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 2019
Date: 2020-07-09
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, State aid, anti-trust legislation, competitiveness, control of State aid, control of restrictive practices, merger control, restriction on competition, single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 9.7.2020  SWD(2020) 126 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 2019 {COM(2020) 302 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 2019 

Table of Contents 

I.  LEGISLATION AND POLICY DEVELOPMENTS 

1.  Antitrust and cartels 

1.1.  Guidance in antitrust and cartel proceedings 

1.2.  Important judgments by the European Union Courts 

1.3.  The fight against cartels remains a top priority 

1.4.  Continuing close cooperation within the European Competition Network and with national courts 

2.  Merger control 

2.1.  Recent enforcement trends 

2.2.  Increased relevance of digital issues 

2.3.  The ongoing evaluation of EU merger control 

3. 

State aid control 

3.1.  Uptake of the State Aid Modernisation 

3.2.  State Aid Modernisation continues 

3.3.  Monitoring, recovery, evaluation and cooperation with national courts 

3.4.  Significant judgments by the European Union Courts in the State aid area 

4.  Developing the international dimension of EU competition policy 

5.  External Communication 

6.  The Single Market Programme 

II. SECTORAL OVERVIEW 

1.  Energy & environment 

2. 

Information and Communication Technologies and media 

3.  Financial services 

1 

2 

2 

3 

6 

12 

14 

17 

18 

20 

20 

22 

22 

30 

32 

34 

39 

42 

43 

44 

44 

50 

59 

 
 
 
4.  Taxation and State aid 

5.  Basic industries and manufacturing 

6.  Agri-food industry 

7.  Pharmaceutical and health services sectors 

8.  Transport and postal services 

65 

69 

73 

75 

77 

2 

 
 
 
 
 
This Staff Working Document (SWD) accompanying the 2019 Annual Competition Report 
reflects the main developments in EU competition policy during the year 2019 and contains 
a number of analyses and assessments of challenges in specific industries or for particular 
enforcement  instruments. Consequently, the SWD does not  cover the disruptive economic 
developments  caused  by  the  Covid-19  pandemic  that  broke  out  in  early  2020,  and  their 
impact on EU competition policy.  

I. 

LEGISLATION AND POLICY DEVELOPMENTS 

Competition policy empowering citizens and businesses for the benefit of all 

With more than half a billion consumers and 24.5 million companies, the internal market is 
one of the EU’s greatest achievements and its greatest asset. EU competition policy goes hand 
in  hand  with  the  development  of  a  deeper  and  fairer  internal  market.  Enforcing  EU 
competition rules makes markets function better for the benefit of consumers - households as 
well as businesses - and for society as a whole. Competitive markets play an important role 
supporting  the  Commission's  efforts  to  achieve  a  strong  and  prosperous  EU.  Moreover,  EU 
competition policy aims at fostering a competition culture both within the EU, for instance by 
promoting competition-friendly regulation, and worldwide.  

DG Competition's competition policy activities in 2019 targeted a wide range of sectors in the 
EU  economy,  thereby  promoting  open  and  efficient  markets  so  that  both  businesses  and 
citizens can get  a fair share of the benefits  of economic growth.  Moreover, EU competition 
policy  continued  to  support  key  political  priorities  of  the  Commission,  in  particular  its 
objectives  linked  to  the  internal  market,  digitalisation,  fair  taxation,  as  well  as  energy  and 
climate  as  set  out  in  the  Commission  President's  Political  Guidelines  and  the  Commission 
Work Programme. The present Staff Working Document is composed of two parts, the first 
part  presents  the  main  legislative  and  policy  developments  in  2019  across  the  three 
competition  instruments  (antitrust,  including  cartels,  mergers  and  State  aid),  while  specific 
actions are detailed in the sectoral overview part. 

1. 

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.  However,  even  if  a  horizontal  or  a  vertical 
agreement could be viewed as restrictive 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, as any other undertaking in the market, 
are entitled to compete on the merits. However, Article 102 TFEU prohibits the abusive behaviour by dominant 
undertakings  that,  for  example,  directly  or  indirectly  impose  unfair  purchase-  or  selling  prices  or  other  unfair 
trading conditions.  

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

3 

 
 
 
Antitrust and cartel decisions 2010-2019 

1.1. 

Guidance in antitrust and cartel proceedings 

The  Commission’s  enforcement  in  2019  demonstrated  its  continued  intention  to  strictly 
enforce competition rules to fight collusive agreements between undertakings and avoid that 
companies  abuse  their  dominant  positions  to  the  detriment  of  consumers.  While  in  parallel 
engaging in a thorough reflection process to assess how to boost enforcement with the tools 
available to it, throughout 2019 the Commission adopted a total of 15 decisions sanctioning 

4 

 
 
 
 
anticompetitive  conduct.  This  is  the  highest  number  of  sanctions  since  Margrethe  Vestager 
took office as Commissioner for Competition in 2015.  

Importantly,  2019  also  marked  the  Commission’s  continued  efforts  to  make  competition 
policy more efficient, effective and responsive to the needs of modern society. In this respect, 
throughout  2019  the  Commission  successfully  pursued  four  antitrust  cases  on  the  basis  of 
cooperation procedures.1 This voluntary practice – similar to cartel settlement but outside the 
context of a cartel – has proven very successful in a number  of recent fining decisions. The 
four cases of 2019 brought the number of this type of cases to a total of ten since the first time 
it was used in 20162 and allowed the Commission to levy fines of almost EUR 1 billion. The 
use of cooperation procedures allows both the companies investigated and the Commission to 
substantially  increase  administrative  efficiencies  while  preserving  the  supervisory  role 
inherent to competition law enforcement. By voluntarily engaging in a cooperation procedure, 
companies  benefit  from  fine  reductions  in  exchange  for  the  acknowledgment  of  the 
infringement. Moreover, companies may merit additional reductions in their fines if they also 
provide  evidence  with  significant  value  for  the  investigation  or  design  and  implement 
remedies contributing to the improvement of competitive conditions and the good functioning 
of  the  European  Single  Market.  The  individual  reductions  granted  so  far  in  this  type  of 
procedures have ranged between 10% and 50%, depending on the timing of the cooperation 
(both in terms of the acknowledgement of liability and the evidence) as well as the extent to 
which  the  evidence  provided  strengthened  the  Commission's  case.  The  use  of  cooperation 
procedure also results in speedier and better targeted fining decisions. 

In  an  additional  attempt  to  improve  the  effectiveness  of  its  procedures,  the  Commission 
launched in March 2019 its “eLeniency” online tool.3 eLeniency is designed to make it easier 
for companies and their legal representatives to submit statements and documents as part of 
leniency  and settlement  proceedings in  cartel  cases, as well as non-cartel  cooperation cases. 
eLeniency  allows  companies  and  their  lawyers  to  submit  these  documents  –  including 
leniency  applications  and  settlement  submissions  –  with  the  same  guarantees  in  terms  of 
confidentiality  and  legal  protection  as  under  the  traditional  procedure.  These  safeguards 
include the protection against discovery in civil litigation of corporate statements made under 
the Leniency Notice. 

As  regards  the  speed  of  investigations,  2019  also  saw  the  Commission  impose  interim 
measures  on  chipset  manufacturer  Broadcom.4  Designed  to  target  “the  risk  of  serious  and 
irreparable damage to competition”5, interim measures had not been used for eighteen years. 
The  interim  measures  decision  ordered  Broadcom  to  (i)  unilaterally  cease  to  apply  certain 
anticompetitive  provisions  identified  by  the  Commission  and  to  inform  its  customers  that  it 
would no longer apply such provisions; and (ii) refrain from agreeing or enforcing the same 
provisions  or  provisions  having  an  equivalent  object  or  effect  in  other  agreements  with  its 

1   Case AT.40049, MasterCard II. See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_582), Case AT.40436, Ancillary 

sports merchandise (ex. Licensed merchandise – Nike.  
See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1828), Case 40134 – AB InBev Beer Trade Restrictions  
See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2488) and Case AT.40432 –  
Character merchandise (ex. Licensed merchandise – Sanrio. See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_3950. 

2   Case AT.39759 - ARA foreclosure. See: http://europa.eu/rapid/press-release_IP-16-3116_en.htm.  
3   See: https://ec.europa.eu/commission/presscorner/detail/en/ip_19_1594.   
4   Case AT.40608 – Broadcom. See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6109). The decision imposing interim 

measures is currently under appeal before the General Court of the Court of Justice of the EU. 

5   Article 8(1) of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in 

Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1–25. 

5 

 
 
                                                           
customers. In its decision, the Commission obliged Broadcom to comply with these measures 
within 30 days or face a penalty of up to 10% of its total turnover.  

During  2019  the  Commission  made  substantial  progress  in  its  evaluations  of  the  rules 
exempting  certain  vertical6  and  horizontal  agreements7  from  the  EU’s  general  competition 
rules. In line with the Better Regulation requirements, the Commission is following the same 
thorough  process  for  the  evaluation  of  both  sets  of  rules.  They  are  made  up  by  one  or  two 
Block Exemption Regulations and a set of accompanying Guidelines.8 The two workstreams  
have so far included the publication of the roadmaps for each review and their respective calls 
for  contributions  from  stakeholders.  The  purpose  of  these  evaluations  is  to  allow  the 
Commission  to  decide  whether  to  let  the  rules  lapse,  prolong  their  duration  or  revise  them. 
Stakeholders  will  be  able  to  provide  further  comments  at  subsequent  stages  of  the  review 
process.  The  vertical  and  horizontal  rules  expire  in  May  and  December  2022,  respectively. 
The  rules  applicable  to  categories  of  technology  transfer  agreements  will  also  be  up  for 
review in the coming years.9 

The Commission also launched the review of the Motor Vehicle Block Exemption Regulation 
(MVBER)10  which  will  expire  in  May  2023  and  mandates  the  production  of  an  evaluation 
report by May 2021. In February 2019, an evaluation roadmap was published,11 followed by a 
four-week  online  consultation  with  stakeholders.  In  parallel,  a  fact-finding  study  has  been 
commissioned, to allow for a better understanding of how market conditions have evolved in 
the motor vehicle sector over the last decade. The study, which is expected to be delivered by 
mid-summer  2020,  will  then  feed  into  the  public  consultation  with  stakeholders,  currently 
scheduled for late 2020. 

On  9  December  2019,  Executive  Vice-President  Vestager  announced  the  planned  review  of 
the Commission Notice on the definition of relevant market for the purposes of Community 
competition  law  (“Market  Definition  Notice”),12  which  provides  guidance  as  to  how  the 
Commission  applies  the  concept  of  relevant  product  and  geographic  market  in  its  ongoing 
enforcement of EU competition law. The main reason for launching this review is to ensure 
that the Notice reflects how the Commission’s and the European courts’ practice in defining 
markets has evolved over the past twenty years. The main objective of the review is to give 
guidance that remains accurate and up-to-date, setting out a clear and consistent approach to 
both antitrust and merger cases across different industries, in a way that is easily accessible. 

6   Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the  

European Union to categories of vertical agreements and concerted practices, OJ L 102, 23.4.2010, p. 1. 

7   Commission Regulation No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the functioning of the 
European Union to categories of research and development agreements,  OJ L 335, 18.12.2010, p. 36; Commission Regulation No 
1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty to categories of specialisation agreements,  
OJ L 335, 18.12.2010, p. 43. 

8   Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the  

European Union to categories of vertical agreements and concerted practices, OJ L 102, 23.4.2010, p. 1. Commission Notice - 
Guidelines on Vertical Restraints, OJ C 130, 19.05.2010, p. 1 and Communication from the Commission - Guidelines on the 
applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements , OJ C11, 
14.1.2011, p. 1. 

9   Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of 

the European Union to categories of technology transfer agreements, OJ L93, 28.03.2014, p. 17.   

10   Commission Regulation 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to 

categories of vertical agreements and concerted practices in the motor vehicle sector, OJ L 129, 28.5.2010, p. 52.  

11   See: https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-6188380_en.  
12   Commission Notice on the definition of relevant market for the purposes of Community competition law, OJ C 372, 9.12.1997, p. 5–

130. 

6 

 
 
 
                                                           
 
1.2. 

Important judgments by the European Union Courts 

Preliminary rulings 

Ne bis in idem 

The  case  Powszechny  Zakład  Ubezpieczeń  na  Życie13  concerns  a  request  for  a  preliminary 
ruling about the interpretation of the principle of ne bis in idem, enshrined in Article 50 of the 
Charter of Fundamental Rights of the European Union,14 in the area of EU competition law. 
According to  established case law, the principle  of ne bis  in  idem precludes an undertaking 
being  found  liable  or  proceedings  being  brought  against  it  again  on  the  grounds  of  anti-
competitive  conduct  for  which  it  has  been  penalised  or  declared  not  liable  by  an  earlier 
decision that can no longer be challenged.  

The request was made by the Polish Supreme Court in its proceedings concerning a decision 
of the Polish Office of Competition and Consumer Protection (“UOKiK”) to fine Powszechny 
Zakład  Ubezpieczeń  na  Życie  S.A.,  a  Polish  insurance  company,  for  abusing  its  dominant 
position on the market for group life insurance for employees in Poland by taking measures to 
prevent the creation or development of competition. The UOKiK imposed a fine both based 
on national law and on the basis of Article 102 TFEU in the same decision. The part of the 
fine that was based on national law covered the period of the infringement prior to Poland’s 
accession  to  the  EU  up  to  the  date  of  UOKiK’s  decision  and  the  part  of  the  fine  based  on 
Article 102 TFEU covered the period post accession up to the date of UOKiK’s decision.  

The Polish Supreme Court asked: (i) whether Article 50 of the Charter of Fundamental Rights 
of the European Union, could be interpreted as meaning that the application of the  ne bis in 
idem principle presupposes not only that the offender and the facts are the same but also that 
the legal interest protected is the same and (ii) whether Article 3 of Regulation 1/200315, read 
in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union, 
was  to  be  interpreted  as  meaning  that  the  rules  of  EU  competition  law  and  of  national 
competition law which are applied in parallel by the competition authority of a Member State 
protect the same legal interest.  

The  Court  of  Justice  of  the  European  Union  considered  the  two  questions  together  and 
concluded that the principle of ne bis in idem did not apply in the particular case because the 
UOKiK had taken a single fining decision on the basis of a concurrent application of national 
and EU competition law. Consequently, the "bis" component was missing. The Court stated 
that the protection which the principle of ne bis in idem aims to afford against the repetition 
of  prosecution  leading  to  a  criminal  sentence  bore  no  relation  to  the  situation  in  which 
national and EU competition law are applied in parallel in a single decision. The Court also 
stated,  as  in  the  Toshiba16  case,  that  competition  rules  at  EU  and  national  level  view 
restrictions  on  competition  from  different  angles  and  their  areas  of  application  do  not 
coincide.  The  Court  finally  stated  that  where  a  national  competition  authority  imposes  two 
fines  in  a  single  decision  in  respect  of  an  infringement  of  national  competition  law  and  an 

13   Case C-617/17 Powszechny Zakład Ubezpieczeń na Życie, Judgement of the European Court of Justice of 3 April 2019, EU:C:2019:283. 
14   Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, pp. 391–407. 
15   Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 

and 82 of the Treaty, OJ L 1, 04.01.2003, pp.1-25. 

16   Case C-17/10 Toshiba Corporation e.a, Judgment of the European Court of Justice of 14 February 2012, ECLI:EU:C:2012:72. 

7 

 
 
                                                           
infringement  of Article 102 TFEU, that  authority must ensure that, taken  together, the fines 
are proportionate to the nature of the infringement.  

Review of cartel decisions 

In  2019,  the  European  Courts  confirmed  the  Commission’s  cartel  enforcement  activities 
across most areas: the use of the Commission’s investigative powers in inspections, the way 
in  which  the  Commission  conducts  its  cartel  investigation  proceedings  and  the  use  of 
evidence for proving infringements of EU competition law and in relation to certain aspects of 
the Commission’s fine calculations. 

Inspections 

In Bio-ethanol17, the Court of Justice rejected Alcogroup’s appeal against the General Court’s 
2018  judgment,  where  the  General  Court  rejected  as  inadmissible  an  action  for  annulment 
against (i) an inspection decision and (ii) a subsequent letter refusing the applicant’s  request 
to  suspend  the  investigation.  The  Court  of  Justice  confirmed  that  the  General  Court  was 
correct  to  conclude that  (i) the validity of an inspection decision cannot  be affected by  acts 
subsequent  to  its  adoption,  in  this  case  by  the  conduct  of  that  inspection;  and  that  (ii)  the 
Commission’s  rejection  letter  could  not  be  challenged,  because  this  was  only  a  preliminary 
act. Finally, the Court of Justice considered that the right to the protection of confidentiality 
of  correspondence  between  a  lawyer  and  his  client  must  in  principle  be  respected  by  the 
Commission and its inspectors, irrespective of the scope of the mandate given to them by the 
inspection  decision.  As  regards  the  Commission’s  rejection  letter,  the  Court  of  Justice  held 
that, contrary to the Akzo jurisprudence18, this could not constitute a formal decision rejecting 
a  request  for  confidentiality  or  a  decision  confirming  an  implied  decision  rejecting  such  a 
request. 

Rights of defence 

Pleas  by  Pometon  alleging  a  violation  of  the  principles  of  impartiality  and  presumption  of 
innocence in the staggered hybrid settlement proceedings relating to the Steel Abrasives19 case 
were  rejected  by  the  General  Court.  In  this  case,  the  Commission  adopted  first  a  decision 
following the settlement procedure with the settling parties, and later on a decision following 
the  standard  procedure  against  Pometon,  which  opted  out  of  the  settlement  procedure. 
Pometon had alleged that the Commission had acted partially and violated the presumption of 
innocence  by  referring  to  Pometon  in  the  description  of  the  facts  in  the  settlement  decision 
and  showing  bias  against  it  in  the  standard  proceedings  leading  to  adopting  the  contested 
decision.  The  General  Court  held  that  the  settlement  decision  did  not  contain  any  legal 
assessment  concerning  Pometon’s  participation  in  the  infringement.  The  references  to 
Pometon were limited to a description of the facts. It did therefore not consider that there was 
a  violation  of  the  presumption  of  innocence  as  alleged.  This  judgment  thus  confirms  the 
possibility  for  the  Commission  to  pursue  a  staggered  hybrid  settlement  if  one  party  drops 
from the settlement. 

17   Case C-403/18 P Alcogroup and Alcodis v Commission, The Commission’s antitrust investigation concerning Bio-ethanol sales (Case 

AT.40244) was closed in April 2017, while the investigation into Ethanol benchmarks (Case AT.40054) is still pending. 

18   Case C‑ 550/07 P – Akzo Nobel and Others v Commission, judgment of September 2010, ECLI:EU:C:2010:512. 
19   Case T-433/16 – Pometon v Commission, judgement of 28 March 2019, ECLI:EU:T:2019:201. 

8 

 
 
                                                           
In  Retail  Food  Packaging20,  the  General  Court  confirmed  the  Commission’s  discretion  in 
conducting its  adversary proceedings against a suspected cartelist.  Silver Plastics alleged an 
infringement of its procedural rights to equality of arms and to a fair trial in that examination 
of  witnesses  named  by  Silver  Plastics  and  the  adversarial  examination  of  a  witness  used 
against  them  was,  following  several  requests,  refused.  According  to  the  General  Court,  an 
undertaking’s right to be heard was sufficiently protected by responding to the Commission’s 
Statement  of  Objections  –  a  right  to  confront  a  key  witness  supporting  the  Commission’s 
findings, however, was not part of an undertaking’s rights of defence.  
In Power Cables21, the Court of Justice confirmed that the rights of defence and the right to a 
fair  trial  were  not  infringed  by  addressing  requests  for  information  and  a  statement  of 
objections  to  a  German-operating  company  in  Switzerland  in  English  (as  opposed  to  in 
German). Furthermore, the Court of Justice confirmed in the same judgment that addressees 
of a Statement of Objections do not have the automatic right to access other parties’ responses 
to  the  same  Statement  of  Objections.  It  is  for  the  addressee  to  give  a  first  indication  how 
access to these responses would be useful for the exercise of their rights of defence. 

Finding of the infringement 

In all but one judgment, the General Court confirmed that the Commission acted within the 
boundaries of existing case law when holding undertakings liable for participating in a single 
and continuous infringement. 
In Optical Disk Drives (ODD)22, the General Court confirmed the qualification of the cartel – 
consisting  of  a  set  of  predominantly  bilateral  contacts  –  as  a  single  and  continuous 
infringement of Article 101 TFEU. The General Court summarised its position concerning the 
existence  of  the  single  and  continuous  infringement  by  recalling  that  the  very  concept  of  a 
single  and  continuous  infringement  presupposes  a  complex  of  practices.  Furthermore,  the 
General Court confirmed that the Commission has demonstrated to the requisite standard that 
all  parties  were  aware  or  could  reasonably  have  foreseen  the  conduct  planned  or  put  into 
effect by the other cartel participants and could therefore also be held liable for that conduct. 
Moreover, the General Court confirmed in two judgments relating to Retail Food Packaging23 
that the Commission had fulfilled the standard of proof and correctly applied the criteria for 
qualifying anti-competitive conduct  as a single and continuous infringement.24  In particular, 
the General Court confirmed that a single and continuous infringement might concern several 
products belonging to distinct product markets. The General Court, therefore, fully confirmed 
the finding of the infringement in the decision. 
In  the  case  of  Car  Battery  Recycling25,  the  General  Court  confirmed  the  Commission’s 
findings that the addressees of the infringement decision were engaged in a purchasing cartel 

20   Case T-582/15, Silver Plastics and Johannes Reifenhäuser v Commission, judgment of 11 July 2019, ECLI:EU:T:2019:497. 
21  Case C-591/18 P Brugg Kabel and Kabelwerke Brugg v Commission, judgment of 28 November 2019, ECLI:EU:C:2019:1026. 
22   Cases T-762/15 Sony and Sony Electronics v Commission, judgment of 12 July 2019, ECLI:EU:T:2019:515, T-763/15 Sony Optiarc and 
Sony Optiarc America v Commission, judgment of 12 July 2019, ECLI:EU:T:2019:517, T-772/15 Quanta Storage v Commission, 
judgment of 12 July 2019, ECLI:EU:T:2019:519, T-1/16 Hitachi-LG Data Storage et Hitachi-LG Data Storage Korea v Commission, 
judgment of 12 July 2019, ECLI:EU:T:2019:514, T-8/16 Toshiba Samsung Storage Technology and Toshiba Samsung Storage 
Technology Korea v Commission, judgment of 12 July 2019, ECLI:EU:T:2019:522. 

23   Cases T-530/15 Huhtamaki  Oyj et al. v Commission, judgment of 11 July 2019, ECLI:EU:T:2019:498 and T-582/15, Silver Plastics and 

Johannes Reifenhäuser v Commission, judgment of 11 July 2019, ECLI:EU:T:2019:497. 

24   Case T-530/15 Huhtamaki  Oyj et al. v Commission, judgment of 11 July 2019, ECLI:EU:T:2019:498 and T-582/15, paragraphs 144-

156. 

25   Case T-240/17, Campine and Campine Recycling v Commission, judgment of 7 November 2019, ECLI:EU:T:2019:778. 

9 

 
 
                                                           
violating  Article  101(1)  TFEU.  The  General  Court  confirmed  that  the  Commission  had 
proven to the requisite legal standard the anticompetitive nature of the six collusive contacts 
in  which  Campine  was  found  to  have  been  involved.  However,  the  General  Court  upheld 
Campine’s claim concerning a lack of proof for the entire duration of its participation in the 
infringement and partially annulled the Commission’s infringement decision in this respect. 
In Power Cables26, the Court of Justice confirmed that the General Court had not erred in law 
when confirming the Commission’s position that, based on the evidence available, companies 
had participated in the infringement and had failed to fulfil the criteria for applying the open 
and  public  distancing  test.  The  Court  of  Justice  also  confirmed  that  the  General  Court  had 
correctly  observed  that  the  Commission  had  relied  not  just  on  the  absence  of  public 
distancing, but also on other factors when establishing the participation in the cartel.  
Also  in  Power  Cables27,  the  Court  of  Justice  partially  annulled  the  Commission’s  decision 
against ABB (the immunity  applicant) based on  the finding that the General  Court failed to 
have regard to the evidential requirements in finding that the collective refusal to supply the 
power cable accessories also covered accessories for underground power cables with voltages 
from 110 kV and below 220 kV. The Court of Justice found that the General Court effectively 
relied on an unsubstantiated presumption in that regard, while leaving it to the appellants to 
rebut that presumption in respect of those accessories. 

Reasoning for fines  

In 2019, EU courts provided further guidance for the reasoning required by the Commission 
to impose fines on cartelists on the basis of the 2006 Guidelines on fines.28  

Point  37  of  the  2006  Guidelines  on  fines  state  that  the  Commission  may  depart  from  its 
standard fining methodology if it is justified by the particularities of a given case or if there is 
a  need  to  achieve  deterrence  in  that  particular  case.  In  Steel  Abrasives29  the  General  Court 
recalled that when basing itself on point 37, the Commission’s motivation should be all the 
more  precise  as  it  benefits  from  considerable  discretion,  and  it  should  not  discriminate  in 
determining the fines applicable to the various participants in the same cartel. In this respect, 
the General Court found that the contested decision was insufficiently motivated, as it did not 
allow  assessing  whether  the  applicant  had  been  treated  equally  to  the  settling  parties. 
Exercising its  power of full jurisdiction, the General  Court decided to  reduce the fine while 
confirming the infringement and Pometon’s participation in the cartel.  

In  relation  to  the  imposition  of  fines  against  cartel  facilitators  applying  point  37  of  the 
Commission’s 2006 Guidelines on Fines, the Court of Justice upheld in the Yen Interest Rate 
Derivatives (YIRD)30 case the General Court judgment annulling the fine imposed on broker 
ICAP  for  facilitating  several  infringements  that  formed  part  of  the  YIRD  cartel.  While  the 
Court of Justice accepted the characterisation of ICAP as a cartel facilitator, it was critical of 
the fact that a five-step process used to calculate the fine was not explained in the decision, 
but only disclosed during the court proceedings. The Commission had considered it necessary 

26   Case C-599/18 P Silec Cable and General Cable Corp v Commission, judgment of 14 November 2019, ECLI:EU:C:2019:966; Case C-

596/18 P LS Cable & System Ltd. v Commission, judgment of 28 November 2019, ECLI:EU:C:2019:1025. 
27   Case C- 593/18 P ABB Ltd and ABB AB V Commission, judgment of 28 November 2019, ECLI:EU:C:2019:1027. 
28   Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Official Journal C 210,      

1.09.2006, p. 2-5. 

29   Case T-433/16 Pometon v Commission, judgment of 28 March 2019, ECLI:EU:T:2019:201. 
30   Case C-39/18 P Commission v ICAP (now NEX), judgment of 10 July 2019, ECLI:EU:C:2019:584. 

10 

 
 
 
                                                           
to establish such a methodology for the setting of the fine, instead of imposing a lump sum 
like  in  previous cases  involving a facilitator, in  order to  ensure that the  same approach was 
taken  with  regard  to  ICAP  (non-settling)  and  the  other  settling  facilitator  fined  in  this  case. 
The Court of Justice considered that, although the Commission is not required to provide all 
of the figures concerning each of the steps relating to the method of calculating the fine, it has 
a  duty  to  explain  the  weighting  and  the  assessment  of  the  factors  taken  into  account.  The 
Court  of  Justice  also  distinguished  ICAP  from  AC-Treuhand31  by  pointing  out  that  in  AC-
Treuhand  the  Commission  had  defined  the  basic  amount  as  a  lump  sum  and  that  AC-
Treuhand was the sole facilitator in the cartel. 

The  General  Court,  furthermore  dealt  with  the  reasoning  for  an  adaptation  of  the  value  of 
sales in its HSBC judgment in the Euro Interest Rate Derivatives (EIRD)32 case, a cartel case 
concerning the financial sector. In this particular case, the Commission could not use ‘value 
of sales’ in the traditional sense as the starting point for calculating the basic amount of the 
fine,  because  the  trading  activity  in  question  did  not  produce  sales  as  such.  Instead,  the 
Commission  chose  a  proxy  based  on  another  metric  (cash  receipts),  resulting  in  very  high 
starting  amounts.  These  high  starting  points  were  then  reduced  by  a  significant  reduction 
factor  (98.849%)  in  view  of  combining  deterrence  and  proportionality  of  the  fine.  In  its 
judgment,  while  confirming  the  infringement  and  accepting  the  proxy  for  value  of  sales 
retained by the Commission,  the General  Court  annulled  the fine imposed on HSBC due to  
insufficient  reasoning  of  the  basis  for  the  reduction  factor  of  98.849%.  According  to  the 
General  Court,  the  reasoning  must  be  sufficient  to  enable  the  undertakings  concerned  to 
understand how the Commission arrived at this specific reduction factor. The General Court 
must be able to carry out an in-depth review, in law and in fact, of this factor as a part of a full 
judicial review. 

As for the application of inability to pay (ITP) principles under point 35 of the Commission’s 
2006 Guidelines on Fines, the General Court annulled in one of the appeals relating to Retail 
Food  Packaging33  the  fine  imposed  on  CCPL  due  to  an  insufficient  reasoning  of  the 
Commission setting out the exact level of the 25% ITP reduction granted. The Commission’s 
infringement decision explained the elements, which led to a reduction by 25%, but did not 
sufficiently quantify them,  which made it impossible to  assess the method used to  calculate 
the reduction and to establish whether this reduction was proportionate. 

Calculation of fines 

In addition to analysing the Commission’s reasoning, the General Court also exercised in the 
Steel  Abrasives34  case  its  unlimited  jurisdiction  concerning  fines.  In  doing  so,  the  General 
Court compared the situation of the appellant, Pometon, with that of the other parties in view 
of its involvement in the infringement, value of sales and total turnover in the last year of the 
infringement. As a result, while confirming the infringement, the General Court increased the 
fine reduction for Pometon from 60% to 75%. 
In  the  Envelopes  Cartel35,  the  General  Court,  in  the  exercise  of  its  unlimited  jurisdiction, 
confirmed  the  fine  re-imposed  on  Printeos  for  its  participation  in  the  cartel,  dismissing 

31   Case C-194/14 AC-Treuhand v Commission, judgment of 22 October 2015, ECLI:EU:C:2015:717. 
32   Case T-105/17 HSBC v Commission, judgment of 24 September 2019, ECLI:EU:T:2019:675. 
33   Case T-522/15 CCPL et al. v Commission, judgment of 11 July 2019, ECLI:EU:T:2019:500. 
34   Case T-433/16 Pometon v Commission, judgment of 28 March 2019, ECLI:EU:T:2019:201. 
35   Case T-466/17 Printeos and Others v Commission, judgment of 24 September 2019, ECLI:EU:T:2019:671. 

