 available at http://ec.europa.eu/competition/ 
antitrust/legislation/antitrust_enforcement_10_years_en.pdf 
80 For further information see IP/15/5998 of 4 November 2015 available at http://europa.eu/rapid/press-
release_IP-15-5998_en.htm  

28 

 
 
                                                           
input received in the public consultation before deciding whether and to what extent it should 
take further action, possibly including an EU legislative initiative. 

Cooperation with national courts 

In  addition  to  its  cooperation  with  NCAs  in  the  context  of  the  ECN,  the  Commission  also 
continued its cooperation with national courts (NCs) under Article 15 of Regulation 1/2003. 
The Commission helps NCs to enforce the EU competition rules in an effective and coherent 
manner  by  providing  case-related  information  or  an  opinion  on  matters  of  substance  or  by 
intervening as amicus curiae in proceedings pending before the NCs. 

In  2015,  the  Commission  thus  replied  to  one  request  for  information  and  four  requests  for 
opinion from NCs under Article 15(1) of Regulation 1/2003. The request for information was 
combined with one of the requests for an opinion and was issued by a United Kingdom court 
in  a case relating to  financial services. One of the remaining three requests  for opinion was 
issued  by  a  Hungarian  court  and  related  to  the  notion  of  anti-competitive  effects  of  an 
infringement  and  the  extent  to  which  they  have  to  be  proven  in  order  to  serve  as  evidence. 
Another request for opinion was submitted by a Latvian court and related to the question of 
interaction between the EU antitrust rules (Article 102 TFEU) and the State aid rules (Article 
107  TFEU).  The  remaining  request  for  opinion  was  issued  by  a  Romanian  court  and 
concerned  potential  infringements  in  the  framework  of  Buy  Back  campaigns  under  the 
Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on 
waste electrical and electronic equipment. 

In 2015, the Commission also intervened as amicus curiae in two court proceedings: 

One of the interventions related to the application of the EU competition rules in the fruit and 
vegetables  sector.  In  the  underlying  case,  the  French  NCA  had  imposed  fines  on  several 
chicory producer organisations and associations of producer organisations for an infringement 
of Article 101 (1) TFEU and the equivalent national rules. The Court of Appeal quashed the 
NCA decision based, inter alia, on the ground that fixing minimum prices and volumes and 
exchanging  commercially  sensitive  information  by  chicory  producers  does  not  constitute  an 
infringement of competition rules.  

According  to  the  Court  of  Appeal,  the  NCA  had  failed  to  demonstrate  that  the  producers 
exceeded  the  scope  of  the  legal  missions  conferred  on  them  by  the  EU  and/or  national 
agricultural rules. The applicable agricultural legislation had therefore authorised the practices 
of chicory producers and Article 101(1) TFEU was inapplicable to the behaviour at hand. The 
case was appealed before the French Court of Cassation.  

In  its  observations,  the  Commission  rebutted  the  claim  of  non-applicability  of  competition 
rules  in  the  agricultural  sector  by  referring  in  general  terms  to  the  existence  of  general  and 
specific derogations from EU competition rules. It also underlined that both derogations from 
EU  competition  rules  should  be  interpreted  in  a  restrictive  manner  and  be  limited  to  the 
specific activities described in the derogations. The Commission also pointed  out that it had 
held exclusive competence for allowing a general derogation from the EU competition rules 
(e.g. Article 2(2) of Council Regulation No 26/1962) at the time of the facts of the case, but 
had  not  granted  such  derogation  at  the  time.  The  Court  of  Cassation  suspended  the 
proceedings  and  asked  for  a  preliminary  ruling  from  the  Court  of  Justice  under  Article  267 
TFEU. 

29 

 
The  second  amicus  intervention  took  place  in  a  transport  case  before  the  Spanish  Supreme 
Court and related to the interpretation of the national provisions on the 10 % cap on fines and 
in particular on the notion of "sales volumes" and "total turnover". Although the calculation of 
fines  imposed  by  NCAs  is  not  regulated  or  harmonised  in  EU  legislation,  the  Commission 
underlined  in  its  observations  the  need  for  imposing  effective  sanctions.  This  is  ensured, 
among others, through the deterrent character of the fines imposed. 

The  Commission  publishes  its  opinions  and  amicus  curiae  observations  on  its  website 
(http://ec.europa.eu/competition/court/overview_en.html) as soon as it receives approval from 
the courts concerned. 

Merger control 

EU merger control  

The  purpose  of  EU  merger  control  is  to  ensure  that  market  structures  remain  competitive  while  facilitating 
smooth  restructuring  of  the  industry.  This  applies  not  only  to  EU-based  companies,  but  also  to  any  company 
active  on  the  EU  markets.  Industry  restructuring  is  an  important  way  of  fostering  efficient  allocation  of 
production  assets.  However,  there  are  also  situations  where  industry  consolidation  can  give  rise  to  harmful 
effects  on  competition,  taking  into  account  the  merging  companies'  degree  of  market  power  and  other  market 
features.  EU  merger  control  ensures  that  changes  in  the  market  structure  which  lead  to  harmful  effects  on 
competition do not occur.  

Competition is one of the key drivers for innovation and investment. In protecting competitive 
market  structures,  EU  merger  control  also  contributed  to  innovation  and  investment  across 
Europe in 2015. The substantive test for assessing mergers under the current legal framework 
is based on a significant impediment of effective competition. This test covers all aspects of a 
loss  of  competition,  including  harm  to  innovation.  Moreover,  EU  merger  control  takes  into 
account  efficiencies  brought  about  by  mergers,  which  bring  positive  effects  on  innovation 
provided  they  are  verifiable,  merger-specific  and  likely  to  be  passed  on  to  consumers.  The 
Commission's  enforcement  practice  in  2015  shows  that  it  considers  innovation  and 
investments  as  important  aspects  of  competition  (see  section  below  on  recent  enforcement 
trends). 

As  highlighted  in  previous  reports  on  competition  policy,  the  Commission  continuously 
evaluates the substantive and procedural rules that make up the legal framework, in force for 
merger  control.  In  this  context,  the  Commission  also  assesses  concerns  voiced  by  industry 
representatives and other stakeholders and checks that its policies and enforcement practices 
do not unduly create red-tape for companies and thereby hamper innovation and investment. 
If necessary, policy changes are proposed (see points 1 to 3 below). 

1. Geographic market definition in European Commission merger control 

In recent years, some stakeholders have raised concerns that the Commission fails to take due 
account of increasing globalisation and therefore assesses mergers using too narrowly defined 
geographic markets. Some stakeholders have also claimed that when the Commission defines 
the relevant geographic market for the purpose of assessing mergers notified to it, it does not 
sufficiently take into account that potential competitors who were previously not active in a 
specific  market  may  start  supplying  that  market  following  a  merger  ("supply-side 
substitution").  

30 

 
 
Responding  to  these  views,  the  Commission  published  a  policy  brief  entitled  "Market 
definition in a globalised world" in March81. The brief sets out the Commission's  principles 
for determining the geographic area affected by a merger. It also analyses how globalisation 
affects how the relevant geographic market is defined.  

The  Commission  also  commissioned  an  independent  economic  report  on  the  topic  of 
"Geographic  Market  Definition  in  European  Commission  Merger  Control".  The  authors, 
Professors  Lyons  and  Fletcher,  were  asked  to  evaluate  the  Commission's  approach  to 
geographic market definition on the basis of a sample of 10 recent decisions in merger cases. 
In their report, the authors largely confirm the Commission's approach to geographic market 
definition  and  found  that  the  Commission's  geographic  market  definition  practice  took 
sufficient  account  of  globalisation.  They  also  disagreed  with  the  specific  suggestions  to 
strengthen  the  weight  of  supply  side  factors  in  defining  relevant  geographic  markets.  The 
report  also  made  some  technical  recommendations  on  how  the  Commission  could  further 
improve its assessment of the relevant geographic dimensions for a notified transaction. The 
authors  recommend  in  particular  that  the  Commission  adopts  an  even  stricter  approach  to 
supply-side substitutability at the market definition stage, applies greater flexibility in the use 
of  non-political  geographic  market  boundaries,  such  as  isochrones,  and  adopts  a  formal 
methodology for the treatment of transport costs.  

The White Paper "Towards more effective EU merger control" 

In the White Paper "Towards more effective EU merger control" adopted in July 201482, the 
Commission made some concrete proposals to improve the Merger Regulation in a few areas. 
Those  mainly  concern  the  possible  extension  of  the  EU  Merger  Regulation  to  minority 
shareholdings and a proposed streamlining of the referral system and other procedures.  

In light  of the views  expressed by stakeholders  during the public  consultation  on the White 
Paper,  the  proportionality  of  a  possible  review  system  for  minority  shareholdings  will  be 
further  assessed.  For  this  purpose,  the  Commission  engaged  in  further  discussions  with 
relevant  stakeholders  on  how  to  design  an  effective  system  for  reviewing  minority 
shareholdings that would pose as little administrative burden as possible on companies. 

2. Guidance on merger control proceedings 

In  2015,  the  Commission  published  two  guidance  documents  on  procedural  aspects  of  EU 
merger  control,  which  make  the  Commission's  proceedings  more  transparent  for  companies 
and their legal representatives and thereby increase predictability and efficiency: 

  The  Guidance  on  the  preparation  of  public  versions  of  Commission  Decisions  adopted 

under the Merger Regulation, published on 26 May83; and 

  The Best Practices on the disclosure of information in data rooms in proceedings under 
Articles 101 and 102 TFEU and under the EU Merger Regulation84, published on 2 June. 

81 Commission policy brief Market definition in a globalised world (March 2015) available at 
http://ec.europa.eu/competition/publications/cpb/2015/002_en.pdf  
82 White Paper Towards more effective EU merger control, COM(2014) 449 final available at 
http://ec.europa.eu/competition/consultations/2014_merger_control/mergers_white_paper_en.pdf  
83  Guidance from the Commission of 26 May 2015, Guidance on the preparation of public versions of 
Commission Decisions adopted under the Merger Regulation (2015) available at 
http://ec.europa.eu/competition/mergers/legislation/guidance_on_preparation_of_public_versions_mergers_2605
2015.pdf  

31 

 
                                                           
3. Recent enforcement trends 

The number of notified mergers increased significantly in 2015 compared with the previous 
six  years.  Overall,  360  transactions  were  notified,  including  33  reasoned  pre-notification 
submissions by the notifying parties to request the referral of a case from the Commission to a 
Member  State  or  from  a  Member  State  to  the  Commission.  In  11  cases,  the  Commission 
opened  in-depth  investigations  (second  phase).  These  cases  concerned  various  industry 
sectors,  including  the  manufacture  of  engines  and  turbines,  energy  production,  telecoms, 
music rights management, the manufacture of paper and packaging material, the distribution 
of  office  products,  the  manufacture  of  beverage  cans  and  aluminium  bottles,  food  & 
beverages and small package delivery services. 

In 2015 the Commission took 318 final decisions in merger cases85. In two cases, the parties 
abandoned a transaction during the in-depth investigation. The number of 22 interventions in 
2015  was  significantly  higher  compared  with  the  average  of  the  last  six  years,  which 
amounted  to  around  15  interventions  per  year.  In  2015,  13  mergers  were  cleared  subject  to 
commitments  in  first  phase  and  seven  in  the  second  phase.  There  was  no  case  where  the 
Commission had to prohibit a notified transaction.  

Merger decisions: 

84 Guidance from the Commission of 2 June 2015, Best Practices on the disclosure of information in data rooms 
in proceedings under Articles 101 and 102 TFEU and under the EU Merger Regulation available at 
http://ec.europa.eu/competition/mergers/legislation/disclosure_information_data_rooms_en.pdf  
85 For the purposes of this report, decisions based on Articles 6(1)b, 6(1)b in combination with 6(2), 8(1), 8(2) 
and 8(3) of the Merger Regulation are considered as final decisions. Commission interventions in merger cases 
include prohibition decisions and mergers cleared subject to commitments, as well as withdrawals during second 
phase in-depth investigation. 

32 

 
 
                                                                                                                                                                                     
4. Significant judgments by the EU Courts in mergers 

On  9  March,  the  General  Court  dismissed  the  action  for  annulment  brought  by  Deutsche 
Börse  against  the  Commission  decision  of  February  201286  declaring  the  proposed  merger 
between  Deutsche  Börse  and  NYSE  Euronext  incompatible  with  the  internal  market87.  The 
General Court's judgment is of general interest in relation to the Commission's assessment of 
efficiencies submitted by the notifying party. The General Court supported the Commission's 
analytical framework for efficiencies as set out in the in the Horizontal Merger Guidelines and 
explicitly stated that the burden of proof for efficiency claims is on the notifying party. 

On 13 May, the General Court dismissed the action for annulment brought by Niki Luftfahrt 
against  the  Commission  decision  of  August  200988  declaring  the  proposed  acquisition  of 
Austrian Airlines by Deutsche Lufthansa AG compatible with the internal market subject to 
conditions and obligations89. The judgment follows the line of the previous case law regarding 
airline mergers. It confirmed the methodology for defining markets (according to the origin & 
destination  approach),  the  competitive  assessment  (focused  on  individual  routes  but  also 
taking into account network effects) and the design of remedies in the industry (in particular 
slot remedies). 

Developing the international dimension of EU competition policy 

The globalisation of the economy calls for closer cooperation among competition authorities 
not only in Europe, but also across the globe. International cooperation between competition 
agencies  helps  to  ensure  that  the  challenges  of  globalisation  are  managed  in  an  effective 
manner  and  promotes  convergence  on  competition  policy  principles  and  practices 
implemented throughout the world. This is why the Commission is seeking to strengthen the 
role of competition policy in international negotiations and in international organisations and 
cooperates with competition agencies globally. Such regulatory and enforcement cooperation 
helps to ensure effective enforcement and a level playing field for European companies active 
on global markets. 

1. Bilateral relations 

At the international level, the Commission is holding negotiations on Free Trade Agreements 
(FTAs) with the aim to include competition and State aid provisions in such agreements. In 
2015 Commissions international priorities included the negotiations with the United States on 
a  Transatlantic  Trade  and  Investment  Partnership  Agreement  (TTIP),  launched  in  2013.  In 
addition,  significant  progress  was  made  during  in  2015  on  another  important  agreement 
currently being negotiated, namely the FTA with Japan. In 2015 the Commission also focused 
its efforts on negotiating the competition provisions included in the FTA with Vietnam. The 
competition  provisions  in  this FTA on which an agreement in principle  was reached, might 
help to set a new standard for the region or even further afield.  

86 Case M.6166 Deutsche Börse/NYSE Europnext, Commission decision of 1 February 2012 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6166  
87 Case T-175/12 Deutsche Börse v Commission, judgment of the General Court of 9 March 2015, 
ECLI:EU:T:2015:148. 
88 Case M.5440 Lufthansa/Austrian Airlines, Commission decision of 28 August 2009 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_5440  
89 Case T-162/10 Niki Luftfahrt GmbH v Commission, judgment of the General Court of 13 May 2015, 
ECLI:EU:T:2015:283. 

33 

 
                                                           
The Commission also assists in the implementation of the competition provisions included in 
recent  FTAs  with  neighbouring  countries.  It  is  involved  in  negotiating  the  necessary 
implementing  rules  to  this  effect  with  Tunisia  and  Morocco,  as  well  as  monitoring  the 
implementation of the EU competition acquis, including the State aid rules, in countries such 
as Ukraine and Moldova. Moreover, in September a first meeting took place with Korea on 
the  implementation  of  the  chapter  on  competition  of  the  EU-Korea  FTA.  The  discussion  in 
particular  covered  progress  on  the  implementation  of  the  provisions  on  subsidies  and  an 
exchange of experiences. 

Negotiations between the Commission and its Canadian counterparts to include provisions on 
the exchange of information into the existing EU-Canada Cooperation agreement have made 
good progress. The present agreement does not make provision for the Commission and the 
Canadian Competition Bureau to exchange evidence collected in the course of their respective 
proceedings. The possibility to exchange such evidence would improve cooperation between 
both  competition  authorities  in  all  competition  cases  which  affect  both  markets  and  would 
lead to more effective and more efficient competition law enforcement. 

Another  key  area  of  Commission  activity  at  the  international  level  is  technical  cooperation 
with  main  trading  partners  that  are  developing  their  competition  policy  and  enforcement 
regime  and  with  which  the  Commission  has  signed  Memoranda  of  Understanding  (MoUs). 
The  Commission  has  signed  MoUs  with  most  BRICS  countries  in  recent  years  and  has 
engaged in technical cooperation with these countries to varying degrees. The Commission's 
technical  cooperation  activities  with  the  Chinese  competition  authorities  is  particularly 
noteworthy and continued throughout 2015 under the cooperation programme (EUCTP II90). 
On enforcement, on 15 October the Ministry of Commerce of the People's Republic of China 
and  the  Commission  signed  a  Practical  Guidance  for  Cooperation  on  Reviewing  Merger 
Cases  with  a  view  to  making  cooperation  on  merger  review  more  efficient.  Finally,  the 
programme  for  technical  cooperation  with  the  Indian  competition  authorities,  CITD91, 
continued and will run until 2018. 

2. Enlargement 

The  Commission's  main  policy  objective  in  the  accession  negotiations  with  candidate 
countries, in addition to fostering a competition culture, is to further help candidate countries 
and potential candidate countries to build up a proper legislative framework, well-functioning 
competition  authorities  and  an  efficient  enforcement  practice  in  order  for  them  to  meet  the 
conditions for EU accession in the competition policy field. 

The  opening  benchmarks  for  negotiations  of  the  competition  chapter  with  Serbia  are 
identified  in  the  2015  Serbia  Report92.  The  Stabilisation  and  Association  Agreement  with 
Bosnia  and  Herzegovina  entered  into  force  on  1  June.  The  European  Union  concluded  a 
Stabilisation  and  Association  Agreement  with  Kosovo  in  October  2015,  The  agreement  is 
expected  to  enter  into  force  in  the  first  half  of  2016  after  ratification  by  the  European 
Parliament.  

90 EU-China Trade Project II. 
91 Capacity Building Initiative for Trade Development programme launched in 2014. 
92 See Report on Serbia (2015), Chapter 8 on Competition available at 
http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151110_report_serbia.pdf 

34 

 
                                                           
3. 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), the World Bank and UNCTAD.  

Three major work streams of the OECD to which the Commission contributed in 2015 were 
ex  post  evaluation,  competitive  neutrality  and  disruptive  innovation.  On  ex  post  evaluation, 
the Commission contributed to the drafting of a practical OECD Guide. Also, at the particular 
initiative  of  the  Commission,  the  OECD  organised  a  hearing  and  roundtable  discussion  on 
different  aspects  of  competitive  neutrality.  This  discussion  resulted  in  an  OECD  advocacy 
document,  informing  other  policy  communities  how  competition  law  can  level  the 
competitive  field  and  serve  other  policies,  and  in  an  inventory  on  competitive  neutrality 
frameworks  and  provisions  under  national  law.  On  disruptive  innovation,  the  Commission 
contributed  to  three  dedicated  OECD  sessions  addressing  the  enforcement  and  specific 
sectorial aspects of this topic.  

In 2015 the Commission continued co-chairing the Mergers Working Group of ICN and one 
of the sub-groups of the Cartel Working Group. It also organised a Merger Working Group 
workshop which took  place in  Brussels  (24-25 September)  and which was used to  road-test 
the  Merger  Working  Group's  Practical  Guide  for  International  Merger  Enforcement 
Cooperation, adopted in May, for which the Commission was the project leader93. As co-chair 
of the ICN Cartel Working Group's Subgroup I on Legislation, the Commission contributed to 
developing a Catalogue on investigative powers and the organisation of several webinars on 
different aspects of anti-cartel enforcement. 

The  Commission  participated  in  the  Inaugural  Conference  on  Competition  Policy,  Shared 
Prosperity  and  Inclusive  Growth  organised  by  the  World  Bank94  in  partnership  with  the 
OECD.  The  paper  it  presented  illustrated  the  redistributive  effects  of  competition  policy  in 
favour of poorer households. The same issue was discussed at the OECD Global Competition 
Forum95 held later in the year.  

The  Commission  also  participated  in  the  seventh  UNCTAD  Review  Conference  on 
competition in Geneva in July 2015. The conference included discussion of the benefits and 
the  role  of  competition  for  consumers  in  the  pharmaceutical  sector  and  the  role  of 
international  cooperation in  merger cases as  a tool for effective enforcement of competition 
law. The Commission submitted written contributions to both discussions. 

93 See International Competition Network (ICN) (September 2015), Merger Working Group's Practical Guide 
for International Merger Enforcement Cooperation available at 
http://www.internationalcompetitionnetwork.org/uploads/library/doc1031.pdf 
94 See Inaugural Conference on Competition Policy (2015), Shared Prosperity and Inclusive Growth organised 
by the World Bank available at http://www.worldbank.org/en/events/2015/06/23/promoting-effective-
competition-policies-for-shared-prosperity-and-inclusive-growth  
95 See OECD Global Competition Forum (2015) available at 
http://www.oecd.org/competition/globalforum/links-drivers-competition-employment.htm 

35 

 
 
 
 
                                                           
II. 

SECTORAL OVERVIEW 

This  section  provides  an  overview  of  policy  developments  and  enforcement  activities  in  a 
number of selected sectors that the Commission particularly focused on in 2015. These were 
energy  and  environment,  ICT  and  media,  financial  services,  tax  planning  practices,  basic 
industries  and  manufacturing,  pharmaceutical  and  health  services  and  transport  and  postal 
services. 

1. ENERGY & ENVIRONMENT 

Overview of key challenges in the sector  

On  25  February  the  Commission  published  a  new  energy  policy  framework  entitled  "the 
Energy  Union  framework  strategy"96.  The  strategy  addresses  three  long-standing  challenges 
in the energy sector: security of supply, sustainability and competitiveness. To address these 
challenges, the Energy Union Strategy focuses on five mutually supportive dimensions: 

the internal energy market; 

  energy security, solidarity and trust; 
 
  energy efficiency as a contribution to the moderation of energy demand; 
  decarbonisation of the economy and; 
 

research, innovation and competitiveness. 

The European Council endorsed this framework in its conclusions of 19-20 March97. 

Key figures to illustrate the challenges to reach a low-carbon, secure and competitive EU energy system98 

The EU is the largest energy importer in the  world, importing 53 % of its  energy, at an annual cost of around 
EUR  400  billion.  A  few  Member  States  are  dependent  on  one  single  external  supplier  for  all  their  gas 
imports.Almost half of the Member States do not meet the EU's minimum interconnection target for at least 10 
%  of  installed  electricity  production  capacity  to  be  able  to  "cross  borders".  An  appropriately  interconnected 
European  energy  grid  could  save  consumers  up  to  EUR  40  billion  a  year.  Over  EUR  1  trillion  needs  to  be 
invested  into  the  EU  energy  sector  by  2020  alone  in  order  to  achieve  the  EU  climate  and  energy  targets. 
Wholesale electricity prices in Europe are 30 % higher and wholesale gas prices over 100 % higher than in the 
United States. By 2030, the EU aims to cut greenhouse gas emissions by at least 40 % compared to 1990, boost 
renewable  energy  to  achieve  the  target  of  at  least  27  %  of  renewables  in  its  energy  mix,  and  improve  energy 
efficiency by at least 27 %.  