11 

 
 
                                                           
Printeos’ pleas concerning non-discrimination and breach of the principle of equal treatment. 
In doing so, the General Court made a full comparison between Printeos and each one of the 
other parties. The General Court concluded that the Commission had respected the principle 
of equal  treatment.  Although it clarified that in  the case of one other party the Commission 
had not correctly applied the fining methodology, this fact did not justify reducing the fine for 
Printeos because on the one hand, Printeos confirmed in its appeal that it did not dispute the 
fines  imposed  on  the  other  parties  and,  on  the  other  hand,  the  fines  imposed  on  the  other 
parties were final and binding. However, for equity reasons, the Court decided to award the 
costs of the appeal of Printeos to the Commission. 

The  General  Court  confirmed  the  Commission’s  method  for  calculating  the  fine  imposed 
against  Sony  Optiarc  in  the  Optical  Disk  Drives  case36.  In  particular,  the  General  Court 
rejected  Sony  Optiarc’s  argument  that  the  Commission  had  double-counted  its  sales  by  not 
deducting  revenues  passed  on  to  Quanta  (another  addressee  of  the  Commission’s 
infringement  decision)  under  a  revenue-sharing  arrangement  between  the  two  addressees. 
Deducting such sales “would undermine the effectiveness of the prohibition on cartels, since it 
would  then  be  sufficient  for  undertakings  to  associate  themselves  with  a  participant  in  the 
cartel in order to reduce the amount of their fine”37. It also confirmed the fines imposed on all 
the participants for their participation in the cartel.  
In  Power  Cables38,  the  Court  of  Justice  found  that  the  General  Court  had  not  erred  in  law 
when refusing to qualify an undertaking’s individual involvement in the cartel  as a “fringe” 
player, thus confirming the original fine calculation by the Commission, which did not reduce 
the undertaking’s fine by an additional 5% because Silec’s participation was not comparable 
to that of the fringe players in the cartel. This refusal to grant an additional 5% reduction did 
not discriminate against the undertaking. 

Furthermore, the Court of Justice confirmed the Commission’s application of point 18 of the 
Fining Guidelines, which allow for an adjustment of the value of sales used for calculating the 
basic amount of a fine in  case of a cartel  whose geographic scope goes beyond the EEA in 
order to properly reflect the undertaking’s participation in the infringement.39 In addition, the 
Court  of  Justice  confirmed  the  Commission’s  methodology  to  set  the  value  of  one 
undertaking’s sales based on an apportionment of sales between two companies belonging to 
the same group.40 

Finally, the General Court also confirmed the Commission’s approach to increase the value of 
purchases in the Car Battery Recycling41 purchasing cartel by 10% under point 37 of the 2006 
Guidelines  on  Fines.  This  uplift  was  aimed  at  taking  into  account  the  specific  nature  of  a 
purchasing  cartel.  In  such  a  case,  the  value  of  purchases  was  likely  to  underrepresent  the 
economic significance of the infringement. This is because the more successful a purchasing 
cartel  is  in  lowering  prices,  the  lower  its  fines  would  be  under  the  standard  approach.  The 
General  Court  also  found  that  the  10%  uplift  was  sufficiently  reasoned  in  the  decision  and 
that the fact that the Commission did not announce the intended fine increase in the Statement 

36   Case T-763/15 Sony Optiarc and Others v Commission, judgment of 12 July 2019, ECLI:EU:T:2019:517. 
37   Case T-763/15 Sony Optiarc and Others v Commission, judgment of 12 July 2019, para. 245. 
38   Case C-599/18 P Silec Cable and General Cable Corp v Commission, judgment of 14 November 2019, ECLI:EU:C:2019:966. 
39   Cases C-582/18 P – Viscas v Commission (ECLI:EU:C:2019:1133),  C-589/18 P – Furukawa Electric v Commission 

(ECLI:EU:C:2019:1134), and C-590/18 P – Fujikura v Commission (ECLI:EU:C:2019:1135), judgments of 19 December 2019. 

40   Case C-589/18 P – Furukawa Electric v Commission (ECLI:EU:C:2019:1134), judgment of 19 December 2019 . 
41   Cases T-222/17 Recylex and Other v Commission, judgment of 23 May 2019, ECLI:EU:T:2019:356. and T-240/17 Campine and 

Campine Recycling v Commission, judgment of 7 November 2019, ECLI:EU:T:2019:778. 

12 

 
 
                                                           
of  Objections,  but  in  a  letter  sent  to  the  parties  after  the  adoption  of  the  Statement  of 
Objections,  did  not  infringe  the  parties’  rights  of  defence  or  the  principle  of  good 
administration.  The  General  Court  also  confirmed  the  Commission’s  decision  to  grant  Eco-
Bat  a  30-50%  reduction  under  point  26  of  the  Leniency  Notice  and  Recylex  a  20-30% 
reduction,  because  Recylex  had  only  been  the  second  undertaking  to  provide  evidence  that 
had significant added value.42 

1.3. 

The fight against cartels remains a top priority 

Cartels are secret agreements between sellers or buyers of the same product or service. They 
are  made  with  the  objective  of  fixing  prices,  limiting  output  or  allocating  clients  and 
suppliers. Cartels harm the consumers at  all levels of the value chain  and the economy as a 
whole.  Cartelists  charge  inflated  prices,  limit  the  choice  of  the  consumers  and  block 
innovation.  Only  undistorted  competition  guarantees  that  scarce  resources  are  used  in  the 
most  efficient  way.  The  Commission's  action  to  stop  hard  core  cartels  prevents  companies 
from  continuing  to  profit  from  illegal  overcharges  and  thereby  contributes  to  fair  and 
balanced business relationships. The significant sanctions imposed by the Commission deter 
companies from entering into cartels or from remaining in cartels, sending a clear signal that 
operating a cartel will ultimately not pay off.  

The Commission's strong enforcement record against hard-core cartels continued in 2019 and 
remains strong and effective with five decisions and fines in excess of EUR 1.4 billion. The 
Commission  adopted  cartel  decisions  in  important  sectors,  which  directly  affected  EU 
consumers and EU business, notably in car parts and food products. Four of the five decisions 
issued in  2019 came under the settlement  procedure, which again  proved to  be a successful 
and efficient tool to resolve cartel cases.   

The  Commission  fined  two  producers  of  car  safety  equipment43  –  Autoliv  and  TRW  (Sanyo 
received  immunity)  –  a  total  of  EUR  368  million  for  participating  in  a  cartel.  It  was  the 
second  time  that  car  safety  equipment  suppliers  were  fined  for  entering  into  illegal  cartel 
arrangements. On this occasion the parties exchanged commercially sensitive information and 
coordinated  their  market  behaviour  for  the  supply  of  seatbelts,  airbags  and  steering  wheels. 
All three parties acknowledged their involvement in cartel conduct and agreed to settle. The 
cartel is likely to have hurt EU consumers and had an adverse impact on the competitiveness 
of the EU automotive sector. This case represents the 11th decision in the car parts sector and 
shows the Commission is able to produce the ‘domino effect’ of successive cases within its 
existing framework.  

The  Commission  also  continued  its  work  against  cartels  in  the  financial  sector.  In  two 
settlement decisions44  it fined five banks  at  total  of EUR 1.07 billion for taking part in  two 
cartels  in  the  Spot  Foreign  Exchange  (Forex)  market  for  eleven  currencies,  including  the 
Euro, British pound, US dollar and Japanese yen. The first decision (the so-called ‘Three Way 
Banana Split’ cartel) imposed a total fine of EUR 811 million on Barclays, The Royal Bank of 
Scotland (RBS), Citigroup and JPMorgan. The second decision (the so-called ‘Essex Express‘ 
cartel) imposed a total fine of just under EUR 258 million on Barclays, RBS and MUFG Bank 
(formerly  Bank  of  Tokyo-Mitsubishi).  The  investigation  revealed  that  individual  traders  in 

42   Case T-222/17 Recylex and Other v Commission, judgment of 23 May 2019, ECLI:EU:T:2019:356. 
43   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1512.  
44   Case AT.39398 VISA MIF, Commission decision of 26 February 2014. See:  

http://ec.europa.eu/competition/antitrust/cases/dec_docs/39398/39398_9728_3.pdf. 

13 

 
 
                                                           
 
charge  of  Forex  spot  trading  (where  transactions  are  executed  on  the  same  day  at  the 
prevailing  exchange  rate)  had,  on  behalf  of  their  respective  banks,  exchanged  sensitive 
information  and  trading  plans,  and  occasionally  coordinated  their  trading  strategies  through 
various online professional chatrooms. With the adoption of these decisions, eight decisions 
in  total  were  adopted  in  the  financial  sector.  This  illustrates  the  cyclical  nature  of  cartel 
enforcement where cases in a particular sector can come in waves.45  

In the agri-food sector, the Commission imposed a total fine of EUR 31.7 million on Coroos 
and  Groupe  CECAB46  (Bonduelle  received  immunity).  The  three  parties  were  involved  for 
more than 13 years in a cartel for the supply of certain types of canned vegetables to retailers 
and/or food service companies in the EEA. The three companies admitted their involvement 
in  the  cartel  and  agreed  to  settle  the  case.  The  cartel  lasted  from  2000  to  2013  and  was 
composed of three agreements: one covering private label sales of canned vegetables such as 
green  beans,  peas,  peas-and-carrots  mix,  vegetable  macedoine  to  retailers  in  the  EEA;  a 
second  one  covering  private  label  sales  of  canned  sweetcorn  to  retailers  in  the  EEA;  and  a 
third one covering both  own brands and private label sales  of canned vegetables to retailers 
and  to  the  food  service  industry  specifically  in  France.  The  nature  of  the  product,  the  long 
duration and the EEA wide scope meant that the cartel had a direct and significant impact on 
EU consumers. 

The  Commission  also  re-adopted  a  cartel  decision  against  five  Italian  manufacturers  of 
reinforcing  steel  bars  for  concrete,  namely  AlfaAcciai,  Feralpi  Holding,  Ferriere  Nord, 
Partecipazioni Industriali (Riva Fire) and Valsabbia Investimenti / Ferriera Valsabbia.47 The 
Commission imposed total fines of EUR 16.074 million for the companies' participation in a 
price  fixing  cartel  between  December  1989  and  July  2000.  The  case  demonstrates  the 
Commission’s  practice  of  re-adopting  decisions  when  annulled  on  procedural  grounds  in 
order to ensure proper enforcement of the competition rules and appropriate deterrence. 

Also  in  2019,  the  Commission  revealed  greater  details  of  the  recent  steps  it  has  taken  to 
reinforce its ex officio policy in the detection and fight against cartels. The enhanced risk of 
detection will not only lead to more ex officio cases but will also serve to encourage leniency 
applications.  Three  key  measures  were  put  in  place.  First,  the  development  of  new  digital 
investigation  methodologies,  which  allow  enhanced  intelligence  gathering  and  improved 
investigative  data  analysis.  A  dedicated  unit  in  DG  Competition  was  set  up,  staffed  by 
professionals  specialised  in  such  practices.  Second,  the  creation  and  the  management  of  a 
centralised  intelligence  network  from  multiple  information  channels  -  other  Commission 
DGs, other EU institutions and other non-competition national enforcers. Third, the launching 
of the anonymous whistle-blower tool48, which encourages informants to come forward safely  
knowing that their identities will be protected.  

Moreover,  the  Commission  launched  on  19  March  2019  eLeniency49  in  order  to  streamline 
the way leniency materials can be submitted to it. This new and modern tool reduces the costs 
and the burden of doing so. Under the EU leniency programme,  companies or their lawyers 

45   When companies form a cartel covering a particular good or service, the cartel is sometimes extended to additional goods or services in 
the same industry. When one cartel is detected in a particular industry, additional cartels in the same industry may be detected as well. 

46   Case AT.40127 Coroos and Groupe CECAB, Commission decision of 13 May 2019. See:  

https://ec.europa.eu/commission/presscorner/detail/en/IP_19_5911. 

47   See: https://ec.europa.eu/commission/presscorner/detail/en/MEX_19_3709.  
48   https://ec.europa.eu/competition/cartels/whistleblower/index.html. 
49   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1594.  

14 

 
 
                                                           
 
can  approach  the  Commission  either  by  email  to  a  functional  mailbox  or  through  the  oral 
procedure to submit their leniency statements. While the email is user-friendly but not secure, 
the oral procedure ensures a high protection against discovery but is costly, time consuming 
and burdensome for both the law firms and the Commission. 

eLeniency is a third way to deliver the leniency submissions and offers the same high level of 
protection as the oral procedure but in an user friendly manner from the company's or the law 
firm's  computer  directly  in  the  Commission's  server.  This  tool  can  be  used  as  well  for 
documents  submitted  in  the  context  of  the  settlement  or  cooperation  procedures.  Since  the 
launch of eLeniency the Commission has received a high number of statements through it. 

Cartel decisions 2019 

Case name 

Adoption date 

Occupants Safety 
Systems (II) 
Forex (Three Way 
Banana Split) 
Forex (Essex Express) 

Reinforcing steel bars 
re-adoption 
Canned Vegetables 

Fine imposed 
EUR 
368 277 000 

Undertakings 
concerned 
3 

Prohibition 
Procedure 
Settlement 

05/03/2019 

16/05/2019 

811 197 000 

16/05/2019 

257 682 000 

04/07/2019 

  16 074 000 

27/09/2019 

  31 647 000 

5 

4 

5 

3 

Settlement 

Settlement 

Prohibition 

Settlement 

1.4. 

Continuing  close  cooperation  within  the  European  Competition  Network  and 
with national courts  

Cooperation with national competition authorities within the European Competition Network 

Since 2004, the Commission and the national competition authorities in all EU Member States 
cooperate  with  each  other  in  the  European  Competition  Network  (ECN).50  The  objective  of 
the ECN is to build an effective legal framework to enforce European competition law against 
companies who engage in cross-border business practices which restrict competition. 

In 2019, the Commission continued to ensure the coherent application of Articles 101 and 102 
through the ECN. Two of the key supporting cooperation mechanisms in Regulation 1/200351 
are the obligation on national competition authorities to inform the Commission about a new 
investigation  at  the  stage  of  the  first  formal  investigative  measure  and  to  consult  the 
Commission  on envisaged decisions.  In 2019, 138 new investigations were launched within 
the network and 95 envisaged decisions were submitted, compared to 165 new investigations 
and  75  envisaged  decisions  in  2018.  These  figures  include  Commission  investigations  and 
decisions, respectively.  

50   Commission Notice on cooperation within the Network of Competition Authorities, OJ C 101, 27.04.2004, pp. 43-53 and OJ C 374, 

13.10.2016, p. 10. 

51   Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 

and 82 of the Treaty, OJ L 1, 4.1.2003, pp. 1–25. 

15 

 
 
 
                                                           
On top of the cooperation mechanisms set out in Regulation 1/2003, other ECN cooperation 
work streams ensure a coherent enforcement of the EU competition rules. The network meets 
regularly to discuss cases, policy issues, as well as matters of strategic importance. In 2019, 
28 meetings across horizontal working groups and sector-specific sub-groups were organised, 
where competition authorities’ officials exchanged views. 

Directive  (EU)  2019/1  of  the  European  Parliament  and  of  the  Council  to  empower  the 
competition authorities of the Member States to be more effective enforcers and to ensure the 
proper functioning of the internal market 

The  ECN+  Directive52  empowering  Member  States'  competition  authorities  to  be  more 
effective  enforcers  of  EU  competition  rules  in  the  field  of  antitrust  entered  into  force  on  4 
February  2019.  The  Directive  is  based  on  the  Commission  proposal  of  March  201753 
following a public consultation between November 2015 and February 2016. 

The  ECN+  Directive  will  ensure  that  when  applying  the  same  legal  provisions  –  the  EU 
antitrust rules – national competition authorities have the effective enforcement tools and the 
resources  necessary  to  detect  and  sanction  companies  that  infringe  Articles  101  and  102 
TFEU. It will also ensure that they can take their decisions in full independence, based on the 
facts  and  the  law.  The  new  rules  contribute  to  the  objective  of  a  genuine  single  market, 
promoting the overall goal of competitive markets, jobs and growth. 

The  Commission  will  monitor  the  transposition  process  and  assist  the  Member  States  in 
incorporating the Directive into national law by 4 February 2021. 

Empowering NCAs to become more effective enforcers 

Once transposed by Member States into national law, NCAs will: 

• 

• 

• 

• 

• 

• 

benefit from minimum guarantees of independence when applying EU competition rules; 

have the basic guarantee of the human and financial resources they need to perform their tasks; 

have an effective investigative and decision-making toolbox, including to gather digital evidence stored 
on mobile devices; 

be  able  to  impose  deterrent  fines,  for  example  companies  will  no  longer  be  able  to  escape  fines  by 
restructuring; 

have effective leniency programmes in place  which encourage companies to report cartels throughout 
the EU; 

provide each other with mutual assistance so that, for example companies with assets in other Member 
States cannot escape from paying fines. 

The importance of companies' fundamental rights is underlined: appropriate safeguards will be in place for the 
exercise of NCAs' powers, in accordance with the EU Charter of Fundamental Rights and general principles of 
EU law. 

Cooperation with national courts 

52   Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of 
the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJ L 11, 14.01.2019, pp. 
3–33. 

53   Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to 
be more effective enforcers and to ensure the proper functioning of the internal market, available at https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52017SC0114. 

16 

 
 
                                                           
Effective  overall  enforcement  of  antitrust  rules  in  the  EU,  for  the  benefit  of  both  EU 
households  and  businesses,  requires  interplay  between  public  and  private  enforcement.  In 
addition  to  its  cooperation  with  NCAs  in  the  context  of  the  ECN,  the  Commission  also 
continued  its  cooperation  with  national  courts  under  Article  15  of  Regulation  1/2003.  The 
Commission  helps  national  courts  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 national courts. 

Following  approval  from  the  concerned  courts,  the  Commission  publishes  its  opinions  and 
amicus curiae observations on its website. 

Private enforcement 

Directive 2014/104/EU on antitrust damages actions (Damages Directive)54 aims at ensuring 
that anyone harmed by infringements of the EU competition rules can effectively avail itself 
of the right to compensation before national courts.  

The deadline to implement the Damages Directive in Member States' legal systems expired on 
27  December  2016.  All  Member  States  had  transposed  the  Directive  by  the  end  of  the  2nd 
quarter  2018  and  the  Commission  could  close  all  the  infringement  proceedings  previously 
opened  for  non  communication  of  implementing  measures.  The  Commission  is  currently 
assessing the implementing measures.  

In  addition,  as  foreseen  in  Article  16  of  the  Damages  Directive  and  following  a  targeted 
consultation of stakeholders, the Commission adopted in August 2019 guidelines for national 
courts  on  how  to  estimate  the  share  of  overcharge  which  was  passed  on  to  the  indirect 
purchaser ("Passing-on Guidelines").55  

Furthermore,  between  July  and  October  2019  the  Commission  consulted  stakeholders  on  a 
draft communication on the protection of confidential information for the private enforcement 
of EU competition law by national courts.56 The Commission is in the process of assessing the 
contributions received during the consultation period.  

Finally,  as  foreseen  in  Article  20  of  the  Damages  Directive,  by  the  end  of  2020,  the 
Commission will submit a report about the implementation of the Damages Directive to the 
European Parliament and the Council.  

2. 

MERGER CONTROL 

EU merger control  

The purpose of EU merger control is to ensure that market structures remain competitive while enabling smooth 
restructuring of the industry. This applies not only to EU-based companies, but also to any company active on 

54   Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for 

damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ L 
349, 5.12.2014, pp. 1-19. 

55   See: Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser, OJ C 267, 

9.8.2019, pp. 4-43. 

56   See: https://ec.europa.eu/competition/consultations/2019_private_enforcement/index_en.html. 

17 

 
 
 
                                                           
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.  

EU merger control seeks to maintain open and competitive markets, which is the best way to 
ensure  that  businesses  and  final  consumers  obtain  fair  outcomes.  It  strives  to  protect  all 
aspects  of  competition.  As  a  result,  merger  control  helps  to  preserve  market  structures,  in 
which companies compete not only on price, but also on other competitive parameters such as 
quality  and  innovation.  Moreover,  the  Commission  takes  due  account  of  the  increased 
digitisation of our economies.  

EU merger control contributes to ensure that all firms active in EU markets can compete on 
fair and equal terms. Notified transactions which may distort competition are subject to close 
scrutiny by the Commission. If necessary to protect competition, the merging firms have the 
possibility to dispel competition concerns by offering commitments. If adequate and sufficient 
commitments cannot be found or agreed upon, the Commission shall prohibit the transaction.  

In  its  assessments,  the  Commission  also  takes  into  account  efficiencies  brought  about  by 
mergers,  which  may  have  positive  effects  on  costs,  innovation  and  other  aspects,  provided 
that  such  efficicencies  are  verifiable,  merger-specific  and  likely  to  be  passed  on  to 
consumers.57  

As  highlighted  in  previous  reports  on  competition  policy,  the  Commission  continuously 
evaluates the substantive and procedural  rules that make up the legal  framework for merger 
control.  Such  reflections  are  conducted  both  internally,  based  on  experience,  and  by  using 
external  input.  In  this  context,  the  Commission  regularly  assesses  concerns  and  suggestions 
for further improvements expressed by stakeholders.  

EU merger control, and more generally EU competition policy, significantly contributes to the 
competitiveness  of  the  EU  economy  and  of  EU  companies.  Competition  enables  growth, 
promotes  efficiency  and  stimulates  innovation.  It  ensures  that  EU  companies  have  the 
incentive  to  invest  more,  to  innovate,  to  limit  their  costs,  to  offer  better  products.  This 
contributes to their success – at home as well as globally.  

1.5. 

Recent enforcement trends  

In  2019,  382  mergers  were  notified  to  the  Commission.  After  years  of  continuous  and 
significant  increase  in  the  number  of  notifications  received  (including  an  all  time  record  in 
2018  with  the  highest  number  of  notifications  ever  received),  the  number  of  notifications 
remained in 2019 at a very high level despite a small decrease compared to 2018. While in the 
period  2010-2014,  the  Commission  received  on  average  290  notifications  per  year,  in  the 
period 2015-2019 the yearly average increased to 375. Moreover, there were 28 reasoned pre-
notification  submissions  by  notifying  parties,  requesting  referral  of  a  case  from  the 
Commission to a national competition authority or vice versa. 

Like in the previous years, most mergers notified in 2019 did not raise competition concerns 
and  could  be  processed  speedily.  The  simplified  procedure  was  used  in  77%  of  all  notified 

57   See: Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between 

undertakings, OJ C-31, 05.02.2004, p.5. 

18 

 
 
                                                           
transactions  in  2019,  showing  the  continuous  positive  impact  of  the  simplification  package 
adopted  by  the  Commission  in  December  2013.  The  proportion  of  simplified  cases  in  the 
period 2004-2013 was substantially lower, at 59%. 

Nevertheless, 2019 involved intensive work by the Commission both due to the large number 
of  notified  transactions  and  the  complexity  of  a  significant  number  of  cases.  An  increasing 
number  of  notified  transactions  concerned  already  concentrated  industries,  such  as  basic 
industries (steel, copper or aluminium) or the railway sector. This required the Commission to 
carefully  assess  their  potential  impact  on  competition,  employing  sophisticated  quantitative 
techniques and comprehensive qualitative investigations. 

In 2019, the Commission opened in-depth investigations (second phase) in eight cases. These 
cases  concerned  diverse  sectors  such  as  plane  manufacturing,  fuel  and  other  petroleum 
products, TV distribution and ship building.   

The  Commission  adopted  362  merger  decisions  in  2019,58  and  intervened  in  19  cases,  a 
slightly  lower  number  than  previous  years  but  that  remains  in  the  5-7%  range  (out  of  total 
decisions adopted) of previous  years.59  In 2019, three mergers were prohibited, ten mergers 
were cleared subject to commitments in first phase and six were cleared with remedies after a 
second  phase.  In  2019  the  Commission  did  not  adopt  any  unconditional  clearance  decision 
after  a  second  phase  investigation.  In  three  cases  the  Commission  had  to  adopt  prohibition 
decisions since the remedies proposed by the Parties were unsuitable to address the significant 
competition concerns identified by the Commission. Finally, in 2019, no case was abandoned 
during the in-depth investigation. 

Most remedies accepted  by the Commission  in  2019 consisted of divestitures of tangible or 
intangible  assets.60  This  confirms  the  Commission’s  general  preference  for  structural 
remedies in merger cases as best suited to address in a durable manner competition concerns 
arising from a concentration. The prohibition decisions adopted in 2019 are a good illustration 
of  the  need  for  sound  and  solid  remedies  to  solve  the  important  competition  concerns  that 
some transactions give rise to. For instance, in Siemens/Alstom the parties chose to propose a 
remedy  package  which  was  inadequate  in  scope,  very  complex  and  gave  rise  to  significant 
dependencies  and  implementation  risks.61  This  proposal  failed  to  address  the  competition 
concerns, and the Commission  had no choice but  to  prohibit  the merger. This  is  in  contrast 
with other cases such as Harris/L362 where the parties offered straightforward divestitures of 
a viable business which fully alleviated the competition concerns. In a few cases in 2019, the 
Commission  accepted  non-divestiture  remedies,63  where  they  were  considered  to  solve 

58    For the purposes of this report, decisions based on Articles 6(1)(a), 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. 
59    Commission interventions in merger cases include prohibition decisions and mergers cleared subject to commitments, as well as  

withdrawals during second phase in-depth investigations. 

60   Case M.8674 BASF/SOLVAY'S EP AND P&I BUSINESS, Commission decision of 18 January 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8674; Case M.9076 NOVELIS / ALERIS, Commission 
decision of 1 October 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9076; Case 9014 
E.ON / INNOGY, Commission decision of 17 September 2019. See: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8870.  

61   Case M.8677 Siemens/Alstom, Commission decision of 6 February 2019. See:  

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8677.   

62   Case M.9234 HARRIS CORPORATION / L3 TECHNOLOGIES Commission decision of 21 June 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9234. 

63   For example, Case M.9064 TELIA COMPANY/BONNIER BROADCASTING HOLDING, Commission decision of 12 November 

2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9064. 

19 

 
 
                                                           
 
 
 
 
effectively the underlying competition concerns. 

Moreover,  in  2019  the  Commission  continued  its  efforts  to  enforce  procedural  obligations 
under  the  EU  Merger  Regulation.64  In  2019  the  Commission  imposed  a  fine  of  EUR  52 
million  on  General  Electric  for  providing  incorrect  information  during  the  review  of  its 
acquisition of LM Wind,65 and a fine of EUR 28 million on Canon for partially implementing 
its acquisition of Toshiba before notification and approval by the Commission (so-called gun 
jumping).66  These  decisions  follow  the  fine  of  EUR  110  million  imposed  on  Facebook  in 
2017  for  providing  misleading  information  during  the  review  of  its  acquisition  of 
WhatsApp67, and the fine of EUR 124.5 million imposed on Altice68 in 2018 for implementing 
its  acquisition  of  PT  Portugal  before  notification  or  approval  by  the  Commission  (so-called 
gun jumping).  

Two  other  procedural  infringement  cases  were  under  investigation  in  2019.  One  against 
Merck  GmbH  (including  Sigma-Aldrich)69  concerning  their  alleged  provision  of  incorrect 
and/or  misleading  information  during  the  Commission's  merger  review,  and  one  against 
Telefonica70  for  breach  of  the  commitments  given  in  relation  to  its  acquisition  of  E-Plus  in 
2014. 

64    Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger  

Regulation), OJ L 24, 29.1.2004, pp. 1-22. 

65    Case M.8436 GENERAL ELECTRIC COMPANY / LM WIND POWER HOLDING (Art. 14.1 proc.), Commission decision of 8 April 

2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8436.  

66   Case M.8179 CANON / TOSHIBA MEDICAL SYSTEMS CORPORATION (Art. 14.2 proc.), Commission decision of 27 June 2019.  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8179.  

67    Case M.8228 Facebook/ WhatsApp, Commission decision of 27 June 2019.  

See:https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8228. 

68    Case M.7993. ALTICE   / PT PORTUGAL (Art. 14.2 proc.), Commission decision of 24 April 2018. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_7993. 

69   Case M.8181 Merck /Sigma-Aldrich (Article 14.1). See: https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1924. 
70   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1371. 

20 

 
 
 
 
                                                           
 
 
 
Merger cases 2010-2019

1.6. 

Increased relevance of digital issues 

The  Commission  increasingly  has  to  assess  mergers  involving  digital  issues,  both  in  the 
digital and traditional industries, and their number is likely to continue growing. That is why 
the Commission  welcomed the input provided by the three independent  Special Advisers in 
their report of April 2019 on digitisation and competition law.71 The report contained specific 
analysis and suggestions on merger control issues, both from a jurisdictional and a substantive 
perspective.  

The Special Advisors believe that a change to the EU Merger Regulation is not necessary at 
this point in time. Regarding jurisdiction, the Special Advisers consider it premature to amend 
the  notification  thresholds  of  the  Merger  Regulation  to  cater  for  acquisition  of  small  but 
valuable start-ups. As regards substantive merger assessment, the Special Advisers find that 
the current test remains a sound basis for assessing mergers in the digital economy. However, 
they  propose  to  revisit  certain  theories  of  harm,  to  assess  acquisitions  of  small  start-ups  by 
dominant  platforms  or  ecosystems,  in  particular  where  such  acquisition  can  eliminate  a 
potential  competitive  threat  and  further  lock  users  within  their  ecosystem.  The  conclusions 
and recommendations in the report will be duly considered in the ongoing reflection process 
how to address competition aspects in the digital economy.   

1.7. 

The ongoing evaluation of EU merger control 

EU merger control has three main objectives: i) to ensure that the Merger Regulation covers 
all  types  of  concentrations  that  may  significantly  affect  the  internal  market;  ii)  to  deal  as 
efficiently  as  possible  with  those  types  of  cases  which  typically  are  unlikely  to  raise 

71   “Competition Policy in the Digital Era”, 2019: See: https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf.  

21 

 
 
 
                                                           
competition  concerns,  cutting  red  tape  where  possible  for  undertakings,  and  iii)  to  allow  
investigating  efficiently  and  comprehensively  those  cases  that  may  bring  competitive  harm, 
adopting sound decisions grounded on facts, evidence and economic analysis; where concerns 
are confirmed, they need to be fully and effectively solved before letting the merger go ahead.  

In  2016,  the  Commission  launched  an  evaluation  of  selected  procedural  and  jurisdictional 
aspects  of  EU  merger  control.  This  evaluation,  which  is  still  ongoing,  seeks  to  explore  two 
areas where there may be some scope for improvements of EU merger rules. The evaluation 
builds  notably  upon  the  results  of  the  public  consultation  on  the  2014  Commission  White 
Paper "Towards more effective EU merger control",72 and focusses on four topics, namely (i) 
possible further simplification of EU merger control, (ii) the functioning of the jurisdictional 
thresholds, (iii) the functioning of the referral system, and (iv) specific technical aspects.  

Two  public  consultations  were  held  in  201773  and  2018  whose  results  will  feed  into  the 
evaluation  together with the findings in  the Special Advisers’ 2019 Report.74 Moreover, the 
Commission  is  monitoring,  as  part  of  its  evaluation,  the  experience  of  the  Austrian  and 
German  jurisdictions  where  additional  jurisdictional  thresholds  were  introduced  in  their 
merger control systems in 2017. The Commission is currently carrying out further research on 
the different topics covered by the evaluation.  

2.4.  Significant judgments by the European Union courts in merger control 

In 2019, the EU Courts adopted two judgments in the field of merger control. 

In  its  judgment  of  16  January  2019,75  the  Court  of  Justice  upheld  the  General  Court’s 
judgment annulling the Commission’s decision prohibiting the acquisition of TNT Express by 
UPS due a to procedural irregularity. The Court concluded that the General Court was entitled 
to find that UPS’s rights of the defence had been infringed in so far as the Commission had 
not  disclosed,  during  the  administrative  procedure,  the  amendments  introduced  in  an 
econometric model it later relied upon in its merger decision.  

In its judgment of 23 May 2019,76 the General Court dismissed KPN’s action for annulment 
of the Liberty Global/Vodafone/Dutch JV conditional clearance decision. The General Court 
considered  that  the  Commission’s  approach  not  to  further  segment  the  market  for  premium 
pay  TV  sports  channels  was  correct.  The  General  Court  also  validated  the  Commission’s 
assessment  concluding  that  the  merged  entity  would  not  have  the  ability  to  engage  in  input 
foreclosure, based on the lack of significant market power in the upstream market. 

72   See: http://ec.europa.eu/competition/consultations/2014_merger_control/index_en.html. 
73   See: http://ec.europa.eu/competition/consultations/2016_merger_control/index_en.html. 
74   See: https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf. 
75   C-265/17 P Commission v United Parcel Service, judgment of the Court of Justice of 16 January 2019, ECLI:EU:C:2019:23. 
76   Case T-370/17 KPN v Commission, judgment of the General Court of 23 May 2019.   

22 

 
 
 
 
 
                                                           
3. 

STATE AID CONTROL 

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  that  aid  does  not  restrict  competition  but 
addresses market failures for the benefit of society as a whole. In addition, the Commission acts to prevent and 
recover State aid which is incompatible with the internal market. 

1.8. 

Uptake of the State Aid Modernisation  

Since 2014, as part of the State Aid Modernisation (SAM), there has been a surge in State aid 
granted without prior notification to the Commission, indicating an important reduction in red 
tape.  The  2019  State  Aid  Scoreboard77
  confirms  that  modernisation  has  led  to  quicker 
implementation  of  public  support  by  Member  States.  This  is  possible  due  to  the  General 
Block Exemption Regulation (GBER)78, adopted in the context of the State aid reform, which 
simplifies  the  aid-granting  procedure  for  Member  States  by  authorising  -  without  prior 
notification - a wide range of measures fulfilling certain criteria and specific EU objectives in 
the common interest. For the aid categories covered by the GBER, only cases with the largest 
potential to distort competition in the single market have to be notified.  

As shown in the graph below,79
 expenditure under GBER represented in 2018 approximately 
45 billion EUR, entailing an increase of some 123% compared to 2013. Approximately 89% 
of all measures with reported expenditure (that is to say not only new measures), fell under 
the block exemption in 2018. 

77   The 2018 State Aid Scoreboard comprises aid expenditure made by Member States before 31 December 2017 and which falls under the 
scope of Article 107(1) TFEU. The data is based on the annual reporting by Member States pursuant to Article 6(1) of Commission 
Regulation (EC) 794/2004. See: http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html. 

78   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 TFEU, OJ L 187, 26.6.2014, p.1.   

79   Figures from the 2019 State Aid Scoreboard. See: http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html.  

23 

 
 
 
 
 
                                                           
The 2014 GBER introduced new aid categories80
 and to a large extent, the reported increase in 
expenditure  of  GBER  measures  reflects  the  impact  of  the  new  Regulation.  In  2018,  as 
compared  to  2014,  total  GBER  spending  for  aid  to  culture  and  heritage  conservation  has 
increased  dramatically(+  805%).  Large  increases  were  also  recorded  for  environmental 
protection and energy savings (+95.7%), for research, development and innovation (+74.3%) 
and  for  aid  to  compensate  damages  caused  by  natural  disasters  (+130.7%).  However,  the 
GBER expenditure has decreased for regional development (- 11.1%). The GBER was further 
extended  in  2017,  especially  as  regards  aid  to  ports  and  airports  (included  in  the  category 
Sectoral development).81
 It is therefore to be expected that block-exempted aid as a share of 
total aid granted by Member States will increase even further in the coming years.   

80   Aid to innovation clusters and aid to process and organisational innovation, aid schemes to make good the damage caused by natural 

disasters, social aid for transport residents of remote regions, aid for broadband infrastructure, aid for culture and heritage conservation, 
including aid schemes for audio-visual works, aid for sport multifunctional recreational infrastructures, as well as investment aid for 
local infrastructure; the new GBER also broadened categories of aid already covered by the previous (2008) GBER. 

81   In 2017, Member States reported more than 50 million EUR of State aid spending under Articles 56a and 56b of the GBER, of which 7 

million EUR for inland ports, 39 million EUR for maritime ports and 6 million EUR for regional airports, respectively. 

24 

 
 
 
 
                                                           
GBER State aid expenditure by objective in the EU, excluding aid for agriculture, 
fisheries and railways 

The  growing  share  of  spending  falling  under  the  GBER  and  registered  by  the  Commission 
implies that on average the Member States implement State aid measures much more quickly 
than in the past. The average time to implement State aid measures decreased from about 2.2 
months  in  the  pre-SAM  period  to  0.6  months  in  the  post-SAM  period.  However,  notified 
measures that are still subject to scrutiny tend to  cover bigger budgets and spending than in 
the past, in line with the Commission's approach to be 'big on big things and small on small 
things'.82
 The median annual budget for notified measures is higher than for GBER measures. 
Since 2014, it has increased from around 12 million EUR to more than 17.5 million EUR in 
2018.  Median  annual  budgets  of  GBER  measures  have  increased  even  more  significantly, 
from  around  6  million  EUR  in  2014  to  almost  12  million  EUR in  2018 growing  by  around 
100% in 4 years. 

Cooperation with Member States 

The SAM Working Group met three times in 2019, with France chairing until June 2019 and 
then  co-chaired  by  Hungary  and  Denmark.  The  SAM  Working  Group  addressed  several 
policy and compliance topics related to SAM implementation, such as specific aspects related 
to aid to innovation clusters and important projects of common European interest. The SAM 
Working  Group  reported  to  the  High  Level  Forum  (held  in  June  2019)  the  main  topics 
discussed during the past year and on the follow-up to recommendations made by past chairs 
(Finland, Sweden and the United Kingdom). The High Level Forum also endorsed the work 
plan submitted by the co-chairs for the period 2019-2020.   

82   Speech by European Commission President-elect on 10 September 2014, See: http://europa.eu/rapid/press-release_SPEECH-14-

585_en.htm. 

25 

 
 
 
                                                           
In  2019,  the  Commission  continued  its  bilateral  cooperation  with  the  Member  States. 
Launched  in  2015,  the  overall  objective  of  this  process  is  to  achieve  both  good  State  aid 
policy  and  effective  State  aid  control  at  the  national  level.  Tailored  to  each  Member  State's 
specific  needs,  bilateral  cooperation  generally  deals  with  horizontal  cross-cutting  State  aid 
issues, such as country-specific compliance and implementation issues, governance issues and 
issues  concerning  State-owned  enterprises,  as  well  as  cases  in  problematic  sectors.  Each 
Member State also  has  a dedicated State  Aid Country Coordinator  at  the Commission,  who 
acts  as  a  first  entry  point  for  this  Member  State's  horizontal  State  aid  questions.  The 
Commission conducts periodic country visits to the Member States in order to assess specific 
bilateral cooperation issues. 

Transparency Award Module 

The transparency provisions currently part of SAM are in force since 1 July 2016 and require 
Member States to publish information about the beneficiaries of aid awards above EUR 500 
000.83  Member  States  have  six  months  starting  from  the  date  of  granting  to  provide  the 
required aid awards' data, with the exception of awards in the form of fiscal aid for which the 
information needs to be provided within one year from the date of granting. The Commission 
facilitated  compliance  with  this  requirement  by  developing,  in  cooperation  with  Member 
States,  the  Transparency  Award  Module  (TAM)  –  an  informatics  tool  for  submission  and 
publication of data required under the transparency provisions84. 

The  TAM  ensures  that  information  submitted  by  granting  authorities  is  consistent  and 
comparable across Member States. In addition, the associated transparency public search page 
provides all stakeholders, i.e. citizens, competitors and researchers, with a single  entry point 
allowing  them  to  make  comparable  extractions  and  analysis.  For  these  reasons,  the 
Commission  pursues  efforts  to  improve  the  user  friendliness  and  the  interoperability 
capabilities of the tools, to incentivise those Member States already having National State Aid 
Registries in place to use the TAM as well. At the end of 2019, 25 Member States have joined 
the TAM and more than 73 000 aid grants to more than 33 000 individual beneficiaries have 
been published by 25 Member States and Iceland.  

The Commission services support the implementation of the TAM by organizing annually and 
facilitating,  together  with  Member  States'  representatives,  the  Transparency  Steering  Group 
and  by  organising  dedicated  training  courses  upon  request.  The  last  Transparency  Steering 
Group  was  held  on  11  October  2019  in  Brussels  and  focused  on  the  use  of  TAM  data  to 
support State aid monitoring and control.   

In  addition,  the Commission  conducts  annual  compliance checks to  verify  the completeness 
and  accuracy  of  the  information  published  by  Member  States  under  the  transparency 
requirements  through  either  the  TAM  or  National  State  Aid  Registries.  After  a  first  round 
carried  out  in  2018,  in  2019  the  Commission  launched  a  second  exercise  that  enlarged  the 
scope of the analysis by including State aid awards from 2016 to 2017. The second round of 
compliance checks launched at the end of May 2019 is expected to be completed during the 
first half of 2020. 

83   Competition Policy Brief 4/2016. See: http://ec.europa.eu/competition/publications/cpb/2016/2016_004_en.pdf.  
84  

the Transparency Award Module (TAM). See: https://webgate.ec.europa.eu/competition/transparency/public/search.  

26 

 
 
                                                           
Evaluation of aid schemes 

Evaluation of aid schemes is another requirement introduced by SAM. The aim is to  gather 
the necessary evidence to better identify impacts, both positive and negative, of the aid and to 
provide input for future policy-making by the Member States and the Commission. 

Since 1 July 2014, evaluation is required for large GBER schemes in certain aid categories85 
as  well  as  for  a  selection  of  notified  schemes  under  the  new  generation  of  State  aid 
guidelines.86 

By  the  end  of  2019,  the  Commission  had  approved  evaluation  plans  covering  45  State  aid 
schemes.  Three  additional  schemes  are  currently  under  analysis,  covering  a  total  of  15 
Member  States.87  Most  of  these  decisions  concerned  either  large  regional  aid  projects  or 
Research,  Development  and  Innovation  (RDI)  aid  schemes  under  the  GBER  or  notified 
energy and broadband schemes. These schemes account, in total, for over EUR 54 billion of 
annual  State  aid  budget.  By  the  end  of  2019,  the  Member  States  had  delivered  to  the 
Commission  16  interim  and  four  final  evaluation  reports,  which  were  assessed  by  the 
Commission services and considered to be of average to good quality.88  

In 2019, the Commission also outsourced a fact-finding study to assess the implementation of 
the evaluation requirement as foreseen by the GBER and relevant guidelines.  

The  Commission  has  continued  to  accompany  the  implementation  of  the  evaluation 
requirement  by  publishing  policy  briefs89  and  by  organising  dedicated  workshops  with 
Member  States'  representatives  and  evaluation  experts.  The  current  priority  of  the 
Commission concerns the comprehensive assessment of evaluation reports, both intermediate 
and  final,  to:  i)  give  appropriate  feedback  to  Member  States,  ii)  make  sure  that  results  are 
effectively used for better policy-making, and iii) provide relevant evidence to accompany the 
reflections for future legal developments. 

Aid for research, development and innovation 

While one of the headline targets of the Europe 2020 Strategy is for Research, Development 
and Innovation (RDI) investments in the EU to reach 3% of EU GDP, RDI spending in the 
EU has been lagging behind major global competitors, mainly due to lower levels of private 
investment.  To  achieve  the  greatest  possible  impact  with  the  available  budgets  RDI  aid 
measures should not replace or crowd out private financing. On the contrary, efforts should be 
directed  at  encouraging  more  private  investments.  RDI  aid  can  help  where  market  forces 
alone  do  not  deliver  necessary  investments  in  promising  but  high-risk  innovative  projects. 
Therefore,  the  State  aid  rules  for  RDI  help  ensure  that  public  funding  goes  to  projects  that 
otherwise  would  not  be  realised  due  to  market  failures.  In  particular,  this  includes  projects 

85   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. 

86   Evaluation can apply to notified aid schemes with large budgets, containing novel characteristics or when significant market, technology 

or regulatory changes are foreseen. 

87   Czechia, Germany, Greece, Spain, France, Hungary, Ireland, Italy, Lithuania, Austria, Poland, Portugal, Finland, Sweden and the United 

Kingdom. 

88   All the submitted evaluation reports are reviewed by the JRC within the framework of the Administrative Arrangement established 

between DG Competition and the JRC on the: "Support to the quality assessment of evaluation reports in the area of State Aid, 2018-
2020". 

89   Competition Policy Briefs 7/2014: http://ec.europa.eu/competition/publications/cpb/2014/007_en.pdf; and 3/2016: 

http://ec.europa.eu/competition/publications/cpb/2016/2016_003_en.pdf. 

27 

 
 
                                                           
that truly go beyond the state of the art, and which bring innovative products and services to 
the market and ultimately to consumers. These State aid rules provide for flexible and simple 
criteria  for  assessing  the  compatibility  of  State  aid.  Therefore,  they  facilitate  the 
implementation of support for RDI projects by Member States. 

The very purpose of RDI aid is that it should bring added value where markets and companies 
do not deliver the investments for promising but highly risky innovative projects. Therefore, 
the  State  aid  rules  for  RDI  help  ensure  that  public  funding  goes  to  research  projects  that 
would  not  otherwise  be  realised  due  to  market  failures,  that  is  to  say  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 RDI Framework, using flexible and simple criteria for assessing 
the  compatibility  of  State  aid,  facilitate  the  implementation  of  support  for  RDI  projects  by 
Member States. 

In  2019,  the  Commission  continued  to  ensure  that  aid  schemes  and  individual  measures 
notified  or  pre-notified  under  the  RDI  Framework  were  well  targeted  to  projects  enabling 
ground-breaking  research  and  innovation  activities.  Its  State  aid  control  activities  covered  a 
variety of sectors including the aeronautic, virtual research and technology infrastructures, as 
well as innovation clusters. 

In a significant number of cases the Commission cooperated with Member States with a view 
to  enabling  them  to  adjust  certain  envisaged  RDI  measures  and  bring  them  in  line  with  the 
GBER. This way, aid measures could be granted swiftly without having to be notified to the 
Commission, thereby speeding up public support for RDI. It is noteworthy that following the 
State Aid Modernisation in 2014, 96% of all RDI measures (84% in value terms) in the Union 
are implemented under the GBER. 

The  Commission  also  proposed  in  2019  the  RDI  related  amendments  to  its  General  Block 
Exemption  Regulation  to  facilitate  and  simplify  the  way  in  which  the  centrally  managed 
funding from Horizon Europe can be combined or, in cases of projects having received a Seal 
of  Excellence,  substituted  by  national  funding.  The  proposed  amendments  align  certain 
aspects of State aid rules on the one hand and Horizon Europe rules on the other. This should 
allow to  prevent  potential discrepancies  causing  delays or difficulties in  the roll-out  of RDI 
funding under the next Multiannual Financial Framework (MFF). More concretely, the GBER 
proposal provides for exemptions from the notification obligation and from the requirement to 
carry out at national level an assessment of the quality of a RDI project already assessed as 
excellent under Horizon rules in the following areas: 

28 

 
 
  Aid  for  SMEs  for  research  and  development  projects  as  well  as  for  Marie 
Skłodowska-Curie actions  awarded a Seal  of Excellence quality label  under Horizon 
2020 or Horizon Europe (Article 25a); 

  Aid  provided  to  co-funded  projects,  which  have  been  independently  evaluated  and 

selected following transnational calls under Horizon Europe (Article 25b); 

  Aid  provided  to  Teaming  actions,  which  have  been  independently  evaluated  and 
selected  following  transnational  calls  under  Horizon  Europe.  This  includes  the 
possibility  to  provide  State  aid  for  project-related  infrastructure  investments  under 
such Teaming actions (Article 25b). 

Finally, in the area of State aid rules for RDI, the Commission contracted a study to provide 
an  independent  evidence-based  evaluation  on  the  implementation  of  the  State  aid  rules  for 
RDI  in  force  since  2014,  as  well  as  of  their  effects  on  RDI  investments  and  competition 
within the internal market. The objective of the study is to assess whether the current State aid 
rules  in  the  area  of  RDI  are  fit  for  purpose  taking  into  account  the  general  State  Aid 
Modernisation objectives, the specific objectives of the legal framework and the current and 
future  challenges  (also  considering  the  EU  research  and  innovation  policy).  This  study  is 
expected to be finalised in the first trimester of 2020 and its results will be publicly available. 

Aid  enabling  Member  States  jointly  to  support  important  projects  of  common  European 
interest  

In June 2014, the Commission adopted a Communication on Important Projects of Common 
European  Interest  (IPCEI).90  The  Communication  establishes  the  conditions  under  which 
Member States can support projects making a clear contribution to economic growth, jobs and 
the competitiveness of the EU. The IPCEI Communication complements other State aid rules 
such as the General Block Exemption Regulation and the RDI Framework, and allows support 
of  large  and  integrated  transnational  innovative  projects  while  ensuring  that  potential 
competition distortions are limited. The rules therefore promote ground-breaking research and 
innovation  and  sharing  of  the  results  widely,  whilst  ensuring  that  the  support  by  taxpayer 
money truly serves EU citizens.  

In December 2019, the Commission found that an integrated project jointly notified by seven 
Member States (Belgium, Finland, France, Germany, Italy, Poland and Sweden) for research 
and innovation covering the whole strategic value chain (from materials to recycling and re-
use)  of  batteries  for  e-mobility  and  energy  storage,  is  in  line  with  EU  State  aid  rules  and 
contributes to  a common EU interest.  The seven  Member States will provide in  the coming 
years up to  approximately  EUR 3.2 billion in  funding for this project,  which is  expected to 
unlock  an  additional  EUR  5  billion  in  private  investments.  The  Commission  has  identified 
batteries  as  one  of  the  key  enabling  technologies  and  strategic  value  chains  deemed  to  be 
crucial  for  future  industrial  development.  This  second  case  of  an  IPCEI  in  the  area  of  RDI 
demonstrates that the instrument can deliver intra-EU RDI cooperation and coordination for 
key enabling technologies and strategic value chains, including investment into first industrial 
deployment. 

90   Communication from the Commission — Criteria for the analysis of the compatibility with the internal market of State aid to promote 

the execution of important projects of common European interest, OJ C-188, 20 June 2014, p. 4–12 

29 

 
 
                                                           
During  the  second  half  of  2019,  in  line  with  the  Commission's  battery  alliance  initiative, 
discussions with a group of Member States and companies for a possible second IPCEI in the 
area  of  batteries  for  e-mobility  and  energy  storage  have  intensified.  This  is  in  line  with  the 
Commission's  policy  for  a  shift  from  the  use  of  environmentally  harmful  fossil  fuels  to 
alternative fuel technologies. 

In addition, during 2019, in line with the recommendations of the strategic forum for IPCEI, 
discussions with a group of Member States and companies for a possible IPCEI in the area of 
hydrogen technologies and systems and in the area of low carbon industry were initiated. This 
is in line with the environmental and climate targets of the EU and the Commission’s Green 
Deal. 

Regional aid  

Regional  aid  is  an  important  instrument  in  the  EU  toolbox to  promote  economic  and  social 
cohesion. The 2014-2020 regional aid framework is in place since July 2014. 

In 2019, the Commission continued advising Member States’ authorities on how to interpret 
and implement the regional aid provisions of the GBER, thus helping them to make a success 
of the reforms introduced under SAM to the benefit of both consumers and businesses. 

In 2019, the Commission outsourced a study aiming to provide an evidence-based assessment 
of  the  implementation  of  the  regional  aid  framework91  applicable  since  2014,  which  will 
constitute  the  basis  for  the  retrospective  evaluation  of  the  current  regional  aid  rules.  In 
parallel, from June to July 2019, the Commission ran a targeted public consultation to gather 
stakeholder opinions on the application of the regional aid framework 2014-2020 with a view 
to assessing whether the rules are still fit for purpose. 

The  Commission  adopted  several  decisions  on  notified  regional  investment  aid  measures 
under  the  Regional  Aid  Guidelines.  It  authorised  regional  investment  aid  for  two  large 
investment  projects,  namely  aid  to  LG  Chem  (for  electric  vehicles  batteries  production  in 
Poland)92 and aid to Navigator Tissue Cacia (for production of sanitary goods in Portugal)93. It 
approved three evaluation plans for large block-exempted regional aid schemes in Hungary94, 
Italy95  and  Poland96,  the  extension  of  a  French  scheme97  providing  support  for  productive 
investments in outermost regions, and the revision of the regional aid map for France98. 

Finally,  the  Commission  initiated  formal  investigation  procedures  in  relation  to  three  large 
investment  projects.  The  first  project  is  Samsung  SDI’s  expansion  of  its  existing  electric 

91   This framework consists of the Regional Aid Guidelines for 2014-2020, the regional aid maps, and the GBER provisions applicable to 

regional aid. 

92   Case SA.47662 LIP Aid to LG Chem Wrocław Energy Sp. z o.o. – Poland. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_47662. 
93   Case SA.49461 Regional investment aid to Navigator Tissue Cacia S.A. – LIP – Portugal. See: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49461. 

94   Case SA.52527 Evaluation Plan for the aid scheme "Aid for regional investment from the Economic Development and Innovation 
Operational Program (EDIOP)". See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52527. 

95   Case SA.53192 Evaluation plan: SME investment aid scheme for purchase of new machinery and equipment 2019-2020. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53192. 

96   Case SA.52028 Evaluation plan: Regional aid program granted to some entrepreneurs for the implementation of a new investment. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52028.  
97   Case SA.50299 Aide fiscale à l'investissement outre-mer (investissements productifs). See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_50299.  

98   Case SA.53541 Carte française des zones d'aides à finalité régionale (décision SA 38182 (2014 N)) - 3ème  utilisation de la réserve. 

See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53541.  

30 

 
 
                                                           
 
 
 
 
vehicles battery production facility in Hungary, for which the Hungarian authorities intend to 
grant aid99. The second project is Peugeot’s investment in its existing car plant in Spain, for 
which  the  Spanish  authorities  plan  to  provide  public  support100.  The  third  project  is  PCC’s 
investment  in  Poland  into  a  new  plant  to  produce  ultra-pure  monochloroacetic  acid  that 
already  benefitted  from  two  different  support  measures101.  Poland  considered  both  support 
measures  to  be  covered  by  the  2008  General  Block  Exemption  applicable  at  the  time  and 
therefore  did  not  notify  the  measures  to  the  Commission.  However,  after  receiving  a 
complaint  from  a  competitor,  the  Commission  decided  to  open  an  in-depth  investigation  to 
assess whether the respective measures are in line with applicable State aid rules. 

Infrastructure 

On  28  February  2019,  the  Commission  opened  an  in-depth  investigation  to  assess  whether 
Danish and Swedish public support for the Øresund102 fixed rail-road link is in line with EU 
State aid rules. Moreover, in June 2019, the Commission opened an in-depth investigation to 
determine  whether  the  public  financing  model  of  the  Fehmarn  Belt103  fixed  rail-road  link, 
between  Denmark  and  Germany,  is  in  line  with  EU  State  aid  rules.  Both  in-depth 
investigations  follow  the  General  Court's  annulment  of  previous  Commission  decisions 
approving the respective support. 

1.9. 

State Aid Modernisation continues  

Further extension of the scope of the GBER 

The  General  Block  Exemption  Regulation  (GBER)  allows  Member  States  to  implement  a 
wide range of public support measures without prior notification to the Commission, in areas 
such  as  research  and  development,  environmental  protection  or  support  to  SMEs.  This 
reduces  the  administrative  burden  for  public  authorities  and  speeds  up  delivery  of  public 
support, including support granted via EU structural funds. 

To ensure that national and EU funds can be combined seamlessly under the new Multiannual 
Financial  Framework  without  undermining  competition  in  the  internal  market,  the 
Commission aims to improve the interplay between EU funding rules and State aid rules and 
streamline  State  aid  control  of  national  funds,  including  EU  shared  management  funds, 
combined with EU programmes managed centrally by the Commission. 

To  this  end,  the  Commission  launched  a  targeted  review  of  the  General  Block  Exemption 
Regulation  (the  GBER)  which  extends  the  GBER  to  national  funds,  including  EU  shared 
management funds, combined with EU programmes managed centrally by the Commission in 
the following three areas: 

99   Case SA.48556 Regional investment aid to Samsung SDI – Hungary. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_48556. 

100   Case SA.49579 Regional aid to PCAE (Peugeot Citroën Automóviles España S.A.) – Spain. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49579. 

101   Case SA.38330 Alleged unlawful regional investment aid to PCC MCAA sp. Zo.o (PCC) – Poland. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38330  
102   Cases SA.52162 and SA.52617 State aid in favour of the Oresund Bridge Consortium. See: 

https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1468. 

103   Case SA.39078 Financing of the Fehmarn Belt Fixed Link project, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_39078.  

31 

 
 
                                                           
 
 
1.  Financing and investment operations supported by the InvestEU Fund;  
2.  RD&I  projects  having  received  a  Seal  of  Excellence  under  Horizon2020  or  Horizon 
Europe as well as co-funded projects independently evaluated and selected following 
transnational  calls  under  the  Horizon  Europe  programme  including  under  Teaming 
actions; 

3.  European Territorial Cooperation projects (ETC, also called Interreg). 

This  targeted  revision  of  the  GBER  will  be  aligned  with  the  MFF  process.  The  GBER 
revision includes two public consultations, giving Member States and other stakeholders the 
opportunity to comment. The first public consultation closed on 27 September 2019. A first 
draft text was discussed with the Member States in an advisory committee on 10 September 
2019. The second consultation is planned to take place in 2020. 

Launch of the Fitness check of the 2012 State aid modernisation package, railways guidelines 
and short term export credit insurance 

In  2012,  the  Commission  launched  the  State  aid  Modernisation  (SAM)  considering  that  a 
more  focused  framework  for  the  assessment  of  State  aid  measures  would  allow  Member 
States  to  better  contribute  to  the  implementation  of  the  Europe  2020  strategy.  The 
Commission thus revised several State aid rules in 2013 and 2014.  

A  number  of  the  State  aid  rules  adopted  as  part  of  the  State  Aid  Modernisation  are  due  to 
expire by the end of 2020, while others adopted as part of the Modernisation process have no 
fixed expiry date. 

To provide predictability and legal certainty, whilst preparing for a possible future update of 
the State aid rules adopted as part of the State Aid Modernisation, the Commission will take 
two steps. 

1. 

In  line  with  the  Commission's  Better  Regulation  Guidelines,  the  Commission  is 
evaluating  those  rules.  The  assessment  takes  the  form  of  a  Fitness  check.  It  will 
provide a basis for decisions by the Commission, about whether to further prolong 
or possibly update the rules.  The current Fitness check covers the General Block 
Exemption and De Minimis Regulations, Regional Aid Guidelines, Research and 
Development  Framework,  the  IPCEI  Communication,  Risk  Finance,  Airport  and 
Aviation  Guidelines,  Environmental  and  Energy  Guidelines,  Rescue  and 
Restructuring  Guidelines,  as  well  as  the  Railways  Guidelines  and  Short-Term 
Export Credit Communication (the latter two were not included in the 2012 SAM 
package). 

2. 

To  allow  the  necessary  time  for  a  comprehensive  evaluation,  the  Commission  
launched in 2019 the process to prolong the validity of those State aid rules, which 
would otherwise expire by the end of 2020. 

Member  States  and  other  stakeholders  had  the  opportunity  to  provide  their  input  and 
comments  to  the  fitness  check  during  a  public  consultation  in  the  form  of  a  comprehensive 
online questionnaire on SAM as a whole as  well as  specific, targeted questionnaires for the 
individual  rules  concerned.  With  the  exception  of  the  IPCEI  questionnaire  which  was  open 
until the end of October, the consultations ended in July. A series of studies is also under way. 

The aim is to analyse the relevance, effectiveness, efficiency, coherence and EU-added value 
of  these  State  aid  rules,  and  to  evaluate  and  assess  their  contribution  to  achieving  the  EU 

32 

 
 
policy objectives. In doing so, the fitness check will assess if these State aid rules are "fit for 
purpose" and whether the objectives of SAM have been met.  

The review of the Emissions trading scheme State aid guidelines (ETS Guidelines) 

The  Commission  published  in  January  2020  for  public  consultation  the  draft  ETS  State  aid 
guidelines  for  the  period  2021-2030.  The  contributions  received  will  feed  into  the  impact 
assessment  the  Commission  is  preparing  for  the  revision  of  these  Guidelines.  Two  public 
consultations were also launched in 2019 to evaluate the existing ETS Guidelines and prepare 
their  revision.  The  core  principle  of  the  ETS  is  that  polluters  should  pay  for  their  carbon 
emissions.  However,  outside  of  the  EU,  not  all  countries  apply  this  principle.  If  enterprises 
were  to  delocalise  some  of  their  production  outside  the  EU  as  a  result  of  carbon  costs,  this 
would result in an increase of global carbon emissions. Because electricity generators do not 
receive  free  allowances,  they  have  to  buy  them,  thereby  increasing  the  electricity  price  for 
consumers.  To  this  end,  Member  States  may  partially  compensate  electricity-intensive 
consumers for the indirect costs resulting from the ETS.  