Contribution of EU competition policy to tackling the challenges 

The main challenges in 2015 continued to be high energy prices, the slow pace of investment 
in the energy sector and security of supply concerns stemming from i) lack of competition; 
and ii) insufficient diversification of gas supplies in eastern Europe.  

In  2015,  EU  competition  policy  contributed  to  tackling  those  challenges  in  several  ways. 
Antitrust and mergers enforcement contributed by lifting obstacles to competition and barriers 
to trade between Member States and by ensuring that investments in the energy sector do not 
hamper competition.  

96 Communication of 25 February 2015 from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee, the Committee of the Regions and the European Investment Bank A 
Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy, 
COM/2015/080 final available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52015DC0080 
97 Conclusions of the European Council from 19 and 20 March 2015, EUCO 11/15. 
98 For further information see IP/15/4497 of 25 February 2015 available at http://europa.eu/rapid/press-
release_IP-15-4497_en.htm 

36 

 
 
 
                                                           
Improving competitiveness across the energy sector 

Competition enforcement and advocacy play a key role in making the internal energy market 
work.  Competition  enforcement  leads  to  opening  markets,  creating  a  level  playing  field 
between  competitors  and  ultimately  promoting  investment  and  innovation.  Competition 
enforcement  sanctions  collusion  and  abuses  of  dominant  positions,  ensures  that  mergers  do 
not  hamper  effective  competition  and  creates  a  framework  for  investment  that  avoids 
distortions  and  ensures  the  efficient  allocation  of  public  resources.  In  2015,  antitrust 
enforcement actions have challenged practices that partition the internal markets and practices 
that prevent new entrants from accessing the market. These behaviours lead to higher energy 
prices. 

On  10  December,  the  Commission  accepted99  the  commitments  offered  by  the  Bulgarian 
Energy Holding (BEH) to solve competition concerns in the wholesale electricity markets in 
Bulgaria.  The  Commission  was  concerned  that  BEH  had  been  selling  electricity  to  traders 
using  contracts  which  prohibited  them  from  reselling  the  electricity  outside  Bulgaria.  As  a 
result  BEH  was  hindering  the  resale  of  electricity  and  abusing  its  dominance  by  imposing 
territorial restrictions on traders. BEH has committed to solving these concerns by setting up 
an independent and liquid power exchange in Bulgaria through which electricity can be traded 
anonymously, with no possibility of checking where it is resold. 

On  22  October,  the  Commission  sent  a  Letter  of  Formal  Notice  to  France  setting  out  its 
concerns that France may be in breach of EU antitrust rules by having granted to state-owned 
Electricité de France (EDF) most of the country's concessions for exploiting hydropower100. 
The Commission is concerned that granting most of the country's hydropower concessions to 
EDF  at  preferential  financial  conditions,  without  a  tendering  procedure  and  for  very  long 
periods  has  maintained  or  strengthened  EDF's  dominance  in  the  French  electricity  markets 
possibly counter to Article 106 TFEU in conjunction with Article 102 TFEU.  

A  key  principle  underlying  the  Commission's  State  aid  policy  is  that  public  support  should 
result  in  a  positive  balance  between  the  objectives  achieved  and  the  potentitial  negative 
effects of State intervention on the European energy market. In this context the Commission 
pays special attention to any market distortions that may arise as a result of public financing, 
such as the crowding out of investment, negative effects on upstream or downstream markets 
and  excessive  profits  which  may  lead  to  strengthened  market  posititions,  deterrence  of  new 
entrants and ultimately market foreclosure. To ensure that such market distortions are avoided 
the Commission launched two formal investigation procedures– the first into public measures 
taken by the United Kingdom in favour of the Lynemouth power plant101 and the second into 
the project to build the new Paks II102 nuclear power plant in Hungary.  

Contributing to a low-carbon economy 

The  EU  is  committed  to  reducing  by  at  least  40  %  its  greenhouse  gas  emissions  compared 
with  1990.  The  EU  has  also  set  a  target  that  by  2030  renewable  energy  will  account  for  at 

99 Case AT.39767 BEH Electricity. For further information see IP/15/6289 of 10 December 2015 available at 
http://europa.eu/rapid/press-release_IP-15-6289_en.htm  
100 Infringement number 20152187 Concessions hydroélectriques en France. 
101 Case SA.38762 UK - Lynemouth Biomass Conversion. For further information see IP/15/4456 of 19 February 
2015 available at http://europa.eu/rapid/press-release_IP-15-4456_en.htm  
102 Case SA.38454 (2015/N) Hungary – Possible aid for the construction of Paks nuclear power station. For 
further information see IP/15/6140 of 23 November 2015 available at http://europa.eu/rapid/press-release_IP-15-
6140_en.htm  

37 

 
                                                           
least 27 % of the energy consumed in the EU. This will require significant investment and the 
progressive integration of renewables into a market that promotes competitive renewables and 
drives innovation.  

The  rules  passed  in  July  2014  (Guidelines  on  State  aid  for  environmental  protection  and 
energy103) require renewable electricity producers to sell the electricity directly on the market. 
In addition, Member States may grant a premium to compensate for the extra costs of those 
technologies  that  are  not  yet  able  to  compete  with  conventional  generation  technologies. 
Furthermore,  renewable  electricity  producers  will  be  subject  to  standard  balancing 
responsibilities  and  production  should  not  be  incentivised  when  wholesale  prices  turn 
negative.  The  Commission  approved  several  support  schemes  which  follow  already  these 
market-based assessment criteria.  

In 2015 the Commission adopted a number of decisions aimed at incentivising investment in 
renewable energy sources while applying the requirements for a market-based approach to the 
selection of beneficiaries and the form of aid. Among the support measures approved in 2015 
for  renewable  generation  the  ones  that  stand  out  are  the  aid  to  20  individual  offshore  wind 
farms104 in  Germany, the support  scheme to  renewable energy sources in  Croatia105 and the 
amendments  to  the  Romanian  green  certificates  support  system  for  promoting  renewable 
electricity106.  

The  Commission  strives  to  ensure  that  public  support  is  granted  in  a  way  that  fosters 
investments in new and innovative technologies that will not only make the European energy 
sector  more  competitive  but  will  also  spur  research  and  innovation  in  clean  and  sustainable 
generation. During 2015, the Commission adopted two decisions on support measures aimed 
at  developing  ocean  energy  and  offshore  power  generation  technologies  in  experimental  or 
pre-commercial stage107. 

The  new  Guidelines  on  State  aid  for  environmental  protection  and  energy  2014-2020  also 
bring under the scope of the Guidelines support for Carbon Capture and Storage (CCS) and 
infrastructure. 

Finally,  the  new  Framework  for  State  aid  for  R&D&I  offers  important  opportunities  as  it 
allows tailored support to projects which are not, in themselves, profitable but might generate 
beyond R&D specific externalities, important environmental benefits to society. 

103 Communication from the Commission — Guidelines on State aid for environmental protection and energy 
2014-2020, OJ C 200, 28.6.2014, p.1-55 available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52014XC0628(01)  
104 Cases SA.39723, SA.39724, SA.39725, SA.39726, SA.39731, SA.39732, SA.39733, SA.39735, SA.39738, 
SA.39739, SA.39741, SA.39742, SA.39722, SA.39727, SA.39728, SA.39729, SA.39730, SA.39734, SA.39736, 
SA.39740 Germany – Support to 20 large offshore wind farms under the EEG Act 2014, OJ C 292, 4.9.2015, 
p.9. For further information see IP/15/4788 of 16 April 2015 available at http://europa.eu/rapid/press-release_IP-
15-4788_en.htm  
105 Case SA.38406 Renewables support scheme in Croatia 2014-2015, Commission decision of 1 September 
2015 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38406  
106 Case SA.37177 Romania - Amendments to the green certificates support system for promoting electricity 
from renewable sources, Commission decision of 4 May 2015, OJ C 343, 16.10.2015, available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37177   
107 Cases SA.39347 Portugal - Support scheme for experimental and pre-commercial renewable technologies, 
and SA.40227 Portugal - Windfloat Project. For further information see IP/15/4836 of 23 April 2015 available at 
http://europa.eu/rapid/press-release_IP-15-4836_en.htm  

38 

 
                                                           
Furthermore,  the  Commission  approved  State  aid  for  the  deployment  of  publicly  available 
charging  infrastructure  for  electrical  vehicles108,  which  will  also  increase  sustainability  and 
reducing emissions. 

The Commission's antitrust enforcement is also contributing to the objective of a low carbon 
economy. The Commission is investigating whether ethanol producers may have colluded to 
manipulate  ethanol  benchmarks  published  by  the  price  reporting  agency  Platts,  for  example 
by agreeing between each other to submit or support bids with a view so as push benchmarks 
upwards and thus drive up ethanol prices109. Such practices, if confirmed, harm competition 
and undermine EU energy objectives by increasing prices for renewable energy, in this case 
biofuels  used  for  transport.  This  could  lead  to  a  reduction  of  the  use  of  biofuels  as  an 
alternative to fossil fuels, with negative consequences both for consumers and the objective of 
a low-carbon economy. The on-going antitrust investigation into Austria's waste management 
markets also feeds into action to achieve greater sustainability110. 

Contributing to security of supply 

In the gas sector, lack of diversification and consequently of competition in sources of supply 
is a concern for the security of supply in the EU. Some Member States continue to rely on one 
single  supplier  and  often  on  one  single  supply  route  for  80  %  to  100  %  of  their  gas 
consumption111,  whereas  those  Member  States  with  a  diverse  portfolio  of  gas  suppliers  and 
supply routes and with well-developed gas markets reap the benefit of paying less for imports.  

In  2015  the  Commission  adopted  a  decision  on  public  support  for  nine  gas  infrastructure 
projects  in  Poland112,  which  will  help  diversification  of  gas  supplies.  In  addition  to 
strengthening the security of supply in central Europe, the decision to support the realisation 
of  the  nine  gas  projects  also  incentivesed  investment  in  gas  infrastructure  which  would  not 
have been possible without the State aid contribution.  

Nine gas infrastructure projects in Poland 

The  Commission  found  that  Poland's  plans  to  grant  aid  of  PLN  3,13  billion  (EUR  758  million)  for  nine  gas 
projects in Poland are compatible with EU State aid rules. 

Five of the nine gas infrastructure projects will connect European gas supply sources from the Baltic, Adriatic 
and  the  Black  Sea  to  the  rest  of  Europe  via  Poland  (as  part  of  the  "North-South  gas  interconnection  priority 
corridor") thus increasing the diversification of gas supply in Poland. The rest of the projects will contribute to 
an  increase  in  the  overall  level  of  security  of  supply  in  Poland  by  eliminating  bottlenecks  and  providing 
additional capacity to the existing gas networks. 

108 Case SA.38769 Netherlands - Green Deal for Electric Vehicle Charging Infrastructure, Commission decision 
of 11 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38769 For further information 
see IP/15/5441 of 27 July 2015 available at http://europa.eu/rapid/press-release_IP-15-5441_en.htm  
109 Case AT.40054 Oil and Biofuel Markets. For further information see IP/15/6259 of 7 December 2015 
available at http://europa.eu/rapid/press-release_IP-15-6259_en.htm  
110 Case AT.39759 ARA. For further information see IP/13/711 of 18 July 2103 available at 
http://europa.eu/rapid/press-release_IP-13-711_en.htm?locale=en  
111 See Commission's contribution to the European Council Energy challenges and policy available at 
http://ec.europa.eu/europe2020/pdf/energy2_en.pdf  
112 Case SA.39050 Aid to gas infrastructure in Poland, Commission decision of 17 July 2015, OJ C 325, 
2.10.2015, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39050 For 
further information see IP/15/5403 of 17 July 2015 available at http://europa.eu/rapid/press-release_IP-15-
5403_en.htm  

39 

 
                                                           
The  Commission's  antitrust  enforcement  can  also  help  to  solve  security  of  supply  issues  by 
facilitating access  to  the market  and  encouraging  investment.  On 22 April,  the Commission 
sent a Statement of Objections to Gazprom for allegedly abusing its dominant position in the 
supply  of  natural  gas  in  central  and  eastern  Europe113
.  The  Commission  considers  that 
Gazprom is abusing its dominant position inter alia by imposing territorial restrictions in its 
supply  agreements  with  wholesalers  and  with  some  industrial  customers.  The  Commission 
has concerns that this market segmentation may also have enabled Gazprom to charge unfair 
prices in several of the countries concerned.  

On 23 March, the Commission sent a Statement of Objections to BEH114, and its gas supply 
and  gas  infrastructure  subsidiaries,  Bulgargaz  and  Bulgartransgaz  over  a  possible  abuse  of 
dominant  position on the Bulgarian natural  gas  markets.  The Commission  is  concerned that 
BEH  and  its  subsidiaries  have  refused  to  give  competitors  access  to  the  Bulgarian  gas 
transmission  network  and  the  only  gas  storage  facility  in  Bulgaria  and  may  have  booked 
capacity they do not need on Bulgaria's only viable gas import pipeline.  

In  the  electricity  sector,  there  are  increasing  concerns  about  generation  adequacy  and 
insufficient  investment  in  new  capacity  due  to  market  uncertainties  and  regulatory 
interventions. An increasing number of Member States are introducing capacity mechanisms 
to encourage investment in new capacity e.g. power plants or to provide incentives that power 
plants  to  continue to  operate, so that the supply  of electricity meets  demand at  all times.  In 
April, the Commission launched a State aid sector inquiry into existing and planned capacity 
mechanisms in the EU. The purpose of the inquiry is to analyse the need for such mechanisms 
and to identify design features that distort competition between capacity providers or hinder 
cross-border electricity trade. 

State aid sector inquiry – Existing and planned capacity mechanisms in the EU115 

Capacity mechanisms are measures taken by Member States to ensure that electricity supply can match demand 
in the medium and long-term at all times. They are designed to support investment to fill an expected capacity 
gap and ensure security of supply. 

The  Commission  sent  different  sets  of  questions  to  selected  public  authorities  and  market  participants  in  11 
Member  States  -  Belgium,  Croatia,  Denmark,  France,  Germany,  Ireland,  Italy,  Poland,  Portugal,  Spain  and 
Sweden. It assessed the replies and invites comments on its preliminary findings in early 2016. The final results 
will be published by the end of 2016. 

The  sector  inquiry  will  supplement  and  support  the  implementation  of  the  Guidelines  on  State  aid  for 
environmental protection and energy116 that entered into  force in July 2014. Moreover, the sector inquiry  will 
contribute to the Commission's legislative proposal on electricity  market design  under the EU's Energy  Union 
Strategy. 

Merger control 

In the field of merger control, the trend for investments in European energy infrastructure by 
investment companies persisted117. In 2015, as in the previous years, a number of companies 

113 Case AT.39816 Upstream Gas Supplies in central and eastern Europe. For further information see 
IP/15/4828 of 22 April 2015.available at http://europa.eu/rapid/press-release_IP-15-4828_en.htm  
114 Case AT.39849 BEH gas. For further information see IP/15/4651 of 23 March 2015 available at 
http://europa.eu/rapid/press-release_IP-15-4651_en.htm  
115 For further information see IP/15/4891 of 29 April 2015 available at http://europa.eu/rapid/press-release_IP-
15-4891_en.htm  
116 See footnote 103. 
117 Cases M.7840 Letterone Holdings/E.On E&P Norge; Commission decision of 2 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7840; M.7490 Macquarie/ Wren 

40 

 
                                                           
invested in development118 and production from renewable sources119 such as wind parks120, 
solar parks121 and waste-to-energy plants122.  

The  Commission  also  observed  that  some  oil  and  gas  markets  players  reorganised  their 
business  by  streamlining  their  activities  in  the  upstream  segment  of  exploration  and 
development of reservoirs123 while partially divesting their presence in the downstream/retail 
segment  to  other  oil  companies,  traders  or  financial  investors124.  The  upstream  segment  for 
the  exploration  and  development  of  reservoirs  is  fragmented,  with  a  significant  number  of 
players competing and with national oil companies playing a significant role. 

2. INFORMATION AND COMMUNICATION TECHNOLOGIES (ICT) AND MEDIA  

Overview of key challenges in the sector 

ICT  and  media  are  key  sectors  for  the  EU  economy.  As  well  as  being  important  consumer 
businesses,  they  play  a  critical  role  as  inputs  to  the  wider  economy.  They  are  a  driver  for 
innovation and growth in many other sectors, such as energy, transportation, public services, 
health and education125.  

The  nature  of  these  industries  presents  both  opportunities  and  challenges.  If  the  right 
framework conditions are in place, including appropriate competition rules, these sectors can 
make  a  decisive  contribution  to  growth  and  employment.  In  the  period  2005-2010,  ICT 

House/ E.On Spain; Commission decision 2 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7490; M.7608 Borealis Siegfried 
Holdings/Fortum Distribution Ab, Commission decision of 8 May 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7608 and M.7633 Kia/Gas 
Natural Fenosa/Gpg, Commission decision of 11 September 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7633 
118 Case M.7539 Gip Ii/ Acs/ Devco, Commission decision of 27 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7539 
119 Case M.7633 Kia/ Gas Natural Fenosa/ Gpg, Commission decision of 11 September 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7633 
120 Case M.7609 Omnes Capital/ Predica Prevoyance/ Quadran/ Quadrica, Commission decision of 8 May 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7609 
121 Case M.7816 EGP / F2I / JV, Commission decision of 7 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7816 
122 Case M.7745 Fortum / Lietuvos Energija / JV, Commission decision of 23 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7745  
123 Cases M.7631 Royal Dutch Shell / BG Group; Commission decision of 2 September 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7631, M.7519 Repsol/ Talisman 
Energy, Commission decision of 7 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7519 and M.7840 Letterone 
Holdings/ E.On E&P Norge, Commission decision of 2 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7840  
124 Cases M.7508 Dcc Energy / Esso Saf, Commission decision of 12 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7508; M.7579 Royal Dutch 
Shell/Keele Oy/Aviation Fuel Services Norway, Commission decision of 19 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7579 and M.7694 World Fuel 
Services/ BB Aviation Fuel Divestment Business, Commission decision of 6 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7694 
125 See, e.g., the study Unlocking the ICT Growth Potential in Europe: Enabling people and businesses (2013) 
prepared by the Conference Board for the European Commission available at http://ec.europa.eu/digital-
agenda/en/news/new-study-unlocking-ict-growth-potential-europe-enabling-people-and-businesses 

41 

 
 
 
                                                                                                                                                                                     
investment  accounted  for  one-third  of  EU  growth126.  However,  the  importance  of  these 
sectors and the very rapid pace of change also create challenges for regulators in ensuring that 
regulatory rules and enforcement keep pace with technological change. 

One of the 10 political  priorities of the present  Commission  is  to  complete a Digital  Single 
Market  in  which  the  free  movement  of  goods,  persons,  services  and  capital  is  ensured  and 
where individuals and businesses can seamlessly access  and exercise online activities under 
conditions  of  fair  competition,  and  a  high  level  of  consumer  and  personal  data  protection, 
irrespective  of  their  nationality  or  place  of  residence.  Bringing  down  barriers  within  the 
Digital Single Market could contribute an additional EUR 415 billion to EU GDP127.  

Digital Single Market (DSM) 

The Commission adopted its Digital Single Market (DSM) strategy in May. The strategy comprises 16 actions 
under three pillars: (i) better access for consumers and businesses to online  goods and services across Europe; 
(ii)  creating  the  right  conditions  for  digital  networks  and  services  to  flourish;  and  (iii)  maximising  the  growth 
potential  of  our  European  Digital  Economy.  Competition  policy  is  directly  involved  through  the  e-commerce 
sector  inquiry,  which  is  one  of  the  16  actions.  Reaching  the  goals  of  the  DSM  also  requires  competition 
enforcement to help ensure competitive markets for ICT and media services.  

In order to fully benefit from the deployment of new innovative digital services, consumers in all Member States 
need  to  have  access  to  high  performance  networks.  By  2020,  the  Digital  Agenda  for  Europe  (DAE)  aims  at 
achieving (i) full coverage of 30 Mbps services (fast broadband) and (ii) provision of 100 Mbps services (ultra-
fast broadband) to 50 % of Europeans. Building on the results of its public consultation on the needs for internet 
speed  and  quality  beyond  2020  and  in  order  to  ensure  that  everyone  can  reap  the  benefits  of  the  DSM,  the 
Commission is developing broadband vision beyond 2020. 

One  of  the  key  actions  under  the  second  pillar  of  the  DSM  strategy  is  the  review  of  the  telecoms  regulatory 
framework, the preparatory work for which has already started.  

In  addition,  on  25  November,  the  European  Parliament  and  the  Council  adopted  a  Regulation  laying  down 
measures concerning open internet access and roaming on public mobile communication networks128. 

Contribution of EU competition policy to tackling the challenges 

E-commerce sector inquiry 

Eurostat figures for 2014 show that while 50 % of Europeans had shopped online in the past 
year, only 15 % had done so cross-border129. There are indications that one of the reasons for 
the  lack  of  cross-border  online  trade  is  the  existence  of  contractual  barriers,  particularly 
distribution agreements which may restrict the cross-border sale of goods and digital content. 
For  example,  22  %  of  wholesale  and  retail  trade  companies  say  the  fact  that  their  suppliers 
restrict or forbid them to sell abroad is a problem130. It is estimated that welfare gains from e-

126 See Koutroumpis, Leiponen and Thomas, ICT innovation in Europe: Productivity gains, start-up growth and 
retention, Imperial College Business School, p. 2. 
127 Communication of 6 May 2015 from the Commission to the European Parliament, the Council, the Economic 
and Social Committee and the Committee of the Regions A Digital Single Market Strategy for Europe, 
COM(2015) 192 final available at https://ec.europa.eu/digital-agenda/en/news/digital-single-market-strategy-
europe-analysis-and-evidence-swd2015-100-final  
128 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying 
down measures concerning open internet access and amending Directive 2002/22/EC on universal service and 
users' rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on 
roaming on public mobile communications networks within the Union, OJ L 310, 26.10.2015, p.1, available at 
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015R2120  
129 Eurostat ICT survey of households and businesses. 
130 Flash Eurobarometer 413, 2015. 

42 

 
                                                           
commerce in goods in an integrated DSM could reach over EUR 200 billion, with two thirds 
of these gains coming from increased online choice131. 

E-commerce sector inquiry 
The  Commission  launched  a  sector  inquiry  into  e-commerce  markets  in  May132.  The  inquiry  aims  to  gather 
market  information  in  order  to  better  understand  the  nature,  prevalence  and  effects  of  barriers  to  online  trade 
erected  by  companies,  and  to  assess  them  in  light  of  EU  antitrust  rules.  If,  after  analysing  the  results,  the 
Commission  identifies  specific  competition  concerns,  it  may  open  individual  investigations  to  enforce  the 
competition rules and provide guidance to businesses on the types of restrictions that are permissible online. The 
results may also be useful as inputs into the other actions within the DSM strategy. 

The  Commission  expects  to  publish  a  preliminary  report  for  consultation  in  mid-2016.  The  final  report  is 
expected to follow in 2017. 

Antitrust enforcement linked to media and sports.  

In the broadcasting sector, the Commission adopted a Statement of Objections in July against 
six  major  United  States  film  studios133  (Disney,  NBC  Universal,  Paramount  Pictures,  Sony, 
Twentieth Century Fox and Warner Bros.) and Sky UK. The Commission's preliminary view 
is  that  clauses  in  licensing  agreements  between  the  studios  and  Sky  UK  that  restrict,  e.g. 
through  geo-blocking, cross-border access  to  films, thereby limit  Sky  UK's  ability to  accept 
unsolicited  requests  for  its  pay-tv  services  from  consumers  located  outside  the  United 
Kingdom  and  Ireland  (so-called  "passive  sales").  Certain  agreements  also  contain  clauses 
requiring the film studios to ensure that, in their licensing agreements with broadcasters other 
than Sky UK, these broadcasters are prevented from making their pay-tv services available in 
the United Kingdom and Ireland. 

In  April,  the  Court  of  Justice  confirmed  the  Commission's  findings  on  the  assignment  of 
broadcasting authorisations for digital terrestrial television in Bulgaria.  In January 2013, the 
Commission referred Bulgaria to the Court of Justice considering that the procedure followed 
by  Bulgaria  was  based  on  disproportionately  restrictive  award  conditions,  leading  to  the 
exclusion of potential candidates and hampering competition.  

In  the  publishing  sector,  the  Commission  opened  a  formal  investigation  into  some  of 
Amazon's  e-book  distribution  arrangements  in  June.  The  Commission  will,  in  particular, 
investigate clauses in Amazon's contracts  with publishers requiring them to inform Amazon 
about  more  favourable  or  alternative  terms  offered  to  Amazon's  competitors  and/or  offer 
Amazon similar terms and conditions to its competitors. The Commission has concerns that 
such  clauses  may  make  it  more  difficult  for  other  e-book  distributors  to  compete  with 
Amazon. 

In the sports sector, the Commission opened a formal antitrust investigation in October into 
the  International  Skating  Union's  (ISU)  rules  that  permanently  ban  skaters  from  certain 
competitions if they take part in events not approved by the ISU. The Commission considers 
that ISU rules may create disproportionate and unjustified obstacles for companies not linked 

131 Civic Consulting for the European Commission, Consumer market study on the functioning of e-commerce 
and Internet marketing and selling techniques in the retail of goods, 2011 – the consumer welfare gains from an 
integrated EU market for e-commerce in goods assuming 15 % share of internet retailing was estimated at EUR 
204.5 billion per year (EUR 70.4 billion from lower online prices and EUR 134.1 billion from increased choice). 
132 For further information see IP/15/4921 of 6 May 2015 available at http://europa.eu/rapid/press-release_IP-15-
4921_en.htm  
133 Case AT.40023 Cross-border access to pay-tv content. For further information see IP/15/5432 of 23 July 
2015 available at http://europa.eu/rapid/press-release_IP-15-5432_en.htm  

43 

 
                                                           
to  the  ISU  that  want  to  organise  alternative  ice-skating  events,  which  would  prevent  them 
from entering the market or driving them out of business.  

Antitrust enforcement in technology markets 

The  Commission's  enforcement  action  in  technology  markets  focused  on  cases  where 
dominant companies may have used their position in the market to restrict competition in an 
anti-competitive  manner.  Taking  action  against  such  conduct  helps  to  keep  markets 
competitive, and therefore to maintain incentives to innovate.  

Search  engines  are  of  central  importance  to  a  well-functioning  Internet.  In  April,  the 
Commission  sent  a  Statement  of  Objections  to  Google134  alleging  that  the  company  had 
abused  a  dominant  position  in  the  markets  for  general  internet  search  services  by 
systematically  favouring  its  own  comparison  shopping  product  in  its  general  search  results 
pages.  The  Commission  continues  to  investigate  Google's  conduct  with  regard  to  other 
specialised  search  services  as  well  as:  (i)  the  copying  of  third-party  content  for  use  in 
Google's  own  specialised  search  services;  (ii)  exclusivity  agreements  with  publishers  for 
search  advertising;  and  (iii)  restrictions  on  the  portability  and  management  of  search 
advertising campaigns across search advertising platforms. 

Access to the internet increasingly takes place through mobile devices, including smartphones 
and tablets135. A lack of competition for the supply of hardware and software for those devices 
could  have  important  effects  in  terms  of  continued  innovation.  Therefore,  in  April,  the 
Commission opened formal proceedings to examine in-depth Google's conduct as regards the 
mobile  operating  system,  Android.  The  investigation  is  focusing  on  whether  Google  has 
breached EU antitrust rules by hindering the development and market access of rival mobile 
operating systems, applications and services, to the detriment of consumers and developers of 
innovative services and products. 

In  the  area  of  baseband  chipsets,  which  process  the  core  communication  functions  in 
smartphones,  tablets  and  other  mobile  broadband  devices,  the  Commission  opened  formal 
proceedings  in  July,  to  examine  in-depth  Qualcomm's  conduct  in  two  regards:  (1)  financial 
incentives to a major smartphone and table manufacturer on condition that it exclusively uses 
Qualcomm  baseband  chipsets  in  its  smartphones  and  tablets;  and  (2)  whether  Qualcomm 
engaged  in  "predatory  pricing"  by  charging  prices  below  costs  with  a  view  to  forcing  its 
competition  out  of  the  market.  Statements  of  Objections  were  sent  to  the  company  on  8 
December136. 

ICT and media in the context of the Merger Regulation 

The  Commission's  merger  review  activities  ensure  that  mergers  do  not  result  in  less 
competition.  By safeguarding competition,  merger review in  turn contributes to  maintaining 
an environment conducive to innovation and investments. 

2015 saw significant merger activity in the EU's telecommunications sector.  

134 Case AT.39740 Google. For further information see IP/15/4780 of 15 April 2015 available at 
http://europa.eu/rapid/press-release_IP-15-4780_en.htm  
135 Eurostat figures for 2014 show that 51 % of Europeans used the Internet on mobile devices. For these 
purposes “mobile” Internet usage includes all use while away from home or work, including access through a 
laptop computer. 
136 Cases AT.39711 and AT.40220 Qualcomm. For further information see IP/15/6271 of 8 December 2015 
available at http://europa.eu/rapid/press-release_IP-15-6271_en.htm  

44 

 
                                                           
In April, the Commission conditionally cleared the merger between Altice and PT Portugal137. 
Altice  operated  via  two  subsidiaries  in  Portugal,  Cabovisão  and  ONI.  Cabovisão  provided 
pay-tv, fixed internet access and fixed telephony services essentially to residential customers. 
ONI provided services to business customers, including fixed telecommunication services, in 
particular  voice,  data  and  internet  access  services  as  well  as  IT  services.  PT  Portugal,  a 
telecommunications  and  multimedia  operator  with  activities  extending  across  all 
telecommunications  segments  in  Portugal,  offered  fixed,  mobile  voice  and  data  services; 
broadband internet access services and pay-tv  services to residential customers. PT Portugal's 
offer  for  business  customers  included  fixed  and  mobile  voice  services  data  services  and  IT 
services, comprising data centre solutions, virtualisation services, cloud, business outsourcing 
process  and  other  additional  value-added  services.  The  Commission  was  concerned  that  the 
in  a  number  of 
merger,  as 
telecommunications  markets  in  Portugal  and  that  the  merger  would  have  removed  a  strong 
competitor from these markets, with the risk of leading to higher prices and less competition 
in  Portugal.  To  remove  these  concerns,  Altice  offered  to  sell  its  Portuguese  subsidiaries 
Cabovisão and ONI. These clear-cut commitments completely removed the overlap between 
the activities of Altice and PT Portugal within Portugal and ultimately the merger was cleared 
by the Commission. 

initially  notified,  would  have  reduced  competition 

In May, the Commission conditionally cleared the merger between Orange and Jazztel, two of 
Spain's  four  providers  of  nationwide  fixed  telephony  and  internet  access138.  The  two 
companies  had been the  most dynamic fixed internet  providers in  Spain  in recent  years and 
both  were  investing  in  their  own  high-speed  Fibre-To-The-Home  (FTTH)  network.  The 
Commission was concerned that the merger would reduce competition in the market for fixed 
internet access because the competitive constraints which Orange and Jazztel exerted on each 
other would be lost. Ultimately, the merger was  cleared based on remedies that ensured the 
entry of a new nationwide player, able to replicate Jazztel's competitive pressure.  

The  Commission  reviewed  the  proposed  merger  of  the  Danish  businesses  of  Telenor  and 
TeliaSonera139. The merger would have combined the second and third largest operators in the 
Danish mobile retail market, leading to the creation of the largest mobile player both in terms 
of revenue and subscribers. The Commission had concerns that the merger would have led to 
higher  prices,  loss  of  innovative  offers  and  lower  quality.  The  remedies  submitted  by  the 
parties  to  the  transaction  fell  short  of  addressing  these  concerns.  However,  before  any 
decision was taken, the parties abandoned the transaction. 

The  Commission  is  reviewing  the  merger  between  Liberty  Global  and  BASE140.  Liberty 
Global  operates  a  cable  network  in  Belgium  and  is  also  a  mobile  virtual  network  operator 
(MVNO).  BASE  is  one  of  Belgium's  three  mobile  network  operators.  The  merger  therefore 
combines a mobile network operator with a fixed network operator which is also an MVNO. 
The review continues in 2016. 

137 Case M.7499 Altice/PT Portugal, Commission decision of 20 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7499  
138 Case M.7421 Orange / Jazztel, Commission decision of 19 May 2015 available at 
http://ec.europa.eu/competition/mergers/cases/decisions/m7421_3082_3.pdf  
139 Case M. 7419 TeliaSonera / Telenor / JV, Commission decision of 11 September available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7419 
140 Case M. 7637 Liberty Global / BASE Belgium available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7637  

45 

 
                                                           
In addition, the Commission is reviewing the merger between two of the United Kingdom's 
four mobile network operators, namely Hutchison and Telefónica UK141. In October 2015, it 
opened an in-depth investigation into the transaction, based on concerns that the merger could 
lead to higher prices, less choice and reduced innovation. The review continues in 2016. 

In  the  IT  sector,  the  Commission  dealt  with  a  series  of  multi-billion  mergers  in  the 
semiconductor  industry.  In  September,  it  cleared  NXP's  acquisition  of  Freescale,  subject  to 
remedies  aimed  at  preserving  competition  in  the  market  for  radio  frequency  power 
transistors142. These transistors are used in the base stations of mobile networks and are used 
to  make  radio  frequency  signals  more  powerful.  Other  transactions  in  the  semiconductor 
sector were unconditionally cleared since they did  not  raise competition concerns. This  was 
the  case  for  Intel's  acquisition  of  Altera143,  cleared  in  October,  and  Avago  Technologies' 
acquisition of United States chipmaker Broadcom144, cleared in November. 

In the media sector, the Commission conditionally cleared the acquisition by Liberty Global 
of  a  stake  in  De  Vijver  Media145,  a  Belgian  TV  broadcasting  and  production  company  in 
February.  The  commitments  ensure  that  TV  distributors  that  compete  with  Liberty  Global's 
Belgian  operation  Telenet  will  still  have  access  to  the  two  TV  channels  broadcast  by  De 
Vijver Media. The commitments can be invoked not only by existing players but also by new 
players who want to offer TV services to consumers in novel ways. In June, the Commission 
conditionally  approved  the  creation  of  a  joint  venture  for  cross-border  licensing  of  online 
music146,  set  up  by  three  music  collecting  societies  from  the  United  Kingdom,  Sweden  and 
Germany. The joint venture will allow online music platforms such as Spotify and iTunes to 
obtain a single music licence for the entire EU.  

State aid enforcement in ICT and media 

The  achievement  of  the  Digital  Agenda  targets  for  broadband  coverage,  despite  substantial 
progress,  represents  a  significant  challenge,  in  particular  for  the  second  objective147. 
According to the Commission's analysis on the funding gap to meet the EU broadband targets 
by  2020,  in  the  most  optimistic  scenario,  the  coverage  target  of  30  Megabits  per  second 
(Mbps) for all European households will be reached only if and additional EUR 34 billion are 
invested148.  The  further  investment  to  reach  the  take-up  target  (half  of  the  European 
households with 100 Mbps subscription) is estimated at EUR 92.4 billion. 

The  broadband  sector  is  highly  commercial  and  most  of  the  financing  for  the  upgrade  and 
deployment  of  next-generation  networks  comes  from  the  private  sector.  State  aid  control 

141 Case M.7612 Hutchison 3G UK / Telefónica UK available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7612  
142 Case M. 7585 NXP Semiconductors / Freescale Semiconductor, Commission decision of 17 September 2015 
available at http://ec.europa.eu/competition/mergers/cases/decisions/m7585_20150917_20212_4572466_EN.pdf  
143 Case M.7688 Intel / Altera, Commission decision of 14 October 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7688  
144 Case M.7686 Avago / Broadcom, Commission decision of 23 November available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7686  
145 Case M.7194 Liberty Global / Corelio / W&W / De Vijver Media, Commission decision of 24 February 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7194  
146 Case M.6800 PRSfM / STIM / GEMA / JV, Commission decision of 16 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6800  
147 In January 2014, about 20 % of all EU subscriptions were at least 30 Mbps and only 5.3 % at least 100 Mbps 
(European Commission, Digital Agenda Scoreboard 2014). 
148 This estimate is based on Fibre-to-the-Cabinet (FTTC) coverage as a proxy for the achievement of universal 
coverage by 2020 in the EU 28 (on top of FTTC already in place). 

46 

 
                                                           
seeks to ensure that publicly funded networks do not crowd out private investments. Private 
companies  tend  to  invest  mostly  in  urban,  highly  populated  areas  which  can  assure  rapid 
return on investment. As a result, in certain areas - in particular rural - public funds are needed 
to  ensure  investment  supporting  the  deployment  of  broadband  networks,  within  the  broader 
objectives  of  inclusion  and  economic  development.  State  involvement  (via  State  aid  and 
regulation)  has  been  very  important  in  this  regard149  and  will  continue  to  be  needed  in  the 
coming years.  

With a view to stimulating overall investment in next-generation access (NGA) infrastructure 
and ensure that customers benefit from State intervention, where a broadband infrastructure is 
built using State aid, operators must fulfil a number of conditions which include measures to 
ensure third parties' effective wholesale access to the subsidised broadband infrastructure as 
specified  in  the  Broadband  State  Aid  Guidelines150  This  helps  to  ensure  that  the  positive 
effects of the aid measure outweigh its potential negative effects and minimises any distortive 
effect. 

An example of a case where these principles have been enforced is the NGA Germany case. 
In  2015,  the  Commission  approved  Germany's  federal  State  aid  scheme  for  NGA 
deployment151. The EUR 3 billion plan aims to fill the gaps in NGA coverage, achieving full 
coverage with connection speeds of preferably 50 Mbps (but at least 30 Mbps). To support the 
goals of the programme, Germany intends to employ "vectoring" technology, which can boost 
connection  speeds  for  subscribers  in  a  very  cost-efficient  way,  while  also  inhibiting  open 
access  and multi-operator competition  at  the same. Therefore the Commission  approved the 
scheme on the condition that vectoring would only be deployed once Germany demonstrated 
to the Commission a way (either regulatory or technological) to remedy its anti-competitive 
effect.  

The principle of technological neutrality is important in various areas including platforms for 
transmission of television signals. In November, the General Court dismissed several actions 
for annulment of a Commission decision on the deployment of digital terrestrial television in 
remote and less urbanised areas of Spain152. The General Court concluded that public funding 
granted by Spain to facilitate the transition from analogue to digital television in remote and 
less  urbanised  areas  provided  a  selective  advantage  to  terrestrial  platform  operators  over 
competitors using other transmission technologies, in breach of EU State aid rules. Moreover, 

149 Since 2003, the Commission adopted over 130 decisions approving more than EUR 13 billion of State 
subsidies across Europe. 
150 Communication from the Commission EU Guidelines for the application of State aid rules in relation to the 
rapid deployment of broadband networks, OJ C 25, 26.1.2013, p.1 available at  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:025:0001:0026:EN:PDF 
151 Case SA.38348 NGA Germany, Commission decision of 18 February 2014 available at  
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38348 
152 Case SA.28599 Aid for the deployment of digital terrestrial television (DTT) – Spain, Commission decision 
of 19 June 2013 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_28599; Cases T-461/13 Spain v 
Commission, judgment of the General Court of 26 November 2015, ECLI:EU:T:2015:891; T-462/13 Comunidad 
Autónoma del País Vasco and Itelazpi v Commission, judgment of the General Court of 26 November 2015, 
ECLI:EU:T:2015:902; and Joined Cases T-463/13 and T-464/13 Comunidad Autónoma de Galicia v 
Commission and Retegal v Commission, judgment of the General Court of 26 November 2015, 
ECLI:EU:T:2015:901 and in Cases T-465/13 Comunidad Autónoma de Cataluña and CTTI v Commission, 
judgment of the General Court of 26 November 2015, ECLI:EU:T:2015:900; T-487/13 Navarra de Servicios y 
Tecnologías v Commission, judgment of the General Court of 26 November 2015, ECLI:EU:T:2015:899; and T-
541/13 Abertis Telecom and Retevisión I v Commission, judgment of the General Court of 26 November 2015, 
ECLI:EU:T:2015:898.  

47 

 
                                                           
the  General  Court  confirmed  that  the  Commission  was  correct  in  holding  that  the  aid  was 
incompatible  with  the  single  market,  in  particular  as  it  did  not  respect  the  principle  of 
technological neutrality. These judgments confirm the Commission's analysis of how Member 
States can support the transmission of TV coverage in line with EU law in a technologically 
neutral way. 

3. FINANCIAL SERVICES 

Overview of the key challenges in the sector 

Financial services represent about 5 % of the EU's GDP but, more importantly, they play an 
essential  role  in  providing  access  to  finance  for  the  real  economy.  In  2015,  the  situation  of 
financial  markets  improved  as  the  situation  of  the  banks  is  normalising  in  several  Member 
States, with banks returning to decent profitability levels and being able to raise new private 
capital when needed. 

Due  to  its  systemic  importance,  the  Commission  has  remained  very  active  in  the  financial 
services  sector  also  in  2015.  It  continued  to  enforce  State  aid  rules  for  the  financial  sector 
with  the  aim  of  ensuring  that  aided  financial  institutions  restructure  adequately  or  exit  the 
market  in  an  orderly  way,  and  limiting  competition  distortions  from  State  aid  within  the 
internal market, while limiting the use of taxpayers' money to the minimum necessary. At the 
same  time,  the  Commission  continued  its  role  in  merger  control  as  well  as  in  antitrust 
enforcement, investigating anti-competitive behaviours in the area of financial services. 

Since its  launch in June 2012, completing the Banking Union remains a  key priority on the 
EU agenda153. Progress continued in 2015: 

  The  Bank  Recovery  and  Resolution  Directive  (BRRD)  entered  into  force  on  1  January 
2015154. It sets out the resolution rules for banks and large investment firms in all Member 
States and aims to better protect taxpayers from having to bail out banks in distress. The 
Member States had to transpose the directive into national law by 31 December 2014. 17 
Member States have complied with this deadline. On 28 May, the European Commission 
issued  a  reasoned  opinion  to  request  the  full  implementation  of  the  directive  by  the 
remaining 11 Member States155. 

  The  members  of  the  Single  Resolution  Board156  were  appointed  by  the  Council  on  19 
December 2014 and took up their posts in March 2015. As of 2016, the Single Resolution 
Board will be the resolution authority for the significant and cross-border banking groups 
established  within  participating  Member  States  in  the  Single  Resolution  Mechanism 
(SRM).  It  will  enable  the  formulation  of  resolutions  plans  for  the  banks  within  their 
responsibility,  and  calculate  the  annual  contributions  of  all  institutions  authorised  in  the 
Member States participating in the Single Supervisory Mechanism (SSM) and the SRM. 
In the context  of the SRM it will work in close cooperation with  the national  resolution 
authorities. 

153 President Barroso described it as “the first and most urgent phase on the way to deepen our economic and 
monetary union" in his annual State of the Union speech to the European Parliament on 11 September 2013. 
154 European Parliament and Council Directive 2014/59/EU of 15 May 2014 establishing a framework for the 
recovery and resolution of credit institutions and investment firms, OJ L 173, 12.6.2014 available at  
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1427289116879&uri=CELEX:32014L0059  
155 Bulgaria, Czech Republic, France, Italy, Lithuania, Luxembourg, the Netherlands, Malta, Poland, Romania 
and Sweden. A reasoned opinion is the second stage of the EU infringement procedures. 
156 Members of the SRB are the Chair, the Vice-Chair and four other permanent members. 

48 

 
 
                                                           
 

In November, the Commission put forward a proposal for a European Deposit Insurance 
Scheme  (EDIS)157,  aiming  to  provide  a  stronger  and  more  uniform  degree  of  insurance 
cover for all retail depositors in the banking union. 

Contribution of EU competition policy to tackling the challenges  

Contribution of EU competition policy to innovation and investment in payments 

The European payments market is developing rapidly with lots of innovation and investments; 
there were 26 deals  raising USD 417.9 million  in  venture capital  up to  September 2014, an 
increase  that  surpassed  the  dot-com  levels  and  showed  a  faster  pace  in  Europe  than 
worldwide.  

2015 has been an important year for this market, with the adoption and entry into force of a 
legislative  "payment  package".  These  new  rules  will  profoundly  change  the  way  payment 
providers can operate in the EU.  

In April, the Interchange Fee Regulation was adopted. It introduced, as of 9 December, EEA 
wide  harmonised  caps  on  inter-bank  fees  for  the  most-used  credit  and  debit  cards158.  The 
Regulation will generate substantial savings for retailers and consumers, as it is expected to 
reduce hidden fees on card payments by EUR 6 billion annually. It will also make business 
practices fairer and more transparent and allow competition to be more effective159.  

2015  also  saw  the  publication  of  the  revised  Payment  Services  Directive  (PSD  II)160.  This 
Directive  will  allow  regulated  access  to  the  internet  payments  market  by  non-banks  to  the 
benefit of retailers and consumers161. 