The new revised ETS Guidelines will set the conditions under which Member States can grant 
such partial compensation in the future. The guidelines will ensure that the compensation is 
limited  to  what  is  strictly  necessary  to  minimize  competition  distortions  and  maintain  the 
incentives for a cost-effective decarbonisation of the economy.  

1.10.  Monitoring, recovery, evaluation and cooperation with national courts  

Increased monitoring of existing State aid to ensure competition on fair and equal terms 

Over the years, the architecture of State aid control has evolved. Today, a substantial part of 
aid  is  granted  under  block-exempted  schemes  which  are  not  examined  by  the  Commission 
before entering into force. Overall, roughly 80% of aid measures were granted on the basis of 
previously  approved  aid  schemes  or  block  exemption  regulations.104  in  that  context,  it  is 
essential  for  the  Commission  to  verify  that  Member  States  apply  State  aid  rules  for  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"), which comprises a monitoring sample of approximately 
50 schemes per year.  

The 2019 cycle covered 19 Member States,  all  main types of aid  both  approved and block-
exempted.  Since  2018,  Member  States  have  to  report  on  individual  aid  exceeding 
EUR 500,000 that is subsequently published by the Commission in the Transparency Award 
Module105; the Commission verified the reporting for the schemes monitored.  

The Commission follows up on irregularities and uses the means at its disposal to address the 
competition  distortions  that  these  irregularities  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.  

104    State Aid Scoreboard 2019. See: http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html.   
105   See: https://webgate.ec.europa.eu/competition/transparency/public/search/home/. 

33 

 
 
                                                           
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. The purpose of recovery is to re-establish the 
situation that existed on the market prior to the granting of the aid. This is necessary to ensure 
that competition in the internal market can take place on fair and equal terms. In 2019, further 
progress  was  made  to  ensure  that  recovery  decisions  are  enforced  effectively  and 
immediately. 

By 31 December 2019, the sum of illegal and incompatible aid recovered from beneficiaries 
amounted to EUR 37.1 billion.106 At the same point in time, the outstanding amount pending 
recovery was EUR 5.5 billion107.  

In  2019,  the  Commission  adopted  four  new  recovery  decisions  and  an  amount  of  EUR  159 
million  was  recovered  by  the  Member  States.  As  of  the  end  of  December,  the  Commission 
had 42 pending recovery cases. 

Recovery decisions adopted in 2019 

Amount recovered in 2019 (EUR million) 

Pending recovery cases on 31 December 2019 

4 

159 

42 

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 2019, the Commission did not launch any infringement procedures before EU 
Courts. 

In July 2019, the Commission published a new Notice on the implementation of Commission 
decisions  ordering  Member  States  to  recover  unlawful  and  incompatible  State  aid  (the 
“Recovery  Notice”)108.  The  new  Recovery  Notice  replaces  the  2007  Recovery  Notice.  It 
consolidates the case law developments established since the adoption of the 2007 Notice. It 
also  includes  more  information  on  the  infringement  procedures,  both  under  Article  108(2) 
TFEU  and  260  TFEU,  as  well  as  established  new  practices  in  the  cooperation  between  the 
Commission and the Member State concerned by a recovery decision. 

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

The Commission continued its cooperation with national courts and tribunals under Article 29 
of  the  Procedural  Regulation.109  This  cooperation  includes  direct  case-related  assistance  to 
national  courts  when  they  apply  EU  State  aid  law.  The  courts  and  tribunals  can  ask  the 
Commission to provide case related information, or to provide an opinion on the application 
of  State  aid  rules.  The  Commission  may  also  submit  amicus  curiae  observations  at  its  own 

106   The reference period is 1 January 1999 to 31 December 2019. 
107   The amount is composed of EUR 2.6 billion from 42 pending cases and EUR 2.9 billion where the aid amount has been registered in 

insolvency proceedings that are still pending. 

108   Commission Notice on the recovery of unlawful and incompatible State aid, OJ C 247 of 23.7.2019, p. 1–23. 
109   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, pp. 9-29. 

34 

 
 
                                                           
initiative.  

In  July  2019,  DG  COMP  has  published  a  study  on  the  state  of  play  of  the  enforcement  of 
State aid rules by national courts of the 28 Member States 110, identifying emerging trends and 
challenges,  and  presenting  best  practices.  It  also  reflects  the  opinion  of  national  courts 
regarding the cooperation tools (Article 29 of the Procedural Regulation (Council Regulation 
(EU)  2015/1589),  i.e.  request  for  opinion,  request  for  information  and  the  Commission’s 
intervention  as  amicus  curiae).  The  study  includes  a  database  with  national  rulings.  The 
correct  application  of  State  aid  rules  is  a  shared  responsibility  between  the  national 
authorities,  national  courts  and  the  Commission.  The  role  of  national  courts  is  essential  to 
protect the direct effect of Article 108(3) TFEU (standstill obligation). In light of the results 
of  the  study,  the  Commission  will  decide  whether  and  to  which  extent  to  review  the  2009 
Commission notice on the enforcement of State aid law by national courts. 

In 2019, the Commission  received one request  for information.  The request  by  a Romanian 
Court  concerned  a  status  of  proceeding  in  a  pending  complaint  case.  Furthermore,  a 
Romanian  court  requested  an  opinion  from  the  Commission  to  clarify  an  envisaged 
investment into a state-owned enterprise on whether it would give raise to State aid concerns. 
Two  further  requests  for  opinion  came  from  courts  in  Estonia  seeking  the  Commission’s 
opinion  on  existing  renewable  energy  schemes  and  the  interpretation  on  some  of  the 
conditions contained therein. 

The  possibility  for  the  Commission  to  submit  amicus  curiae  observations  before  national 
courts  on  its  own  initiative  was  introduced  in  the  2013  amendment  to  the  Procedural 
Regulation.  In this respect,  Article 29 of the Procedural  Regulation  mirrors Article 15(3) of 
Regulation  1/2003  in  the  field  of  antitrust.  In  2019,  the  Commission  intervened  in 
proceedings before the courts in one Member State and in arbitral proceedings where State aid 
issues were considered.111 To make its views publicly known, the Commission publishes its 
opinions and amicus curiae observations, as well as observations to others, on its website.112  

In  2019,  the  Commission  continued  its  advocacy  efforts.  It  was  actively  involved  in 
evaluating  the  financing  of  training  programmes  for  national  judges  and  in  assessing  their 
needs. The Commission staff also provided training during workshops and conferences.113 

1.11. 

Significant judgments by the European Union Courts in the State aid area  

In 2019, the EU Courts adopted a number of important judgments in the State aid area. The 
following overview is based on a selection of court judgments, notably on issues related to the 
concept of advantage and selectivity assessment and on a number of procedural points. 

110   See: https://ec.europa.eu/competition/publications/reports/kd0219428enn.pdf. 
111   The Commission submitted written submissions in one case before a Romanian court. The Commission also submitted an amicus curiae 

brief in recognition and enforcement proceedings before the U.S. District Court of the District of Columbia in three cases. 

112   See: http://ec.europa.eu/competition/court/overview_en.html. 
113   See also the dedicated section Cooperation with national courts, Antitrust and Cartels Section, see I. Antitrust, chapter 4. 

35 

 
 
 
 
 
                                                           
Advantage  

Two relevant judgments as regards advantage in fiscal measures are Fiat114 and Starbucks115. 
In  Fiat,  the  General  Court  upheld  the  Commission’s  decision  of  21  October  2015;  in 
Starbucks, the General Court annulled the Commission’s decision of 21 October 2015 on the 
grounds  that  it  did  not  demonstrate  the  existence  of  an  advantage.  In  both  judgments,  the 
General  Court  stated  that,  “where  national  tax  law  does  not  make  a  distinction  between 
integrated  undertakings  and  stand-alone  undertakings  for  the  purposes  of  their  liability  to 
corporate income tax, that law is intended to tax the profit arising from the economic activity 
of  such  an  integrated  undertaking  as  though  it  had  arisen  from  transactions  carried  out  at 
market  prices.”116  Therefore,  to  assess  whether  a  fiscal  measure  granted  to  an  integrated 
undertaking constitutes an advantage, the Commission may compare the fiscal burden of such 
integrated  undertaking  with  the  fiscal  burden  of  an  undertaking  carrying  out  its  activities 
under market conditions. The arm’s length principle is a tool for making that determination, 
since  it  is  a  ‘benchmark’  for  establishing  whether  an  integrated  company  is  receiving  an 
advantage  within  the  meaning  of  Article  107(1)  TFEU.  In  order  to  apply  the  arm’s  length 
principle,  the  Commission  can  rely  on  the  OECD  Transfer  Pricing  Guidelines,  which, 
although  non-binding,  reflect  the  international  consensus  achieved  with  regard  to  transfer 
pricing and have therefore a real practical significance in the interpretation of issues relating 
to transfer pricing. Furthermore, in order for an advantage to be proved, the errors identified 
in the calculation of a transfer price must go beyond inaccuracies inherent in the application 
of a method designed to obtain a reliable approximation of a market-based outcome. 

In  Micula117  (under  appeal  by  the  Commission)  the  General  Court  found  that  the  arbitral 
award did not compensate the applicants for the withdrawal of unlawful or incompatible State 
aid, but constituted a mere compensation for damages, which does not constitute an advantage 
for the purposes of Article 107(1) TFEU.  

In Fútbol Club Barcelona118 (under appeal by the Commission) the General Court rejected the 
Commission’s  assessment  of  the  advantage  by  stating  that  the  examination  of  the  nominal 
preferential tax rate cannot be dissociated from that of the other components of the tax regime 
of non-profit organisations. 

As  regards  the  application  of  the  Market  Economy  Operator  Principle  (MEOP),119  in  Real 
Madrid120 the General Court upheld the Commission’s findings on the need for Municipality 
of  Madrid  to  obtain  independent  legal  advice  before  concluding  the  2011  settlement 

114   Joined Cases T-755/15 and T-759/15, Grand Duchy of Luxembourg and Fiat Chrysler Finance Europe v European Commission, 

judgment  
of 24 September 2019, ECLI:EU:T:2019:670. 

115   Joined Cases T-760/15 and T-636/16, Kingdom of the Netherlands and Others v European Commission, judgment of 24 September 

2019, ECLI:EU:T:2019:669. 

116   Joined Cases T-755/15 and T-759/15, Grand Duchy of Luxembourg and Fiat Chrysler Finance Europe v European Commission, 

judgment  
of 24 September 2019, ECLI:EU:T:2019:670, para. 141; Joined Cases T-760/15 and T-636/16, Kingdom of the Netherlands and Others 
v  
European Commission, judgment of 24 September 2019, ECLI:EU:T:2019:669, para. 149. 

117   Joined cases T-624/15, T-694/15 and T-704/15, European Food SA and others v Commission,  judgment of the General Court of 18 June 

2019, ECLI:EU:T:2019:423.  

118   T-865/16, Fútbol Club Barcelona v Commission,  iudgment of the General Court of 26 February 2019, ECLI:EU:T:2019:113.   
119   The Market Economy Operator Principle (MEOP) is a concept developed by the Commission to determine whether a transaction entered 
into by a public body gives an advantage to a particular undertaking with the potential of distorting competition and trade between 
Member States. 

120   T-791/16, Real Madrid Club de Fútbol v European Commission, judgment of the General Court of 22 May 2019, ECLI:EU:T:2019:346. 

36 

 
 
                                                           
 
 
 
agreement  with  Real  Madrid  and  that  the  value  of  the  compensation  agreed  under  that 
agreement was above market terms. However, the General Court found that the Commission 
was wrong to  have limited its analysis of that agreement only  to whether the  compensation 
granted  by  Municipality  of  Madrid  to  Real  Madrid  was  on  market  terms.  The  Commission 
should  have  inquired  whether  the  value  of  the  plots  of  land  Real  Madrid  received  as  a 
payment  in  kind  for  part  of  the  compensation  granted  as  a  result  of  the  2011  settlement 
agreement  were  in  fact  worth  the  value  that  Real  Madrid  had  accepted  they  were  worth  in 
2011.  

As regards applicability of the MEOP, in Mytilinaios121 the Court of Justice found the MEOP 
not  to  be  applicable,  since  the  measure  consisted  in  an  order  for  interim  measures  by  a 
national court, which cannot be assimilated to an action of an market economy operator. Also, 
in  Arriva  Italia,122  the  Court  of  Justice  concluded  that  the  MEOP  was  not  applicable.  The 
Court of Justice observed that the Italian State did not carry out an ex-ante assessment of the 
profitability of the measure in point (the transfer of the shareholding in the capital of FSE). 
Moreover, the Court of Justice noted that: (a) it was apparent from the national legislation that 
such  transfer  of  shareholding  sought,  in  particular,  to  ensure  the  continuity  of  employment 
and  transport  services  provided  by  FSE;  (b)  such  transfer  also  pursued  the  objective  of 
maintaining  public  sector  shareholding  in  the  capital  of  FSE.  However,  such  considerations 
are not taken into account by a private investor. 

Selectivity 

The Fiat judgment is also relevant as concerns selectivity. The General Court confirmed that 
the  contested  tax  ruling  related  exclusively  to  Fiat  and  that  therefore  the  Commission  was 
correct in considering that ruling as an individual measure, and not as a measure granted on 
the basis of a scheme, as Luxembourg argued. In this regard, the General Court recalled that 
the  assessment  of  the  selectivity  requirement  differs  depending  on  whether  the  measure  in 
question  is  envisaged  as  a  general  scheme  of  aid  or  as  individual  aid.  In  the  latter  case,  as 
established  by  the  MOL123  case  law,  the  identification  of  the  economic  advantage  is,  in 
principle, sufficient to support the presumption that the individual measure is selective. Based 
on this presumption, the General Court concluded that, since the Commission had established 
that  the  contested  tax  ruling  granted  an  advantage,  that  advantage  should  in  priciple  be 
considered selective, without the need to apply the three-step test. 

In the Polish and Hungarian progressive tax cases124 (under appeal by the Commission) the 
General Court found that these taxes were not selective because small and large undertakings 
were not in a comparable factual and legal situation in light of the redistributive purpose of 
the progressive turnover taxes. Therefore, the tax was not considered as discriminatory. 

121   C-332/18 P, Mytilinaios Anonymos Etairia – Omilos Epicheiriseon v Commission, judgment of the Court of Justice of 11 December 

2019, ECLI:EU:C:2019:1065.  

122   C-385/18, Arriva Italia Srl and Others v Ministero delle Infrastrutture e dei Trasporti, judgment of the Court of Justice of 19 December 

2019, ECLI:EU:C:2019:1121.  

123   C‑ 15/14 P Commission v MOL, Judgement of 4 June 2015, ECLI:EU:C:2015:362, paragraph 60. 
124   Joined cases T-836/16 and T-724/16,  Poland v Commission, judgment of the General Court of 16 May 2019, ECLI:EU:T:2019:338 . T-

20/17, Hungary v Commission, judgement of the General Court of 27 June 2019, ECLI:EU:T:2019:448. 

37 

 
 
 
 
                                                           
Definition of economic activity 

the  Court  of  Justice  held 

the  definition  of  economic  activity, 

On 
in  case 
Aanbestedingskalender  and Others  v Commission125 that if an economic  activity carried out 
by  a  public  entity  cannot  be  separated  from  other  activities  connected  with  the  exercise  of 
public  powers,  the  activities  of  that  entity  as  a  whole  must  be  regarded  as  being  connected 
with the exercise of public powers. In the French ports litigation cases126 the General Court 
confirmed  that  the  ports  carry  out  an  economic  activity,  in  addition  to  their  public  power 
activities. Assessing whether  these economic activities could  be considered ancillary to  the 
non-economic  ones,  the  General  Court  hast  taken  the  view  that  there  is  no  threshold  below 
which all the activities of an entity would be considered non-economic if the economic ones 
represent a minority. If the economic activity of a given entity is separable from the exercise 
of public power, that entity must be classified as an undertaking for this part of its activities. 

State resources and imputability 

On State resources, in Germany v Commission (EEG 2012),127 the Court of Justice held that 
the  General  Court  was  wrong  to  find  that  the  funds  generated  by  the  EEG  surcharge 
constituted State resources.128 On the one hand, the EEG surcharge cannot be assimilated to a 
levy, on the other hand, the General Court  failed to establish that the State held a power of 
disposal  over  the  funds  generated  by  the  EEG  surcharge  or  even  that  it  exercised  public 
control  over  the  Transmission  Systems  Operators  responsible  for  managing  those  funds.  In 
Achema  and  Others,129  the  Court  distinguished  between  a  system  financed  by  a  mandatory 
charge  and  administered  by  an  entity  directly  or  indirectly  controlled  by  the  State,  which 
involves State resources, and a system of mere price regulation where private operators must 
finance a purchase obligation on their own resources. In FVE Holýšov I,130 (under appeal by 
the applicant) the General Court confirmed that it is sufficient to establish the presence of a 
mandatory  charge  (the  levy  at  stake  had  a  compulsory  nature)  to  establish  the  existence  of 
State resources.  

As regards imputability and State resources, in the Tercas litigation cases131, (under appeal by 
the  Commission)  the  General  Court  considered  that  the  Commission  has  to  have  sufficient 
evidence  to  prove  that  measures  taken  by  private  entities  were  taken  under  the  actual 
influence or control of the State. 

125   C-687/17P, Aanbestedingskalender BV and Others v European Commission , judgment of the Court of Justice  of 7 November 2019, 

ECLI:EU:C:2019:932.  

126   T-754/17, Chambre de commerce and d'industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission, judgment by the general 
court of 30 April 2019, ECLI:EU:T:2019:270. T-747/17, Union des Ports de France - UPF v European Commission, judgment of the 
General Court of 30 April 2019, ECLI:EU:T:2019:271. 

127   C-405/16P, Germany v Commission, Judgment of the Court of Justice of 28 March 2019, ECLI:EU:C:2019:268.  
128   EEG: Erneuerbare-Energien-Gesetz (Law on Renewable Energy). In 2012, Germany introduced a scheme to support undertakings 

producing electricity from renewable energy sources and mine gas. That law guaranteed those producers a price higher than the market 
price. To finance the support measure, the law imposed an EEG surcharge on the suppliers which in practice, not by law, was passed on 
to the final customers. However, certain electricity-intensive undertakings , were eligible for a cap on the EEG surcharge to maintain 
their international competitiveness.  

129   C-706/17, Achema AB and Others v Valstybinė kainų ir energetikos kontrolės komisija (VKEKK),  judgment of the Court of Justice of 15 

May 2019, ECLI:EU:C:2019:407. 

130   T-217/17, FVE Holýšov I s. r. o. and Others v Commission,  judgment of the General Court of 20 September 2019, 

ECLI:EU:T:2019:633. 

131   Joined cases T-98/16, T-196/16 and T-198/16, Italy and Others v Commission, judgment of the General Court of 19 March 2019, 

ECLI:EU:T:2019:167. 

38 

 
 
 
                                                           
Recovery 

On  recovery,  in  Eesti  Pagar132  the  Court  of  Justice  concluded  that  any  national  authority 
having  granted  unlawful  State  aid  is  under  an  obligation  to  recover  that  aid.  It  also 
recognized, in case of recovery of unlawful aid, the need of the principle of effectiveness to 
be respected, even if interest is to be calculated based on national law. 

In relation to the consequences to be drawn by the national judge in case of violation of the 
obligation to notify a measure (ex art 108(3) TFEU), in Arriva Italia,133 the Court of Justice 
stated  that  it  is  for  the  national  courts  to  draw  all  the  necessary  inferences  from  such  an 
infringement,  in  accordance  with  domestic  law,  with  regard  both  to  the  validity  of  the  acts 
giving  effect  to  the  aid  and  the  recovery  of  financial  support  granted  in  disregard  of  that 
provision. In particular, as regards the transfer of the shareholding of a company, the Court of 
Justice  clarified  that  restoring  the  previous  situation  will  entail,  as  the  case  may  be,  the 
reversal  of  that  transfer  by  reassigning  that  shareholding  to  the  original  owner,  and  the 
neutralisation of the effects of that transfer. 

Procedural issues 

In the Belgian Excess Profit judgment,134 the General Court annulled the Commission’s 2016 
decision  which  held  that  Belgium  had  granted  selective  tax  advantages  under  its  "excess 
profit" tax scheme. The Court did not take a position on whether or not the scheme analysed 
gave  rise  to  illegal  State  aid  but  found  that  the  Commission  had  failed  to  establish  the 
existence of an aid scheme. According to the General Court, when granting an excess profit 
ruling the Belgian tax authorities had a margin of discretion that necessitates a case-by-case 
assessment  and  which  undermines  an  alleged  systematic  approach  by  the  Belgian  tax 
authorities,  required  for  the  existence  of  an  aid  scheme.  This  means  that,  according  to  the 
General Court, the tax rulings need to be assessed individually under EU State aid rules.  

Following  this  judgment,  the  Commission  opened  in  2019  separate  in-depth  investigations 
into the 39 individual tax rulings granted by Belgium to multinational companies. In parallel, 
the  Commission  has  appealed  the  judgment  of  the  General  Court  to  the  European  Court  of 
Justice  to  seek  further  clarity  on  the  existence  of  an  aid  scheme.  These  proceedings  are 
ongoing. 

In  the  BMW  judgment135,  the  Court  of  Justice  confirmed  the  Eesti  Pagar  judgment136  in 
stating that national authorities can only check compliance of the aid measure with the GBER 
requirements,  which  entails  procedural  consequences  on  the  obligation  to  notify  or  not.  A 
finding  of  compliance  with  the  GBER  by  a  Member  State  offers  at  most  a  presumption  of 
compatibility of the aid with the internal market.  

132   C-349/17. Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus and Majandus- ja Kommunikatsiooniministeerium, judgment of the Court 

of Justice of 5 March 2019, ECLI:EU:C:2019:172. 

133   C-385/18, Arriva Italia Srl and Others v Ministero delle Infrastrutture e dei Trasportirriva, Judgment of the Court of Justice of 19 

December 2019,  ECLI:EU:C:2019:1121. 

134   Joined Cases T-131/16 and 263/16 Belgium and Magnetrol International v European Commission, judgment of the General Court of  

14 February 2019, ECLI:EU:T:2019:91.  

135   C-654/17P - Bayerisch Motoren Werke AG and Freistaat Sachsen v European Commission, judgment of the Court of 29 July 2019. 
136   C-349/17. Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus and Majandus- ja Kommunikatsiooniministeerium, judgment of the Court 

of Justice of 5 March 2019, ECLI:EU:C:2019:172. 

39 

 
 
                                                           
 
4. 

DEVELOPING THE INTERNATIONAL DIMENSION OF EU COMPETITION POLICY 

The main objective of the Commission's international activities in the competition field is to 
advocate a global competition culture, promoting competition conditions allowing companies 
to  compete  on  the  merits  on  fair  and  equal  terms  across  the  world.  The  Commission  also 
seeks to reinforce the role of competition policy in international organisations and cooperates 
with  agencies  globally.  Such  regulatory  and  enforcement  cooperation  helps  to  ensure  an 
effective  enforcement  and  competition  on  fair  and  equal  terms  for  EU  companies  active  on 
global markets. 

Multilateral relations 

In  2019,  the  Commission  continued  its  endeavours  to  improve  international  rules  for 
subsidies.  Reforming  the  subsidy  rules  is  one  of  the  EU’s  main  priorities  for  the 
modernisation  of  WTO  trade  rules.  Moreover,  in  2019  the  Commission  was  engaged  in 
several  sectoral  initiatives  addressing  subsidies  in  the  international  context,  for  example  the 
G20 Global Forum on steel excess capacity. Finally, the Commission continued the work with 
EU  Member  States  in  the  International  Subsidy  Policy  Group,  exchanging  views  and 
coordinating initiatives concerning international subsidy policies at multilateral  and bilateral 
level.  

In 2019, the Commission continued its active engagement in competition-related international 
fora  such  as  the  OECD  Competition  Committee,  the  International  Competition  Network 
(ICN),  the  World  Bank,  and  United  Nations  Conference  on  Trade  and  Development 
(UNCTAD).   

At the OECD Competition Committee meeting in June 2019, the Commission contributed to 
the  discussions  on  licensing  of  IP  rights137,  disruptive  innovation  in  financial  markets138, 
judicial review in competition cases139 and on vertical mergers in the technology, media and 
telecom  sector140.  In  December  2019,  the  Commission  contributed  to  the  Competition 
Committee’s  deliberations  on  access  to  the  case  file  and  protection  of  confidential 
information141, hub-and-spoke arrangements in competition142, competition provisions in trade 
agreements143 and on merger control in dynamic markets.144 

In the ICN, following the Cartagena Annual Conference, which took place in May 2019, the 
Commission  took  up  a  three-year  co-chair  role  of  the  Unilateral  Conduct  Working  Group, 
which  it  currently  shares  with  the  Italian  and  South  African  Competition  Authorities.  The 
Commission  helped  organising  the  ICN  Unilateral  Workshop  on  digital  matters  in 
competition  law,  held  in  Mexico  City  in  November  2019,  and  started  a  new,  multi-annual 
project  on the  “assessment  of dominance  and market  power in  digital”, resulting  - in  a first 

137   See: http://www.oecd.org/daf/competition/licensing-of-ip-rights-and-competition-law.htm. 
138   See: www.oecd.org/daf/competition/digital-disruption-in-financial-markets.htm. 
139   See: www.oecd.org/daf/competition/standard-of-review-by-courts-in-competition-cases.htm. 
140   See: www.oecd.org/daf/competition/vertical-mergers-in-the-technology-media-and-telecom-sector.htm. 
141   See: www.oecd.org/daf/competition/access-to-case-file-and-protection-of-confidential-information.htm. 
142   See: www.oecd.org/daf/competition/hub-and-spoke-arrangements.htm. 
143   See: http://www.oecd.org/daf/competition/competition-provisions-in-trade-agreements.htm. 
144   See: http://www.oecd.org/daf/competition/merger-control-in-dynamic-markets.htm. 

40 

 
 
 
                                                           
step - in a survey on the ICN members’ experience in this matter. Moreover, the Commission 
continued chairing the ICN Cartel Working Group until summer 2019 and during this period 
contributed  to  “Good  Practices  for  Incentivizing  Leniency  Applications”145  and  to  a  new 
chapter “Development of Private Enforcement of Competition Law”146 in the ICN Anti-Cartel 
Enforcement Manual. The Commission continues to contribute to the Cartel Working Group’s 
ongoing  projects  on  “Enhancing  Coordination  on  Leniency  Matters”  and  the  “Big  Data 
Project”.  The  Commission  is  also  an  active  member  in  the  other  ICN  Working  Groups;  the 
Merger  Working  Group,  the  Advocacy  Working  Group,  and  the  Agency  Effectiveness 
Working Group.  

The Commission participated in the 18th meeting of the UNCTAD Intergovernmental Group 
of  Experts  on  Competition  Law  and  Policy,  held  in  Geneva  in  July  2019.  The  conference 
included discussions on competition issues in the digital economy and in healthcare markets, 
international  cooperation  of  competition  authorities  in  the  fight  against  cross-border 
anticompetitive  practices  and  mergers,  and  capacity-building  and  technical  activities  in 
competition law and policy.147  

In  2019,  the  Commission  also  contributed  to  a  common  understanding  reached  with  the 
competition  authorities  of  the  G7  countries  regarding  the  challenges  raised  by  the  digital 
economy  for  competition  analysis.148  Under  the  French  G7  Presidency,  the  common 
understanding was  presented at  the meeting of the G7 Finance Ministers in  Chantilly on 17 
and 18 July 2019. 

Bilateral relations 

At bilateral level, the Commission aims at including provisions on competition and State aid 
control when negotiating Free Trade Agreements (FTAs). In 2019, the Commission continued 
FTA  negotiations  with  Australia,  Azerbaijan,  Chile,  Indonesia,  New  Zealand,  Tunisia  and 
Uzbekistan, and concluded the negotiations with Kyrgyzstan and Mercosur.  

The  Commission's  negotiations  on  a  Comprehensive  Investment  Agreement  with  China  are 
still ongoing. In 2019, the Commission also continued the cooperation in competition policy 
and  in  cases  with  China  and  reconfirmed  the  Terms  of  Reference  of  the  EU-China 
Competition Policy Dialogue149 and the Memorandum of Understanding on a dialogue in the 
area of the State aid control regime and the Fair Competition Review System150. In addition, 
the Commission  confirmed the  cooperation on competition  cases with  China by signing  the 
Practical guidance for cooperation on reviewing merger cases151 and the Practical guidance for 
cooperation on investigating anti-monopoly cases.152 

As regards the draft Second Generation Cooperation Agreement between the Commission and 
Canada, the Commission is in regular contacts with the Competition Bureau Canada in view 
of finding a solution on data protection in Canada lining up to the standards established by the 

145   See: https://ec.europa.eu/competition/cartels/icn/good_practices_for_incentivising_leniency_applications_2019.pdf. 
146   See: https://ec.europa.eu/competition/cartels/icn/private_enforcement_chapter_en.pdf. 
147   See: https://unctad.org/en/Pages/MeetingDetails.aspx?meetingid=1895. 
148   See: https://www.tresor.economie.gouv.fr/Articles/5f8c26f2-a2cd-4685-ba82-fa9e4d4e5d67/files/d3ec7ade-4c85-4a5f-9caa-

a19ab9725d95. 

149   See:  https://ec.europa.eu/competition/international/bilateral/agreement_tor_china_2019.pdf. 
150   See: https://ec.europa.eu/competition/international/bilateral/mou_china_2019.pdf. 
151   See: https://ec.europa.eu/competition/international/bilateral/practical_guidance_merger.pdf. 
152   See: https://ec.europa.eu/competition/international/bilateral/practical_guidance_antimonopoly.pdf. 

41 

 
 
                                                           
Opinion  of  the  Court  of  Justice  on  the  2014  EU  Canada  Passenger  Name  Record 
Agreement153. Moreover, the Commission continued the negotiations with Japan on a Second 
Generation  Agreement  with  a  view  to  updating  the  existing  cooperation  agreement  from 
2003.154 

Another  key  area  of  the  Commission’s  activities  is  technical  cooperation  on  competition 
policy and enforcement with the EU’s main trading partners. To frame this cooperation, the 
Commission has signed a number of Memoranda of Understanding (MoUs). The Commission 
has  signed  MoUs  with  the  BRICS155  countries  and  Mexico,  and  it  has  engaged  in  technical 
cooperation  with  these  countries  to  varying  degrees.  The  Commission  also  assists 
neighbouring  countries.  For  example,  in  2019  the  Commission  was  monitoring  the 
implementation of the EU competition acquis in countries such as Ukraine. 

In negotiations with candidate countries and potential candidate countries, the Commission's 
main  policy  objective  -  in  addition  to  advocating  a  competition  culture  -  is  to  help  these 
countries  to  create  legislative  frameworks  with  well-functioning  operationally  independent 
competition authorities that build up a solid enforcement record. To meet the conditions for 
EU accession in  the competition  policy  field,  these requirements must be fulfilled.  In 2019, 
the  Commission  continued 
their 
commitments under the Stabilisation and Association agreements. 

to  monitor  candidate  countries’  compliance  with 

The  Commission    also  engaging  with  several  African  national  and  regional  authorities  to 
develop  cooperation  in  the  competition  field.  In  the  ongoing  negotiations  for  the  future 
Agreement  for  ACP  countries  (the  Cotonou  Agreement)156  and  the  related  Economic 
Partnership Agreements (EPAs), the Commission proposal includes competition and State aid 
control provisions. 

In  2019,  the  Commission  continued  to  prepare  for  the  withdrawal  of  the  United  Kingdom 
from the EU, including the competition and State aid related aspects of that withdrawal. The 
draft  Withdrawal  Agreement  between  the  EU  and  the  United  Kingdom  as  endorsed  by  the 
European  Council  on  17  October  2019  sets  out  the  continued  application  of  the  EU  acquis 
during the transition period until end 2020. It includes amongst others provisions for State aid 
and competition cases which are ongoing at the end of the transition period. In addition, this 
Agreement sets out how aid having an effect on trade between Northern Ireland and the EU 
will  be  treated  after  the  end  of  the  transition  period.  The  Commission  also  continued  to 
prepare for a no deal scenario, and issued, amongst others, a no deal Brexit competition law 
guidance.157 

In  March  2019,  the  Commission  adopted  a  Communication  on  ‘EU-China  strategic 
outlook’158, which proposes ten actions that were endorsed by the March European Council. 
One of these actions relates to distortive effects of foreign state ownership and state financing 
in  the  internal  market.  In  2019,  therefore,  the  Commission  started  an  analysis  of  how  the 
current EU toolbox addresses the distortive effects of foreign subsidies and state ownership.  

153   See: http://curia.europa.eu/juris/liste.jsf?pro=AVIS&num=C-1/15. 
154   See: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:22003A0722(01). 
155   BRICS is an acronym used to denote the countries Brazil, Russia, India, China and South Africa. 
156   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_5913. 
157   See: https://ec.europa.eu/info/sites/info/files/file_import/eu-competition-law_en.pdf.  
158   See: https://ec.europa.eu/commission/sites/beta-political/files/communication-eu-china-a-strategic-outlook.pdf. 

42 

 
 
                                                           
5. 

EXTERNAL COMMUNICATION 

The Directorate-General for Competition's external communication is focussed on the use of 
mass  media  to  reach  a  variety  of  audiences,  including  businesses,  lawyers,  researchers, 
academics,  students  and 
the 
Commissioner's  press  conferences,  press  releases  and  speeches,  as  well  as  social  media.  In 
addition,  the  Directorate-General  issues  newsletters  and  other  publications  aimed  at 
stakeholders  and  the  general  public,  as  well  as  participation  by  staff  in  stakeholder 
conferences. 

is  achieved  principally  via 

the  general  public.  This 

The Directorate-General for Competition produced 525 press releases related to competition 
cases during 2019. Of these, 120 were longer, multilingual, press releases while a further  415 
were shorter and monolingual (“midday express”). Some of the cases generated broad media 
coverage,  such  as  the  prohibition  of  Siemens’  proposed  acquisitiong  of  Alstom,  the  Google 
Adsense  antitrust  decision  (online  search  adverts)  and  the  decision  to  imposes  interim 
measures  on  Broadcom.  All  of  these  cases  were  covered  by  TV,  radio,  print  and  internet 
media around the globe. 

Throughout  2019,  Commissioner  Vestager  delivered  around  67  speeches  to  a  variety  of 
audiences.  The  Director-General  and  Acting  Director-General  delivered  25  speeches  at  a 
variety of international events. 

A  highlight  in  2019  was  the  Commission’s  17th  January  conference  “Shaping  competition 
policy in the era of digitisation”: 490 people from 27 countries attended in person and there 
were  more  than  35,000  connections  to  the  live  stream  from  60  countries.  We  had  209,000 
impressions  and  interaction  generated  by  the  tweets  from  EU_Competition  over  two  days. 
The  #EUcompdigit  hashtag  was  the  second  most  tweeted  topic  trending  in  Belgium  in  the 
morning  of  17  January.  A  Student  Challenge  followed  the  conference,  receiving  80 
submissions  from  21  countries.  The  winning  entries  were  displayed  on  the  Commission’s 
website, and the winners - designated by almost  2,000 popular votes over the internet  - had 
the opportunity to meet Commissioner Vestager in Brussels in March. 

On social media, the Directorate General for Competition was active on Twitter during 2019. 
Throughout  the  year,  around  590  tweets  from  the  Directorate-General’s  account  achieved 
more  than  3.5  million  impressions  (i.e.  the  number  of  times  a  tweet  appears  in  someone's 
feed).  The  Foreign  Exchange  (FOREX)  Cartels  Decisions  announcing  fines  against  five 
international  banks  achieved  the  most  impressions  (75,600  in  24  hours).    Other  popular 
Tweets included those on the Decision to fine Google for illegal practices regarding Android 
Mobile  Devices  and  the  opening  of  our  investigation  into  Amazon’s  use  of  sensitive  data.  
The number of followers on the COMP Twitter account rose by 3,480 to a total of 15,800.    

The  number  of  subscribers  to  the  Directorate  General's  electronic  newsletters  was  22,000 
subscribers 
the  EU  Bookshop  were 
(+5%),  while 
viewed,downloaded or ordered as paper copies 6,200 (+3%) times. 

its  publications 

in  2019 

in 

43 

 
 
 
6. 

THE SINGLE MARKET PROGRAMME 

Adapting  to  an  increasingly  digital  and  globalised  environment  is  a  major  challenge  for  the 
enforcement  of  EU  competition  policy.  New  sophisticated  IT  tools  and  algorithms  used  by 
economic  operators  combined  with  an  exponential  increase  in  electronic  communications, 
quantity  of  data  and  the  number  of  documents  on  case  files  make  many  competition 
investigations  increasingly  complex  and  burdensome.  The  Commission's  proposals  for  the 
next  Multiannual  Financial  Framework  (2021-2027)  included  –  for  the  first  time  -  a 
Competition Programme within the Single Market Programme that includes. Negotiations on 
the  Single  Market  Programme  with  the  co-legislators,  the  European  Parliament  and  the 
Council, were launched in October 2019. If adopted, the Single Market Programme, with an 
indicative budget of EUR 140 million for the seven-year period dedicated to the Competition 
Programme,  would  enable 
to  directly  support  competition  policy 
development and to ensure efficient, effective and relevant competition enforcement. 

the  Commission 

The  Competition  Programme  would  enable  the  Commission  to  modernise  EU  competition 
policy enforcement by investing in state-of-the-art IT tools (including AI), to better deter and 
detect  any  wrongdoings.  Moreover,  the  Competition  Programme  would  allow  to  invest  in 
knowledge  and  expertise,  to  strengthen  the  cooperation  between  the  Commission  and  the 
Member States’ competition authorities in all areas of EU competition law, to ensure strong 
global presence, and to raise stakeholder awareness of EU competition policy.159  

159   Proposal for a Regulation of the European Parliament and of the Council establishing the Programme for single market, competitiveness 
of enterprises, including small and medium-sized enterprises, and European statistics and repealing Regulations (EU) No 99/2013, (EU) 
No 1287/2013, (EU) No 254/2014, (EU) No 258/2014, (EU) No 652/2014 and (EU) 2017/826. See: https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1540389031742&uri=CELEX%3A52018PC0441. Commission Staff Working Document Impact Assessment 
accompanying the document Proposal for a Regulation of the European Parliament and of the Council establishing the Programme for 
single market, competitiveness of enterprises, including small and medium-sized enterprises, and European statistics and repealing 
Regulations (EU) No 99/2013, (EU) No 1287/2013, (EU) No 254/2014, (EU) No 258/2014, (EU) No 652/2014 and (EU) No 2017/826.  
See: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1540389285918&uri=CELEX%3A52018SC0320. 

44 

 
 
 
 
                                                           
II. SECTORAL OVERVIEW 

The Commission's competition policy activities in 2019 covered a wide range of areas, with 
the  common  objective  of  making  markets  work  better.  EU  competition  policy  supported 
several  key  EU  policies  and  initiatives,  including  a  connected  Digital  Single  Market,  an 
integrated and climate-friendly Energy Union, a Deeper and Fairer Internal Market as well as 
taking  action  against  selective  tax  advantages.  This  section  provides  a  sector-by-sector 
overview of competition policy developments and enforcement activities that the Commission 
engaged in during the year 2019.  

1. 

ENERGY & ENVIRONMENT 

Overview of key challenges in the sector 

Energy is an essential input to all sectors of the economy, and one of the largest single items 
of  expenditure  for  households  in  the  EU.  The  EU  is  heavily  dependent  on  imports  of  fossil 
fuels, in particular oil and gas products. 

The  adoption160  of  the  Clean  Energy  for  all  Europeans  Package  in  2019  is  an  important 
milestone towards the creation of the Energy Union, which aims at providing EU citizens and 
businesses access to affordable, secure, and sustainable energy.   

Competition  policy  is  essential  to  make  the  Energy  Union  function  properly.  Competition 
policy  plays  a  key  role  in  removing  obstacles  to  the  free  flow  of  gas  and  electricity  across 
Member  States,  promoting  interconnectivity  and  avoiding  artificial  market  partitioning. 
Competition  enforcement  contributes  to  market  opening  and  ensures  that  all  market  players 
participates in the market on fair and equal terms, regardless of their nationality.  

In addition, competition policy contributes to the EU's environmental objectives and climate 
targets, including the decarbonisation of the power sector and other sectors of the economy, 
and  the  shift,  in  the  transport  sector,  from  polluting  fossil  fuels  to  alternative  fuels  in 
accordance  with  the  Commission's  mobility  policy.  To  this  end,  the  Commission  authorises 
State  aid  measures  promoting  the  deployment  of  renewables,  improving  energy  efficiency, 
stimulating demand for low emission vehicles for public and private transport, and reducing 
CO2  emissions.  In  addition,  the  Commission  authorises  intermediate  measures  reducing 
nitrogen  oxides  (NOX)  emissions  by  allowing  the  retrofitting  of  polluting  vehicles  used  in 
public transport. 

Promoting competition  in the energy sector empowers consumers, whether they are energy-
intensive  users  such  as  big  manufacturing  plants,  small  companies  or  households.  Well-
functioning competition gives energy consumers the confidence that the EU energy markets 
are  working  well.  Ultimately,  consumers  throughout  the  EU  will  benefit  from  an  integrated 
European Energy market that guarantees security of energy supply at affordable prices and a 
cleaner environment. 

In  December  2019,  the  Commission  adopted  the  “European  Green  Deal”  Communication, 
outlining policy initiatives to reach by 2050 net-zero greenhouse gas emissions in the EU and 

160   See: https://ec.europa.eu/energy/en/topics/energy-strategy-and-energy-union/clean-energy-all-europeans. 

45 

 
 
 
 
                                                           
to  tackle  other  environment-related  challenges.161  Reaching  these  objectives  require  a 
combination  of  multible  policy  instruments.  A  strong  competition  policy  in  the  energy  and 
environmental sectors is crucial to support a cost-effective decarbonised energy transition. 

The Commission is currently reviewing the ETS State aid Guidelines162 to ensure that they are 
adapted  to  EU’s  new  emissions  trading  scheme  for  2021-2030  as  set  out  in  the  2018  ETS 
Directive.163 Furthermore, the Commission launched the evaluation of the 2014 Guidelines on 
State  aid  for  environmental  protection  and  energy  as  part  of  a  broader  Fitness  check  of  the 
State  aid  modernisation  package.164  A  public  consultation  has  been  conducted  and  the 
responses have been published.165 To allow a proper revision of the guidelines their validity 
will  be  extended  beyond  2020.  The  review  should  reflect  the  policy  objectives  of  the 
European Green Deal, in particular supporting a cost-effective transition to climate neutrality 
by  2050  by  facilitating  the  phasing  out  of  fossil  fuels,  in  particular  those  that  are  most 
polluting.  

Effective competition in the green economy 

In  2019,  competition  enforcement  contributed  to  the  EU  environmental  objectives  by 
applying the State aid, antitrust, and merger rules.  

The  enforcement  of  State  aid  rules  in  the  renewable  energy,  energy  efficiency,  and  low-
emission mobility fields remained high. Moreover, the Commission pursued an investigation 
on  the  conduct  of  ethanol  producers  and  adopted  several  merger  decisions  concerning  joint 
ventures that were set up to develop and/or operate renewable energy assets.166 

Renewable energy and energy efficiency 

In 2019, the Commission adopted twenty decisions concerning renewables and combined heat 
and power support schemes.167 As a result, almost all Member States have now received State 
aid clearance for their renewables and combined heat and power support schemes and brought 
them in line with the 2014 Guidelines on State aid for environmental protection and energy.168 
An increasing number of Member States grant support for the production of renewable energy 
through  competitive  and 
integrating  renewables 
installations  in  the  electricity  market.  This  has  resulted  in  lower  cost  for  consumers  in  the 
electricity system as a whole. 

technology-neutral 

tenders  and  by 

Antitrust  enforcement  also  contributes  to  the  objective  of  a  low-carbon  economy.  After 
sending  a  Statement  of  Objections  in  2018,  the  Commission  continued  in  2019  its 

161   Communication from the Commission to the  European Parliament, the European Council, the Council, the European Economic and 

Social Committee and the Committee of the Regions The European Green Deal, COM/2019/640 final. See: 
https://ec.europa.eu/info/publications/communication-european-green-deal_en.  

162   Communication from the Commission — Guidelines on certain State aid measures in the context of the greenhouse gas emission 

allowance trading scheme post-2012 (SWD(2012) 130 final) (SWD(2012) 131 final), OJ C 158, 5.6.2012, p. 4–22. See: 
https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-6600267/public-consultation_en. 

163   Directive (EU) 2018/410 of the European parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance  

cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814, OJ L 76, 19.3.2018, p. 3-27.  
164   Communication from the Commission — Guidelines on State aid for environmental protection and energy 2014-2020, OJ C 200,  

28.6.2014, p. 1–55.  

165   See: https://ec.europa.eu/competition/consultations/2019_eeag/index_en.html. 
166   For instance, case M.9106 REDEN H2 / BERROUTE, Commission decision of 29 March 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9106 and case M.9438 ENGIE/BPCE GROUP/PSFV  
PALMA DEL RIO, Commission decision of 23 August 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9438.  

167   Cases SA.55761, SA.50920, SA.45765, SA.48601, SA. 51190, SA.49673, SA.49674, SA. 52085, SA. 52960, SA. 50807, SA. 49672, 

SA. 53347, SA. 54949, SA. 50199, SA. 55100, SA. 51192, SA. 52530, SA. 54375, SA. 54376, and SA. 51614. 

168   See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52014XC0628%2801%29. 

46 

 
                                                           
 
 
 
 
 
investigation  of  ethanol  producers  suspected  of  having  colluded  to  manipulate  ethanol 
benchmarks  published  by  the  price  reporting  agency  Platts.169  If  confirmed,  such  practices 
harm  competition  and  undermine  EU  energy  objectives  by  increasing  prices  for  renewable 
energy, in this case biofuels used for transport. 

IPCEI for batteries 

On 9 December 2019, the Commission approved an Important Project of Common European 
Interest  (IPCEI)  concerning  innovations  in  the  batteries  value  chain  (from  materials, 
chemicals, cells, modules and packs to recycling and reuse), with seven participating Member 
States  (Belgium,  Finland,  France,  Germany,  Italy,  Poland  and  Sweden).170  The  project 
involves  17  direct  participants,  mostly  industrial  actors,  including  small  and  medium-sized 
enterprises.  The  direct  participants  will  closely  cooperate  with  each  other  and  with  over  70 
external  partners.  Total  State  aid  approved  is  nearly  EUR  3.2  billion,  with  approximately 
EUR  5  billion  in  additional  private  investments.  The  completion  of  the  overall  project  is 
planned for 2031 (with differing timelines for each sub-project).171  

E-mobility 

A  competitive  market  for  charging  stations  is  important  to  ensure  the  take-up  of  electric 
vehicles and encourage the move away from fossil fuels.  

In  2019,  the  Commission  approved  E.ON’s  acquisition  of  Innogy  subject  to  E.ON 
discontinuing  the  operation  of  charging  stations  located  on  German  motorways  where  the 
merger would otherwise have removed one of the few alternatives available to drivers. 172   

In  2019,  the  Commission  approved  EUR  195  million  of  additional  public  support  until  the 
end  of  2022  for  electric  buses  and  charging  infrastructure  in  Germany.173  Moreover,  the 
Commission  approved EUR 430 million  in  public support to  retrofit diesel  vehicles used in 
municipalities where the limits  for NOX emissions  were exceeded in  2017.174  Both  types of 
measures are in line with the EU environmental goals, as well as with the European Strategy 
for  low-emission  mobility,  and  its  support  for  the  move  towards  zero-emission  vehicles  in 
cities and for creating a market for such vehicles. 

Addressing the costs of climate policies for energy-intensive users 

State  aid  policy  also  addresses  the  cost  that  ambitious  climate  policies  create  for  energy- 
intensive users and allows Member States to alleviate EU industries’ loss of  competitiveness 
resulting from such costs.  

In 2019, the Commission approved five schemes in Belgium, Lithuania, Poland, Slovakia and 

169   Case AT.50054 – Abengoa Alcogroup. 
170   See: https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6705. 
171   IPCEIs are large cross-border, integrated projects that often entail significant risks, which private investors are not willing to take on by 
themselves. In such cases, public support from several EU Member States may be necessary to fill the financing gap to overcome market 
failures and allow such projects to see the light of day. Crucially, these projects must generate positive spillover effects across the entire 
EU, not limited to the participating countries. 

172   Case M.8870 E.ON/INNOGY, Commission decision of 17 September 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8870. 

173   Budget increase and prolongation of scheme SA.48190 (2017/N) Germany - Support scheme for the acquisition of electric buses for  

urban public transport, Commission decision of 26 February 2018. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_48190. 

174   SA.53054 Scheme for retrofitting heavy municipal vehicles, SA.53055 Scheme for retrofitting heavy commercial vehicles and SA.53056  

Scheme for retrofitting light commercial and municipal vehicles. Germany notified an amendment to those schemes, which the  
Commission approved on 25 October 2019 under SA.55230, SA.55231 and SA.55232. The amendment introduced, inter alia, more  
flexible concept of eligible municipalities. 

47 

 
                                                           
 
 
 
 
 
 
Slovenia,  which  partially  exempt  energy-intensive  users  from  electricity  charges  aimed  at 
financing  renewables  or  combined  heat  and  power  support  schemes.  Furthermore,  the 
Commission  opened  a  formal  investigation  into  Poland’s  plan  to  partially  exempt  energy- 
intensive users from the charges used to finance the energy capacity mechanism introduced in 
2018.  

Reduction of environmental emissions 

On 5 April 2019, the Commission sent a Statement of Objections to BMW, Daimler and VW 
(Volkswagen, Audi, Porsche) informing them of its preliminary view that they have breached 
EU antitrust rules from 2006 to 2014 by colluding to restrict competition on the development 
of technology to clean the emissions of petrol and diesel passenger cars.175 The Commission's 
preliminary  view  was  that  BMW,  Daimler  and  VW  participated  in  a  collusive  scheme,  in 
breach  of  EU  competition  rules,  to  limit  the  development  and  roll-out  of  emission  cleaning 
technology  for  new  diesel  and  petrol  passenger  cars  sold  in  the  EEA.  If  confirmed,  the  car 
manufacturers'  behaviour  aimed  at  restricting  competition  on  innovation  for  two  types  of 
emission  cleaning  systems  and  in  doing  so,  denied  consumers  the  opportunity  to  buy  less 
polluting cars, despite the technology being available to the manufacturers. The collusion is 
suspected  to  have  occurred  in  the  framework  of  the  car  manufacturers'  “circle  of  five” 
technical meetings. 

On  26  September  2019,  the  Commission  approved  a  Czech  scheme  providing  aid  to 
installations  generating  electricity  from  waste  heat  and  from  mining  gases.176  The  scheme 
contributes  to  resource  efficiency  by  reducing  the  consumption  of  primary  energy  sources 
used  for  electricity  production.  Furthermore,  without  their  utilisation  for  the  production  of 
electricity, the energy potential of both mining gases and waste heat would remain unused and 
by-products of other economic activities (in particular mining and industrial processes) would 
be released in the atmosphere. Moreover, on 25 November 2019 the Commission approved a 
scheme  supporting  the  construction  and  operation  of  a  high-efficient  cogeneration  plant  in 
Bulgaria.177 The plant will produce heat and electricity using fuel derived from unrecyclable 
municipal waste.  

Ensuring reliable energy supplies 

Capacity mechanisms are measures taken by Member States to ensure that electricity supply 
can  match  demand  in  the  medium  and  long  term.  Capacity  mechanisms  are  designed  to 
support investment to fill expected capacity gaps and ensure security of supply. Typically, on 
top  of  income  obtained  by  selling  electricity  on  the  market,  capacity  mechanisms  offer 
capacity providers additional rewards in return for maintaining existing capacity or investing 
in new capacity needed to guarantee security of electricity supply.  

However,  capacity  mechanisms  cannot  substitute  electricity  market  reforms  at  national  and 
EU  levels.  The  new  electricity  market  regulation178  requires  Member  States  planning  to 
introduce  capacity  mechanisms  to  present  a  market  reform  plan  to  address  regulatory  and 
other  failures  that  undermine  investment  incentives  in  the  electricity  sector.  The  regulation 

175   https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2008.  
176   Case SA.35179 Czech Republic – Promotion of electricity from secondary sources, Commission decision of 26 September 2019, see: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35179. 

177   Case SA.54042 Sofia waste-to-energy project/ cogeneration unit with recovery of energy from RDF- Bulgaria, Commission decision of 

25 November 2019, see: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54042. 

178   Regulation (EU) 2019/943 of the European Parliament and the Council of 5 June 2019 on the internal market for electricity, OJ L 158,  

14.06.2019, p.54. 

48 

 
                                                           
 
will  also  prevent  high-emission  generation  capacity  from  participating 
mechanisms. 

in  capacity 

In 2019, the Commission issued two decisions related to capacity mechanisms in Italy179 and 
the  UK,180  which  take  into  account  the  provisions  of  the  electricity  market  regulation  on 
capacity mechanisms. 

Italy decided to implement the CO2 emission limits prescribed by the regulation before they 
become  compulsory.  Moreover,  Italy  introduced  measures  aimed  at  fostering  new  entry  to 
allow  greener  generation  capacity  and  other  technologies,  such  as  demand  response  and 
storage,  to  gradually  replace  existing  and  more  polluting  power  plants.  The  Commission 
concluded that the measure would continue to ensure security of supply and further increase 
the  level  of  environmental  protection  without  unduly  distorting  competition  in  the  Single 
Market.  

In  addition,  the  Commission  assessed  a  number  of  improvements  to  the  UK  capacity 
mechanism for the future, considering recent market and regulatory developments (including 
the  entry  into  force  of  the  new  electricity  market  regulation),  and  other  issues  identified 
during the UK's five-year review of the capacity market. These improvements include notably 
the lowering of the minimum-capacity threshold for participating in the auctions, the access to 
long-term contracts to all capacities meeting certain investments thresholds, as well as direct 
participation of foreign capacity. The British capacity mechanism originally received State aid 
clearance  in  2014.  In  2018,  the  General  Court  annulled  the  2014  Commission  decision  on 
procedural grounds. The Commission appealed the General Court's judgment, but this appeal 
did not suspend the effects of the ruling. In order to give effect to the judgment and since the 
UK  expressed  its  intention  to  maintain  the  scheme,  the  Commission,  in  February  2019, 
opened an in-depth investigation to reassess the compatibility of the scheme with EU State aid 
rules.  The  Commission's  investigation  confirmed  that  the  British  Capacity  Market  scheme 
complies with EU State aid rules.  

Finally, in 2019 the Commission adopted three decisions concerning aid measures granted to 
LNG terminals in Croatia,181 Lithuania182 and Poland183, which will greatly contribute to the 
security and diversification of gas supplies in the EU.  

Effective competition in energy markets 

The  objective  of  competition  law  enforcement  in  the  energy  sector  is  to  strengthen  and 
integrate  the  principles  outlined  in  sector-specific  regulation  to  create  a  well-functioning 
unified market, where energy can be exchanged freely and securely across the EU, and where 
all related services are provided at competitively. 

In 2019, antitrust  enforcement in  the energy sector focused on the further investigation of a 
range  of  cases,  as  well  as  monitoring  the  implementation  of  commitments  in  a  number  of 
cases adopted in 2018. 

179   Case: SA.53821 (2019/N) Italy - Modification of the Italian capacity mechanism, Commission decision of 21 March 2019. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53821.  

180   Case: Aid SA.35980 (2018/C) United Kingdom - Electricity Market Reform: Capacity Mechanism Commission decision of 15 March 

2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35980. 

181   Case SA.51983 Krk LNG Terminal/Croatia, Commission decision of 31 July 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51983. 
182   Case SA.53074 Klaipėda LNG terminal, Commission decision of 19 September 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53074. 

183   Case SA. 50905 Extension of the LNG Terminal in Swinoujscie, Commission decision of 18 March 2019. 

49 

 
 
 
                                                           
 
 
The  Commission  further  assessed  commitments  proposed  by  Transgaz,  the  Romanian  gas 
network  operator  to  ensure  that  commercially  meaningful  capacities  of  gas  produced  in 
Romania  could  be  freely  exported  to  other  Member  States.184  The  commitments,  originally 
proposed and market tested in 2018, aim to address the Commission’s concerns that Transgaz 
hindered  the  free  flow  of  natural  gas  from  Romania  to  other  Member  States.  Romania  has 
considerable  gas  production  and  is  centrally  located  in  the  region.  The  Commission 
preliminary concluded in 2018 that Transgaz’ behaviour may have artificially segmented the 
internal market in contravention of Article 102 TFEU. 

Competition  enforcement  in  2019  also  focused  on  ensuring  that  all  market  players  can 
compete  on  fair  and  equal  terms  and  that  alternative  suppliers  are  not  subject  to  abusive 
conduct  by  incumbent  operators.  State-owned  energy  provider  Bulgarian  Energy  Holding 
(BEH),  active  in  the  gas  supply  market  and  controlling  the  Bulgarian  gas  transmission 
network, was fined for blocking competitors' access to key gas infrastructure in  Bulgaria.185 
The aim of the Commission’s intervention was to enable competitors to  enter the Bulgarian 
gas  supply  market  and  compete  with  BEH,  bringing  gas  prices  down  and  ensuring  the 
integration of the Bulgarian gas market with neighbouring markets. On 1 March 2019, BEH 
appealed against the Commission decision.186 The proceedings before the General Court are 
pending. 

In the LNG markets case187, the Commission opened a  formal investigation in June 2018 to 
assess whether the long-term agreements of Qatar Petroleum, the largest supplier of LNG to 
the  EU,  contain  territorial  restrictions.  Whilst  LNG  cargos  can  in  theory  move  freely  on  a 
world-wide  basis,  the  Commission  continues  to  investigate  whether  market  segmentation 
occurs that could prevent the full use of LNG terminals.  

In  the  electricity  markets,  issues  arose  in  particular  with  regard  to  the  curtailment  of 
interconnector  capacity  for  cross-border  flows  following  increased  domestic  electricity 
production from renewable sources. This was addressed in the decision adopted in the DE-DK 
Interconnectors case late in 2018,188 which required the German network operator TenneT to 
enable imports of electricity from Denmark into Germany via interconnectors linking the two 
countries.  In  2019,  the  Commission  monitored  the  implementation  of  the  commitments 
guaranteeing that 75% of the electricity interconnectors’ capacity are available for trade.  

The energy sector has also seen intense mergers and acquisition activity in 2019. In the case 
RWE/E.ON  Assets,189  the  Commission  examined  the  competitive  impact  of  RWE’s 
acquisition  of  the  majority  of  E.ON's  renewable  and  nuclear  generation  assets  (as  well  as  a 
16.67% minority interest in E.ON) on the market for electricity generation in Germany. The 
transaction  was  ultimately  considered  as  unproblematic  because  the  additional  generation 
capacity acquired by RWE was limited in scope and largely composed of nuclear assets which 
are due to be decommissioned by 2022. 

184   Case AT.40335 Romanian gas interconnectors, Commission decision of 1 June 2017. See: 

https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1501. 

185   Case AT.39849, BEH Gas. For further information see IP/18/6846, Commission decision of 17 December 2018. See:  

https://ec.europa.eu/commission/presscorner/detail/fr/IP_18_6846.  

186   Case AT.39849 BEH gas. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39849. 
187   Case AT. 40416 LNG supply to Europe, Commission decision of 21 June 2018. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40416. 

188   Case AT. 40461 DE/DK Interconnector, For further information see IP/18/6722 of 7 December 2018. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40461. 

189   Case M.8871 RWE/E.ON Assets, Commission decision of 26 February 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8871. 

50 

 
                                                           
 
 
 
The  RWE/E.ON  Assets  case  was  part  of  a  complex  asset  swap  where,  in  exchange  for  its 
generation assets, E.ON acquired Innogy,190 an RWE subsidiary active in the distribution and 
retail  sales  of  gas  and  electricity.  The  Commission  reviewed  the  proposed  merger,  which 
could  potentially  have  lessened  competition  in  a  number  of  Member  States.  To  obtain  the 
Commission’s  approval,  E.ON  committed  to  divest  some  of  its  energy  retail  businesses  in 
Czechia, Germany and Hungary. These commitments will preserve competition and ensure a 
genuine choice and fair energy prices for households as well as businesses. 

On 7 August 2019, the Commission opened an in-depth investigation to assess the proposed 
acquisition  of  Grupa  Lotos  by  PKN  Orlen191  under  the  EU  Merger  Regulation.  The 
Commission is concerned that the merger may reduce competition in the supply of fuels and 
related markets in Poland and neighbouring countries. PKN Orlen and Grupa Lotos are two 
large Polish integrated oil and gas companies. They are both mostly active in Poland, where 
they own the only two existing refineries, but they also have activities in several other Central 
and Eastern European countries as well as in the Baltic states. 

2. 

INFORMATION AND COMMUNICATION TECHNOLOGIES AND MEDIA 

Overview of key challenges in the sector 

In 2019, competition policy enforcement continued to contribute to the implementation of the 
Digital  Single  Market  Strategy192  by  carrying  out  a  number  of  investigations  in  the 
information, communication and media sectors. 