In  most  Member  States  credit  cards  are  the  main  means  of  internet  payment.  But  card 
payments over the internet are cumbersome, expensive to merchants (with traditionally very 
high interchange fees for card transactions over the internet) and insecure with high levels of 
fraud162. Moreover, only 60 % of EU citizens possess such cards. The PSD II will open the 
market  for  (bank-owned  and  non-bank  owned)  regulated  third-party  players  who  offer 
alternative means of internet payments (e.g. through credit transfers via the consumer's bank's 

157 For further information see MEMO/15/6153 of 24 November 2015 available at http://europa.eu/rapid/press-
release_MEMO-15-6153_en.htm  
158 European Parliament and Council Regulation (EU) No 2015/751 of 29 April 2015 on interchange fees for 
card-based payment transactions, OJ L 123, 19.5.2015, p.1 available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.L_.2015.123.01.0001.01.ENG  
159 The Interchange Fee Regulation was preceded by extensive legal action by the Commission challenging the 
interchange fees applied by MasterCard and Visa, including in particular the prohibition of MasterCard's intra-
regional MIFs in 2007 and commitments from Visa Europe in 2010 and 2014 to reduce significantly all the MIFs 
it fixes in the EU. In September 2014 the Court of Justice endorsed the Commission's decision in the MasterCard 
case. For further information see Case C-382/12 P - MasterCard and Others v Commission, judgment of the 
Court of 11 September 2014, ECLI:EU:C:2014:2201. 
160 European Parliament and Council Directive (EU) 2015/2366 of 25 November 2015 on payment services in 
the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 
1093/2010, and repealing Directive 2007/64/EC, OJ L 337, 23.12.2015, p. 35 available at 
http://ec.europa.eu/finance/payments/framework/index_en.htm#151008 
161 The Directive was preceded by competition enforcement action against the European Payments Council 
('EPC'), the coordination and decision-making body of the European banking industry for payments. For further 
information see memo for Commission decision of 13 June 2013 available at  
http://europa.eu/rapid/press-release_MEMO-13-553_en.htm.  The  Commission  then  proposed  PSD  II  which 
provided  a  clear  legal  basis  for  such  bank-independent  players,  who  will  become  Payment  Institutions  and  be 
regulated by financial supervisors. 
162 Estimated by the ECB to represent about two-thirds of total card fraud in the EU, worth €800 million in 2014. 

49 

 
                                                           
website,  including  most  importantly  the  Single  Euro  Payment  Area  (SEPA)  Credit  Transfer 
system).  

The  PSD  II  will  also  enhance  the  security  of  internet  payments  in  general.  It  will  open  the 
market  to  a  whole  range  of  other  secure  and  efficient  services  building  on  the  consumer's 
bank account,  including  account  information services (allowing  consumers to  keep track on 
their  mobile  phone  of  their  spending  on  different  bank  accounts)  and  payment  instrument 
issuers  (who  are  third  parties  who  can  issue  cards  and  other  payment  instruments  to 
consumers). Some of these services are already  on the market  and many more are  expected 
after the transitional period of two years. 

The  "payment  package"  therefore  opens  the  door  for  innovation  and  investment  in  the 
payments sector.  

Antitrust and cartel investigations in the financial services sector 

In 2015, the Commission continued its antitrust investigations in the financial sector, one of 
the Commission's priority areas to achieve a fairer and more integrated internal market.  

In  July,  a  Statement  of  Objections  was  sent  to  MasterCard163  in  the  proceedings  against  its 
interchange fees for transactions in the EEA made with cards issued outside the EEA ("inter-
regional  transactions")  and  rules  hindering  cross-border  acquiring,  which  allegedly  artificially 
segments  the  internal  market  and  prevents  the  usual  competitive  process  in  acquiring.  The 
proceedings  against  Visa  Inc.  and  Visa  International  as  regards  their  fees  for  inter-regional 
transactions  also  continue164.  The  inter-regional  interchange  fees  of  Visa  and  MasterCard 
together  represent  about  EUR  1  billion  each  year.  The  Commission  is  concerned  that  they 
increase  prices  for  EEA  retailers  and  may  in  turn  lead  to  higher  prices  for  products  and 
services for all consumers. Linked to these proceedings, the Commission had commissioned a 
detailed  study  into  the  cost  for  merchants  of  receiving  payments  by  card  and  by  cash.  This 
was  carried  out  by  Deloitte.  Initial  results  were  published  in  2014  about  the  costs  for  the 
merchants  that  took  part  in  the  study.  A  final  report  was  published  in  March165  estimating 
these costs for merchants in the whole of the EU.  

The  investigative  efforts  into  the  credit  default  swaps  (CDS)  market  continued  throughout 
2015. On 4 December, the Commission decided to partially close the proceedings against all 
banks  involved  in  the  investigation.  The  investigation  continued  against  the  International 
Swaps and Derivatives Association (ISDA) and data provider Markit. 

YIRD (ICAP) 

On 4 February, the Commission fined the UK-based broker ICAP EUR 14,96 million for facilitating six cartels 
in the sector of Yen interest rate derivatives between 2007 and 2010. In this sector, the Commission had already 
uncovered several distinct bilateral infringements and imposed fines on the banks UBS, RBS, Deutsche Bank, 
Citigroup, JPMorgan and on the broker RP Martin in December 2013.  

These companies had admitted their involvement in one or more cartels in the YIRD sector, which allowed the 
Commission to settle the case with them. ICAP chose not to settle the case and proceedings continued against it 
under the normal procedure. The investigation uncovered that ICAP had facilitated six out of the seven cartels in 

163 Case AT.40049 MasterCard II. For further information see IP/15/5323 of 9 July 2015 available at 
http://europa.eu/rapid/press-release_IP-15-5323_en.htm  
164 These proceedings were closed as regards Visa Europe following its commitments, Case AT.39398 VISA MIF, 
Commission decision of 26 February 2014 available at 
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39398/39398_9728_3.pdf 
165 See, e.g. the Survey on merchants’ costs of processing cash and card payments, (March 2015) prepared by 
Deloitte available at http://ec.europa.eu/competition/sectors/financial_services/dgcomp_final_report_en.pdf  

50 

 
                                                           
the  YIRD  sector  through  various  actions  that  contributed  to  the  anti-competitive  objectives  pursued  by  the 
cartelists  and  in  particular  by:  disseminating  misleading  information  to  certain  JPY  Libor  panel  banks  which 
were portrayed as "predictions" or "expectations" of where the JPY LIBOR rates would be set. This misleading 
information was aimed at influencing certain panel banks (which were not participating in these infringements) 
to  submit  JPY  LIBOR  rates  in  line  with  the  adjusted  "predictions"  or  "expectations";  using  its  contacts  with 
several JPY LIBOR panel banks (which were not participating in the infringements) with the aim of influencing 
their JPY LIBOR submissions; and serving as a communications channel between a trader of Citigroup and a 
trader of RBS and thereby enabling the anti-competitive practices between them. 

Review of the Insurance Block Exemption Regulation  

The Commission continued in 2015 with the Impact Assessment procedure for the review of the 
Insurance Block Exemption Regulation (EU) No. 267/2010 (IBER)166. It assessed the replies to 
targeted  questionnaires167  received following the public consultation in 2014 and took further 
stakeholder  contacts.  Preparatory  steps  were  taken  for  the  Report168  on  the  functioning  and 
future of the regulation, which has to be submitted to Parliament and Council by March 2016. 
To gain additional input for the forthcoming Impact Assessment the Commission commissioned 
two studies on issues regarding the functioning of the regulation raised by stakeholders in the 
context of the consultation process. The studies will be undertaken in the first half of 2016. 

Merger investigations in the financial sector 

The  Commission  continued  to  ensure  that  concentrations  in  the  financial  services  sector  do 
not  lead  to  market  distortions.  The  Commission  assessed  several  mergers  in  the  banking, 
insurance and capital markets sectors. For example, the acquisition of Instituto Centrale delle 
Banche Popolari Italiane by Advent International and Bain Capital, involving markets related 
to payment cards169 or the acquisition by Aviva of Friends Life and Tenet which affected the 
United  Kingdom  life  insurance  market170.  As  these  transactions  did  not  raise  competition 
concerns, they were cleared in the first phase investigation and without the need for remedial 
action to be ordered. 

State aid investigations in the financial sector 

The  special  EU  State  aid  crisis  rules,  first  adopted  in  2008  and  amended  in  2010  and 
2011,  were  restructured  in  the  Banking  Communication171  that  was  adopted  on  1 
August 2013. Those rules, in line with the BRRD, allow State aid control to continue to 
ensure a consistent policy response to the financial crisis throughout the EU. They also 
played  an  important  role  in  limiting  distortions  of  competition  in  the  internal  market. 
Furthermore, they contribute to the restoration of confidence in the European financial 

166 Insurance Block Exemption Regulation (EU) No. 267/2010 (IBER), OJ L 83, 30.3.2010, p. 1. The regulation 
contains a sunset clause which foresees expiry in March 2017. 
167 Targeted questionnaires were sent to pools, customers, insurance intermediaries federations/brokers and mutual 
insurance associations. 
168 The report will present the Commission´s preliminary views on the functioning and future of the IBER at this 
stage and will not prejudge the final decision that the Commission will take on its future once the Impact 
Assessment is completed. 
169 Case M.7711 Advent International / Bain Capital / Icbpi, Commission decision of 16 September 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7711  
170 Case M.7478 Aviva / Friends Life / Tenet, Commission decision of 13 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7478 
171 Communication from the Commission on the Application of State aid rules to support measures in favour of 
banks in the context of the financial crisis (Banking Communication), OJ C 216, 30.7.2013, p.1 available at 
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013XC0730%2801%29&from=EN  

51 

 
                                                           
sector  so  that  it  can  again  provide  affordable  lending  to  the  real  economy,  including 
SMEs, and support economic growth. 

Until 31 December, the Commission has analysed 117 banks, or around one quarter of 
Europe's banking sector by assets, under the special crisis rules. Of those banks, 61 were 
restructured  and  41  were  orderly  liquidated.  As  of  31  December,  one  case  is  still 
pending. 

It is important to note that only a part of approved State aid to the financial sector has 
actually been used. In particular, only around a third of the guarantees approved by the 
Commission  were  eventually  necessary  to  be  provided  to  banks  by  the  respective 
Member States.  

In  the  period  of  2008  until  2014,  the  volume  of  aid  in  the  form  of  capital  (i.e. 
recapitalisations and asset relief measures) amounted to EUR 617 billion (4.4 % of EU 
2014  GDP).  More  specifically,  recapitalisations  totalled  EUR  432  billion  (3.1  %  of  EU 
GDP), whilst asset relief measures amounted to EUR 185 billion (1.3 % of EU GDP). 

The volume of guarantees and other liquidity support reached its peak in 2009, with the 
outstanding amount of EUR 906 billion (7.4 % of EU 2009 GDP). Since then the crisis has 
gradually  receded  in  many  Member  States,  and  the  outstanding  amount  of  liquidity 
support  dropped  to  EUR  215  billion  (1.5  %  of  EU  2014  GDP)  in  2014.  That  year  the 
outstanding  amount  of  guarantees  was  EUR  186  billion,  whilst  other  outstanding 
liquidity measures amounted to EUR 28 billion (0.2 % of EU GDP). 

State aid rules ensure that banks remunerate Member States for aid and that this aid is 
repaid.  For  aid  in  the  form  of  capital,  Member  States  have  received  EUR  15  billion  in 
dividends and other remuneration by end-2014. During the same period, Member States 
have received EUR 40 billion in guarantee fees, compared to EUR 4 billion of guarantees 
actually  called.  For  liquidity  support  in  the  form  of  loans, Member States  had  received 
EUR 68 billion in interest by end-2014. 

Data on aid repayments in 2015 will include a repayment by KBC in Belgium and partial 
re-privatisations  of  such  banks  as  Deutsche  Pfandbriefbank  in  Germany,  ABN  Amro  in 
the  Netherlands,  as  well  as  Lloyds  and  Royal  Bank  of  Scotland  in  the  United  Kingdom 

52 

 
 
and  if  those  Member  States  recouped  some  of  the  funds  provided  during  the  financial 
crisis. 

Non-performing loans (NLP) 

A dominant topic in  the Commission's discussions  with Member States is the  management of  non-performing 
loans (NPLs). As a result of the  economic recession or bursting of real estate bubbles,  many banks throughout 
Europe have large volumes of NPLs on their books. However, the legal framework for dealing with these is very 
different  in  each  Member  State.  In  some  Member  States,  strong  creditor  protection  prevents  banks  from 
managing  their  NPL  effectively,  e.g.  by  seizing  collateral.  Consequently,  some  national  administrations  have 
tried to devise other  ways to reduce the  burden of NPL on their banks' balance sheets  so that these banks can 
better  fulfil  their  role  of  lenders  to  the  real  economy.  Currently,  the  Commission  is  discussing  this  topic  with 
Italy and Hungary. Both States have decided to set up asset management companies (AMC) which should take 
over NPL from existing banks. While discussions on Italy's plans are still ongoing, Hungary has already begun 
to set up an AMC in 2014. 

In general, AMC give rise to a number of questions from a State aid perspective. The most important question is 
at what price the transfer of an NPL from a bank to a State-funded AMC takes place. In principle, a transfer at 
market value does, in all likelihood, not entail State aid. However, if the transfer  is conducted at a price above 
the  market value of the NPL, the transferring bank receives State aid amounting to the difference between the 
market value of the loan and the transfer price.  

It is important to highlight that this selective economic advantage to the bank in question comes at the expense of 
the  taxpayer,  who  is  buying  the  defaulted  loans  at  a  price  considered  by  the  private  investors  to  be  too  high 
compared  to  the  risk  of  losses.  Under  State  aid  rules,  such  type  of  aid  has  to  be  strictly  limited  to  distressed 
banks and given only under the condition that the banks in question are restructured. In other words, under State 
aid rules, it is not allowed that, when creditors default on their loans, the banks are able to sell these loans to the 
State  at  inflated  prices  without  having  to  restructure.  Consequently,  the  Commission  will  keep  monitoring 
Member States' plans for AMC closely in order to protect the European taxpayers from unnecessary burdens and 
to avoid undue advantages to banks. No decisions have been taken on AMC in 2015. 

On  9  April,  the  Commission  approved  under  State  aid  rules  the  restructuring  plan  of 
Permanent  TSB172.  The  third-largest  domestically  owned  Irish  bank  received  a  significant 
capital injection from the Irish State in 2011 and benefited from various asset relief measures 
and guarantee schemes. These measures had been temporarily approved by the Commission 
subject  to  the  submission  of  a  restructuring  plan.  The  initial  plan  submitted  by  Ireland  was 
subsequently adjusted and updated several times to account for changing market conditions, 
the  results  of  the  October  2014  comprehensive  assessment  conducted  by  the  ECB,  and 
difficulties to agree on terms to ensure the bank's long-term viability. The restructuring plan 
includes  a  set  of  commitments  that  Permanent  TSB  will  respect  until  the  end  of  2018, 
including commitments to deleverage and reduce costs. 

On 2 July, the Commission took an amendment decision on Österreichische Volksbanken AG 
(ÖVAG) and the Austrian Volksbanken sector, a network of cooperative banks173. ÖVAG, the 
central institution of the Volksbanken sector, had already received State aid in 2009 and was 
subsequently  been  put  under  restructuring  through  a  Commission  decision174.  In  October 
2014, the ECB stress test revealed a capital shortfall of EUR 865 million for the Volksbanken 
sector  including  ÖVAG.  To  make  up  for  the  shortfall  the  bank  and  the  Austrian  authorities 
proposed  to  transfer  ÖVAG's  functions  as  a  central  institution  to  another  Volksbank  and  to 
put  ÖVAG  itself  in  wind-down.  The  Commission  agreed  to  this  plan  on  condition  that  the 

172 Case SA.33442 Restructuring of Irish Life and Permanent Group Holdings plc, Commission decision of 9 
April 2015 available at http://ec.europa.eu/competition/state_aid/cases/241557/241557_1662492_396_2.pdf 
173 Case SA.31883 Restructuring of Österreichische Volksbanken AG, Commission decision of 2 July 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_31883 
174 Case SA.31883 Restructuring of Österreichische Volksbanken AG, Commission decision of 19 September 
2012 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_31883 

53 

 
                                                           
Volksbanken sector repays EUR 300 million to the Austrian State which Austria had given to 
ÖVAG as part of an injection of EUR 1 billion in participation capital in 2009. Previously, the 
Austrian State had already lost EUR 700 million of this sum due to ÖVAG's continued loss-
making. 

On 22 November, the Commission found the resolution plans for four small Italian banks175 
to be in line with State aid rules176. The four institutions constitute around 1 % of the Italian 
banking  sector.  All  of  them  had  already  been  placed  under  special  administration  between 
2013 and 2015. Under the decisions a bridge bank will be created for each bank. These bridge 
banks are to be sold in a profit-maximising way at a later stage. The Italian national resolution 
fund will provide EUR 3.6 billion to the bridge banks, minimising the need for State aid and 
consequently  the  burden  for  the  Italian  taxpayer.  On  23  December,  the  Commission  found 
that the support granted by the Italian mandatory deposit guarantee scheme to Banca Tercas, a 
small  Italian  bank  with  a  market  share  of  about  0.1  %  of  total  banking  assets  in  Italy, 
constitutes incompatible State aid177. This decision followed the opening of an in-depth probe 
into  the  support  measures  in  February  2015.  The  decision  exemplifies  the  Commission's 
continued vigilance regarding State aid rules in the European financial sector – including the 
requirement that State aid must be kept to the necessary minimum.  

The specific situation of Programme Countries 

In Greece, the situation of the banking sector deteriorated dramatically over the first half of 
2015 amid uncertainties about the financing of the Greek State, which eventually led to a new 
European Stability Mechanism (ESM) support programme for Greece agreed in August 2015. 
In  that  context,  the  European  Central  Bank's  Single  Supervisory  Mechanism  (SSM)  carried 
out  a  comprehensive  assessment  of  the  four  systemic  Greek  banks,  to  ensure  that  they  are 
adequately  capitalised.  This  revealed  -  on  31  October  -  large  capital  shortfalls.  The  banks 
aimed to cover their capital needs from private sources (existing creditors, voluntary exchange 
of their bonds for new shares, and new investors). Two of the banks succeeded in  doing so 
fully,  while  the  other  two  raised  significant  amounts  of  private  capital  and  received  capital 
injections from the State for the difference. All of them benefited from an aid measure in the 
form  of  a  Hellenic  Financial  Stability  Fund  commitment  to  cover  any  capital  needs  not 
covered from private sources. The Commission found the aid measure provided by the Fund 
and  the  capital  injections,  to  be  in  line  with  State  aid  rules,  on  the  basis  of  amended 
restructuring plans submitted for the banks, which included new restructuring measures  and 
commitments, proportional to the amount of aid received by each of the banks. 

In Cyprus, the Single Supervisory Mechanism concluded two assessments with respect to the 
Cypriot  Central  Cooperative  Banks  (CCB)  in  2015.  The  first,  a  Supervisory  Review 
Evaluation  Process  (SREP),  led  to  a  decision  that  CCB  must  at  all  times  have  an  overall 
capital ratio equal in quality to Common Equity Tier 1 (CET1). The second assessment was 
related to an on-site inspection that identified a shortfall in provisioning. As a result of both 

175 Banca delle Marche, Banca dell'Etruria e del Lazio, Cassa di Risparmio di Ferrara, and Cassa di Risparmio 
della Provincia di Chieti. 
176 Cases SA.39453, SA.41134, SA.41925 and SA.43547, Commission decision of 22 November 2015. The non-
confidential versions of the four decisions will be published in the State aid register on the competition website 
under the case numbers SA.39453, SA.41134, SA.41925 and SA.43547 once potential confidentiality issues 
have been resolved. 
177 Case SA.39451 Banca Tercas, Commission decision of 23 December 2015. For further information see 
IP/15/ 6395 of 23 December 2015 available at http://europa.eu/rapid/press-release_IP-15-6395_en.htm. The non-
confidential version of the decision will be published in the State aid register on the competition website under 
the case number SA.39451 once potential confidentiality issues have been resolved.  

54 

 
                                                           
reviews, the CCB needed additional capital. Since their legal structure did not allow them to 
raise the new capital from private sources, the Commission received a request for new State 
aid. The new capital injection was approved subject to significant additional restructuring of 
the  CCB.  Further  operational  integration  was  demanded,  including  further  centralisation  of 
employees to  allow for their easier  redeployment and the governance structure of the  group 
was  further  simplified  as  well  as  the  centralisation  of  ownership  and  control  of  physical 
assets. In order to restore market access of the CCB, a progressive divestment by the State has 
been demanded to start before the end of the restructuring period – before 2018. 

In May, Portugal successfully exited a financial assistance programme, during which a large 
part  of  the  banking  sector  had  been  subject  to  restructuring  decisions  under  State  aid  rules. 
State  aid  control  in  the  financial  sector  continues  to  play  a  relevant  role  in  the  post-
programme context.  

In  December,  the  Commission  took  decisions  on  two  Portuguese  banks,  Novo  Banco  and 
Banif.  Novo  Banco,  which  was  established  following  the  resolution  of  BES  in  August 
2014178,  had  to  be  sold  by  August  2016  in  a  transaction  that  was  to  be  approved  by  the 
Commission.  A  sales  process  run  in  2015  did  not  find  a  buyer.  At  the  same  time,  the 
European  Central  Bank's  Single  Supervisory  Mechanism  carried  out  a  comprehensive 
assessment  of  the  bank,  revealing  on  14  November  a  shortfall  of  EUR  1.4  billion  in  the 
adverse stress test scenario, adding to the complexity of the bank's situation. In December, the 
Commission adopted a decision179, amending the BES resolution, postponing the deadline to 
sell  and  declaring  the  prolongation  of  existing  Government  Guarantee  Bank  Bonds  to  be 
compatible, based on a strengthened set of commitments by the Portuguese authorities and an 
increased focus by Novo Banco on its core activities. The Commission did not approve any 
other measures for Novo Banco.  

In December, the Commission  also  adopted a decision180 approving the  resolution  of Banif, 
through  the  sale  of  assets  to  Banco  Santander  Totta  and  a  transfer  of  assets  to  an  asset 
management  vehicle  (Oitante).  The  resolution  strategy  was  chosen  by  the  Portuguese 
authorities, who notified it to the Commission. The transfer of assets to the asset management 
vehicle  was  only  approved  on  a  temporary  basis  under  the  State  aid  framework,  a  final 
decision is expected in 2016.  

In the case of  Banif, on  24 July the Commission opened an in-depth  investigation to  assess 
whether EUR 1.1 billion of State aid, granted by Portugal to the bank in January 2013 under a 
temporary  Commission  approval181,  was  compatible  with  EU  State  aid  rules.  Several 
amended versions of the restructuring plan for Banif had been submitted to the Commission 
since  the  2013  rescue  decision.  However,  the  opening  of  the  investigation  was  necessary 
because of the doubts about the viability of the bank and on the measures proposed to ensure 
adequate  burden  sharing  and  limitation  of  competition  distortions.  On  21  December,  the 
Commission approved a series of State aid measures by Portugal amounting to up to EUR 3 
billion  to  put  Banif  into resolution.  The  viable  parts  of  Banif  were  sold  to  Santander  Totta. 