Contribution of EU competition policy to tackling the challenges  

Addressing restrictions to cross-border and online sale of goods and digital products 

On 5 April 2019, the Commission addressed a Statement of Objections to Valve –  owner of 
Steam,  the  world's  largest  PC  video  game  distribution  platform  –    and  five  PC  video  game 
publishers – Bandai Namco, Focus Home, Koch Media, Capcom and ZeniMax – concerning 
potentially  illegal  bilateral  agreements.193  The  Commission  is  concerned  that  Valve  and  the 
five  PC  video  game  publishers  agreed,  in  breach  of  EU  antitrust  rules,  to  use  geo-blocked 
activation  keys  to  prevent  cross-border  sales,  including  in  response  to  unsolicited  consumer 
requests (so-called passive sales) of PC video games from several Member States (that is to 
say  Czechia,  Estonia,  Hungary,  Latvia,  Lithuania,  Poland,  Slovakia,  and  in  some  cases 
Romania).  These  agreements  may  have  prevented  consumers  from  buying  cheaper  games 
available  in  other  Member  States.  In  addition,  four  of  the  video  game  publishers  may  have 
infringed  EU  competition  rules  by  including  contractual  export  restrictions  in  their 
agreements with a number of distributors other than Valve. These distributors were prevented 
from selling the relevant PC video games outside the allocated territories, which could cover 
one or more Member States. These practices may have prevented consumers from purchasing 
and  playing  PC  video  games  sold  by  these  distributors  either  on  physical  media,  such  as 
DVDs or through downloads. 

190   Case M.8870 E.ON/INNOGY, Commission decision of 17 September 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8870. 

191   Case M.9014 PKN ORLEN/GRUPA LOTOS. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9014. 

192   Communication of 6 May 2015 from the Commission to the European Parliament, the Council, the European Economic and Social  

Committee and the Committee of the Regions, A Digital Single Market Strategy for Europe, COM(2015)192 final. See: 
https://ec.europa.eu/digital-single-market/en/news/digital-single-market-strategy-europe-com2015-192-final. 

193   Cases AT.40413 - Focus Home, AT.40414 - Koch Media, AT.40420 - ZeniMax, AT.40422 - Bandai Namco and AT.40424 - Capcom. 

See: https://europa.eu/rapid/press-release_IP-19-2010_en.htm.  

51 

 
                                                           
 
 
 
On 17 July 2019, the Commission  opened a formal antitrust  investigation to  assess whether 
Amazon's  use  of  sensitive  data  from  independent  retailers  who  sell  on  its  marketplace  is  in 
breach  of  EU  competition  rules.194  Amazon  has  a  dual  role  as  a  platform:  (i)  the  company 
sells products on its website as a retailer; and (ii) it provides a marketplace where independent 
sellers  can  sell  products  directly  to  consumers.  When  providing  a  marketplace  for 
independent  sellers,  Amazon  continuously  collects  data  about  the  activity  on  its  platform. 
Based  on  the  Commission's  preliminary  fact-finding,  Amazon  appears  to  use  competitively 
sensitive  information  about  marketplace  sellers,  their  products  and  transactions  on  the 
marketplace. The Commission is currently carrying out its in-depth investigation as a matter 
of priority to determine whether there has been a breach of EU competition rules by Amazon. 

In  March  2019,  the  Commission  fined  Nike  EUR  12.5  million  for  preventing  traders  from 
selling merchandising products (e.g. mugs, clothing, etc.) carrying logos or images of some of 
the EU's best-known football clubs and federations to other countries within the EEA.195 In its 
investigation,  the  Commission  found  that  Nike's  non-exclusive  licensing  and  distribution 
agreements breached EU competition rules, among other things, because of clauses explicitly 
prohibiting  active  and  passive,  online  and  offline,  sales  to  EEA  countries  not  specifically 
allocated to the licensees. Nike also enforced certain measures to indirectly implement those 
sales  restrictions,  for  instance  by  threatening  licensees  with  ending  their  contract  and  by 
carrying out audits to ensure compliance with the restrictions.  

In July 2019, Sanrio was fined EUR 6.2 million for restrictions concerning products featuring 
Hello Kitty and other characters owned by the company.196 Sanrio used a similar but distinct 
combination  of  direct  and  indirect  measures  to  restrict  cross-border  sales.  Notably,  Sanrio 
limited the languages licensees could use on the merchandising products. 

The Nike and Sanrio  decisions  confirm  that, in  principle, non-exclusive licensees  cannot  be 
prevented from selling licensed products in a different country. Consumers should be able to 
shop around the EEA for the best deals. Nike and Sanrio both acknowledged their respective 
infringements  and  to  a  large  extent  cooperated  with  the  Commission  beyond  their  legal 
obligation to do so. The cooperation led to a 40% reduction of their respective fines. A third 
investigation, also launched in 2017, concerning the licensing practices of Universal Studios, 
owner  of  among  others  the  rights  for  the  Minions  and  Jurassic  World  film  series,  was 
concluded by a decision fining NBC Universal EUR 14.3 million for contractual restrictions 
in  non-exclusive  licensing  agreements  regarding  the  sale  of  merchandise  products  featuring 
NBC Universal’s films.197 

The pay-TV investigation, opened in 2014, was closed in 2019.198 The investigation related to 
certain  contractual  clauses  in  the  licensing  agreements  concluded  between  Sky  UK  and  six 
major  film  studios  (Disney,  Fox,  Paramount,  NBC  Universal,  Sony  and  Warner  Bros).  In  a 
Statement  of  Objections  addressed  to  Sky  and  the  six  Hollywood  film  studios  in  2015,  the 
Commission  took  the  preliminary  view  that  such  clauses  restricted  Sky  UK's  (and  in  some 

194   Case AT.40462 - Amazon Marketplace, Commission decision of 17 July 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40462. 

195   Case AT.40436 Ancillary sports merchandise - Nike, Commission decision of 25 March 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40436.  

196   Case AT.40432 Licensed Merchandise - Sanrio. , Commission decision of 9 July 2019. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40432. 

197   Case AT.40433 Licensed merchandise Universal Studios, Commission decision of 25 March 2019. See: 

https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1646. 

198   Case AT. 40023 Cross-border access to pay-TV - NBC Universal / Paramount Pictures C / SKY (UK) / Sony Pictures Entertainment / 
The Walt Disney Company / Twentieth Century Fox Int Ltd / Warner Bros Entertainment UK Ltd, Commission decision of 7 March 
2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40023. 

52 

 
 
 
                                                           
 
 
cases  other  broadcasters')  ability  to  accept  unsolicited  requests  from  consumers  located 
outside the UK and Ireland and, therefore, violate EU antitrust rules. 

In 2016, Paramount offered commitments, which the Commission accepted and made legally 
binding in the same year. The commitments provide that throughout the EEA Paramount shall 
remove  the  contractual  restrictions  from  existing  pay-TV  licensing  agreements  and  not 
(re)introduce them for a period of at least five  years. Canal+, a French pay-TV broadcaster, 
appealed against this decision. In December 2018, the General Court199 dismissed the appeal 
and held that the Commission acted within the limits of Article 9 of Regulation 1/2003 and 
that  the  Commission’s  decision  respected  the  principle  of  proportionality.  Furthermore,  the 
General  Court  concluded  that  the  passive  sales  restrictions  in  Paramount’s  licensing 
agreements  constituted  competitive  restrictions  by  object.  According  to  the  judgment,  the 
removal  of  these  restrictions  is  consistent  with  the  essential  EU  objective  of  creating  an 
internal market. In February 2019, Canal+ appealed the judgment of the General Court. The 
proceedings before the Court of Justice are pending. 

In November  and December 2018, Sky UK and four US  film  studios, namely  Disney,  NBC 
Universal, Sony, and  Warner Bros., also  offered commitments  to address  the Commission’s 
concerns.  Like  in  the  Paramount  commitments,  the  five  companies  offered  to  remove 
throughout  the  EEA  the  contractual  restrictions  from  existing  pay-TV  licensing  agreements 
and not to (re)introduce them for a period of five years. The commitments cover all future and 
current subsidiaries of the companies concerned200. On 7 March 2019, after having conducted 
a market test, the Commission adopted a decision making the commitments legally binding on 
Sky, Disney, NBC Universal, Sony, and Warner Bros201. Following the completion of Fox’s 
acquisition by Disney, on 20 March 2019, Fox is bound by the commitments as well. 

Antitrust enforcement in technology markets 

The  Commission’s  actions  in  technology  markets  aim  to  keep  markets  competitive,  and 
maximise incentives to innovate. 

199   Case T-873/16 Groupe Canal + v Commission, judgment of 12 December 2018, ECLI:EU:T:2018:904. See:  

http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-873/16. 

200   Notably, Disney's commitments cover its future subsidiary Fox. The Commission approved Disney's acquisition of Fox on 6 November  

2018. See: http://europa.eu/rapid/press-release_IP-18-6312_en.htm. 
201   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1590. 

53 

 
 
 
 
 
                                                           
 
 
The Google Search (AdSense) case 

On 20 March 2019, the Commission fined Google EUR 1.49 billion for breaching EU antitrust rules.202 Google 
abused its market dominance by imposing a number of restrictive clauses in contracts with third-party websites 
("publishers") which prevented Google’s rivals from placing their search adverts on these websites. 

Through  AdSense  for  Search,  Google  provides  search  adverts  to  owners  of  “publisher”  websites,  such  as 
newspaper  websites,  blogs  or  travel  sites  aggregators.  Google  is  an  intermediary,  like  an  advertising  broker, 
between  advertisers  and  owners  of  publisher  websites  that  want  to  profit  from  the  space  around  their  search 
results pages. Therefore, AdSense for Search works as an online search advertising intermediation platform. 

Google is by far the strongest player in online search advertising intermediation in the EEA, with a market share 
above  70%  from  2006  to  2016.  In  2016  Google  also  held  market  shares  generally  above  90%  in  the  national 
markets for general search and above 75% in most of the national markets for online search advertising, where it 
is present with its flagship product, the Google search engine, which provides search results to consumers. 

It  is  not  possible  for  competitors  in  online  search  advertising  such  as  Microsoft  and  Yahoo  to  sell  advertising 
space  in  Google’s  own  search  engine  results  pages.  Therefore,  third-party  publisher  websites  represent  an 
important entry point for these other suppliers of online search advertising intermediation services to grow their 
business and try to compete with Google. 

Google's  provision  of  online  search  advertising  intermediation  services  to  the  most  commercially  important 
publishers  took  place  via  agreements  that  were  individually  negotiated.  Following  an  in-depth  analysis  of 
hundreds of such agreements, the Commission concluded that Google infringed EU competition law by abusing 
its dominant position in the market for online search advertising intermediation in the EEA by: 

a) requiring publishers not to source online search ads from Google's competitors ("exclusivity"); 

b) requiring publishers to reserve the most prominent space on their search results pages for a minimum number 
of  search  ads  from  Google  and  preventing  them  from  placing  competing  search  ads  above  or  next  to  Google 
search ads ("premium placement/minimum Google ads"); 

c) requiring publishers to obtain Google's approval before making any change to the display of competing search 
ads ("authorising equivalent ads"). 

Based  on  a  broad  range  of  evidence,  the  Commission  found  that  Google's  conduct  harmed  competition  and 
consumers,  and  stifled  innovation.  Google’s  rivals  were  unable  to  grow  and  offer  alternative  online  search 
advertising  intermediation  services  to  those  of  Google.  As  a  result,  owners  of  publisher  websites  had  limited 
options for monetizing space on these websites and were forced to rely almost solely on Google. 

Google  ceased  the  illegal  practices  a  few  months  after  the  Commission  issued  in  July  2016  a  Statement  of 
Objections concerning this case. The decision requires Google to, at a minimum, stop its illegal conduct, to the 
extent  it  has  not  already  done  so,  and  to  refrain  from  any  measure  that  has  the  same  or  equivalent  object  or 
effect. 

The  Commission  also  continued  monitoring  compliance  with  its  decisions  in  the  Google 
Android203 and Google Search (Shopping)204 cases. Moreover, the Commission continued to 
investigate  the  other  vertical  cases  concerning  the  company,  Google  Local205  and  Google 
Jobs.206 

The Commission’s decision in the Google Search (Shopping) case required  Google to apply 
the same processes and methods to position and display rival comparison shopping services in 

202   Case AT.40411 Google Search (AdSense), Commission decision of 20 March 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40411. 

203   Case AT.40099 Google Android, Commission decision of 18 July 2018. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40099. 
204   Case AT.39740 Google Search (Shopping), Commission decision of 27 June 2017. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39740. 

205   Case AT.40585 Google Local.  
206   Case AT.40592 Google Jobs. 

54 

 
                                                           
 
 
 
Google's search results pages as for its own comparison shopping service. To comply with the 
decision, Google put in  place a mechanism where the Shopping Unit displayed on Google's 
general search  results pages is  maintained and both  rival  comparison shopping services and 
Google Shopping Europe are allowed to participate in the Shopping Unit based on an auction 
mechanism. Google Shopping now also holds separate accounts in Europe.  

The take-up of the compliance mechanism has substantially increased. In June 2018, only one 
third  of  Shopping  Units  included  at  least  one  of  rival  comparison  shopping  service,  and 
around 6% of clicks in the Unit went to one of those rivals. In November 2019, about 81% of 
Shopping Units include at least one of rival comparison shopping services, and about 46% of 
clicks go to one of those rivals. Google also implemented several changes aimed at improving 
the effectiveness of the mechanism. The company tightened the conditions for participating in 
the auction, to require comparison shopping services to have a sufficient range of merchants, 
and a set of core comparison functions.  

Another  important  issue  with  the  compliance  mechanism  raised  by  market  participants  was 
that it did not give sufficient prominence to the comparison function of comparison shopping 
services.  As  the  most  prominent  links  in  the  Shopping  Unit  lead  directly  to  the  websites  of 
merchants, rival comparison shopping services had difficulties to show their main benefit to 
users. To address this, and preserve the incentives of merchants to work with rivals, Google 
introduced  a  comparison  shopping  toggle  in  the  Shopping  Unit,  which  allows  switching 
between links going to websites of merchants and links going to websites of rival comparison 
shopping services.  

The Commission is also monitoring compliance with the decision in the Google Android case 
in  relation  to  a choice screen  for search engines and browsers on Android  devices.  In April 
2019, Google implemented a choice screen for existing devices, shown to users the first time 
they  open  the  Play  Store,  allowing  the  user  to  install  additional  search  and  browser  apps. 
Later in 2019 Google announced that, as of 1 March 2020, it will put in place a choice screen 
for  new  devices  that  will  let  consumers  choose  which  search  provider  they  want  on  their 
Android phone. The consumer’s selection will replace Google Search on key entry points on 
the mobile phone. 

The Commission’s experience shows that a choice screen can be an effective way to ensure 
competition.  In  the  Google  Android  case,  it  would  have  the  potential  to  give  users  a  real 
choice  of  how  they  search  on  Android  devices  and  to  allow  Google’s  rivals  to  be  chosen 
upfront by users in cases where Google has been pre-installed on a smart mobile device. The 
Commission will continue to actively monitor Google’s compliance with the decision. 

Antitrust enforcement in the telecommunications sector 

On 18 July 2019, the Commission fined Qualcomm EUR 242 million for abusing its dominant 
position in the worldwide market for UMTS (so-called 3G) compliant chipsets, in breach of 
EU antitrust rules.207 In the decision, the Commission established that between mid-2009 and 
mid-2011, Qualcomm supplied certain quantities of three of its UMTS chipsets to two of its 
key  customers,  Huawei  and  ZTE,  below  long-run  average  incremental  costs  (LRAIC),  with 
the  intention  of  eliminating  Icera.  Icera  was  a  UK-based  start-up  and  Qualcomm’s  main 
competitor  at  the  time  in  the  relevant  segment  of  the  UMTS  chipset  market.  The 

207   Case AT. 39711 Qualcomm (predation), Commission decision of 18 July 2019. See: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39711. 

55 

 
 
                                                           
Commission's  findings  were  based  on  the  so-called  AKZO  II-test208,  according  to  which 
prices above average variable cost but below average total cost are anticompetitive if they are 
part of a plan to eliminate a competitor. 

The Commission’s investigation confirmed the existence of predatory sales on the basis of (i) 
a  price-cost  test  based  on  prices  effectively  paid  by  Huawei  and  ZTE  as  well  as  a  cost 
benchmark  based  on  LRAIC,  and  (ii)  contemporaneous  internal  evidence  demonstrating 
Qualcomm’s  exclusionary  intent  vis-à-vis  Icera.  The  internal  evidence  showed  that 
Qualcomm’s  predatory  pricing  practices  took  place  when  Icera  was  increasing  its  market 
traction as a viable supplier of UMTS chipsets. Qualcomm’s predatory sales were targeted at 
two  strategically  important  customers,  Huawei  and  ZTE.  The  predation  also  aimed  at 
protecting  Qualcomm’s  strong  position  in  the  high-volume  segment  of  chipsets  for  use  in 
mobile phones, which Icera was planning to enter once it had gained a foothold in the market. 
The Commission concluded that Qualcomm did not provide a valid objective justification or 
efficiency defence for its conduct. 

The Broadcom case 

On 16 October 2019, the Commission issued a decision pursuant to Article 8(1) of Regulation 1/2003 ordering 
Broadcom  to  stop  applying  certain  provisions  contained  in  agreements  with  six  of  its  main  customers. 209  The 
decision  constitutes  the  first  interim  measures  decision  since  2001  and  the  first  one  adopted  under  Regulation  
1/2003.  The  decision  concerns  systems-on-a-chip  for  TV  set-top  boxes  and  modems  located  at  customer 
premises. The Commission concluded that, prima facie, Broadcom abused its dominant position in the markets 
of  systems-on-chip  for  (i)  TV  set-top  boxes,  (ii)  fibre  modems,  and  (iii)  xDSL  modems  by  entering  into 
agreements  with  manufacturers of TV set-top boxes and  modems that contain exclusivity-inducing provisions. 
Furthermore, it concluded that serious and irreparable damage to competition would have likely materialised in 
the  absence  of  interim  measures.  In  particular,  the  Commission  concluded  that  an  urgent  intervention  was 
warranted to prevent competitors from being marginalised or exiting the markets. 

In 2019 the Commission continued its investigation into a mobile network-sharing agreement 
between the two largest  operators in  Czechia,  O2/CETIN and T-Mobile. On 7 August  2019, 
the  Commission  adopted  a  Statement  of  Objections  against  these  operators.210  The 
Commission  preliminary  view  is  that  the  network-sharing  arrangement  is  anti-competitive 
because  it  is  likely  to  remove  the  incentives  of  the  two  mobile  operators  to  improve  their 
networks and services. The Commission assessed a number of specific circumstances in the 
Czech case: (i) the Czech mobile communication market is highly concentrated with no likely 
market entry, (ii) the sharing parties are the two largest operators with their networks serving 
approximately 75% of the subscribers and (iii) the network sharing is very far-going in terms 
of  technology  covered  (2G,  3G  and  4G),  duration,  territorial  scope  (nationwide  with  the 
exception of Prague and Brno) and population covered (83%). The Commission’s preliminary 
analysis  is  in  line  with  the  principles  applied  by  the  Body  of  European  Regulators  for 
Electronic  Communications  (BEREC)  in  its  common  position  on  mobile  infrastructure 
sharing  of  13  June  2019.211  The  network  sharing  discussed  in  the  Statement  of  Objections 
does not concern the 5G technology. 

In its judgments of 28 June 2016212 the General Court confirmed the unlawfulness of the non-

208   Case C-62/86, Akzo v Commission, judgment of 3 July 1991, ECLI:EU:C:1991:286. 
209   Case AT. 40608 Broadcom, Commission decision of 16 October 2019. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40608. 
210   Case AT. 40305 Network sharing – Czechia, Commission decision of 7 August 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40305. 

211   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_5110.   
212   Cases T-208/13, Portugal Telecom SGPS, SA v Commission and T-216/13, Telefónica, SA v Commission, judgments of 28 June 2016,  

ECLI:EU:T:2016:368 and  ECLI:EU:T:2016:369. 

56 

 
                                                           
 
 
compete clause between Telefónica and Portugal Telecom (currently Pharol) and upheld the 
Commission's  reasoning  in  its  decision  of  23  January  2013.213  However,  the  General  Court 
annulled the fines. In accordance with the judgments the Commission needs to assess whether 
there were any services for which potential competition between the parties was ruled out due 
to  insurmountable  barriers  to  entry  and  exclude  these  services  from  the  calculations. 
Telefónica appealed the parts of the General Court's judgment which did not concern the fine. 
On 13 December 2017, the Court of Justice issued its judgment rejecting Telefónica's appeal, 
thereby implicitly confirming the Commission's decision. In 2019, the Commission continued 
its  investigation  started  after  the  judgment  with  the  intention  to  adopt  a  new  decision  with 
recalculated fines. 

Merger review in ICT and media  

In the telecommunications sector, the Commission cleared on 15 July 2019 the acquisition of 
DNA  by  Telenor.214  DNA  provides  mobile  and  fixed  communications  services,  broadband 
internet  services  and  TV  distribution  services  in  Finland,  while  Telenor  is  active  in  mobile 
and  fixed  telecommunications  services  and  TV  distribution  services  in  the  Nordic  region. 
There  were  very  limited  overlaps  between  the  companies'  activities  and a  number  of  strong 
players remain after the merger. The Commission did not identify any competition concerns 
regarding the vertical links between the upstream markets for wholesale international roaming 
and  wholesale  mobile  and  fixed  call  termination  services  on  the  one  hand,  and  the 
downstream markets for retail mobile and fixed telecommunications services on the other. 

The Commission approved on 18 July 2019, after an in-depth investigation, the acquisition by 
Vodafone  of  Liberty  Global's  cable  business  in  Czechia,  Germany,  Hungary  and  Romania, 
subject  to  remedies.215  Vodafone  and  Liberty  Global's  subsidiary  (Unitymedia)  offer  fixed 
broadband  services  in  Germany  based  on  their  own  non-overlapping  cable  networks. 
Vodafone  also  serves  areas  served  by  Unitymedia,  via  wholesale  access  to  Deutsche 
Telekom's  network  and  the  transaction  would  have  eliminated  that  important  competitive 
constraint.  In  addition,  the  merged  entity's  increased  market  power  could  have  hindered  the 
TV broadcasters' position, leading to quality degradation of the TV offer to final viewers in 
Germany and hindering the broadcasters' ability to provide additional, innovative services and 
advanced functionalities. To address these concerns, Vodafone committed to grant  Telefónica 
access to the merged entity's cable network in Germany. Moreover, Vodafone committed not 
to  contractually  restrict  the  possibility  for  broadcasters  to  distribute  their  content  via 
streaming over the internet (known as over-the-top or OTT services), not to increase the feed-
in  fees  paid  by  Free-to-Air  (FTA)  broadcasters  for  the  transmission  of  their  linear  TV 
channels  via  Vodafone's  cable  network  in  Germany.  Finally,  Vodafone  committed    to 
continue  carrying  the  Hybrid  Broadcast  Broadband  TV-signals  (HbbTV)  signal  of  FTA 
broadcasters.  This  signal  allows  TV  customers  to  directly  connect  to  the  broadcasters' 
interactive services.  

On 20 August 2019, the Commission cleared the acquisition of Kathrein's antenna and filter 
assets by Ericsson.216 Kathrein is a global provider of communication technologies solutions 

213   Case AT. 39839 Telefónica/Portugal Telecom, Commission decision of 23 January 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39839. 

214   Case M.9370 Telenor / DNA, Commission decision of 15 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9370. 

215   Case M.8864 Vodafone / Certain Liberty Global Assets, Commission decision of 18 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8864. 

216   Case M.9332 Ericsson / Kathrein Antenna and Filter Assets, Commission decision of 20 August 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9332.  

57 

 
                                                           
 
 
 
 
while Ericsson is a global provider of network equipment and software, as well as services for 
network  and  business  operations.  The  transaction  raised  no  competition  concerns  neither  in 
relation  to  the  bundling  of  passive  antennas  and  filters,  and  radio  access  network  (RAN) 
equipment  to  mobile  network  operators,  nor  in  relation  to  the  supply  of  antenna  modules 
procured by RAN equipment suppliers.  

In the  IT sector, on 27 June 2019, the Commission approved the acquisition of  Red Hat by 
IBM,  both providers of IT solutions to business customers.217 Red Hat's main activities relate 
to open-source software and support services. IBM is active in a wide variety of IT solutions, 
namely  enterprise  IT  software,  hardware  and  services.  The  Commission  found  that  the 
merged  entity  would  continue  to  face  significant  competition  from  other  players  on  the 
markets  for  middleware  and  system  infrastructure  software.218  Moreover,  the  Commission 
concluded that there would be no risk that the merged entity would shut out or marginalise its 
competitors  by  bundling  or  degrading  interoperability  with  Red  Hat's  flagship  product  Red 
Hat  Enterprise  Linux.  The  Commission  found  that  any  strategies  by  the  merged  entity  to 
degrade  access  to  Red Hat's  source  code  and/or  influence  the  development  of  specific  open 
source  projects  would  trigger  strong  adverse  counter-reactions  from  the  open  source 
community  of  developers  that  would  negatively  affect  Red  Hat's  products.  Finally,  IBM's 
intention  to  use  Redd  Hat’s  the  complementary  capabilities  further  develop  and  offer  open 
hybrid cloud solutions would increase choice for enterprise customers who could more easily 
shift workloads between on-premise servers and multiple public and private clouds. 

On  30  October  2019,  the  Commission  approved  the  acquisition  of  Symantec's  Enterprise 
Security  Business  (SESB)  by  Broadcom.219  SESB  offers  a  mix  of  products,  services  and 
solutions  to  provide  enterprises  with  advanced  threat  protection  and  information  protection. 
Broadcom  is  a  technology  company  that  designs,  develops  and  supplies  a  broad  range  of 
semiconductors as well as infrastructure software solutions. The Commission concluded that 
the  proposed  acquisition  would  not  raise  any  competition  concerns  given  the  limited 
horizontal  overlaps  between  the  merging  firms’  activities.  The  Commission  excluded  any 
competition  concerns  arising  from  vertical  or  conglomerate  relationships  between  the 
companies.  

On  19  December  2019,  the  Commission  cleared  the  acquisition  of  Mellanox  by  NVIDIA.220 
Mellanox  supplies  network  interconnect  products  and  solutions  that  facilitate  efficient  data 
transmission  within  datacentres,  based  on  the  Ethernet  and  InfiniBand  protocols.  NVIDIA 
supplies  visual  computing  based  on  graphics  processing  unit  (GPU),  as  well  as  accelerated 
computing  platforms  for  gaming,  professional  visualisation,  datacentre  and  automotive 
applications.  The  Commission  concluded  that  the  proposed  acquisition  would  raise  no 
competition  concerns,  because  the  companies  mainly  supply  complementary  products  and 
they will not be able to leverage their respective positions into neighbouring markets. 

In the media sector, on 12 November 2019, the Commission authorised Telia's acquisition of 
Bonnier Broadcasting.  221 The approval is conditional on full compliance with commitments 

217   Case M.9205 IBM / Red Hat, Commission decision of 27 June 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9205. 

218   Middleware is software used for making and operating enterprise application software, i.e. business-oriented tools, such as online  

payment processing. System infrastructure software allows companies to configure, control, automate and share the use of hardware  
resources (e.g. servers) across enterprise application software. 

219   Case M.9538 – Broadcom / Symantec's Enterprise Security Business, Commission decision of 30 October 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9538. 
220   Case M.9424 – NVIDIA / Mellanox, Commission decision of 19 December 2019. See: 

https://ec.europa.eu/competition/mergers/cases/decisions/m9424_778_3.pdf. 

221   Case M.9064 – Telia Company / Bonnier Broadcasting Holding, Commission decision of 12 November 2019. See:  

58 

 
                                                           
 
 
 
 
 
offered by Telia. Following an in-depth investigation, the Commission had concerns that the 
transaction  would  have  significantly  reduced  competition  in  Finland  and  Sweden.  Telia's 
competitors in TV distribution risked being shut out from the market by not having access to 
the merged entity's free-to-air (FTA) TV channels, basic pay-TV channels, and premium pay-
TV  sports  channels.  Furthermore,  competitors  in  telecom  services  risked  being  excluded  
from  the  market  by  not  gaining  access  to  the  merged  entity's  streaming  services,  namely 
advertising  video  on  demand  (AVOD)  and  subscription  video  on  demand  (SVOD).  Finally, 
Telia’s competitors in telecom and TV distribution risked being shut out from the market by 
not gaining access to advertising space on the merged entity's TV channels. To address these 
concerns,  Telia  offered  a  package  of  commitments  applicable  in  Finland  and  Sweden.  The 
package  includes  a  commitment  to  license  free-to-air  channels,  basic  pay-TV  channels,  and 
premium pay-TV sports channels on fair, reasonable and non-discriminatory (FRAND) terms. 
Telia  also  committed  to  license  standalone  OTT  rights  to  preserve  competition  in  TV 
distribution  over  the  internet.  Finally,  Telia  committed  to  provide  access  to  the  merged 
entity's  streaming  services  for  end  users,  access  to  TV  advertising  space  for  rival  telecom 
providers and TV distributors and the protection of confidential information concerning rival 
TV broadcasters, TV distributors and telecom providers. 

State aid enforcement in ICT and media 

In  its  policy  initiative  “A  Europe  fit  for  the  digital  age”,  the  Commission  defines  digital 
developments  as one of  its main priorities for the next  Commission  mandate.222 To achieve 
technological leadership and strategic autonomy, an integrated EU-wide digital eco-system is 
necessary  for  the  Single  Market  to  deliver  its  full  benefits  for  firms  and  citizens.  In  this 
process, digital infrastructure is a key digitalisation driver. It is therefore essential to invest in 
an appropriate broadband infrastructure that meets the new needs for very high digital speeds, 
capacities,  and  quality.  The  Commission  anticipated  these  developments  in  its  “Gigabit 
Communication”223 of 2016, in which the roll-out of very high capacity networks was set as 
one of the Commission’s strategic priorities. Private funding may be expected to cover most 
investments in broadband infrastructure. Public funding will be required to ensure that rural, 
remote and other underserved areas, where private providers are unlikely to invest, can also 
benefit  from  new  technologies.  However,  it  must  be  ensured  that  public  subsidies  do  not 
crowd out private investment and that distortion of competition is limited to a minimum. 

In  2019  the  Commission  adopted  a  number  of  cases  authorising  State  aid  for  broadband 
measures224  which  take  into  account  recent  developments  and  recognise  the  need  for  very 
high capacity network infrastructure. 

3. 

FINANCIAL SERVICES 

Overview of key challenges in the sector 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9064. 

222   See: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_273. 
223   See: https://ec.europa.eu/digital-single-market/en/news/communication-connectivity-competitive-digital-single-market-towards-

european-gigabit-society. 

224   Case SA.49935 Superfast Broadband (SFBB) Project – Greece, Commission decision of 7 January 2019, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49935. Case SA.54472 National Broadband Plan – IE, 
Commission decision of 15 November 2019, available at: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54472. Case SA.53925 Broadband Scheme for NGA 
White and Grey Areas – Spain, Commission decision of 10 December 2019, available at: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53925. Case SA.54668 Bavarian gigabit scheme – DE, 
Commission decision of 29 November 2019, available at: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54668. 

59 

 
                                                                                                                                                                                     
 
EU competition policy with its three enforcement instruments – antitrust, merger and State aid 
control  – plays  an important role in  ensuring that competition  takes place on fair and equal 
terms  throughout  the  financial  sector  and  that  disruptive  technologies  are  developed  and 
applied for the benefit of consumers and businesses alike. Innovative technology should never 
be used to erect barriers in emerging markets. 

Financial services is a sector undergoing rapid and profound change. New players in financial 
services like Apple Pay have already entered payments markets and a number of companies 
providing  FinTech  services225  are  gaining  ground  in  many  areas.  Nevertheless,  established 
players  like  card  schemes  in  payments,  banks  for  deposits  and  credit  services,  as  well  as 
traditional insurers are still indispensable. In 2019, the Commission continued to ensure fair 
competition in all these markets for the benefits of consumers and businesses. 

Beyond  traditional  financial  services,  disruptive  change  may  be  just  around  the  corner. 
Although some of the entries of digital enterprises in the financial services markets may have 
positive effects for competition in the internal market, important risks may arise. To this end, 
the  Commission  has  started  investigations  into  possible  anti-competitive  conduct  related  to 
restrictions on key technologies on mobile devices crucial for new digital payment solutions. 
Key concerns relate to the possibility of large technology companies that could use their data-
based  market  power  in  some  markets  to  act  as  gate  keepers  restricting  access  for  potential 
competitors in emerging markets.  

The development of cryptocurrencies and the announcement by Facebook and others of plans 
to  develop  a  new  private  digital  currency  (Libra  stablecoins)  raises  a  number  of  regulatory 
challenges,  including  possible  competition  issues.  DG  Competition  is  therefore  closely 
analysing  developments  in  this  area,  and  works  in  cooperation  with  other  services  of  the 
Commission to make sure that new technologies will be used for the benefit of all citizens and 
businesses and without jeopardising financial stability.  

While  new  entrants  challenged  established  players,  the  banking  sector  in  the  EU  stabilised 
further in 2019. The implementation of the legislative initiatives to increase financial stability, 
including  the  gradual  phase-in  of  minimum  requirement  for  banks’  own  funds  and  eligible 
liabilities (MREL),226 is ongoing and capital buffers of banks are generally increasing, but the 
process will only be fully completed in a few years’ time. 

Banks have to  cope with a variety  of challenges. On top  of new competitors and disruptive 
technologies,  profitability  in  the  sector  is  still  low  and  many  players  are  affected  by  the 
current  interest  rate  environment  and  tight  margins.  In  some  Member  States,  high  levels  of 
non-performing  loans  (NPL)  are  also  still  an  issue  for  certain  banks.  The  Commission  has 
constructively  worked  with  several  Member  States  in  developing  solutions  and  has  taken 
several  decisions  to  improve  the  situation  while  at  the  same  time  minimising  potential 
negative impact on competition. However, NPL levels are still not back to pre-crisis levels in 
all Member States. 

The further stabilisation of the banking sector can also be derived from the fact that Member 
States  are  increasingly  working  towards  market-conform  solutions  for  banks  with  capital 
needs.  The  Commission  has  to  remain  neutral  as  regards  ownership  and  as  long  as 

225   Fintech refers to the integration of technology into offerings by financial services companies to improve their use and delivery to 

consumers. Fintech primarily works by unbundling offerings by such firms and creating new markets for them. 

226   Directive 2014/59/EU of the European Parliament and the Council of 15 May 2014 establishing a framework for the recovery and 

resolution of credit institutions and investment firms OJ, L 173/190, 12.6.2014 (“BRRD”). 

60 

 
                                                           
 
transactions  are  conducted  in  line  with  normal  market  practice  no  State  aid  issues  arise. 
Economic activities of Member States that do not provide a selective advantage to individual 
players do not raise competition concerns. Overall, the application of State aid rules equally 
across all Member States has  contributed to safeguarding the Union’s financial stability and 
protection of competition at the same time. 

Contribution of EU competition policy to tackling the challenges  

Contribution of EU competition policy to innovation and fairness in payments 

The  Commission  is  currently  assessing  the  implementation  of  the  2015  Interchange  Fee 
Regulation (IFR).227 To this end, the Commission commissioned a study in 2018. The study 
was finalised in December 2019.228 The study collected and analysed comprehensive market 
information  from  all  Member  States.  The  study  will  serve  as  input  in  2020  when  the 
Commission  will  submit  a  Report  to  the  European  Parliament  and  to  the  Council  on  the 
application of the IFR.229 

Antitrust and cartel investigations in the financial services sector 

In 2019, the Commission concluded its investigation into Mastercard's cross-border acquiring 
rules,  which  prevented  merchants  located  in  countries  with  high  interchange  fees  to  seek 
lower-priced  services  from  acquirers  established  in  Member  States  with  lower  interchange 
fees.  On  22  January  2019,  the  Commission  concluded  that  Mastercard's  rules  prevented 
retailers  from  benefitting  from  lower  fees  and  restricted  competition  between  banks  cross 
border, in breach of EU antitrust rules. The infringement ended when Mastercard amended its 
rules  in  view  of  the  entry  into  force  of  the  Interchange  Fee  Regulation  in  December  2015. 
Since  Mastercard  cooperated  with  the  Commission  by  acknowledging  the  facts  and  the 
infringements  of  EU  competition  rules  following  the  Statement  of  Objections,  the 
Commission  granted  Mastercard  a  10%  fine  reduction.  The  Commission  imposed  a  fine  of 
EUR 570 million on Mastercard.230 

In  addition,  the  Commission  concluded  separate  antitrust  investigations  into  Mastercard's, 
Visa  Inc.'s  and  Visa  International's  multilateral  interchange  fees  (MIFs)  applied  to 
transactions  in  the EEA made with  consumer debit and credit cards issued outside the EEA 
(inter-regional  MIFs).231  The  Interchange  Fee  Regulation  did  not  cap  these  MIFs.  The 
Commission  concluded  that  they  represented  a  significant  burden  for  merchants  in  the  EU, 
increasing retail prices for all consumers.  

Both  Mastercard  and  Visa  offered  to  reduce  the  current  level  of  inter-regional  MIFs  to  or 
below binding caps. For card payments carried out by the cardholder in a shop (card-present 
transactions),  Mastercard  and  Visa  committed  to  reduce  inter-regional  MIFs  to  0.2%  of  the 
value  of  the  transaction  for  debit  cards  and  0.3%  of  the  value  of  the  transaction  for  credit 
cards.  For  online  payments  (card-not-present  transactions)  the  two  companies  offered  to 

227   Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment 

transactions (Text with EEA relevance), OJ L 123, 19.5.2015, pp. 1–15. 
228   See: https://ec.europa.eu/competition/publications/reports/kd0120161enn.pdf. 
229   See Article 17 of Regulation (EU) 2015/751. 
230   Case AT.40049 MasterCard II, Commission decision of 29 April 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40049. 

231   These proceedings were closed as regards Visa Europe following its commitments, Case AT.39398 VISA MIF, Commission decision of  

26 February 2014. See: http://ec.europa.eu/competition/antitrust/cases/dec_docs/39398/39398_9728_3.pdf.  

61 

 
                                                           
 
 
reduce inter-regional MIFs to 1.15% of the value of the transaction for debit cards and 1.50% 
of  the  value  of  the  transaction  for  credit  cards.  Moreover,  Mastercard  and  Visa  agreed  to 
publish  all  inter-regional  MIFs  covered  by  the  commitments  in  a  clearly  visible  manner  on 
their  respective  websites.  To  verify  the  appropriateness  of  the  proposed  commitments,  the 
Commission consulted market participants between December 2018 and January 2019.232 On 
29 April 2019,  the Commission  adopted two decisions making the commitments offered by 
Mastercard  and  Visa  legally  binding  under  EU  antitrust  rules  to  address  the  Commission’s 
competition concerns, effective within six months.233  

In  2019,  the  Commission  monitored  and  scrutinised  Facebook’s  ongoing  preparations  for 
introducing  the  Libra  stablecoin  and  the  company’s  plans  to  introduce  mobile  wallets  for 
payments  and  money  transfers.  The  objective  was  to  assess  the  risks  Libra  and  stablecoins 
may  pose  for  financial  security  and  stability.  The  Commission  also  closely  followed  
developments  in  mobile  payment  solutions,  including  mobile  payments  for  physical  goods 
and  services  in  stores  and  online,  to  ensure  that  companies  do  not  breach  EU  competition 
rules. These activities will continue in 2020. 

The  Commission  continued  to  monitor in  2019 competition  in  capital  markets,  in  particular 
focussing  on  the  markets  for  market  data  where  informal  complaints  regarding  abusive 
licensing  terms  and  high  fees/prices  persist.  In  2019,  the  Commission  also  continued  its 
monitoring of competition in the insurance sector. 

In  the  field  of  motor  insurance,  the  Commission  opened  a  formal  antitrust  investigation  to 
assess  whether  the  conditions  of  access  to  the  Insurance  Link  data  pooling  system 
administered  by  the  association  of  undertakings,  Insurance  Ireland  breach  Articles  101 
TFEU.234 The Commission does not question that data pooling arrangements can contribute to 
effective competition. Participation in and access to a data pool by insurance service providers 
may directly benefit consumers in terms of ensuring more suitable products and competitive 
prices.  The  Commission's  investigation  in  this  case  will  assess,  in  particular,  whether  the 
conditions  imposed  on  companies  wishing  to  participate  in  and  access  the  Insurance  Link 
database may have had the effect of placing these companies at a competitive disadvantage on 
the  Irish  motor  insurance  market  in  comparison  to  companies  already  having  access  to  the 
database. 

As regards the credit sector, the Commission published a report on EU loan syndication and 
its  impact  on  competition  in  credit  markets.235  The  report  explains  how  such  syndicates  are 
formed  and  operates.  Given  the  importance  of  such  syndicated  loans  in  financing  major 
infrastructure and innovative projects, the Commission closely monitored this market in 2019. 
The monitoring will continue in 2020. 

On 16 May 2019, the Commission  adopted two decisions concerning separate cartels  in  the 
Spot  Foreign  Exchange  (FX)  markets,  imposing  a  total  of  EUR  1.07  billion  in  fines, 
accounting  for  nine  settlements.236  Both  cartels  concerned  the  trading  of  the  eleven  most 
liquid  and  traded  world  currencies  (Euro,  British  Pound,  Japanese  Yen,  Swiss  Franc,  US, 
Canadian,  New  Zealand  and  Australian  Dollars,  and  Danish,  Swedish  and  Norwegian 

232   See: http://europa.eu/rapid/press-release_IP-18-6655_en.htm.  
233   See: https://europa.eu/rapid/press-release_IP-19-2311_en.htm.  
234   Case AT. 40511 Insurance Ireland: Insurance claims database and conditions of access, Commission  decision of 14 May 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40511. 

235    See: https://ec.europa.eu/competition/publications/reports/kd0419330enn.pdf. 
236   Case AT.40135 FOREX, Commission decision of 16 May 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40135. 

62 

 
 
                                                           
 
 
crowns).  The  Commission's  investigation  revealed  that  some  individual  traders  in  charge  of 
Forex  spot  trading  of  these  currencies  at  their  respective  banks  exchanged  commercially 
sensitive  information  such  as  outstanding  customer  orders,  bid-ask  spreads  (that  is  to  say 
prices) applicable to specific transactions, open risk positions and other details of their current 
or  planned  trading  activities. The  information  exchanges,  following  the  tacit  understanding 
reached by the participating traders, enabled them to make informed decisions whether to sell 
or buy the currencies they had in their portfolios and when. 

Moreover,  these  information  exchanges  allowed  the  traders  to  identify  opportunities  for 
coordination. All banks involved cooperated under the Commission's 2008 Settlement Notice. 
The decision “Forex - Three Way Banana Split” is addressed to five banks (UBS, Barclays, 
RBS,  Citigroup  and  JPMorgan)  and  imposed  a  total  fine  of  EUR  811,197,000  for  an 
infringement which started on 18 December 2007 and ended on 31 January 2013. In that case, 
all  banks  cooperated  both  under  the  Settlement  Notice  and  under  the  Leniency  Notice 
qualifying either for a reduction of fines or (UBS) for immunity from fines. 

The  decision  “Forex-  Essex  Express”  is  addressed  to  four  banks  (Barclays,  RBS,  MUFG 
Bank  and  UBS)  and  imposed  a  total  fine  of  EUR  257,682,000  for  an  infringement  which 
overall started on 14 December 2009 and ended on 31 July 2012. All banks involved in this 
case  cooperated  under  the  Settlement  Notice,  while  three  out  of  the  four   (UBS,  RBS  and 
Barclays)  cooperated  with  the  investigation  under  the  Leniency  Notice.  Accordingly,  RBS 
and Barclays benefited from reductions of their fines, while UBS qualified for immunity. 

Merger investigations in the financial sector 

The  Commission  continued  to  ensure  that  concentrations  in  the  financial  services  sector  do 
not lead to consumers paying higher prices or being offered less choice. In March 2019, the 
Commission  intervened  in  the  proposed  merger  between  two  leading  insurance  brokers, 
Marsh and Jardine Lloyd Thompson. The two companies were market leaders in the provision 
of  services  to  airline  companies  and  aerospace  manufacturers  that  need  to  insure  highly 
complex risks  related to their activities; and the merger was likely  to  result in  higher prices 
and  reduced  choice,  which  would  ultimately  have  affected  consumers.  The  Commission 
required  the  divestment  of  Jardine  Lloyd  Thompson’s  activities  in  the  area  of  concern, 
ensuring  the  maintainance  of  the  competitive  environment.237  Several  other  cases  in 
insurance, banking and payments were deemed as not detrimental to competition and could be 
approved without requiring remedies. 

237   Case M.9196 Marsh & McLennan Companies / Jardine Lloyd Thompson Group, Commission decision of 22 March 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9196. 

63 

 
 
 
                                                           
 
State aid investigations in the financial sector 

The EU financial sector has largely overcome the financial crisis and overall, EU banks are in 
a more stable situation today. This  development  is  reflected in  the reduced number of State 
aid  cases  for  banks.  In  2019,  there  was  only  one  direct  support  measure  for  a  commercial 
bank in the EU that contained State aid, while other direct support measures were free of State 
aid. 

The  fact  that  State  aid  provided  by  Member  States  to  banks  is  going  down  is  a  positive 
development. The one case that involved State aid in 2019 was liquidity support provided by 
Italy to Cassa di Risparmio di Genova e Imperia ("Banca Carige") in form of guarantees to 
newly issues liabilities.238 Banca Carige pays a fee to the Italian State for the guarantee. The 
Commission's  assessment  showed  that  the  measure  is  targeted,  proportionate  and  limited  in 
time and scope. The Commission has therefore concluded that this liquidity support is in line 
with EU rules, in particular its 2013 Banking Communication. 

Certain banking cases the Commission assessed did not contain State aid. 

On 5 December 2019, the Commission adopted a decision concluding that the recapitalisation 
of  German  NordLB  was  market  conform.  The  Commission  found  that  Germany's  plans  to 
strengthen  the  capital  position  of  state-owned  Norddeutsche  Landesbank  –  Girozentrale 
(NordLB) did not include any State aid. The measures involved a direct investment of EUR 
2.8 billion. In addition, the State of Lower Saxony plans to provide asset guarantees expected 
to  result  in  EUR  0.8  billion  capital  relief  for  the  bank,  in  return  for  corresponding  market 
conform  remuneration.  The  measures  strengthen  the  bank’s  capital  position  and  allow  the 
investments  needed  to  make  the  necessary  structural  changes  and  to  downsize  the  bank, 
thereby ensuring that NordLB continues to operate profitably on the market. The Commission 
found  that  the  planned  measures  were  carried  out  on  market  terms,  meaning  that  the  State 
received  a  remuneration  in  line  with  what  a  private  operator  would  also  accept  in  the  same 
circumstances. Therefore, the measures involve no State aid within the meaning of EU rules. 
The  European  Central  Bank,  as  responsible  supervisor,  gave  its  approval  to  the  plan  on  29 
November 2019. 239 

A  second  case  of  direct  capital  support  for  an  individual  bank  involved  the  investment  of 
Romania in CEC Bank.240 Also in this case, the Commission found that the State, as the sole 
owner of CEC  Bank, would  carry out  a capital  injection in  the bank at  the same conditions 
that  a  private  market  operator  would  accept.  Under  EU  State  aid  rules,  interventions  of  a 
Member State on market terms does not constitute State aid and therefore fall outside of EU 
State aid control. 

In  addition,  the  Commission  still  deals  with  a  very  limited  number  of  older  cases  such  as 
Dexia.241 In 2012, the Commission approved State aid to enable Dexia's orderly exit from the 
market while at the same time protecting financial stability. The decision ensured full-burden 
sharing of the existing shareholders and prevented a negative impact on competition because 

238   Case SA.52917(2019/N) Liquidity support to Banca Carige - Cassa di Risparmio di Genova e Imperia, Commission decision of 18 

January 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52917. 

239   Case SA.49094(2019/N) Market-conform measures for strengthening capital and restructuring of Norddeutsche Landesbank, 

Commission decision of 5 December 2019. See: 
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49094. 

240   SA.53869(2019/N) Market-conform recapitalisation of CEC Bank, Commission decision of 29 October 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53869. 

241   SA.33760 Additional measures to restructuring of Dexia - by France - Guarantee (C), Commision decsion of 31 May 2012. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33760. 

64 

 
                                                           
 
 
Dexia  will  not  conduct  any  new  business  while  running  down  its  portfolio.  Given  the  long 
duration of some of the  remaining  assets, the Commission  allowed in  2019 that senior debt 
guarantees by France and Belgium may be prolonged beyond 2021 while ensuring that there 
would be full burden sharing of subordinated debtholders.242 

In  addition  to  cases  involving  individual  support  for  banks,  the  Commission  has  decided  to 
prolong  a  number  of  schemes  set  up  to  ensure  orderly  liquidation  of  small  banks,  credit 
unions  or  other  credit  institutions  in  Croatia,243  Denmark,244  Greece,245  Ireland,246  and 
Poland.247 The objective of these schemes is to safeguard financial stability when a covered 
institution  that  does  not  fall  within  the  scope  of  the  EU  Bank  Recovery  and  Resolution 
Directive  248 becomes unable to meet regulatory requirements. The terms under which these 
kind of schemes have been accepted ensure that the aid is limited to the minimum necessary 
for an orderly winding-up, and that no buyer gains an undue economic advantage through the 
acquisition of under-priced assets and liabilities.  

In spite of an overall positive lookout for the financial sector, high levels of non-performing 
loans (NPL) is a legacy problem especially in some Member States. In 2019 the Commission 
approved  the  Hellenic  Asset  Protection  Scheme  ("Hercules")  as  free  of  State  aid  which  is 
targeted to address the NPL issue in Greece.249 This scheme is an example of how Member 
States  can  help  banks  clean  up  their  balance  sheets  without  granting  aid  or  distorting 
competition.  Such  State  guarantees  apply  only  to  senior  tranches  under  certain  conditions  
which are remunerated on market terms. The Commission also approved a scheme to support 
households  at  risk  of  losing  their  home  due  to  difficulties  in  mortgage  repayments.250  This 
scheme sets strict eligibility criteria in terms of the value of the primary residence and income 
of the borrower to ensure it is targeted at those in need. 

In 2019, the Commission also prolonged the Italian guarantee scheme for the securitisation of 
non-performing  loans  (Fondo  di  Garanzia  sulla  Cartolarizzazione  delle  Sofferenze  – 
"GACS").251 By assisting banks to securitise and move non-performing loans off their balance 
sheets, the scheme is an important component of Italy's strategy to tackle banks' asset-quality 
problems.  Between  February  2016  and  November  2018,  the  scheme  has  been  accessed 
seventeen times, removing EUR 51 billion of non-performing loans from the Italian banking 
system, which corresponds to almost two thirds of the total reduction of non-performing loans 
in Italy during that period. 

242   SA.53554(2019/N) and SA.53592(2019/N) Renouvellement de la garantie de refinancement de Dexia au-delà du 31 décembre 2021. 

See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53554. 

243   SA.51814 Reintroduction of the resolution scheme for small credit institutions with total assets below EUR 1,5 billion. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51814.  

244   SA.54807 Prolongation of the winding-up scheme for small banks . See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54807.  

245   SA.54332 Prolongation of the Greek State Guarantee Scheme for banks. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54332. 
246   SA.55542 10th prolongation of the Credit Union restructuring and stabilisation scheme. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55542; and SA. 54244 15th prolongation of the Credit 
Union Resolution Scheme 2019-2020. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54244.  

247   SA.54463 Third prolongation of the resolution scheme for cooperative banks and small commercial banks. See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54463. 

248   Directive 2014/59/EU of the European Parliament and the Council of 15 May 2014 establishing a framework for the recovery and 

resolution of credit institutions and investment firms, OJ, L 173/190, 12.6.2014 ("BRRD"). 

249   SA.53519(2019/N) Hellenic Asset Protection Scheme ('Hercules'). Commission decision of 15 November 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53519. 

250   SA.53520(2019/N) Primary Residence Protection Scheme. Commission decision of 22 November 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53520. 

251   SA.53518(2019/N) Third prolongation of the Italian guarantee scheme for the securitisation of non-performing loans. Commission  

decision of 16 August 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53518. 

65 

 
                                                           
 
 
 
These two schemes contribute to further improve the situation of the financial sector in two of 
the  Member  States  mostly  affected  by  the  long-term  effects  of  the  financial  crisis.  The 
improvements  achieved  by  NPL  reduction  should  enable  banks  to  continue  their  role  as  a 
positive contributor for economic growth. 

Additional  direct  support  for  specific  situations  involve  Member  States'  possibilities  to 
provide aid to young SMEs and start-ups that typically suffer from limited access to finance. 
These measures  can either be directly implemented by Member States if they fall under the 
General  Block  Exemption  Regulation  (GBER)252,  or  structured  as  notifiable  schemes  under 
the  Risk  Finance  Guidelines.253  In  2019,  the  Commission  approved  two  schemes  that 
incentivise  private  investors  to  invest  in  SMEs  that  struggle  to  receive  adequate  financing. 
The Austrian risk finance scheme provides tax incentives to mid-sized financing companies to 
increase their funding of SMEs254 and the Italian scheme provides specific tax advantages for 
investments in innovative start-ups and SMEs.255 

Finally, as part of a wider Fitness Check of State aid rules, the risk finance rules, as well as 
the Communication on short-term export-credit insurance,256 are undergoing an evaluation in 
line  with  the  Better  Regulation  Framework.257  As  part  of  this  evaluation,  the  Commission 
launched targeted consultations with Member States and directly affected stakeholders. It also 
commissioned  an  external  expert  report  to  better  understand  how  the  existing  rules  could 
improve SMEs’ access to finance. The results of the evaluation will be published as a Staff 
Working Document on the Fitness Check. 

4. 

TAXATION AND STATE AID  

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

The  Commission‘s  enforcement  activities  in  this  area  tackle  tax-base  erosion  and  profit-
shifting  to  better  align  the  right  to  tax  with  economic  activity.  State  aid  investigations  into 
Member States' tax ruling practices are one of the tools the Commission has at its disposal to 
ensure  that  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  using  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 the EU 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  leading  to  advantages  for  certain 
companies  or  groups  of  companies.  Second,  it  involves  an  issue  of  social  fairness  as  the 

252   OJ L 187 26.6.2014, p. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02014R0651-20170710. 
253   OJ C19, 22.1.2014, p. 4, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A52014XC0122%2804%29. 
254   Case SA.45840 Tax Incentives for Mid-Sized Business Financing Companies. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_45840. 

255   Case SA.48570 (2018/N) Italy – Fiscal incentives for investments in innovative start-ups and innovative SMEs. Commission decision of 

15 February 2019 See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_48570. 

256   Case OJ C392, 19.12.2012, p. 1. 
257   See: https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how/better-regulation-

guidelines-and-toolbox_en.  

66 

 
                                                           
 
revenues  foregone  from  untaxed  multinationals  need  to  be  compensated,  which  normally 
shifts the burden to the less mobile income of SMEs and labour. Third, from the perspective 
of  the  delocalisation  of  activities,  aggressive  tax  planning  can  present  a  threat  to  the 
sustainable growth of the internal market. 

Although,  in  the  absence  of  harmonisation,  direct  taxation  is  a  competence  of  the  Member 
States,  national  tax  measures  have  to  comply  with  internal  market  rules  and  be  in  line  with 
EU competition rules. The recent judgments of the General Court have confirmed that Article 
107  TFEU  allows  the  Commission  to  determine  whether  a  tax  measure  confers  on 
undertakings  an  economic  advantage  which  places  the  beneficiaries  in  a  more  favourable 
position than other taxpayers. In particular, the General Court considered that the Commission 
can assess under State aid rules whether the transfer pricing method validated by a tax ruling 
leads to an outcome which is established in conformity with the arm’s length principle.258  

Contribution of EU competition policy to tackling the challenges 

State aid investigations and decisions concerning aggressive tax planning 

In  the  period  2014-2018,  the  Commission  gathered  information  on  tax  planning  practices, 
enquiring into the tax rulings practice  and possible fiscal  aid  schemes of  all Member States 
for the years 2010 to 2013. This enquiry was 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.  Overall  the  Commission  looked  into  more  than  a  thousand 
rulings. 

However, Member States have moved on since 2013 both in terms of tax legislation and of 
ruling practice. In order to take an informed view of this evolution, the Commission requested 
at  the  end  of  2019  all  Member  States  to  provide  an  update  of  their  legislative  and 
administrative  practices  and  a  list  of  tax  rulings  for  the  years  2014  to  2018.  In  2019,  the 
Commission  continued  to  review  tax  rulings  and  tax  measures  based  on  complaints  and 
market information. This review will continue in 2020. 

Important cases 

On  2  April  2019,  the  Commission  concluded  that  the  UK  gave  illegal  tax  advantages  to 
certain multinational companies by granting them an exemption from a set of anti-avoidance 
rules known as Controlled Foreign Company (CFC) rules.259  

258   Joined Cases T-755/15 and T-759/15, Grand Duchy of Luxembourg and Fiat Chrysler Finance Europe v European Commission, 

judgment of 24 September 2019, ECLI:EU:T:2019:670, paras. 159 and 160; Joined Cases T-760/15 and T-636/16, Kingdom of the 
Netherlands and Others v European Commission, judgment of 24 September 2019, ECLI:EU:T:2019:669, para. 107; Joined Cases T-
131/16 and 263/16 Belgium and Magnetrol International v European Commission, judgment of the General Court of 14 February 2019, 
ECLI:EU:T:2019:91, para. 67. See also section 3.4. 

259   Case SA.44896 Aid implemented by the United Kingdom concerning CFC Group Financing Exemption, Commission decision of 2 April 

2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_44896.  

67 

 
 
 
 
 
 
                                                           
United Kingdom – The CFC decision. 

CFC rules seek to prevent UK companies from artificially diverting profits arising from UK activities and assets 
to a subsidiary based in a low or no tax jurisdiction. UK  CFC rules reallocate such artificially diverted profits 
back to the UK parent company and tax them accordingly. 

The Commission’s in-depth investigation showed that the impugned exemption known as the Group Financing 
Exemption  grants  a  preferential  treatment  to  UK  companies  artificially  diverting  profits  arising  from  UK 
activities  or  assets  from  foreign  related  companies  via  an  offshore  subsidiary,  derogating  from  the  UK  CFC 
rules. The  Commission concluded that the  exemption is partially justified and accepted that a  mechanical rule 
may  avoid  disproportionately  burdensome  intra-group  tracing  exercises  to  ascertain  whether  profits  arise  from 
UK connected capital, but it also declared the exemption partly to constitute unlawful state aid which needs to be 
recovered. The UK amended its CFC rules from 1 January 2019. The new CFC rules no longer raise a concern 
under State aid rules. 

On 11 January 2019, the Commission opened an in-depth investigation into the tax treatment 
granted  by  the  Netherlands  to  NEON  and  CN  BV,  the  Nike  Group´s  operating  European 
headquarters  for,  respectively,  Nike  and  Converse.260  Both  NEON  and  CN  BV  are  Dutch 
entities and record all their revenues from sales paid by costumers in Europe, Middle East and 
Africa.  The  Commission’s  investigation  concerns  two  tax  rulings,  granted  by  the  Dutch  tax 
authorities to NEON in 2006 and 2010, and two rulings, granted to CN BV in 2010 and 2015, 
which have significantly reduced Nike's taxable profits in the Netherlands.  

On 7 March 2019, the Commission opened and in-depth investigation into the tax treatment 
by Luxembourg of Huhtalux, a company of the Huhtamäki group that carried out on-lending 
financing  activities  between  group  companies.261  The  investigation  concerns  tax  rulings 
granted by the Luxembourg tax authorities to Huhtalux in 2009, 2012 and 2013, which allow 
this  company  to  deduct  each  year  since  2010  from  its  tax  base  a  deemed  interest  –  i.e.  a 
remuneration for interest-free loans received from another group company – which does not 
correspond  to  the  actual  cost  recorded  in  the  company’s  commercial  accounts.  As  a 
consequence of this deduction, Huhtalux's taxable profit is set in the form of a profit margin 
which  may  not  correspond  to  the  difference  between  the  profit  effectively  realised  by  the 
company from its financing activity and the deemed interest.  

Finally, following the General Court’s judgment annulling the Belgian Excess Profit decision, 
the  Commission  opened  on  16  September  2019  separate  in-depth  investigations  into  39 
“excess profit” tax rulings granted by Belgium to multinational companies.262  

Fight against discriminatory tax schemes and measures sheltering  national  companies from 
competition in the internal market  

Beyond the cases involving tax rulings, the Commission remains vigilant to ensure that Member 
States  do  not  use  fiscal  tools  to  unduly  favour  certain  companies/sectors  and  shelter  national 
companies from competition in the internal market. 

Ports are essential to the EU economy and the Commission does not prevent Member States 
from  providing  State  aid  to  their  ports,  for  instance  when  it  is  necessary  to  develop  port 
infrastructure.  However,  corporate  tax  exemptions  may  provide  a  bigger  advantage  to  the 

260   Case SA.51284 Netherlands – Potential Aid to Nike, Commission decision of 11 January 2019. See:  

https://ec.europa.eu/commission/presscorner/detail/de/IP_19_322. 