178 Case SA.39250 Resolution of Banco Espírito Santo, Commission decision of 3 August 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39250  
179 Case SA.43976 Amendment to the resolution of Banco Espirito Santo, Commission decision of 19 December 
2015, available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_43976  
180 Case SA.43977 Resolution of Banif – Banco Internacional do Funchal SA, Commission decision of 21 
December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_43977 
181 Case SA.34662 Rentipar/BANIF – Rescue decision – PT, Commission decision of 21 January 2013 available 
at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_34662 

55 

 
                                                           
The  rest  of  the  bank  will  be  wound  down  and  cease  to  compete  on  the  market.  The  State 
support  therefore  preserves  financial  stability  and  preserves  the  lending  capacity  to  the 
Madera  region  but  without  artificially  keeping  alive  non-viable  activities.  Hence  the 
Commission concluded that this aid does not lead to undue distortions of competition and is 
compatible with the internal market.  

4. TAXATION AND STATE AID 

Overview of key challenges on tax evasion and avoidance and fiscal aid 

The  focus  the  Commission  has  put  on  fighting  tax  evasion  and  tax  avoidance  echoes  the 
priorities  set  by  President  Juncker  upon  taking  office  in  November  2014,  and  is  also 
underscored  in  Commissioner  Vestager's  Mission  Letter.  This  is  also  in  line  with  efforts  at 
international  level,  namely  by  the  OECD,  to  tackle  tax  base  erosion  and  profit  shifting  to 
better  align  rights  to  tax  with  economic  activity182.  State  aid  investigations  into  Member 
States' tax ruling practices, which began in 2013, before the Luxleaks revelations, are one of 
the  tools  the  Commission  has  to  ensure  companies  pay  the  taxes  they  owe  in  the  Member 
States where they generate economic value. 

Tax evasion and avoidance can be the result of aggressive tax planning strategies, in so far as 
they  shift  profits  to  low  or  no-tax  locations  where  there  is  little  or  no  economic  activity, 
resulting  in  little  or  no  overall  corporate  tax  being  paid.  Aggressive  tax  planning  can  be 
pursued  by  making  use  of  preferential  tax  schemes,  or  by  requesting  individual  tax  rulings. 
They all have in common that they result in a loss of tax revenue in the Member State where 
economic  value  is  generated  but  not  taxed,  and  in  Europe  as  a  whole  because  the  tax 
eventually paid is less than it would have been if the profits had not been shifted. 

The side effects of aggressive tax planning for the EU are particularly negative: first, it results 
in  undue  tax  reliefs  that  distort  competition  by  granting  advantages  only  to  selected 
companies;  second,  it  entails  a  social  equity  issue,  as  the  revenues  foregone  from  untaxed 
multinationals  need  to  be  compensated,  which  normally  shifts  the  burden  to  less  mobile 
income  of  SMEs  and  labour;  third,  from  the  perspective  of  the  dislocation  of  activities, 
aggressive tax planning can present a threat to the sustainable growth of the internal market if 
some  Member  States  were  to  offer  exit  points  for  European  profits  of  multinationals  in 
exchange for creating jobs on their territory and a limited tax payment. 

Both  collecting  taxes  and  combating  tax  evasion  are  normally  competences  of  the  Member 
States.  However,  even  in  this  area  where  the  Member  States  enjoy  fiscal  autonomy,  any 
national tax measures adopted have to comply with internal market rules and, amongst others, 
abide by competition law183. 

182 OECD (2013), Action Plan on Base Erosion and Profit Shifting, OECD Publishing, Paris. 
183 The Commission work in the area of tax rulings was closely followed by the European Parliament's Special 
Committee on Tax Rulings and Measures Similar in Nature or Effect (TAXE). On 25 November, European 
Parliament adopted a Report on tax rulings and other measures similar in nature or effect prepared by the TAXE 
Committee, which viewed positively the contribution of State aid control to tax fairness in Europe. In fact, it 
"strongly welcomes and supports the key role of the Commission as the competent competition authority in the 
ongoing State aid inquiries dealing with tax rulings" (para. 130). On 25 November, the Committee issued a 
report which broadly endorsed the Commissions approach on State aid. 

56 

 
 
                                                           
Contribution of EU competition policy to tackling the challenges 

State aid investigations and decisions concerning aggressive tax planning 

Since  2013,  the  Commission  has  been  looking  into  tax  planning  practices  via  its  dedicated 
Task Force. 

Throughout  2014  and  2015,  the  Commission  has  continued  to  gather  information  on  tax 
planning  practices.  At  an  initial  stage,  relevant  information  was  requested  from  certain 
Member States where allegations of preferential treatment through tax rulings had been drawn 
to the Commission's attention, notably Luxembourg, Ireland and the Netherlands. In addition 
to  the above, requests for information  on tax planning practices  were sent  to  Cyprus, Malta 
and the United Kingdom.  

In December 2014184, the Commission extended its State aid enquiry to include  all Member 
States. The enquiry is aimed at clarifying allegations that tax rulings may constitute State aid 
and to allow the Commission to take an informed view of the practices of all Member States. 
On  the  basis  of  the  information  received,  in  June,  the  Commission  requested  15  Member 
States  to  provide  a  substantial  number  of  individual  tax  rulings185.  Requesting  these  tax 
rulings  does  not  prejudge  whether  this  will  lead  to  individual  State  aid  investigations 
concerning the recipients of these tax rulings. 

Overall, in the context of the rulings enquiry, Member States have shown good cooperation, 
except  for,  initially,  Estonia  and  Poland.  Therefore,  in  June,  the  Commission  adopted  two 
information  injunctions  ordering  Estonia  and  Poland  to  deliver  the  information  the 
Commission needs to assess whether certain tax practices favour certain companies, in breach 
of  State  aid  rules.  After  the  injunctions,  the  Member  States  submitted  the  requested 
information. 

Specific cases 

In 2014, the Commission opened four formal investigations where it raised concerns that tax 
rulings  may  entail  State  aid  issues.  These  investigations  concern  rulings  for  Apple  in 
Ireland186, Starbucks in the Netherlands, Fiat Finance & Trade in Luxembourg, and Amazon 
in Luxembourg187. Two of these cases were concluded on 21 October with negative decisions 
with recovery188. 

Both  of  those  decisions  find  that  by  issuing  tax  rulings  in  favour  of  integrated  group 
companies that endorse a method allowing those companies to determine their taxable profit 
in  a  manner  that  deviates  from  a  reliable  approximation  of  a  market-based  outcome,  the 
Member  States  in  question  confer  a  selective  advantage  on  those  companies  and  the 
multinational corporate groups to which they belong. That is because those tax rulings allow 
those  group  companies  to  reduce  their  taxable  profit  and  thus  their  tax  liability  under  the 

184 For further information see IP/14/2742 of 17 December 2014 available at http://europa.eu/rapid/press-
release_IP-14-2742_en.htm  
185 For further information see IP/15/5140 of 8 June 2015 available at http://europa.eu/rapid/press-release_IP-15-
5140_en.htm  
186 Case SA.38373 Alleged aid to Apple, Commission decision of 11 June 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38373  
187 Case SA.38944 Alleged aid to Amazon, Commission decision of 7 October 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38944  
188  For  further  information  see  IP/15/5880  of  21  October  2015  available  at  http://europa.eu/rapid/press-
release_IP-15-5880_en.htm  

57 

 
                                                           
ordinary rules of taxation of corporate profits in the Member State concerned, as compared to 
independent standalone companies, whose taxable profits are the result of prices negotiated at 
arm's-length  and  thus  determined  by  the  market.  That  the  method  for  determining  an 
integrated group company's taxable profit for corporate taxation purposes should comply with 
this "arm's-length" principle flows from Article 107(1) TFEU, as interpreted by the case law 
of the Union Courts189.  

Luxembourg - Fiat Finance and Trade (FFT) 

One of the decisions adopted by the Commission in 2015190 concerns the intra-group treasury 
company  of  Fiat  Chrysler  Automobile.  Its  Luxembourg  subsidiary  Fiat  Finance  and  Trade 
(FFT)  provides  financial  services,  such  as  intra-group  loans,  to  other  Fiat  group  car 
companies in Europe, excluding Italy. The tax ruling issued by Luxembourg to that company 
endorsed  an  artificial  and  extremely  complex  transfer  pricing  methodology  that  the 
Commission did not find appropriate for determining that company's taxable profits in manner 
that reliably reflects market conditions. As a result, FFT's tax base was significantly reduced 
as compared to independent standalone companies in a comparable factual and legal situation.  

The Commission concluded that because FFT's activities can (as also claimed by the company 
and Luxembourg) be compared to those of a bank, the taxable profits of FFT could in order to 
be at arm's length, be determined in a similar way as for a bank, which means a calculation of 
return  on  capital  deployed  by  the  company  for  its  financing  activities.  This  requires,  as  a 
matter  of  principle  that  if  the  taxable  profits  are  calculated  based  on  capital,  the  level  of 
capitalisation  in  the  company  has  to  be  adequate  compared  to  financial  industry  standards. 
Additionally,  the  remuneration  applied  has  to  correspond  to  market  conditions.  The 
Commission's  assessment  showed  that,  in  the  case  of  FFT,  if  the  estimations  of  capital  and 
remuneration applied had corresponded to  market  conditions,  the taxable profits declared in 
Luxembourg would have been 20 times higher. 

The Netherlands - Starbucks Manufacturing EMEA BV (Starbucks Manufacturing) 

The other decision adopted by the Commission in 2015191 concerns a Dutch-based subsidiary 
of  the  Starbucks  Corporation.  The  Dutch  subsidiary  Starbucks  Manufacturing  EMEA  BV 
(Starbucks  Manufacturing)  is  the  only  coffee  roasting  company  of  the  Starbucks  group  in 
Europe. It sells and distributes roasted coffee and coffee-related products (e.g. cups, pastries, 
etc.) to Starbucks outlets in Europe, the Middle East and Africa.  

A  tax  ruling  issued  by  the  Dutch  tax  authorities  in  2008  significantly  lowered  Starbucks 
Manufacturing's tax base as compared to its accounting profit. The core of the Commission's 
decision  concerned  the  payment  of  a  substantial  royalty  fee  to  another  Starbuck's  group 
subsidiary  based  in  the  United  Kingdom  for  the  use  of  coffee-roasting  IP  and  know-how, 
which  is  not  liable  for  corporate  tax  in  either  the  United  Kingdom  or  the  Netherlands. 
Moreover, the  company  also  paid  an inflated price for  green  coffee beans to  a Switzerland-
based Starbucks group company.  

189 Joined cases C-182/03 and C-217/03 Belgium and Forum 187 ASBL v Commission, judgment of the Court of 
22 June 2006, ECLI:EU:C:2006:416. 
190 Case SA.38375 Alleged aid to FFT, Commission decision of 21 October 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38375  
191 Case SA.38374 Alleged aid to Starbucks, Commission decision of 21 October 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38374  

58 

 
                                                           
The  Commission's  investigation  established  that  the  tax  ruling  endorsed  a  transfer  pricing 
methodology that did not produce a reliable approximation of a market-based outcome, since 
it  did  not  properly  examine  or  price  the  royalty  paid  by  Starbucks  Manufacturing  for  the 
coffee-roasting  IP  and  know-how  to  a  Starbucks  subsidiary  in  the  United  Kingdom  and  the 
price  paid  by  Starbucks  Manufacturing  for  green  coffee  beans  to  a  Starbucks  subsidiary  in 
Switzerland. The Commission further found that the royalty fee in question cannot be justified 
since  it  did  not  reflect  a  reliable  approximation  of  a  market  price.  In  particular,  the 
Commission noted that Starbucks does not charge a royalty for the use of its coffee-roasting 
IP  and  know-how  when  that  IP  is  licensed  to  third  parties  that  do  not  exploit  the  finished 
product  on  the  market.  In  addition,  the  Commission  found  that  certain  competitors  of 
Starbucks do not charge a royalty for the use of their coffee-roasting IP and know-how when 
this is  licensed to  a coffee roasting toll  manufacturer. The Commission  therefore  concluded 
that, by allowing Starbucks Manufacturing as a result of the tax ruling to shift a considerable 
portion  of  its  accounting  profit  to  another  Starbucks  group  entity  in  the  guise  of  a  royalty 
which  was  not  justified  by  the  market,  the  Dutch  tax  authorities  conferred  a  selective 
advantage  upon  that  company  in  the  form  of  a  reduction  of  its  taxable  profit  and  thus  its 
corporate  income  tax  liability  under  the  ordinary  rules  of  corporate  taxation  in  the 
Netherlands  as  compared  to  independent  companies  whose  taxable  profits  are  the  result  of 
prices negotiated at arm's-length and thus determined by the market. In the case of Starbucks 
Manufacturing, however, the existence and level of the royalty means that a large part of its 
taxable  profits  are  unduly  shifted  out  of  the  country.  In  addition,  the  Commission's 
investigation found that Starbucks Manufacturing's tax base was also unduly reduced by the 
inflated price it pays for green coffee beans to a Starbuck's subsidiary based in Switzerland. 
The  investigation  concluded  that  by  the  tax  ruling  issued  in  2008,  the  Netherlands  gave  a 
selective  advantage  to  Starbucks  Manufacturing,  which  has  unduly  reduced  Starbucks 
Manufacturing's tax burden since 2008 by EUR 20 - EUR 30 million.  

The two afore-mentioned decisions do not question the practice of issuing tax rulings as such, 
in so far as they are used to obtain clarity on how corporate tax will be calculated or on the 
use  of  special  tax  provisions.  The  two  decisions  expose  two  tax  rulings  endorsing  artificial 
and  unnecessarily  complex  transfer  pricing  methods  to  establish  taxable  profits  for  the 
companies in question, which did not reflect economic reality and in no way corresponded to 
market  conditions.  Member States have to  scrutinise requests for tax rulings  and not  accept 
the  establishment  of  transfer  prices  with  no  economic  justification  and  which  unduly  shift 
profits  to  reduce  the  taxes  paid  by  companies  in  their  jurisdictions.  Otherwise  the 
beneficiaries of the ruling will obtain an unfair competitive advantage over other companies 
(in  particular  independent  stand-alone  companies,  typically  SMEs)  that  are  taxed  on  their 
actually  recorded  profits  which  are  determined  by  prices  negotiated  at  arm's  length  on  the 
market for the goods and services they use. 

Belgian excess profit system 

In February, the Commission launched an in-depth investigation into the Belgian excess profit 
system192. The scheme provides certain Belgian entities that are part of a multinational group 
with a reduction of their tax base. The tax base reduction concerns a part of an entity's actually 
recorded  profit  which  exceeds  the  alleged  hypothetical  average  profit  of  a  stand-alone  entity 
(i.e.  not  part  of  a  group)  deemed  to  be  comparable.  Belgium  deems  that  part  of  the  profit 

192 For further information see IP/15/4080 of 3 February 2015 available at http://europa.eu/rapid/press-
release_IP-15-4080_en.htm and Case SA.37667 Excess profit tax ruling system in Belgium, Commission 
decision of 11 January 2016 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37667  

59 

 
                                                           
"excess profit". This unilateral downward adjustment of the tax base, is claimed to be granted to 
prevent double taxation, but it applies irrespective of any risk of double taxation. The benefits 
of the scheme are available subject to an advance ruling issued by a special ruling commission. 
On 11 January 2016, the Commission adopted a negative decision with recovery193, concluding 
that selective tax advantages granted by Belgium under its "excess profit" tax scheme are illegal 
under EU State aid rules. The scheme has benefited at least 35 multinationals mainly from the 
EU, who must now return unpaid taxes to Belgium. 

Luxembourg - McDonald's  

Finally,  on  3  December  the  Commission  opened  a  formal  probe  into  Luxembourg's  tax 
treatment  of  McDonald's194.  Its  preliminary  view  is  that  a  tax  ruling  granted  by  Luxembourg 
may have granted McDonald's an advantageous tax treatment in breach of EU State aid rules. In 
particular,  the  Commission  will  assess  whether  Luxembourg  authorities  selectively  derogated 
from  the  provisions  of  their  national  tax  law  and  the  Luxembourg-United  States  Double 
Taxation Treaty and thereby gave McDonald's an advantage not available to other companies in 
a comparable factual and legal situation. 

State  aid  investigation  of  sector  specific  tax  issues  -  investigation  into  three  Hungarian 
schemes with progressive tax rates 

In  2014,  Hungary  introduced  (1)  a  tax  on  the  turnover  derived  from  the  publication  of 
advertisements in the media (advertisement tax); (2) a tax on the annual turnover derived from 
the  production  and  trade  of  tobacco  products,  and  (3)  widened  an  existing  tax  on  the  annual 
turnover  of  food  chain  operators,  to  include  retail  stores  selling  items  of  daily  consumption. 
These  three  turnover  tax  measures  had  progressive  rates  depending  on  annual  turnover,  and 
placed companies with low turnover in an advantaged position compared to others.  

In  March  and  July,  the  Commission  launched  formal  investigations195  into  these  measures, 
(combined with suspension injunctions), considering the progressivity of the tax rates grants a 
selective advantage to undertakings with low turnover and constitutes State aid, which does not 
appear compatible with the internal market. In reaction, on all three measures Hungary signalled 
its willingness to abolish the progressive elements and either abolish the measures or transform 
them into flat-rate measures compatible with the State aid rules. 

193 For further information see IP/16/42 of 11 January 2016 available at http://europa.eu/rapid/press-release_IP-
16-42_en.htm 
194 For further information see IP/15/6221 of 3 December 2015 available at http://europa.eu/rapid/press-
release_IP-15-6221_en.htm  
195 Cases SA.39235 Hungarian advertisement tax, Commission decision of 12 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39235; SA.40018 Amendment to 
the Hungarian food chain inspection fee, Commission decision of 15 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_40018 and SA.41187 
Hungarian health contribution of tobacco industry businesses, Commission decision of 15 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result  

60 

 
                                                           
5. BASIC INDUSTRIES AND MANUFACTURING 

Overview of key challenges in the sector 

Manufacturing is key to the European economy, though it contributes slightly less in terms of 
GDP than it has in the past196. However, the economic importance of industrial activity is much 
greater than bare GDP figures may suggest. Industry accounts for over 80 % of Europe's exports 
and  80  %  of  private  research  and  innovation.  Nearly  one  in  four  private-sector  jobs  are  in 
manufacturing,  while  each  additional  manufacturing  job  creates  up  to  two  jobs  in  other 
sectors197.  

Recognising  the  central  importance  of  industry  for  boosting  competitiveness  and  sustainable 
growth in Europe, the  Commission has signalled  its  commitment  to  industrial  modernisation 
and promoting a competitive framework for EU industry through investments in innovation, 
resource efficiency, new technologies, skills  and access  to  finance to  increase the industry's 
share of EU GDP to as much as 20 % by 2020198. 

Contribution of EU competition policy to tackling the challenges 

Healthy and vigorous competition enhances the incentives for innovation, and therefore sets 
the scene for economic growth and job creation. The Commission must therefore be vigilant 
to  ensure that  Europe's future prospects  are not  harmed by  anti-competitive practices which 
introduce rigidities, push prices up and reduce the competitiveness of EU companies and the 
real  income  of  EU  consumers.  By  maintaining  a  level  playing  field,  EU  competition  policy 
contributes to Europe's growth agenda and underpins the international competitiveness of the 
European manufacturing sectors. 

Antitrust investigations in basic industries 

Basic manufacturing and consumer goods industries continue to represent a significant share 
of  the  Commission's  enforcement  practice.  In  2015,  the  Commission  continued  its  lines  of 
action (including individual case work, market surveillance and advocacy) in these sectors,  

EU  value-added  industry  requires  access  to  basic  materials  at  affordable  prices  that  reflect 
international  cost  conditions.  In  2015,  the  Commission  actively  monitored  the  markets  for 
these inputs to ensure there is adequate access in a healthy and competitive environment. In 
particular,  the  Commission  continued  to  monitor  the  ongoing  reform  of  the  London  Metal 
Exchange  rules  on  warehousing199,  while  also  focusing  on  other  commodities  such  as 
chemicals. 

Cartel investigations in basic industries 

Parking Heaters 

196 André Sapir and Reinhilde Veugelers (2013), Manufacturing Europe's growth – policies should focus on 
high-end industries driving productivity growth, Brussel Opinions available at http://www.bruegel.org/ 
nc/blog/detail/article/1185-manufacturing-europes-growth  
197 Communication of 22 January 2014 from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee and the Committee of the Regions For a European Industrial 
Renaissance, COM(2014) 14 final. 
198 See previous footnote.  
199 For further details about the 12 elements of the LME warehousing reform package, see 
http://www.lme.com/trading/warehousing-and-brands/warehousing/lme-warehouse-reform/  

61 

 
                                                           
On  17  June,  the  Commission  adopted  its  18th  settlement  decision,  imposing  a  total  fine  of 
more than EUR 68 million200 on two Germany-based undertakings, Webasto and Eberspächer 
that  had  coordinated  prices  and  allocated  customers  with  regard  to  fuel-operated  parking 
heaters  (which  heat  parked  cars  or  trucks)  and  auxiliary  heaters  (which  support  the  heating 
system  of a running car or truck) between September 2001 and September 2011.  The cartel 
covered supplies of parking heaters to major manufacturers of both cars and trucks across the 
EEA as well as the aftermarket sales in Germany and Austria. 

The  parties  formed  a  "basic  understanding"  according  to  which  competition  between  them 
should  primarily  focus  on  quality  and  technology,  rather  than  price.  They  also  agreed  to 
comply with the incumbent supplier principle, which meant that they would not aggressively 
pursue individual customers or specific models supplied historically by the other undertaking. 
The  ultimate  aim  of  the  agreement  was  to  generate  reasonable  margins  by  limiting  price 
competition. For 10 years, Webasto and Eberspächer engaged into regular bilateral contacts, 
during  which  they  coordinated  prices  and  exchanged  other  commercially  sensitive 
information.  

The  investigation  started  with  an  immunity  application  submitted  by  Webasto  which  was 
followed by an unannounced inspection at Eberspächer's premises in July 2013. Shortly after, 
Eberspächer applied for leniency. Eberspächer benefited from a reduction of its fine under the 
2006 Leniency Notice for its cooperation as well as a further reduction of 10 % for agreeing 
to  settle  the  case  with  the  Commission.  Webasto  received  full  immunity  for  revealing  the 
existence of the cartel.  

Retail Food Packaging 

On 24 June, the Commission adopted a decision201 against 10 companies (Linpac, Vitembal, 
Coopbox,  Sirap-Gema,  Huhtamäki,  Silver  Plastics,  Nespak,  Magic  Pack,  Ovarpack  and 
Propack) for their participation in one or more cartels within the retail food packaging sector. 
The products concerned were polystyrene plastic trays ("foam trays") and, in respect of one of 
the cartels, also polypropylene plastic trays ("rigid trays") -  both used for retail packaging of 
fresh food such as meat, poultry, fruits and fish.  

The Decision concerns five cartels which each took place in a different geographical region 
within  the  EEA,  namely  Italy,  south-west  Europe  (covering  Spain  and  Portugal),  France, 
central-eastern Europe (covering Poland, Slovakia, Czech Republic and Hungary) and north-
west Europe (covering Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands, 
Norway  and  Sweden).  The  cartels  were  undertaken  in  different  periods  and  with  varying 
durations between March 2000 and February 2008 by tray manufacturers and, in  relation  to 
south-west Europe and central-eastern Europe, also by distributors.  

With some differences between the five cartels, the cartel participants engaged in price fixing, 
customer  allocation  and  market  sharing,  exchange  of  price-sensitive  information  and  bid-
rigging, mainly with the objectives of maintaining high prices, passing on raw material price 
increases in a coordinated manner and preserving the status quo with regard to the historically 
allocated  clients  and  markets.  The  Commission  imposed  fines  amounting  to  a  total  of  EUR 
115  865  000  for  the  five  cartels.  Under  the  Commission's  2006  Leniency  Notice,  Linpac 
received full immunity for revealing the existence of the cartels and avoided fines of totalling 

200 Case AT.40055 Parking Heaters, Commission decision of 17 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/index.cfm?fuseaction=dsp_result  
201 Case AT.39563 Retail food packaging, Commission decision of 24 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39563 

62 

 
                                                           
of  EUR  145  065  000.  Vitembal,  Sirap-Gema,  Coopbox,  Magic  Pack,  Silver  Plastics  and 
Ovarpack  were  all  granted  reductions  of  their  fine/fines  on  the  basis  of their  cooperation  in 
the Commission's investigation providing information on one or more cartels. Finally, all the 
undertakings  were  exceptionally  granted  a  5  %  reduction  of  their  fines  to  reflect  the 
considerable  duration  of  the  proceeding  (seven  years)  and  the  special  circumstances  of  the 
case.  

Merger investigations in basic industries 

GE/Alstom 

In  2015,  the  Commission  cleared  the  acquisition  of  the  Thermal  Power,  Renewable  Power 
to  conditions 
and  Grid  businesses  of  Alstom  by  General  Electric  (GE),  subject 
(GE/Alstom202).  Following  an  in-depth  investigation,  the  Commission  found  that  the 
transaction, as initially notified, would have created significant horizontal overlaps in the gas-
related part of Alstom's Thermal  Power business, mainly in  relation  to  the supply of Heavy 
Duty  Gas  Turbines  (HDGTs),  where  the  global  market  leader  GE  would  have  acquired  the 
third largest competitor in the EEA. 

HDGTs  are  the  prime  mover  of  gas  fired  power  plants,  which  are  expected  to  play  an 
important role in the European energy mix in the coming decades as a flexible complement to 
electricity  generation  from  renewable  energies.  Moreover,  it  is  likely  that  HDGTs  will  be 
important  in  the  possible  phasing  out  of  less  energy-efficient  and  more  polluting  coal-fired 
plants.  

The  Commission  found  that  already  before  the  transaction  the  choice  of  many  HDGT 
customers appeared to be limited to two or three options at most because of the (1) the highly 
concentrated  market  structure,  with  only  four  full  technology  competitors,  Alstom,  GE, 
MHPS and Siemens, (2) the high degree of product differentiation and (3) the high barriers to 
entry. The Commission's investigation which, among other evidence, was based on a detailed 
analysis of tenders over a five-year period, further showed that Alstom  was, in particular in 
Europe,  an  important  HDGT  competitor,  and  in  both  Europe  and  in  the  worldwide  50Hz 
markets,  a  close  competitor  of  GE  for  HDGTs.  Therefore,  further  to  the  transaction, 
customers would have suffered a significant reduction of choice, likely resulting in significant 
price increases. Moreover, in the course of the Commission's investigation, Alstom emerged 
as  one  of  the  most  innovative  OEMs  in  the  HDGT  market  and,  thus,  the  transaction  would 
also have significantly reduced innovation competition.  

The commitments consisted in the divestment of the HDGT business of Alstom to the number 
five  player  in  the  world,  Ansaldo.  The  objective  of  the  remedy  is  not  only  to  guarantee  the 
continued  availability  of  choice  in  the  market  for  HDGTs,  but  also  to  replicate  Alstom's 
innovation  capabilities.  The  divestiture  therefore  includes  Alstom's  technology  for  its  most 
advanced  HDGTs,  existing  upgrades  and  pipeline  technology  for  future  upgrades,  R&D 
engineers,  testing  facilities,  Alstom's  servicing  subsidiary  PSM  and  servicing  contracts  for 
some of the largest and most recent Alstom HDGTs. 

The remainder of the transaction was cleared without commitments, as the Commission found 
that GE's activities were largely complementary to Alstom's Grid and Renewables businesses 

202 Case M.7278 General Electric/ALSTOM (Thermal Power — Renewable Power & Grid business), 
Commission decision of 8 September 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7278  

63 

 
                                                           
from a product and geographic point of view. The same applied to the coal-fired and nuclear-
related parts of Alstom's Thermal Power business. 

State aid investigations in basic industries 

Two  notable  State  aid  cases  in  manufacturing,  in  2015  concerned  measures  (mostly  loans) 
provided by France as a part of an exceptional and temporary support package to help viable 
intermediate–sized  companies  experiencing  economic  difficulties  and  undergoing  collective 
proceedings. The package was based on the French Economic and Social Development Fund 
(FDES).  

As regards the application of the FDES on 28 July, following an in-depth  investigation, the 
Commission  approved  EUR  125  million  in  restructuring  aid  to  Kem  One203.  Kem  One  is  a 
French  chlorochemicals  and  PVC  producer  which  encountered  severe  financial  difficulties 
that led to the opening of a court-supervised administration procedure in March 2013. In July, 
to help the company to survive, France notified a restructuring plan involving three types of 
support measure: (i) a loan of EUR 30 million from the FDES, (ii) a grant of EUR 15 million 
and  (iii)  repayable  advances  of  EUR  80  million.  During  its  in-depth  investigation,  the 
Commission  confirmed  that  the  notified  measures  constituted  State  aid  conferring  an 
economic advantage on Kem One because they had not been granted on the same terms as a 
market  operator  would  have  required.  However,  the  Commission  found  the  aid  to  be 
compatible with State aid rules for rescue and restructuring. In order to reach such conclusion 
after  having  carefully  examined  the  competitive  situation  in  the  increasingly  concentrated 
market  for  S-PVC  in  Europe,  the  Commission  imposed  three  types  of  conditions:  (i)  the 
freezing  of  Kem  One’s  current  nominal  production  capacities  of  chlorine  (and  thus  of  PVC 
for which chlorine is an essential input), (ii) to cap Kem One's expected market share on the 
S-PVC  market  in  northwest  Europe,  and  (iii)  an  acquisition  ban  for  Kem  One  and  its 
controlling shareholders on other businesses active on the same northwest European market as 
Kem  One.  All  conditions  are  limited  in  time  and  will  be  closely  monitored  in  their  market 
context. 

On 6 November, the Commission  concluded204 that a EUR 17.5 million  loan as well as the 
partial  financing  of  the  social  plan  through  specific  social  measures,  both  granted  by  the 
French  State  constituted  incompatible  State  aid  in  favour  of  Mory-Ducros  and  its  post-
insolvency  successor  Mory  Global  (both  active  in  the  market  for  supply  of  transport  and 
logistic services). Despite Mory-Ducros being the number two provider of logistic services in 
France, artificially maintaining a failed business model (Mory-Ducros has been wound up and 
Mory  Global  is  currently  facing  a  receivership  procedure)  would  have  prevented  more 
efficient competitors from growing and, over time, increased costs to customers. The French 
State will have to claim recovery of the undue aid in the receivership procedure. 

In  addition,  on  12 June,  the  Commission  adopted  a  decision  as  regards  the  main  Romanian 
electricity  generator Hidroelectrica,  which is  majority owned by  the State. On 25 April, the 

203 Case SA.38544 Dispositif exceptionnel et temporaire d'accompagnement des restructurations - KEM ONE 
SAS, Commission decision of 28 July 2015 available at. 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38544  
204 Case SA.38545 Aide en faveur de Mory Ducros et Mory Global – prêt et mesures sociales, Commission 
decision of 6 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38545  

64 

 
                                                           
Commission opened formal proceedings205 in relation to sale of electricity by Hidroelectrica 
to  several  industrial  buyers  (e.g.  aluminium,  steel,  graphite  electrode  producers)  at  prices 
allegedly  set  below  market  level.  Following  an  in-depth  investigation  of  market  conditions 
and  prices  in  Romania,  the  Commission  concluded  that  the  contracts  concluded  by 
Hidroelectrica  with  the  alleged  beneficiaries  did  not  constitute  State  aid.  By  contrast,  also 
following  an  in-depth  investigation,  the  Commission  found  that  the  contracts  concluded  by 
Hidroelectrica  with  Electrocentrale  Deva  and  Termoelectrica  contained  in  years  2010  and 
2011  preferential  electricity  tariffs  in  favour  of  the  latter  companies,  and  so  constituted 
incompatible State aid. Therefore, both beneficiaries (or their legal and economic successors) 
were held liable to pay back the aid.  

6. AGRI-FOOD INDUSTRY 

Overview of key challenges in the agricultural sector  

EU  agricultural  markets  have  certain  structural  characteristics  that  contribute  to  create 
difficult conditions for farmers placing them in a disadvantaged economic position in the food 
chain.  Agricultural  producers  tend  to  be  highly  atomised  with  many  small  holdings  serving 
the market, while their inputs suppliers and customers (processors, wholesalers and retailers) 
are often much larger and more concentrated. Agricultural producers therefore typically have 
very  little  bargaining  power  in  their  negotiations  vis-à-vis  large  suppliers  and  buyers.  In 
addition, farmers face sustained and increased competition from non-EU producers. 

To redress this situation, the 2013 Common Agricultural Policy reform, while maintaining the 
application of competition laws to agriculture, set out derogations to antitrust rules for certain 
agricultural  sectors, in  particular olive oil, beef  and veal,  and arable crops (cereals,  oilseeds 
etc.)206. The aim of these new rules is to increase the competitiveness and sustainability of EU 
farmers (i.e. producers) in those sectors as well as strengthening their bargaining power vis-a-
vis  their  buyers,  while  preserving  a  market-oriented  approach.  The  new  rules  allow  joint 
selling by producer organisations provided that the amounts sold remain at moderate levels in 
the relevant market (15 % or 20 %), the producer organisation integrates other activities than 
selling  (for  instance,  storage  or  distribution)  and  that  such  integration  between  producers 
creates significant efficiencies. 

In  November  2015,  the  Commission  adopted  new  Guidelines  on  the  application  of  Articles 
169, 170 and 171 of Regulation 1308/2013 establishing a Common Market Organisation for 
agricultural  products  (CMO  Regulation)  for  the  olive  oil,  beef  and  veal  and  arable  crops 
sectors207. The Guidelines are intended to ensure the new derogations are applied consistently, 
helping farmers and other market operators to understand how to apply such derogations and 
how  to  obtain  efficiencies  in  joint  activities.  In  addition,  the  Commission  has  set  up  a  task 
force  of  experts,  whose  mandate  is  to  take  a  thorough  look  at  the  challenges  faced  in  EU 
agricultural markets.  

205 Case SA.33451 Alleged preferential tariffs in contracts of Hidroelectrica SA with electricity traders, 
Commission decision of 12 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33451  
206 European Parliament and Council Regulation (EU) No 1308/2013 of 17 December 2013 establishing a 
common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 
922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 available at http://eur-
lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32013R1308  
207 Commission notice Guidelines on the application of the specific rules set out in Articles 169, 170 and 171 of 
the CMO Regulation for the olive oil, beef and veal and arable crops sectors, OJ C 431, 22.12.2015, p.1 

65 

 
 
                                                           
Contribution of EU competition policy to tackling the challenges 

In  light  of  the  continuing  difficult  situation  in  several  agricultural  sectors,  the  Commission 
continued its work throughout 2015 in order to address the main challenges arising out of the 
supply chain, in particular the competitive position of the farmers and the practices of large 
retailers and manufacturers. The sector faced particular difficulties in the spring and summer 
of 2015. Dairy farmers and pork producers were strongly hit by a number of factors, including 
weakening  demand,  increased  production  in  all  major  producing  regions  (Europe,  United 
States,  New  Zealand  and  Australia),  the  Russian  ban  on  agricultural  products  and  ongoing 
export bans linked with African swine fever in parts of the EU. As a consequence, prices fell 
sharply due to a worsening of oversupply in the market. 

Given  these  difficult  market  conditions,  farmers  demonstrated  across  France,  Belgium  and 
other  Member  States  throughout  the  summer  against  the  low  farm-gate  prices.  The  protests 
were largely targeted at retailers, arguing that price competition between retailers drives retail 
prices down and that retailers are able to use their superior bargaining power to bring down 
the  price  paid  to  farmers.  In  response  to  the  summer's  agricultural  crisis,  the  Commission 
focused  on  addressing  the  underlying  structural  issues  in  the  market  rather  than  adopting 
"sticking-plaster"  solutions.  Many  market  operators  responded  to  the  low  prices  in  the 
agricultural sector by taking initiatives that favour national production. Such initiatives may 
be  incompatible  with  the  goals  of  a  single  market  for  food  products  since  they  can  hinder 
imports  from  other  Member  States  and  raise  concerns  under  competition  rules.  The 
Commission intervened in several such cases, demonstrating its stance regarding conduct that 
segments  the  market  along  national  borders  and  ensuring  that  farmers  in  all  Member  States 
have fair access to the market.  

In  early  2015,  the  Commission  initiated  an  investigation  into  an  agreement  between  the 
French  retailer,  Carrefour,  and  the  main  French  federation  of  vegetable  growers,  Les 
Producteurs  de  Légumes  de  France  (Légumes  de  France).  The  agreement  aimed  to  restrict 
most of Carrefour's procurement of certain seasonal vegetables in France to the members of 
Légumes  de  France,  excluding  vegetable  producers  from  other  Member  States  from  the 
French  market.  The  agreement,  which  was  the  first  of  its  kind  and  was  only  limited  to  one 
retailer  (Carrefour),  was  renounced  by  the  retailer  after  the  Commission  initiated  its 
investigation. The investigation was therefore closed without a finding of an infringement. 

In the aftermath of the agricultural crisis in summer 2015, a number of market participants at 
various  levels  of  the  supply  chain  in  France  and  Belgium  agreed  on  initiatives  aiming  at 
improving  the  remuneration  of  producers  of  milk  and  pork.  At  the  end  of  2015  the 
Commission  started  to  collect  information  in  order  to  assess  complaints  that  the  alleged 
agreements  could  potentially  restrict  competition  from  farmers  from  other  Member  States 
exporting their products to those national markets. 

Prevention of parallel trade by food manufacturers and processors 

The  Commission  has  also  been  looking  into  consumer  price  differences  among  Member 
States for identical food products. This is not in itself a breach of the EU competition rules, 
and  can  be  explained  by  several  factors.  First,  there  are  regulatory  factors  including 
differences  in  fiscal  and  labour  market  policies  which  differ  across  Member  States.  Shop 
opening  regulations  can  also  in  some  cases  limit  competition  and  raise  prices.  Second, 
product  markets  and  supply  chains  operate  differently  in  each  Member  State.  For  example, 
consumers  can  have  different  purchasing  powers  and  price  sensitivity,  and  the  levels  of 
competition at retail and wholesale levels differ between Member States.  

66 

 
However, these factors  may  only  explain a part  of retail price differences between Member 
States. Another possible reason can be that suppliers can charge different prices in different 
markets  and  prevent  retailers  from  bringing  products  from  lower-priced  markets  to  higher-
priced markets. In 2015 the Commission started looking into instances of possible restrictions 
by suppliers of the cross-border distribution of food products by retailers from one Member 
State to another Member State (so-called "parallel trade"). 

Issues concerning modern retail 

In October 2014 the Commission published its study, The Economic Impact of Modern Retail 
on  Choice  and  Innovation  in  the  EU  Food  Sector.  Throughout  2015,  the  Commission 
conducted  its  follow  up  to  the  study,  engaging  with  industry  stakeholders  to  analyse  the 
results. 

A key question raised by the study is the decrease in innovation and in particular whether the 
position of retailers as both customers and competitors of brand manufacturers simultaneously 
through  their  offer  of  Private  Label  (retailer  own  brand)  products  can  be  used  to  their 
advantage,  creating  an  uneven  playing  field  in  the  wholesale  market.  Brand  manufacturers 
argue  that  certain  retailer  practices  concerning  their  Private  Labels  reduces  incentives  to 
innovate. As part of the follow-up to the study, in 2015 the Commission started looking into 
whether such practices can reduce innovation available to consumers at the market level. 

Merger investigations in the agri-food industry  

DEMB/Mondelez/Charger Opco 

In  May,  the  Commission  cleared,  subject  to  remedies208,  the  creation  of  a  joint  venture 
between  Mondelēz  (United  States)  and  DEMB  (Netherlands)  -  two  of  the  world's  leading 
manufacturers  of  branded  coffee  products  available  on  retailers'  shelves.  In  addition  to 
investigating  traditional  Roast  and  Ground  (‘R&G’)  and  instant  coffee  products,  the 
Commission  also  took  a  close  look  at  the  effects  of  the  transaction  in  respect  of  innovative 
single-serve coffee products. Mondelēz produces and markets T-discs, which are consumables 
for  the  Tassimo  single-serve  machines,  while  DEMB  manufactures  and  sells  filter  pads, 
which are consumables for Senseo single-serve machines. Due to IPR protection, T-discs can 
only  be  manufactured  by  Mondelēz  whilst  all  coffee  companies  (including  Mondelēz)  and 
retailers can manufacture filter pads in competition with DEMB. Although neither Mondelēz 
nor DEMB manufactures and sells single-serve machines (this is done by their partners Bosch 
and Philips), they are able, and have the incentive, to influence the prices of these machines 
by  using  coupons,  cash-backs  and  other  promotional  levers  to  increase  sales,  and  thus 
penetration, of these systems. 

The Commission conducted an in-depth investigation on whether the combination of Senseo 
and  Tassimo  would  lead  to  higher  prices  and  less  innovation.  Ultimately,  the  Commission 
concluded  that  due  to  the  dynamic  and  growing  nature  of  single-serve  coffee  machines  and 
their  consumables,  the  joint  venture  would  have  no  incentives  to  raise  prices  of  the  Senseo 
and Tassimo machines through reduced subsidies. On the contrary, the incentive would be to 
increase  penetration  of  the  machines  in  order  to  ensure  continued  and  increased  sales  of 
corresponding filter pads and T-discs, which is where the joint venture would make its profits. 

208 Case M.7292 DEMB/Mondelēz/Charger OpCo, Commission decision of 5 May 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7292   

67 

 
                                                           
Competitive  pressure  from  Nestlé,  which  owns  the  other  two  single-serve  systems  –  Dolce 
Gusto and Nespresso, was also taken into account. 

The Commission did raise concerns in respect of the combination of leading consumer brands 
in R&G coffee in France, Denmark and Latvia as well as in the filter pads (compatible with 
the  Senseo  system)  markets  in  Austria  and  France.  To  alleviate  these  concerns,  the  parties 
sold their Carte Noire and Merrild businesses and, in Austria, granted a licence for the Senseo 
brand, to Lavazza. 

State aid enforcement in the agricultural and forestry sectors and rural areas 

In  2014  the  Commission  adopted  a  block  exemption  regulation209  and  Guidelines  on  State 
aids in the agricultural and forestry sectors and rural areas210 as part of the SAM initiative. In 
2015, the Commission dealt with  more than 700 cases in  these fields,  about  90 % of which 
were  block  exemptions.  Many  of  the  cases  related  to  the  rural  development  measures 
providing State aid clearance for the implementation of Rural Development programs of the 
Member States. Thus, it contributed to the growth in the rural economy and the improvement 
of the business and living conditions in the rural areas. 

7. PHARMACEUTICAL AND HEALTH SERVICES SECTOR  

Overview of key challenges in the sector  

A key feature of the pharmaceutical and health services sector in the EU is the high degree of 
regulation  at  Member  State  level  which  leads  to  significant  national  variations  of  medicine 
pricing  and  wholesale  and  pharmacy  margins.  Nevertheless,  EU  competition  policy  in  this 
sector  can  contribute  to  promoting  innovation,  R&D  and  growth  while  providing  access  to 
cheaper medicines for European citizens.  

The legislative framework, including the patent system, has a special significance in allowing 
pharmaceutical  companies  to  reap  the  benefits  of  their  successful  R&D  activities.  Upon  the 
expiry of data exclusivity and patent protection, generic and bio-similar companies typically 
enter the market  with  much lower priced versions of the originator's product.  Generic  entry 
therefore  contributes  to  cost-containment.  Competition  by  generics  is  also  a  dynamic  force 
that  incentivises  originator  companies  to  continue  investing  in  R&D  to  bring  innovative 
medicines  to  the  market.  Competition  in  innovation  is  also  crucial  between  originator 
medicines,  particularly  during  the  period  when  these  medicines  are  protected  by  data 
exclusivity and/or patents. EU competition policy aims to protect European citizens from anti-
competitive  practices  of  pharmaceutical  companies  in  order  to  support  innovation  and 
facilitate access to cheaper medicines211.  

209 Commission Regulation (EU) No 702/2014 of 25 June 2014 declaring certain categories of aid in the 
agricultural and forestry sectors and in rural areas compatible with the internal market in application of Articles 
107 and 108 of the Treaty on the Functioning of the European Union European Parliament, OJ L 193, p.1. 
210 Commission notice Guidelines on State aids in the agricultural and forestry sectors and rural areas, OJ C 
204, 1.7.2014, p.1.  
211 For more information regarding market features of the pharmaceutical sector, see Executive Summary of the 
Report on the pharmaceutical sector inquiry of 8 July 2009 available at http://ec.europa.eu/competition/sectors/ 
pharmaceuticals/inquiry/communication_en.pdf  

68 

 
 
                                                           
Contribution of EU competition policy to tackling the challenges 

In  2015,  the  Commission  published  the  non-confidential  version  of  its  decisions  in  the 
Lundbeck212,  Fentanyl213  and  Servier214  investigations,  which  provide  a  detailed  legal  and 
economic  analysis  of  agreements  between  originator  and  generic  pharmaceutical  companies 
that delayed the market  entry  of cheaper  generic medicines. Such practices were deemed to 
harm  patients,  national  health  systems  and  taxpayers  because  prices  for  the  originator 
medicines could remain artificially high. In the Servier case, the Commission also assessed an 
abuse  of  dominance  by  Servier  which  consisted  in  using  methods  others  than  those  of 
competition on the merits to delay and prevent generic entry. While the Lundbeck and Servier 
decisions are under appeal, a fourth investigation by the Commission in relation to the market 
entry of generic modafinil (sleeping disorder medicine) in the EEA is currently ongoing215. 

Pay-for-delay  deals  have  also  been  investigated  by  national  competition  authorities  and 
courts.  For  example,  in  France,  the  Paris  Court  of  Appeal  has  rejected  Reckitt  Benckiser's 
appeal  of  the  French  Competition  Authority's  decision  to  fine  Reckitt  Benckiser  for  its 
agreement with Schering-Plough to delay the entry of generic subutex (anti-heroin addiction 
medicine)216.  The  Commission  continued  monitoring  patent  settlements  between  originator 
and  generic  companies.  The  sixth  report  published  on  2  December  2015  confirmed  the 
continued use of settlement agreements which reached 76 in total in 2014, the year covered by 
the  sixth  monitoring  exercise.  The  portion  of  B.II  settlements  (i.e.  those  containing  a 
limitation on generic entry and a value transfer from the originator to the generic company) 
remained low, constituting 12 % of all settlements concluded in 2014217. 

Recent enforcement trends 

Merger enforcement practice focused on innovation and investments as important competitive 
dimensions  

The Commission's enforcement practice in 2015 shows, that the likely impact on innovation 
and investment plays an important role in the Commission's assessment of mergers.  

In March, the Commission conditionally approved the acquisition of Biomet Inc. by Zimmer 
Holdings  Inc.218,  both  companies  producing  orthopaedic  implants  and  related  surgical 
products. The Commission had concerns that the merger could have resulted in price increase 
for  a  number  of  orthopaedic  implants  in  the  EEA.  Therefore,  the  Commission  made  its 
clearance  decision  conditional  upon  Zimmer  divesting  its  knee  implant  business  across  the 
EEA and its system for primary and revision implants in Denmark and Sweden, granting non-
exclusive  licenses  to  the  rights  and  know-how  currently  used  and  needed  to  manufacture, 
market  and  sell  an  identical  knee  implant  (including  appropriate  intellectual  property, 

212 Case AT.39226 Lundbeck, Commission decision of 19 June 2013 available at 
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39226/39226_8310_11.pdf  
213 Case AT.39685 Fentanyl, Commission decision of 10 December 2013 available at 
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39685/39685_1976_7.pdf  
214 Case AT.39612 Perindopril (Servier), Commission decision of 9 July 2014 available at 
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39612/39612_11972_5.pdf  
215 Case AT.39686 Cephalon. For further information see IP/11/511 of 28 April 2011 available at 
http://europa.eu/rapid/press-release_IP-11-511_en.htm?locale=fr  
216 For more information see http://www.autoritedelaconcurrence.fr/doc/ca_subutex_13d21.pdf  
217 For more information on the 6th monitoring exercise see 
http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/patent_settlements_report6_en.pdf 
218 Case M.7265 Zimmer / Biomet, Commission decision of 30 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7265 

69 

 
                                                           
technology  and  know-how)  and  a  transitional  period  to  supply  the  divestment  businesses' 
product lines at reasonable conditions. This remedy will preserve the future competition and 
innovation in orthopaedic implants and related surgical products.  

The proposed acquisition of Hospira by Pfizer,  both  players in the  pharmaceutical  industry, 
concerned  bio-similar  medicines.  Bio-similar  medicines  are  those  that  have  the  same 
therapeutic  mechanism  as  originator's  biological  medicine,  which  may  be  patented,  but  are 
expected  to  significantly  lower  prices  for  patients.  Similarly  to  what  has  been  the  case  for 
mergers between originators and generic businesses, the Commission found that following the 
merger, Pfizer would be likely to either delay or discontinue the development of its own bio-
similar  medicine  in  order  to  focus  on  Hospira's  product,  leading  to  the  net  loss  of  future 
competition.  Therefore,  the  Commission  made  its  clearance  decision  of  4  August219 
conditional  upon  Pfizer  fully  divesting  the  development,  manufacturing  and  EEA-wide 
marketing rights of its relevant bio-similar medicine currently under development (including 
appropriate  intellectual  property,  technology  and  know-how).  This  remedy  will  preserve 
future innovation in bio-similar medicines.  

The  consolidation  trend  affecting  the  pharmaceutical  industry  continued  over  the  course  of 
2015,  and  the  Commission  had  adopted  15  decisions  covering  the  sector  by  the  end  of  the 
year,  with  more  to  come  in  2016.  In  the  four  cases  which  raised  competition  concerns 
(Novartis  /  GSK  Oncology220,  GSK  /  Novartis  Vaccines  and  Consumer  Health221,  Mylan  / 
Abbott-EPD-DM222 and Pfizer / Hospira223); the transaction was cleared subject to remedies, 
following a phase  I investigation. This  illustrates the Commission's ability  to  clear complex 
cases,  often  involving  novel  product  markets  in  a  challenging  industry,  without  opening  in-
depth investigations. 

The  main  change  in  the  Commission's  practice  regarding  pharmaceutical  mergers  is  the 
deepening  of  its  impact  assessment  on  innovation  competition,  including  for  medicines  that 
are yet to be approved. In Novartis / GSK Oncology, the Commission extended its analysis of 
pipeline pharmaceutical products beyond those that are in advanced stages of development, in 
order to fully assess the impact of the merger on clinical research programs. The Commission 
found  that  the  acquisition  of  GlaxoSmithKline's  oncology  business  by  Novartis  entailed  the 
risk  that  Novartis  would  likely  stop  developing  two  innovative  medicines  that  show  great 
promise for the treatment  of skin  cancer, because Novartis  would acquire  similar medicines 
from  GlaxoSmithKline.  Therefore,  the  Commission  insisted  on  remedies  which  ensured 
effective  competition  in  the  development  of  medicines  against  cancer  post  transaction  and 
made its clearance decision of January conditional upon compliance of the merged entity with 
those  remedies224.  In  Pfizer  /  Hospira,  the  Commission  investigated  markets  for  bio-similar 
medicines, and found that they present some features that distinguish them from markets for 

219 Case M.7559 Pfizer / Hospira, Commission decision of 4 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7559 
220 Case M.7275 Novartis / GlaxoSmithKline Oncology Business, Commission decision of 28 January 2015 
available at http://ec.europa.eu/competition/mergers/cases/decisions/m7275_20150128_20212_4158734_EN.pdf 
221 Case M.7276 GlaxoSmithKline / Novartis Vaccines Business (excl. Influenza) / Novartis Consumer Health 
Business, Commission decision of 28 January 2015 available at 
http://ec.europa.eu/competition/mergers/cases/decisions/m7276_3115_2.pdf 
222 Case M.7379 Mylan / Abbott EPD-DM, Commission decision of 28 January 2015 available at 
http://ec.europa.eu/competition/mergers/cases/decisions/m7379_2336_2.pdf 
223 Case M.7559 Pfizer / Hospira, Commission decision of 4 August 2015 available at 
http://ec.europa.eu/competition/mergers/cases/decisions/m7559_20150804_20212_4504355_EN.pdf 
224 Case M.7275 Novartis / GlaxoSmithKline's oncology business, Commission decision of 28 January 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7559 

70 

 
                                                           
generics medicines. This led to the divestment of a bio-similar medicine that was still under 
development. 

Accordingly, the Commission's assessment of pharmaceutical mergers to ensure not only that 
a healthy price competition is maintained for the benefit of payers and healthcare services, but 
also that research and development efforts are not diminished for the benefit of patients and 
healthcare providers. 

State aid actions in the health services sector 

The  Commission's  State  aid  actions  in  the  health  services  sector  mainly  concern  hospitals, 
related services (such as ambulance transport and medical laboratories) and health insurance. 
The Commission decision of 20 December 2011 (based on Article 106(2) TFEU225) specifies 
the  conditions  under  which  compensation  to  companies  for  providing  public  services  is 
compatible with the EU State aid rules and does not have to be notified to the Commission in 
advance.  Compensation  granted  to  hospitals,  including  emergency  services  and  ancillary 
services, for services of general economic interest, benefits from the decision irrespective of 
the  amounts  involved  provided  that  the  conditions  are  met.  Accordingly,  the  Commission 
very rarely takes decisions on financing covered by this exemption decision. 

During 2015, the Commission continued examining a number of complaints lodged by private 
health  service  providers  about  their  allegedly  unfair  treatment  or  potentially  excessive 
compensation of publicly-owned hospitals. Those complaints usually came from operators in 
Member States with healthcare markets more open to competition (e.g. Belgium, France, and 
Germany226). On 29 April, as part of a larger package of cases, the Commission adopted three 
decisions concerning small-scale public support for specific health service providers, finding 
that in all three cases the particular circumstances were such that the measure in question had 
no effect on trade and thus did not constitute State aid227. 

8. TRANSPORT AND POSTAL SERVICES 

Overview of key challenges in the sector 

Towards a competitive and innovate European industry 

The transport and postal services sectors account for about 4.9 % of the EU economy228, and 
their  performance  can  have  many  beneficial  effects  for  other  sectors  of  the  European 

225 Commission decision of 20 December on the application of Article 106(2) of the Treaty on the Functioning of 
the European Union to State aid in the form of public service compensation granted to certain undertakings 
entrusted the with operation of services of general economic interest, OJ L 7, 11.1.2012, p.3. 
226 In 2014 the Commission opened the formal investigation procedure in one of these cases, and the 
investigation continued throughout 2015. See Case SA.19864 Public financing of Brussels public IRIS hospitals, 
Commission decision of 1 October 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_19864  
227 Cases SA.37432 Funding to public hospitals in the Hradec Králové Region, Commission decision of 29 April 
2015 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37432; 
SA.37904 Alleged State aid to medical centre in Durmersheim, Commission decision of 29 April 2015 available 
at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37904 and SA.38035 Alleged 
aid to a specialised rehabilitation clinic for orthopaedic medicine and trauma surgery, Commission decision of 
29 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38035  
228 See, EU transport in figures Statistical pocketbook (2015) available at http://ec.europa.eu/transport/facts-
fundings/statistics/doc/2015/pocketbook2015.pdf, p.19, prepared by the Commission with around € 562 billion 
in Gross Value Added (GVA) at basic prices, the transport and storage services sector (including postal and 

71 

 
 
                                                           
economy. In 2015, the emphasis was on how competition tools can help improve performance 
in these sectors, especially through innovation and improvements to infrastructure. 

Contribution of EU competition policy to tackling the challenges 

Antitrust enforcement in air transport  

The Commission continued its work on the transatlantic airline alliances.  

In  May,  it  adopted  a  decision229  accepting  commitments  offered  by  SkyTeam  alliance 
members  Air  France/KLM,  Alitalia  and  Delta  on  three  transatlantic  routes.  These 
commitments  related  to  agreements  these  members  signed  in  2009  and  2010,  establishing  a 
transatlantic  joint  venture.  The  Commission  had  concerns  that  the  extensive  cooperation 
between the parties, involving profit-sharing and the joint management of schedules, pricing 
and  capacity,  might  result  in  higher  prices  for  premium  passengers  on  the  Paris-New  York 
route and for all passengers on the Amsterdam-New York and Rome-New York routes. In this 
context  the  Commission  initially  concluded  that  the  competition  between  the  parties  to  the 
joint  venture  was  unlikely  to  be  replaced  by  competition  from  existing  competitors  or  from 
likely, timely and sufficient new entry or expansion, because there are significant barriers to 
entry and expansion in these markets.  

The commitment package seeks to address this problem by making landing and take-off slots 
available to new competitors thus facilitating entry on these routes. The parties also offered to 
enter  into  agreements  allowing  competitors  to  get  better  access  to  the  parties'  connecting 
traffic. The commitment package is legally binding on these airlines for 10 years. 

As a result, the Commission concluded its investigation of the three transatlantic airline joint 
venture  agreements  within  the  major  global  alliances  (Oneworld;  Star;  SkyTeam),  which 
contributes  towards  a  genuine  level  playing  field  in  transatlantic  aviation  markets.  The 
Commission adopted commitment decisions in the Oneworld case230 and in the Star Alliance 
case231 respectively in July 2010 and May 2013.  

Merger review in air transport 

The air transport sector  is  still very  fragmented.  In the EU there  are more than 150 airlines 
offering scheduled air passenger transport. The five largest airlines in the EU (i.e. Lufthansa, 
AirFrance/KLM  and  International  Consolidated  Airlines  Group  (IAG,  the  holding  company 
of British Airways and Iberia), Ryanair and EasyJet) account for only 50 % of the EU market. 
In contrast, in the United States, the three legacy carrier groups American Airlines, Delta and 
United together with low cost carrier Southwest jointly control more than 80 % of the United 
States market. The drive towards further consolidation of the EU market in 2015 was lessened 
by low fuel costs which had a positive impact on airline profitability.  

courier activities) accounted for about 4.9 % of total GVA in the EU-28 in 2012 (or 4.4 % excluding postal and 
courier services). 
229 Case AT.39964 Air France-KLM/Delta/Alitalia, Commission decision of 12 May 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39964 
230 Case AT.39596 BritishAirways/AmericanAirlines/Iberia, Commission decision of 14 July 2010 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39596 
231 Case AT.39595 Continental/United/Lufthansa/AirCanada, Commission decision of 23 May 2013 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39595 

72 

 
                                                                                                                                                                                     
In  this  context  the  Commission  reviewed  the  acquisition  of  the  Irish  carrier  Aer  Lingus  by 
IAG232.  The  Commission's  investigation  indicated  that  the  merger  would  raise  two  types  of 
competition concerns. Firstly, on certain routes where both the airlines operated there would 
not be sufficient competition. Secondly, the choices of airlines available for connecting long-
haul  flights  would  have  decreased  if  Aer  Lingus  were  to  connect  only  to  long-haul  flights 
operated  by  IAG  and  vice  versa  -  especially  considering  that  before  the  merger  Aer  Lingus 
had  agreements  with  a  number  of  third-party  carriers  to  bring  passengers  to  their  hubs  for 
certain long-haul flights. Consequently, the transaction was cleared subject to (i) the release 
of  five  slots  at  London  Gatwick  Airport  to  entice  new  entrants  on  the  Dublin-London  and 
Belfast-London routes  and (ii)  IAG  entering into agreements with  competing airlines which 
operate 
long-haul  flights  out  of  London  Heathrow,  London  Gatwick,  Manchester, 
Amsterdam, Shannon and Dublin, so that Aer Lingus will continue to provide these airlines 
with connecting passengers. Passengers will therefore continue to have a choice of using other 
airlines  than  IAG  when  connecting  at  these  airports,  for  instance  when  on  routes  such  as 
Heathrow–New  York,  Gatwick–Las  Vegas,  Manchester–Orlando,  Shannon–Chicago  or 
Dublin–Chicago. 

Rescue and restructuring aid in air transport  

In  2015,  the  Commission  adopted  two  negative  decisions  closing  in-depth  investigations 
concerning  aid  to  Cyprus  Airways  and  Estonian  Air233.  The  Commission  concluded  that 
repeated  public  support  granted  by  Cyprus  and  Estonia  over  many  years  to  their  ailing 
national  flag  carriers breached  EU State  aid  rules, in  particular the so  called "one time, last 
time principle" providing that rescue and restructuring aid can be granted only once in a 10-
year  period.  Furthermore,  both  airlines  did  not  have  credible  restructuring  plans  capable  of 
ensuring their long-term viability without continued State support. Cyprus  Airways also  did 
not provide a sufficient own contribution to the restructuring costs while Estonian Air did not 
offer  sufficient  measures  to  limit  the  distortions  of  competition  caused  by  the  aid. 
Consequently,  the  Commission  ordered  Cyprus  and  Estonia  to  recover  the  incompatible  aid 
received  by  the  airlines  of  around  EUR  65  million  and  EUR  85  million,  respectively.  In 
addition, it continued to monitor the implementation of previously approved restructuring aid, 
notably to Adria Airways, airBaltic, Air Malta and LOT Polish Airlines. 

State aid to airports and airlines 

2015  was  the  first  full  year  of  application  of  the  Guidelines  on  State  aid  to  airports  and 
airlines,  which  entered  into  force  on  4  April  2014234.  Following  the  previous  year's 
introduction  of  the  guidelines,  and  the  adoption  of  a  large  number  of  decisions  on  long-

232 Case M.7541 IAG / AerLingus, Commission decision of 14 July 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7541 
233 Cases SA.35888 Rescue aid for Cyprus Airways (Public) Ltd, Commission decision of 9 January 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35888; SA.37220 
Restructuring aid for Cyprus Airways (Public) Ltd, Commission decision of 9 January 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_37220; SA.38225 Training aid 
for Cyprus Airways, Commission decision of 9 January 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38225; SA.35956 Rescue aid to 
Estonian Air, Commission decision of 6 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35956 and SA.36868 
Restructuring aid to Estonian Air, Commission decision of 6 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_36868 For further information 
see IP/15/6023 of 7 November 2015 available at http://europa.eu/rapid/press-release_IP-15-6023_en.htm.  
234 Communication from the Commission, Guidelines on State aid to airports and airlines, OJ C 99, 4.4.2014, p. 
3 available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2014.099.01.0003.01.ENG   

73 

 
                                                           
running  investigations,  2015  was  a  rather  more  balanced  year,  for  developing  the  new 
approach that the guidelines set out. 

In this regard, the first national schemes to be adopted under the new guidelines aim to serve 
as  a  model  of  how  the  different  categories  of  aid  that  can  be  authorised  in  the  airports  and 
airlines  sector  can  be  applied.  In  particular,  France  was  authorised  to  have  three  separate 
national schemes (investment aid, operating aid for airport infrastructure235, and "start-up" aid 
for  airlines  operating  from  regional  airports)236.  The  United  Kingdom  also  had  a  national 
start-up aid scheme authorised237, and Ireland had a national scheme covering investment and 
operating aid for airport infrastructure authorised238. 

The  guidelines  make  it  clear  that  both  the  Commission  and  Member  States  can  achieve  a 
lower  administration  burden  by  using  schemes  in  this  sector.  However,  decisions  were  also 
taken  throughout  the  year  on  individual  airports,  either  when  such  airports  could  not  be 
covered by a national scheme, or when the Member State concerned had so far not put such a 
scheme into place239. 

The  application  of  the  guidelines  was  also  consolidated  by  opening  of  new  investigations, 
notably two investigations were opened on the same day concerning two Romanian airports in 
relatively close proximity, as well as the airlines that operate from those airports240. 

As  an  expected  consequence  of  the  very  active  2014,  a  number  of  appeals  were  lodged  in 
2015  in  the  General  Court  by  various  parties  against  decisions  taken  in  2014,  in  particular 
against  the  negative  decisions  ordering  the  recovery  of  aid  for  airlines  or  airports.  The 
Commission has begun its work to defend these decisions. 

Maritime transport  

On  State  aid  control,  the  emphasis  in  2015  was on  ensuring  continued  compliance  with  the 
Maritime  State  aid  guidelines241.  The  most  important  decision  in  this  respect  requested 

235 Cases SA.38937 Régime d'aide à l'investissement des petits et moyens aéroports, Commission decision of 8 
April 2015 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38937 
and SA.38938 Régime d'aide au démarrage des compagnies aériennes, Commission decision of 8 April 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38938  
236 Case SA.38936 Régime d'aide à l'exploitation des petits et moyens aéroports, Commission decision of 8 
April 2015 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38936  
237 Case SA.39466 Start-up aid to airlines operating in the United Kingdom, Commission decision of 31 July 
2015 available at http://ec.europa.eu/competition/state_aid/cases/258034/258034_1678164_84_3.pdf 
238 Case SA.39757 Ireland support scheme for aid for regional airports, Commission decision of 31 July 2015 
available at http://ec.europa.eu/competition/state_aid/cases/258116/258116_1676549_114_2.pdf 
239 For example, cases SA.39315 Tallinn Airport airside area development project, Commission decision of 10 
November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39315, and SA.40433 
Investitionsprogramm Flughafen Klagenfurt, Commission decision of 6 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_40433. 
240 Cases SA.32963 State aid to Wizz Air and Cluj-Napoca Airport, Commission decision of 31 July 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_32963 and 
SA.33769 Alleged aid to Târgu Mureş Transilvania Airport, Wizz Air, Ryanair and other airlines, Commission 
decision of 31 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33769  
241 Commission Communication C (2004) 43 Community guidelines on State aid to maritime transport, OJ C 13, 
17.01.2004, p.3. 

74 

 
                                                           
appropriate  measures  regarding  the  existing  Greek  tonnage  tax  scheme242.  Greece  was 
requested to exclude from preferential tax treatment shareholders of shipping companies and 
wider maritime cluster companies (including insurance intermediaries). Similarly, Greece was 
asked  to  ensure  that  its  shipping  companies  respect  the  obligation  to  keep  or  increase  the 
share of the fleet  under  EU/EEA flags. The Commission  also  adopted final  decisions  in  the 
French tonnage tax case, which  concentrated on  enforcing rules on time  chartered  fleet and 
the flag link243. More generally, in 2015 the Commission paid specific attention that maritime 
aid schemes, including the tonnage tax notifications that it handled244, excluded ship lessors, 
and that the maximum aid ceiling of the guidelines was not exceeded through e.g. transitional 
arrangements related to the switch from profit taxation to tonnage taxation. 

In  2015,  the  Commission  accepted  start-up  State  aid  to  a  new  Franco-Spanish  short-sea 
shipping  route  between  Algeciras/Vigo  and  Havre/Nantes-Saint  Nazaire,  enabling  a  freight 
traffic shift from road to sea245.  

In terms of merger review, maritime transport can be roughly divided into three segments: (i) 
transport  on  inland  waterways  (rivers,  canals  and  lakes,  etc.);  (ii)  deep-sea  shipping 
(intercontinental);  and (iii) short-sea shipping  (between ports in  the EU  and other European 
ports on the Mediterranean or Black Sea).  

Short-sea  shipping  plays  a  major  role  for  many  EU  industries,  which  rely  on  it  for  their 
deliveries; for instance 58 % of total EU maritime transport of goods happened via short-sea 
shipping  in  2013246.  On  certain  routes  short-sea  shipping  competes  (or  in  some  cases 
complements) multi-modal transport services such as rail and road transportation. The short-
sea shipping sector enjoys healthy competition and low barriers to entry. Indeed when in June 
2015  the  Commission  reviewed  the  acquisition  of  Oldenburg-Portugiesische  Dampfschiffs-
Rhederei (OPDR) of Germany by CMA CGM of France247 it concluded that the acquisition 
would  raise  no  competition  concerns  given  the  low  switching  costs  for  customers,  who  can 
also  use  alternative  means  of  transport  such  as  road  or  rail,  and  given  the  low  barriers  for 
competitors to enter or expand their services by adding new ships or new ports of call. 

State aid enforcement in port infrastructure  

Under  the  current  legal  framework,  where  there  are  no  specific  instruments  regarding  State 
aid to ports, the Commission assesses notifications and complaints in the field of aid for port 
infrastructure directly under Articles 107(3)(c) TFEU or 93 TFEU depending on the type of 

242 Case SA.33828 (2012/E) Greek tonnage tax scheme and other State measure in favour of shipping 
companies, Commission decision of 18 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33828  
243 Case SA.14551 Taxation au tonnage, Commission decision of 4 February 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_14551 
244 Cases SA.37912 Croatia - Tonnage Tax Scheme, Commission decision of 1 April 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/251015/251015_1667829_98_2.pdf and SA.38085 Italy - 
Prolongation of the tonnage tax scheme, Commission decision of 13 April 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/251318/251318_1667835_99_2.pdf 
245 Cases SA.41620 and SA.41651 Start-up aid for motorway of the sea between ports of Algeciras y Vigo in 
Spain and ports of Havre and Nantes-Saint Nazaire, Commission decisions of 17 September 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/258208/258208_1699829_86_2.pdf and 
http://ec.europa.eu/competition/state_aid/cases/258252/258252_1699831_91_2.pdf  
246 Eurostat Statistics Explained, Maritime transport statistics – short sea shipping of goods (April 2015) 
available at http://ec.europa.eu/eurostat/statistics-explained/index.php/Maritime_transport_statistics_-
_short_sea_shipping_of_goods.  
247 Case M.7523 CMA CGM / OPDR, Commission decision of 29 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7523. 

75 

 
                                                           
port  (seaport  or  inland).  In  2015,  the  Commission  continued  its  case-by-case  approach  and 
adopted  16  decisions  on  State  aid  for  port  infrastructure,  which  have  clarified  a  number  of 
important  points248.  In  particular,  the  Commission  found  that  public  funding  of  EUR  270 
million to build a new cross-Channel terminal in the Port of Calais was in line with EU State 
aid  rules249.  The  new  infrastructure  furthers  EU  transport  policy  objectives  without  unduly 
distorting  competition  in  the  internal  market.  In  addition,  with  the  decisions  in  the 
Lauwersoog250 and Maasholm251 cases, the Commission clarified that in some circumstances 
a potential effect on competition and trade may be excluded. The Commission also confirmed 
that  the  construction  of  access  infrastructure  to  ports  (e.g.  public  roads,  rail  connections, 
utilities etc.) which is made available free of charge to all users and is thus not commercially 
exploitable,  may  be  regarded  as  non-economic,  if  it  is  not  specifically  dedicated  to 
commercially exploited port infrastructure252. 

248 Cases SA.39403 Investment in the port of Lauwersoog, Commission decision of 29 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39403; SA.39637 Cruise Ship 
Terminal in Wismar, Commission decision of 30 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39637; SA.39608 Sea port 
extension Wismar, Commission decision of 30 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39608; SA.39542 Dredging and 
disposal of dredged materials in the Port of Tarant, Commission decision of 19 June 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39542; SA.39688 Port of 
Calais, Commission decision of 2 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39688; SA.41865 Extension of 
the Port of Sassnitz, Commission decision of 13 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_41865; SA.40838 Modification 
to the public support measures for the Port of Ventspils, Commission decision of 22 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_40838; SA.41275 Port of 
Mohacs, Commission decision of 18 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_41275; SA.39177 The 
Intermodal development of the Port of Baja, Commission decision of 21 August 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39177; SA.42219 
Refurbishment of the Schuhmacher-quay in the port of Maasholm, Commission decision of 24 November 2015 
available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_42219; SA.42538 
Dredging in the Port of Ventspils, Commission decision of 25 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_42538; SA.43250 Cruise ship 
terminal Porto de Leixões, Commission decision of 26 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_43250; SA.41734 Dredging of 
Port of Liepaja, Commission decision of 30 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_41734; SA.39232 Port of 
Mykonos, Commission decision of 2 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39232; SA.43376 Port of 
Rostock, Commission decision of 16 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_43376 and SA.28876 Piraeus 
Container Terminal, Commission decision of 23 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_28876  
249 Case SA.39688 Port of Calais, Commission decision of 2 July 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39688  
250 Case SA.39403 Investment in the port of Lauwersoog, Commission decision of 29 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39403 
251 Case SA.42219 Refurbishment of the Schuhmacher-quay in the port of Maasholm, Commission decision of 
18 June 2015 available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_42219 
252 Case SA.39637 Cruise Ship Terminal in Wismar, Commission decision of 30 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39637 and SA.39608 Sea port 
extension Wismar Commission decision of 30 April 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39608 

76 

 
                                                           
Moreover, the Commission adopted a negative final decision as regards certain fiscal benefits 
granted  by  Greece  in  favour  to  port  operator  Piraeus  Container  Terminal  S.A.  and  required 
recovery of the unjustified advantage to the Greek State253. 

Antitrust enforcement in the rail sector 

On  5  January,  the  Commission  sent  a  Statement  of  Objections  to  the  Lithuanian  railway 
incumbent AB Lietuvos Geležinkeliai254 in which it informed this company that it may have 
breached  competition  rules  by  removing  a  railway  track  connecting  Lithuania  with  Latvia. 
The  Commission  is  concerned  that  removing  this  track  may  have  impeded  customers  from 
switching  to  other  rail  operators  for  transporting  freight  between  Lithuania  and  Latvia.  The 
Commission's investigation continues. 

Rail and intermodal State aid enforcement  

In  2015,  the  Commission  approved  a  number  of  schemes  supporting  rail  and  intermodal 
transport,  which  aim  to  support  the  transfer  of  cargo  from  the  road  to  the  safer  and  more 
environmentally friendly rail transport mode255. The Commission also approved the financing 
of the Fehmarn Belt fixed rail-road link256, a key element for completing the main north-south 
route  connecting  central  Europe  and  the  Nordic  countries.  The  costs  of  this  project  are 
estimated to be EUR 8.7 billion, part of which is funded by the EU through the Connecting 
Europe Facility257. The Commission approved this financing, as it was in line with State aid 
rules  since  the  funding  promotes  the  execution  of  an  important  project  of  common  interest. 
The tunnel will be approximately 19 kilometres long and will consist of an electrified, double-
track railway and a four-lane motorway with emergency lanes. 

During 2015, the Commission closely followed the negotiations in the Council concerning the 
fourth  railway  package.  This  bundle  of  legislation  should  help  further  open  up  the  railway 
sector to competition. 

Merger review in the rail sector 

Rail passenger transport  in  the EU has been on an upward trend since 2010258 and over the 
last  decade  the  share  of  rail  passengers  using  high  speed  trains  has  also  been  growing; 

253 Case SA.28876 Pireaus Container Terminal, Commission decision of 23 March 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_28876 
254 Case AT.39595 Baltic rail transport. For further information see IP/15/2940 of 5 January 2015 available at 
http://europa.eu/rapid/press-release_IP-15-2940_en.htm  
255 See for example Cases SA.38229 Régime d'aides luxembourgeoises au transport combiné, Commission 
decision of 3 June 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/251592/251592_1663755_60_2.pdf; SA.39883 State aid scheme 
for RO-LA combined transport, Commission decision of 22 April 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/255363/255363_1660684_121_2.pdf; SA.39606 and SA.40404 
Régime d'aide transitoire au service transitoire d'autoroute ferroviaire alpine, Commission decisions of 26 May 
2015 not yet published; SA.41100 Special Guidelines for the Programme of Aid for Innovative Combined 
Transport for 2015-2020, Commission decision of 11 August 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/257224/257224_1695429_150_2.pdf and SA.41472 
Prolongation of a scheme to operate scheduled services of combined transport of goods, Commission decision 
of 9 July 2015 available at http://ec.europa.eu/competition/state_aid/cases/257959/257959_1695341_91_2.pdf  
256 Case SA.39078 Financing of the Fehmarn Belt Fixed Link project, Commission decision of 23 July 2015 
available at http://ec.europa.eu/competition/state_aid/cases/256101/256101_1677572_164_2.pdf  
257 For further information see IP/15/5433 of 23 July 2015 available at http://europa.eu/rapid/press-release_IP-
15-5433_en.htm  
258 Eurostat Statistics Explained, Railway passenger transport statistics – quarterly and annual data (December 
2015) available at  

77 

 
                                                           
similarly,  investments  in  infrastructure  such  as  high  speed  train  tracks  has  been  constantly 
expanding259.  The  fourth  railway  package  aims  to  provide  non-discriminatory  access  to  the 
EU rail network260. In this context, the Commission cleared the acquisition of sole control of 
Eurostar by the French rail operator SNCF subject to commitments designed to facilitate the 
entry  of  new  rail  operators  onto  the  London-Brussels  and  London-Paris  routes261.  The 
Commission  was  concerned  that  the  deal  as  originally  notified  might  hinder  the  entry  of 
competitors on these routes, mainly as regards access to stations in France and Belgium and to 
maintenance centres in France, Belgium and the United Kingdom. 

State aid review in the road sector 

The  Commission  continued  to  enforce  Regulation  (EC)  No  1370/2007  on  public  passenger 
transport  services262.  In  two  cases,  the  Commission  took  a  negative  decision  on  retroactive 
public service compensations awarded by judgments of Italy's Consiglio di Stato (Council of 
State)263. In one similar case the Commission opened a formal investigation procedure against 
Italy264. This was a continuation of a series of cases following the so-called Simet case265. 

In addition, the Commission initiated a formal investigation procedure with respect to a set of 
measures implemented by a public bus company in Finland, raising concerns that the public 
authorities had acted as a private market investor would have done266. 

Continuing to apply the new rules ensuring the viability of SGEIs and fair competition across 
the single market in postal services  

The postal sector continues to evolve and traditional letter delivery, against the backdrop of 
electronic  substitution,  remains  on  a  declining  trajectory.  Nevertheless,  postal  services  have 
retained  a  very  significant  economic  and  social  value.  In  a  shrinking  market  of  traditional 
letter  delivery,  many  postal  incumbents  are  being  forced  to  diversify  the  portfolio  of  their 
activities and innovate in order to stay competitive. At the same time, the explosive growth of 
e-commerce necessitates a well-functioning parcel delivery market linking buyers and sellers. 
Efficient postal services are thus a key factor in allowing e-commerce to realise its potential in 
propelling growth and creating jobs.  

http://ec.europa.eu/eurostat/statistics-explained/index.php/Railway_passenger_transport_statistics_-
_quarterly_and_annual_data 
259 See, EU transport in figures Statistical pocketbook (2015) available at http://ec.europa.eu/transport/facts-
fundings/statistics/doc/2015/pocketbook2015.pdf, p.19, prepared by the Commission. 
260 See, European Council press release 709/15 of 8 October 2015 available at 
http://www.consilium.europa.eu/en/press/press-releases/2015/10/08-railway-market-opening-and-governance/ 
261 Case M.7449 SNCF Mobilities/Eurostar International Limited, Commission decision of 13 May 2015. For 
further information see IP/15/4976 of 13 May 2015 available at http://europa.eu/rapid/press-release_IP-15-
4976_en.htm  
262 Regulation (EC) No 1370/2007 of the European Parliament and the Council of 23 October 2007 on public 
passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 
1107/70, OJ L 315, 3.12.2007, p. 1. 
263 Cases SA.35842 PSO compensation for CST, Commission decision of 19 January 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35842 and SA.35843 PSO 
compensation for Buonotourist, Commission decision of 19 January 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35843 
264 Case SA.38132 PSO compensation to ARFEA, Commission decision of 23 February 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38132 
265 For further information see IP/13/902 of 2 October 2013 available at http://europa.eu/rapid/press-release_IP-
13-902_fr.htm 
266 Case SA.33846 Helsingin Bussiliikenne Oy, Commission decision of 16 January 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33846 

78 

 
                                                                                                                                                                                     
Through State aid control in the postal sector, the Commission pursues multiple related goals. 
First,  State  aid  control  ensures  that  where  a  postal  service  provider  –  typically  a  postal 
incumbent – is entrusted with a costly public service obligation, any compensation paid to the 
provider  does  not  undermine  a  level  playing  field  between  postal  incumbents  and  new 
entrants.  State  aid  should  not  relieve  recipients  of  competitive  pressures  and  market 
developments  incentivising  efficiency,  propelling  innovation  and  promoting  investment. 
Second,  where  compensation  for  public  service  obligation  is  not  funded  directly  from  the 
State budget, but from contributions collected by all postal operators (a "compensation fund"), 
the Commission ensures that the contribution mechanism is designed in a way that does not 
disincentivise market entry and expansion of new entrants. Three examples can illustrate how 
the Commission strives to achieve both goals:  

First,  on  19  March,  the  Commission  approved  United  Kingdom  plans  to  grant  GBP  640 
million  to  the  UK  Post  Offices  Ltd  for  delivering  a  range  of  public  services  over  three 
years267.  In  this  case  the  Commission  assessment  showed  that  the  compensation  to  Post 
Offices  Ltd,  paid  directly  from  the  State  budget,  was  designed  to  ensure  that  it  would  not 
exceed the cost of the public service obligation. In particular, the payment depended on Post 
Offices Ltd reaching certain annual milestones, giving Post Offices Ltd a strong incentive to 
be efficient in providing the public services.  

Secondly,  on  26  November,  the  Commission  approved  compensation  granted  by  Poland  to 
Polish  Post  for  the  delivery  of  the  universal  postal  service  in  2013-15268.  In  this  case,  the 
compensation was partly funded from a compensation fund relying on contributions from all 
postal operators in Poland. The Commission thoroughly assessed every element of the design 
of  the  contribution  mechanism  before  concluding  that  postal  operators'  contributions  were 
neither  discriminatory  nor  disproportionate.  In  consequence,  it  was  concluded  that  the 
compensation  fund  did  not  lead  to  serious  distortions  of  competition  in  the  Polish  postal 
market. The approval decision in this case was the Commission's second decision addressing 
the  issue  of  compensation  funds  and  the  first  one  to  approve  a  compensation  fund 
mechanism269. 

Third, on 4 December the Commission approved State financing for Poste Italiane's universal 
service  obligation270.  The  Commission's  assessment  showed  that  the  compensation  to  be 
granted to Poste Italiane is based on a conservative methodology, which ensures that it will 
not exceed the cost of the public service mission. In particular, all intangible benefits related 
to  the  status  of  being  the  provider  of  the  universal  service  obligation,  such  as  the  synergies 
between postal and financial services, are taken into account in the calculation. Furthermore, 
the  amount  of  aid  granted  decreases  significantly  over  time,  taking  account  of  significant 

267 Case SA.38788 Compensation to Post Office Limited for costs incurred to provide SGEIs 2015-2018, 
Commission decision of 19 March 2015 available at 
http://ec.europa.eu/competition/state_aid/cases/256622/256622_1651530_118_2.pdf  
268 Case SA.38869 Compensation of Poczta Polska for the net cost of USO 2013-2015, Commission decision of 
26 November 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38869 
269 The first Commission decision addressing a compensation fund was a decision opening the formal 
investigation procedure: see case SA.35608 Hellenic Post (ELTA) – Compensation fund for the financing of the 
universal postal service, Commission decision of 1 August 2014 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35608 
270 Case SA.43243 State compensations granted to Poste Italiane SpA for the delivery of the universal postal 
service over the periods 2012-2015 and 2016 -2019, Commission decision of 4 December 2015 available at 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_43243 

79 

 
                                                           
efficiency  gains  that  will  be  made  over  the  period  of  entrustment  of  the  universal  service 
obligation. 

Merger review in postal services 

Postal services play a crucial role in allowing e-commerce to develop, the promotion of which 
is one of the goals of the Digital Single Market strategy. The Commission investigation of the 
acquisition  of  TNT  Express  by  FedEx271  focused  on  ensuring  that  prices  for  customers, 
including  SMEs  active  in  e-commerce,  and  ultimately  consumers,  would  not  rise  for  cross-
border  small  package  deliveries,  and  that  the  quality  of  service  would  not  be  degraded  as  a 
result of the merger. 

271 Case M.7630 FedEx / TNT, notified to the Commission on 26 June 2015; in-depth investigation opened on 31 
July 2015. Final decision planned for January 2016. 

80 

 
                                                           
Annexes 

Banking State aid cases: Decisions adopted by the Commission in 2015 

By country 

Member State 

Case number/Title 

Type of Decision 

Date of adoption 

Austria 

SA.31883 – 2015/N, 2011/C – 
ÖVAG (amendment) 

No objection272 

02/07/2015 

State Aid SA.40965 (2015/N) 

No objection 

11/08/2015 

Belgium 

Cyprus 

Denmark 

France 

Germany 

Restructuring guarantee scheme 
for small undertakings in 
difficulty in Upper Austria 

SA.43306 (2015/N) 
Amendment to the restructuring 
plan of Ethias –Approval of 
issuance of additional 
subordinated debt 

SA.40027 (2014/N) – Fifth 
prolongation of Cypriot 
guarantee scheme for banks H1 
2015 

SA.42080 (2015/N) – Sixth 
prolongation of Cypriot 
Guarantee Scheme for Banks 
H2 2015 

SA.40029 (2014/N) – 
Reintroduction of the winding-
up scheme, compensation 
scheme, Model I and Model II – 
H1 2015 

SA.42405 (2015/N) 
Prolongation of the Danish 
winding-up scheme, 
compensation scheme, Model I 
and Model II – H2 2015 

SA.39690 (2015/N) – Extension 
du champ d'activité de SFIL-
CAFFIL au financement des 
crédits à l'exportation 

SA.40836 (2015/N) 
Amendment to the methodology 
for calculating the aid element 
in guarantees (Germany) 

No objection 

23/10/2015 

No objection 

14/01/2015 

No objection 

13/07/2015 

No objection 

13/02/2015 

No objection 

18/09/2015 

No objection – no aid 

05/05/2015 

No objections 

27/07/2015 

272 For further information see IP/15/5302 of 2 July 2015 available at http://europa.eu/rapid/press-release_IP-15-
5302_en.htm 

81 

 
 
 
 
 
                                                           
Greece 

SA.40030(2014/N) – 
Prolongation of the Guarantee 
Scheme and Bond Loan Scheme 
for Credit Institutions in Greece 

No objection 

14/01/2015 

HT.4524 – STEC 2015 

Communication 

No objection273 

26/01/2015 

16/04/2015 

SA.41503 (2015/N) – 
Resolution of Panellinia Bank 
through a transfer order to 
Piraeus Bank 

SA.42215 (2015/N) – 
Prolongation of the Greek 
Financial Support Measure 

No objection 

29/06/2015 

HT.4524 – STEC 2015 

Communication 

No objection274 

30/06/2015 

29/11/2015 

SA.43364 (2015/N) -
Amendment of the restructuring 
plan approved in 2014 and 
granting of new aid to Piraeus 

SA.43366 (2015/N) -
Amendment of the restructuring 
plan approved in 2014 and 
granting of new aid to Alpha 
Bank 

SA.43363 (2015/N) – 
Amendment of the restructuring 
plan approved in 2014 and 
granting of new aid to Eurobank 

SA.39837 (2014/N) – Sixth 
prolongation of the Credit 
Union Resolution Scheme H1 
2015 

SA.33442 (2011/N) – 
Restructuring of Irish Life & 
Permanent Group Holdings plc 
(PTSB) 

SA.41371 (2015/N) – First 
prolongation of the Credit 
Union restructuring and 
stabilisation scheme 

Ireland 

No objection275 

26/11/2015 

No objection276 

26/11/2015 

No objection 

29/01/2015 

No objection277 

09/04/2015 

No objection 

05/05/2015 

273 http://europa.eu/rapid/press-release_STATEMENT-15-4799_en.htm 
274 For further information see IP/15/6193 of 29 November 2015 available at http://europa.eu/rapid/press-
release_IP-15-6193_en.htm 
275 For further information see IP/15/6181 of 26 November 2015 available at http://europa.eu/rapid/press-
release_IP-15-6184_en.htm 
276 For further information see IP/15/6184 of 26 November 2015 available at http://europa.eu/rapid/press-
release_IP-15-6184_en.htm 
277 For further information see IP/15/4755 of 9 April 2015 available at http://europa.eu/rapid/press-release_IP-
15-4755_en.htm 

82 

 
 
 
 
 
 
 
 
 
 
                                                           
SA.42083 (2015/N) – Seventh 
prolongation of the Credit 
Union Resolution Scheme H2 
2015 

No objection 

02/07/2015 

SA.43423 (2015/N) - Ireland 

No objection 

16/11/2015 

2nd prolongation of the Credit 
Union restructuring and 
stabilisation Scheme 

Italy 

SA.39451 (2015/C) ex 2015/NN 
– State support to Banca 
TERCAS 

Latvia 

Poland 

Portugal 

SA.43547 (2015/N) – Italy 
Resolution of Carichieti 

SA.41925 (2015/N) – Italy -
Resolution of Carife  

SA.41134 (2015/N) – Italy - 
Resolution of Banca Etruria  

SA.39543 (2015/N) – Italy - 
Resolution of Banca Marche  

SA.36904 (2014/N) – MLB 
development segment & 
creation of the Latvian Single 
Development Institution 

SA.40096 (2014/N) – Second 
prolongation of the Credit 
Unions Orderly Liquidation 
Scheme H1 2015 

SA.40480 (2015/N) – Eleventh 
prolongation of the Polish Bank 
guarantee scheme – H1 2015 

SA.37421 (2014/N) – Polish 
Guarantee Methodology 

SA.42078 (2015/N) – Third 
prolongation of the Credit 
Unions Orderly Liquidation 
Scheme – H2 2015 

SA.42560 (2015/N) – Poland - 
Twelfth prolongation of the 
Polish bank guarantee scheme 

SA.39991 (2014/N) – Eleventh 
Prolongation of the Portuguese 
Guarantee Scheme 

83 

Opening 

27/02/2015 

No objection 

22/11/2015 

No objection 

22/11/2015 

No objection 

22/11/2015 

No objection 

22/11/2015 

No objection 

09/06/2015 

No objection 

27/01/2015 

No objection  

27/01/2015 

No objection 

01/07/2015 

No objection 

06/07/2015 

No Objection 

24/08/2015 

No objection 

04/02/2015 

 
 
 
 
 
 
 
 
 
 
 
SA.39958 (2014/N) – Third 
prolongation of the Portuguese 
Guarantee Scheme on EIB 
lending 

SA.42156 (2015/N) – Fourth 
prolongation of the Portuguese 
Guarantee Scheme on EIB 
lending 

SA.42404 (2015/N) – Twelfth 
Prolongation of the PT 
Guarantee Scheme 

No objection 

06/02/2015 

No objection 

15/07/2015 

No objection 

22/07/2015 

SA.36123 (2013/N) – Banif 

No objection278 

No objection 

21/12/2015 

29/01/2015 

United Kingdom 

SA.38535 (2014/N) – State 
support to the flood  reinsurance 
scheme 

SA.40188 (2015/N) – UK – 
Green Investment Bank 

No objection 

16/11/2015 

278 For further information see IP/15/5439 of 24 July 2015 available at http://europa.eu/rapid/press-release_IP-
15-5439_en.htm  

84