261   Case SA.50400 Luxembourg – Possible State aid in fabour of Huhtamäki, decision of 7 March 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_50400.  

262   Cases SA.53964 to SA.54002 Belgium – Excess Profit Exemption, decisions of 16 September 2019. See, for instance:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53964.  

68 

 
                                                           
 
 
 
most profitable beneficiaries. Such exemptions are neither transparent, nor limited or targeted 
at  financing  activities  or  investments  which  are  necessary  and  justified  by  objectives  of 
common interest.  

With  regard  to  the  investigation  into  fiscal  aid  to  ports,  further  to  the  negative  decisions 
adopted  in  January  2016  (Dutch  public  undertakings263)  and  July  2017  (Belgian264  and 
French265  ports),  the  Commission  proposed  appropriate  measures  to  Italy266  and  Spain267  in 
January 2019. The two Member States were invited  to abolish the corporate tax exemptions 
for  port  authorities  from  1 January 2020.  Spain  accepted  to  take  the  appropriate  measures. 
Italy did  not.  As a  consequence, in  November 2019,  the  Commission  closed the investigation 
related to the Spanish ports and opened a formal investigation procedure for Italian ports. The 
Commission's action is consistent with the objective to ensure that all companies pay their fair 
share of taxes and that no sector or company unduly receives a more favourable corporate tax 
treatment than its competitors.  

French and Belgian ports 

After confirming in 2018 the approach adopted by the Commission in the Dutch case, the General Court  upheld 
the  Commission  decision  in  the  French  and  Belgian  cases.  In  its  judgments  of  30 April 2019  and 
20 September 2019,  the  General  Court  held  that  the  Commission  rightfully  identified  port  authorities  as 
“undertakings” that carry out economic activities, providing, for example access for ships to port infrastructure 
or renting land or conceding space to commercial or industrial companies against remuneration. With respect to 
such economic activities, the Court concluded that port authorities are subject to State aid rules even if they also 
carry  out  a  public  non-economic  remit  pursuing  a  general  interest.  The  Court  also  stated  that  the  notion  of 
“economic activity” is a matter of facts – such as the existence of a market for the services concerned – and not a 
matter of appreciation by national authorities.  

In April 2019, the Commission opened an in-depth investigation into a tax in the food retail 
sector  in  Slovakia.268  The  Commission  also  issued  an  injunction,  requiring  Slovakia  to 
suspend  the  application  of  the  measure  until  the  Commission  has  concluded  its  assessment 
under  EU  State  aid  rules.  Under  the  tax,  food  retailers  were  required  to  pay  a  quarterly  tax 
amounting to 2.5% of their total turnover. However, the majority of food retailers in Slovakia 
were  exempted  from  the  tax,  because  they  were  covered  by  one  of  several  exemptions 
concerning  their  size,  geographic  scope  of  operation  or  type  of  activities.  The  Commission 
had concerns that certain exemptions from the tax gave some retailers a selective advantage 
over  their  competitors,  in  breach  of  EU  State  aid  rules.  Following  the  Commission’s 
decisions,  Slovakia  repealed  the  retail  tax  and  no  tax  liability  was  incurred  by  any  retailer. 
Therefore, by decision of October 2019, the Commission closed the in-depth investigation. 

263   Case SA.25398 Corporate tax exemption of Dutch public enterprises, Commission decision of 21 January 2016. See:  

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_25338.   

264   Case SA.38393 Ports taxation in Belgium, Commission decision of 27 July 2017. See:  
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38393.  

265   Case SA.38398 Ports taxation in France, Commission decision of 27 July 2017. See:  

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38398.  

266   Case SA.38399 Ports taxation in Italy, Commission decision of 8 January 2019. See:  

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38399. 

267   Case SA.38397 Ports taxation in Spain, Commission decision of 8 January 2019 and 7 March 2019. See:  

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38397. 

268   Case SA.52194 Slovak Retail Turnover Tax, Commission decision of 2 April 2019 and 21 October 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52194. 

69 

 
 
                                                           
 
 
 
 
 
5. 

BASIC INDUSTRIES AND MANUFACTURING 

Overview of key challenges in the sector 

Manufacturing is important to the EU economy as a driver of growth and employment. More 
than  20%  of  the  EU  workforce  is  active  in  the  sector.  Advances  in  automation  and  the 
growing use of robotics in many industries have led to substantial industrial restructuring and 
ensuing job losses across the EU. The manufacturing sector faces additional challenges due to 
the relocation of jobs to countries with lower labour costs and the rise of global supply chains. 
Moreover,  high  energy  taxes  and  low  productivity  growth  compared  to  the  OECD  average 
hamper the competitiveness of EU companies.  

Enforcing the competition rules in the manufacturing sector contributes to these objectives, in 
particular by ensuring that firms can compete on fair and equal terms in the single market. In 
addition,  the  State  aid  rules  are  used  to  steer  public  funding  towards  research,  training  and 
energy  efficiency.  Only  innovative  companies  with  sustainable  business  plans  can  deliver 
smart goods and services at competitive prices for EU consumers and businesses. Improving 
EU  firms’  efficiency  and  long-term  competitiveness  in  their  respective  home  markets  make 
these firms fit for competing in the global market place. 

Contribution of EU competition policy to tackling the challenges 

Antitrust investigations in basic industries 

Basic  manufacturing  and  consumer  goods  industries  continue  to  account  for  a  substantial 
share  of 
the  Commission's  competition  enforcement.  The  EU's  high  value-added 
manufacturing  industry  requires  access  to  basic  materials  at  affordable  prices  that  reflect 
international  cost  conditions.  In  2019,  the  Commission  actively  monitored  the  markets  for 
these  inputs  to  ensure  that  firms  have  adequate  access  in  a  healthy  and  competitive 
environment.  The  Commission  also  continued  to  monitor  the  aftermarkets  in  basic 
manufacturing, where increasing revenue streams are generated. 

Merger investigations in basic industries 

One  of  the  most  important  cases  of  2019  in  the manufacturing  sector  was  the  German  firm 
Siemens  proposed  acquisition  of  French  company  Alstom.  Both  firms  are  active  in  the  rail 
transport industry. 

The Siemens/Alstom merger 

On  13  July  2018,  the  Commission  opened  an  in-depth  investigation  of  the  proposed  acquisition  of  Alstom  by 
Siemens.269 The Mobility Division of Siemens offers a broad portfolio of trains (rolling stock), rail automation 
and signalling equipment, as well as rail electrification systems. Alstom is active worldwide in the rail transport 
industry, offering a wide range of rolling stock (from high-speed trains to metros and trams) as well as signalling 
and rail electrification systems. On 6 February 2019, the Commission prohibited the proposed transaction under 
the EU Merger Regulation.270 The proposed transaction would have combined the two largest suppliers of trains 
and signalling solutions in the EEA, not only in terms of size of the combined operations, but also in terms of 
their geographic footprint. The Commission considered that the merger would have reduced competition in the 
supply  of  several  types  of  trains  and  signalling  systems  in  the  EEA.  The  merging  parties  proposed  a  remedy 
package  which  was  inadequate  in  scope,  very  complex  and  gave  rise  to  significant  dependencies  and 
implementation risks. 

269   See: http://europa.eu/rapid/press-release_IP-18-4527_en.htm. 
270    Case M.8677 Siemens / Alstom, Commission Decision of 6 February 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8677. 

70 

 
                                                           
 
On  6  February  2019,  the  Commission  also  prohibited,  under  the  EU  Merger  Regulation, 
Wieland's  proposed  acquisition  of  Aurubis  Rolled  Products  and  Aurubis'  stake  in 
Schwermetall.271  The  Commission’s  concerns  included  reduced  competition  and  increased 
prices  for  rolled  copper  products  used  by  European  manufacturers.  A  large  number  of 
European  industrial  customers  also  expressed  concerns  regarding  both  access  to  pre-rolled 
strip from Schwermetall, and price increases for rolled products. Wieland and Aurubis were 
two  of  the  three  biggest  producers  of  rolled  copper  products  in  Europe.  If  their  merger  had 
gone  through,  Wieland  would  have  become  the  dominant  player  in  the  market  for  rolled 
copper products, with a market share in the EEA of over 50%, and with only one other large 
competitor with a market share of circa 20%. As Wieland was not willing to comprehensively 
address the expressed concerns, the Commission prohibited the proposed transaction. 

The  steel  sector  is  a  key  industry  across  the  EEA.  Preserving  product  innovation  and  a 
competitive European steel market supports, in its turn, the transition to more climate friendly 
and environmentally sustainable mobility.  

On 11 June 2019, the Commission prohibited, under the EU Merger Regulation, the proposed 
joint venture between Tata Steel and ThyssenKrupp272, which would have combined the flat 
carbon  steel  and  electrical  steel  activities  of  ThyssenKrupp  and  Tata  Steel  in  the  European 
EEA.  ThyssenKrupp,  the  second  largest  producer  of  flat  carbon  steel  in  the  EEA,  and  Tata 
Steel,  the  third  largest,  are  also  significant  producers  of  metallic  coated  and  laminated  steel 
for packaging applications and of galvanised flat carbon steel for the automotive industry. The 
Commission’s concerns looked at  reduced competition (less  choice for steel  customers) and 
increased  prices  for  different  types  of  steel.  The  parties  did  not  offer  adequate  remedies  to 
address these concerns. The Commission also sought the views of market participants about 
the  proposed  remedies,  and  their  feedback  was  negative.  As  a  result,  the  Commission 
prohibited the proposed transaction. 

On  1  October  2019,  following  an  in-depth  investigation,  the  Commission  approved  the 
acquisition  of  aluminium  player  Aleris  by  rival  Novelis273  subject  to  conditions.  The 
Commission  had  concerns  that  the  transaction  would  have  resulted  in  higher  prices  for 
European  customers  of  aluminium  automotive  body  sheets,  which  are  used  in  the 
manufacturing  of  cars  also  with  the  aim  to  reduce  fuel  consumption  and  emissions.  To 
address the Commission’s concerns, the companies offered to divest Aleris’ entire aluminium 
automotive  body  sheet  business  in  Europe,  including  its  production  plant  in  Belgium.  The 
divestiture includes R&D assets  as well as funding  for  an investment to  improve  further its 
capabilities. Because the proposed divestiture would remove the entire overlap created by the 
transaction in aluminium automotive body sheets in Europe, the Commission concluded that 
the transaction, as modified by the commitments, would no longer raise competition concerns. 
The approval is conditional on full compliance with the commitments. 

The  Commission  also  opened  in-depth  investigations  into  various  proposed  mergers  in  the 
manufacturing  sector.  The  opening  of  in-depth  investigations  does  not  prejudge  their 
outcomes. On 4 October 2019, the Commission opened an in-depth investigation to assess the 
proposed  creation  of  two  joint  ventures  by  aircraft  manufacturers  Boeing  and  Embraer274, 

271   Case M.8900 Wieland / Aurubis Rolled Products / Schwermetal, Commission decision of 6 February 2019, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8900.  

272   Case M.8713. Tata Steel / Thyssenkrupp / JV, Commission decision of 11 June 2019, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8713.  

273   Case M.9076 Novelis/Aleris, Commission decision of 1 October 2019, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9076.  

274   Case M.9097 Boeing / Embraer, available at: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9097.  

71 

 
                                                           
under the EU Merger Regulation. The Commission was concerned that the transaction would 
have resulted in higher prices and less choice as regards commercial aircraft.275  

Furthermore,  on  30  October  2019,  the  Commission  opened  an  in-depth  investigation  to 
determine whether the proposed acquisition of  Chantiers de l'Atlantique by Fincantieri276 is 
likely  to  significantly  reduce  effective  competition.  Both  shipbuilding  companies  are  global 
leaders  in  an  already  concentrated  and  capacity  constrained  market.  Moreover,  on  17 
December  2019,  the  Commission  opened  an  in-depth  investigation  to  assess  the  proposed 
acquisition  of  Daewoo  Shipbuilding  &  Marine  Engineering  CO.  Ltd  (DSME)  by  another 
shipbuilding  group,  Hyundai  Heavy  Industries  Holdings  (HHIH),277  under  the  EU  Merger 
Regulation. The Commission is concerned that the merger may reduce competition in various 
global  cargo  shipbuilding  markets.  Cargo  shipbuilding  is  an  important  industry  for  the  EU. 
European shipping companies are major customers of DSME and HHIH and represent 30% of 
worldwide demand for cargo ships. 

In 2019, the Commission continued its review of mergers in the chemicals sector, to ensure 
the continued availability of affordable and quality chemical products and services to the EU 
industry.  

In  the  industrial  lubricant  industry,  on  11  December  2018,  the  Commission  approved  the 
acquisition278 of Global Houghton by Quaker, subject to the divestment of Global Houghton’s 
EEA  business  for  certain  rolling  oils,  which  are  essential  for  the  production  of  steel  and 
aluminium, 
the  specific  products’  formulations  and  related  assets.  The 
Commission’s investigation revealed that the transaction would otherwise  likely have led to 
higher prices and lower quality products and services for customers of rolling oils. On 11 June 
2019, the Commission approved Total as a suitable purchaser.  

including 

In  the  plastics  industry,  on  18  January  2019,  the  Commission,  following  an  in-depth 
investigation,  approved  the  acquisition  of  Solvay’s  polyamide  (nylon)  business  by  BASF, 
subject to the divestment of most of Solvay’s relevant assets in the EEA.279 The Commission 
identified the risk that the transaction as notified would likely have given rise to higher prices 
and/or less input available throughout  the nylon  6.6 value chain,  as  well as higher prices to 
end  customers.  Nylon  6.6  products  include  specialty  plastics  used  in  the  automotive, 
electronic or construction industries. They are often used as substitutes for heavier metal parts 
and  to  generate  energy  savings.  On  26  November  2019,  the  Commission  approved  the 
purchase of the divested business by Domo Chemicals.280 

State  aid  investigations  in  basic  industries  –  rescue  and  restructuring  of  companies  in 
difficulty 

In  February  2019,  the  Commission  approved  the  budget  increase  of  Ireland’s  scheme  to 
provide restructuring aid as well as temporary restructuring support to SMEs in difficulty.281 

275   On 25 April 2020, Boeing withdrew its offer to acquire Embraer, and the notification to the Commission was withdrawn. 
276   Case M.9162 Fincantieri / Chantiers De L'Atlantique, available at : 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9162.  

277   Case M.9343 Hyundai Heavy Industries Holdings / Daewoo Shipbuilding & Marine Engineering, available at: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9343.  

278   Case M.8492 Quaker / Global Houghton. Commission Decision 11 June 2019 See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8492. 

279   Case M.8674 BASF / Solvay’s EP and P&I Business. See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_522.  
280   Case M.9553 Domo Investment Group / Solvay Performance Polyamides Business in the EEA. See:  

https://ec.europa.eu/commission/presscorner/detail/en/MEX_19_6354. 

281   Case SA.53350 - Budget increase of R&R aid scheme (SA.49040 as amended to cover temporary restructuring support by SA. 50651).  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53350 . 

72 

 
                                                           
 
 
 
Ireland justified the increase up to EUR 200 million of the EUR 20 million budget previously 
approved on grounds of preparation for the consequences of the United Kingdom leaving the 
EU. The ten-fold increase of the budget  constituted new aid  and was therefore notifiable to 
the Commission. The budget increase was the sole amendment to the previously approved aid 
scheme.282 The Commission found that the budget increase did not affect the Commission’s 
previous positive conclusion on the aid scheme’s compatibility with the internal market. 

In September 2019, the Commission authorised a rescue loan of a maximum amount of GBP 
5 million (in up to 2 tranches of GBP 2.5 million) to the Wrights Group, provided by Invest 
Northern  Ireland,  a  regional  development  agency.283  The  Wrights  Group  designs, 
manufactures and sells a  range of diesel,  hybrid,  electric and fuel-cell powered buses in  the 
United  Kingdom.  The  Commission  assessed  the  measure  under  the  2014  Rescue  and 
Restructuring Guidelines.284 In line with the Guidelines, the UK submitted a detailed liquidity 
plan,  justifying  the  company’s  short-term  liquidity  needs.  Moreover,  the  Commission  noted 
that the rescue loan aimed to avoid a disruptive insolvency process in the short term, and that 
the  UK  undertook  that  Wrights  reimburses  the  rescue  loan  or  otherwise  submits  a 
restructuring plan or a liquidation plan within six months after disbursement of the aid. The 
Commission considered that the company had a good prospect to be sold to investors, so that 
there would be no immediate disruption of activities (including R&D) and no loss of know-
how. 

In  June  2019,  the  Commission  found  that  Finnish  bus  transport  company  Helsingin 
Bussiliikenne  Oy  (“HelB”)  had  received  EUR  54.2  million  in  incompatible  State  aid  from 
Finland.285 The Commission’s investigation was opened on the basis of a complaint alleging 
that  the  loan  granted  by  Finland  to  HelB,  the  lease  of  the  Ruskeasuo  bus  depot  and  the 
underlying  land  was  not  in  accordance  with  market  terms.  The  investigation  confirmed  that 
given the company’s financial difficulties no private market creditor would have granted the 
loans  under  these  terms,  which  combined  low  interest  rates  and  exemptions  from  the 
obligation to repay the outstanding part of the loans. Finland must now recover this aid from 
HelB,  despite  the  fact  that  the  assets  and  business  operations  of  HelB  were  sold  to  a 
competitor after the opening of the formal investigation. The Commission found that the sale 
of HelB’s assets and business operations did not ensure economic discontinuity.  

In November 2019, the Commission approved a EUR 80 million rescue loan in favour of the 
Dutch   waste-to-energy  company  AEB  Holding.286  The  Amsterdam-based  company 
experienced financial difficulties after four out its six incineration lines had to be temporarily 
shut down for safety purposes. The Commission assessed the measure under the 2014 Rescue 
and  Restructuring  Guidelines.287  In  line  with  the  Guidelines,  the  Netherlands  justified  the 
proportionality of the aid amount based on the company’s detailed liquidity plan  and short-
term needs and applied an adequate interest rate to the loan. The Commission found that the 
aid contributes to an objective of common interest. In this respect, by allowing AEB to meet 
its operating costs, the rescue loan would avoid disruptions in the provision of essential waste 

282   Decision C (2017) 7927 final of 30 November 2017 in case SA.49040 (2017/N) and Decision C (2018) 7927 final of 4 May 2018 in case  

SA.50651 (2018/N)). 

283   Case SA.54766 United Kingdom - Rescue aid to Wrights Group Ltd. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54766. 

284   See: https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_473. 
285   Case SA. 33846 Finland - Effective liberalisation of bus transport See: 

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_33846. 

286   Case SA.55227 the Netherlands -  Rescue aid to AEB Holding N.V. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55227. 

287   See: https://ec.europa.eu/commission/presscorner/detail/en/MEMO_14_473. 

73 

 
                                                           
 
 
 
management services, which could lead to severe social and health consequences in the areas 
served by AEB. On this basis, the Commission concluded that the rescue loan was sufficiently 
limited  in  time  and  scope  and  that  its  positive  effects  outweigh  any  potential  distortions  of 
competition  brought  about  by  the  public  intervention.  After  six  months,  if  the  loan  is  not 
repaid  and  AEB  continues  operations,  the  Netherlands  committed  to  restructuring  the 
company to ensure its long-term viability. 

6. 

AGRI-FOOD INDUSTRY  

Overview of key challenges in the sector 

While  most  firms  in  the  EU  food  sector  benefit  from  operating  in  the  EU  internal  market, 
others  face  challenges  operating  in  this  market  while  simultaneously  being  active  in  world 
markets. EU farmers, food manufacturers and retailers should get more out of their access to 
the internal market and the ensuing possibility to buy and sell produce across EU borders. EU 
competition policy contributes to this objective. 

Making farmers more competitive in the EU internal market 

Farmers  are  particularly  vulnerable  to  the  challenges  of  globalisation  and  their  role  in  the 
internal market; they are facing (i) more competition from farmers inside as well as outside of 
the EU, (ii) higher demand from end consumers in terms of quality, variety and traceability, 
and (iii) higher investment needs linked to initiatives towards a greener and more sustainable 
agriculture. 

The EU agricultural sector has certain structural characteristics that make it more difficult to 
cope with these challenges. Agricultural production is the least concentrated level of the EU 
food  supply  chain.  Farmers  are  mostly  small  enterprises  or  grouped  into  small  cooperatives 
and  other  types  of  producer  organisations.  Their  suppliers  and  customers  (processors, 
wholesalers  and  retailers)  are  often  much  larger  and  more  concentrated,  giving  them  more 
bargaining  power  in  negotiations  with  farmers.288  Moreover,  unforeseeable  natural  events 
(such  as  adverse  weather  conditions,  pests  and  animal  and  plant  diseases)  can  affect 
production  significantly  either  of  the  EU  or  of  trading  partners,  resulting  in  volatility  of 
marketed quantities and prices. 

EU  farmers  could  manage  these  challenges  better  by  integrating  into  larger  producer 
organisations,  which  may  aggregate  supply  (in  terms  of  both  volumes  and  variety  of 
products), offer supporting services, and add value through processing. Such integration  can 
provide  more  stability,  better  risk-management,  scale  to  reach  more  customers,  flexibility, 
more  value,  and  more  bargaining  power.  In  2018,  the  so-called  Omnibus  Regulation289 
explicitly allowed recognised producer organisations and their associations in all agricultural 
sectors  to  engage  in  practices  such  as  production  planning  and  contractual  negotiations,  by 

288   There are approximately 11 million farms in the European Union which produce agricultural products for processing by about 300 000 
enterprises in the food and drink industry. The food processors sell their products through some 2.8 million enterprises within the food 
distribution and food service industry, delivering food to the EU's 500 million consumers. See: 
https://ec.europa.eu/info/sites/info/files/food-farming-fisheries/farming/documents/factsheet-food-supply-chain_march2017_en.pdf. 

289   See: https://www.consilium.europa.eu/en/press/press-releases/2018/07/16/omnibus-regulation-simpler-rules-for-use-of-eu-funds-

adopted/. Regulation (EU) 2017/2393 of the European Parliament and of the Council of 13 December 2017 amending Regulations (EU) 
No 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD), (EU) No 
1306/2013 on the financing, management and monitoring of the common agricultural policy, (EU) No 1307/2013 establishing rules for 
direct payments to farmers under support schemes within the framework of the common agricultural policy, (EU) No 1308/2013 
establishing a common organisation of the markets in agricultural products and (EU) No 652/2014 laying down provisions for the 
management of expenditure relating to the food chain, animal health and animal welfare, and relating to plant health and plant 
reproductive material (OJ L 350, 29.12.2017, p. 15). 

74 

 
 
 
                                                           
means of a derogation from Article 101 TFEU. 

Moreover, the Omnibus Regulation introduced a procedure where farmer associations could 
request  an  opinion  from  the  Commission  to  determine  whether  an  agreement  between  
farmers  potentially  restricting  competition  is  in  line  with  the  objectives  of  the  Common 
Agricultural Policy. The Commission received the first two requests in July 2019, pursuant to 
Article  209.2  subparagraph  (2)  and  209.2  subparagraph  (3)  of  the  Common  Market 
Organisation (CMO) Regulation.290 

Opportunities and challenges posed by increased retail concentration in the internal market  

Chains  of  retailers  have  developed  sophisticated  distribution  systems  and  varied  store 
formats that supply wide arrays of products  to  customers. Many such chains have opened 
shops  in  other  Member  States  than  their  home  market  bringing  different  business  models 
and  more  competition  to  other  markets.  On  the  one  hand,  consumers  value  the  offer  of 
different  products,  a  wider  choice  and  variety  of  products  coming  from  other  markets, 
especially  when  this  goes  along  with  lower  prices.  On  the  other  hand,  the  increasing 
concentration  of  retailers  (through  internal  growth,  mergers/acquisitions  and/or  the 
formation  of  buying  alliances)  continues  to  worry  certain  trading  partners,  especially 
smaller operators. In particular, they question whether large retail chains have obtained too 
much bargaining power (in the bilateral negotiations with their suppliers) and buyer power 
(in the market overall). 

The  main  benefit  expected  from  retailer  buying  alliances  is  to  pass  on  to  consumers 
(downstream) the better prices obtained from their suppliers (upstream). However, retailers 
joining  forces  in  buying  alliances  may  not  deliver  such  lower  prices  if  they  do  not  keep 
competing on downstream markets. For this reason, the Commission continued in 2019 its 
investigation into the business practices of Casino and Les Mousquetaires/Intermarché. On 
4 November 2019 the Commission opened formal proceedings against the two retailers.291 
The  two  firms  are  suspected  of  using  their  purchasing  alliance  as  a  vehicle  to  coordinate 
shop development and prices.  

Tackling  the  challenges  of  increased  retail  concentration  and  unequal  bargaining  power  in 
the EU Internal Market 

On  30  April  2019,  the  Directive  on  unfair  trading  practices  in  business-to-business 
relationships in the food supply chain entered into force.292 The Directive is based on a 2018 
Commission  proposal  aiming  to  tackle  at  EU  level  the  imbalances  of  bargaining  power 
throughout  the  food  supply  chain  by  banning  the  most  damaging  unfair  trading  practices 
imposed  by  buyers  with  strong  bargaining  power  on  small  suppliers,  in  particular  small 
farmers. 

In  line  with  the  economic  analysis293  of  the  Impact  Assessment,  the  list  of  unfair  trading 

290   Regulation (EU) No 1308/2013 of the European Parliament and of the Council 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 OJ L 347, 20.12.2013, p. 671–854. 

291   Case AT.40466. See: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6216.  
292   See: http://europa.eu/rapid/press-release_IP-18-2702_en.htm. 
293   Commission  Staff  Working  Document  Impact  Assessment,  Initiative  to  improve  the  food  supply  chain  (unfair  trading  practices) 
Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on unfair 
trading  practices  in  business-to-business  relationships  in  the  food  supply  chain,  SWD/2018/092  final  -  2018/082  (COD),  see  in 
particular, Annex H on the Economic impact of unfair trading practices regulations in the food supply chain (DG Competition), p.260.  

75 

 
 
 
 
 
                                                           
practices in the UTP Directive is divided up in a black list (always prohibited) and a grey list 
(only prohibited if not agreed upfront between the trading partners) of practices in order not to 
discourage  trading  partners  from  engaging  in  efficiency-enhancing  agreements  or  trading 
conditions.The  scope  of  protection  was  designed  to  avoid  protecting  businesses  that  have 
sufficient bargaining power to fend for themselves.   

Member  States  will  be  able  to  maintain  or  introduce  stricter  national  rules  because  the 
proposed directive only introduces minimum harmonisation at EU level as long as such rules 
are compatible with the functioning of the internal market. 

Preventing  market  segmentation  and  trade  restrictions  by  food  manufacturers  in  the  EU 
Internal Market 

On 13 May 2019, the Commission fined AB InBev, the world's largest beer brewing company, 
EUR  200  million  for  abusing  its  dominant  market  position.294  The  Commission  found  that, 
from  9  February  2009  until  31  October  2016,  AB  InBev  abused  its  dominant  position  by 
pursuing  a  deliberate  strategy  to restrict  the  possibility  for  supermarkets  and  wholesalers  to 
buy  Jupiler  beer  at  lower  prices  in  the  Netherlands and  to  import  it  into  Belgium.  The 
Commission decision equally made the remedy ensuring that AB InBev provides mandatory 
food information in both French and Dutch on the packaging of its products, legally binding 
for  the  next  five  years.  The  Commission  reduced  AB  InBev’s  fine  by  15%  in  light  of  AB 
InBev’s  acknowledgment  of  the  infringement  and  of  its  implementation  of  remedies  aimed 
towards favouring the cross-border trade of its products.  

7. 

PHARMACEUTICAL AND HEALTH SERVICES SECTORS  

Overview of key challenges in the sector  

Citizens’ access to innovative, high quality healthcare and medicines at affordable prices is of 
great societal relevance. By enforcing the competition rules in these sectors, the Commission  
contributes  to  this  objective.  Competition  law  complement  the  regulatory  frameworks  that 
exist in these sectors at national level. To this end, the Commission cooperates closely with 
the  competition  authorities  of  the  Member  States.  Competition  law  enforcement  on 
pharmaceutical  and  health  markets  fosters  both  dynamic  competition,  which  leads  to  more 
innovative medicines, and effective price competition,  which contributes to  more affordable 
medicines and treatments. 

Issues  with  the  affordability  of  medicines  have  over  the  past  years  become  an  increased 
concern  in  the  pharmaceutical  sector.  Innovation  generates  healthcare  benefits  when 
investments in R&D leads to the introduction of novel treatments. More efficient technologies 
may  reduce  treatment  costs.    For  example,  developing  production  processes  may  make  it 
viable for cheaper medicines to be commercially produced. 

On  28  January  2019,  the  Commission  published  the  report  Competition  enforcement  in  the 
pharmaceutical sector (2009-2017) - European competition authorities working together for 
affordable  and  innovative  medicines.295  The  report  provides  a  comprehensive  overview  and 
examples of how the Commission and the national competition authorities of the 28 Member 
States  have  enforced  the  EU  antitrust  and  merger  rules  in  the  pharmaceutical  sector  in  the 

294   Case AT40134 AB InBev Beer Trade Restrictions, Commission decision of 13 May 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_40134. 
295   See: http://ec.europa.eu/competition/sectors/pharmaceuticals/report2019/index.html.  

76 

 
 
                                                           
 
period 2009-2017. 

Contribution of EU competition policy to tackling the challenges in the sector 

Antitrust enforcement in the pharmaceutical and health sevices sectors 

The  Commission  and  the  competition  authorities  in  the  Member  States  monitor  the 
pharmaceutical  and  health  sevices  sectors  to  identify  potential  competition  issues.  Where 
appropriate,  investigations  are  initiated.  In  2019,  the  Commission  continued  proceedings  in 
two  cases  where  it  is  investigating  firms  suspected  of  preventing  or  reducing  consumers’ 
access to effective, innovative and affordable medicines.  

The first case concerns so-called pay-for-delay practices impeding the market entry of generic 
modafinil  (a  sleeping  disorder  medicine).296  The  Commission  aims  to  conclude  this 
investigation  in  the  course  of  2020.  The  second  case  concerns  the  ongoing  formal  antitrust 
proceedings against Aspen Pharma297 for a suspected abuse of its dominant market position. 
The  Commission  investigates  allegations  that  Aspen  Pharma  may  have  imposed  unfair  and 
excessive prices for a range of cancer medicines in all countries in the EEA except  Italy.298 
The Commission aims to conclude this case in 2020. 

Merger review in the pharmaceutical and health services sectors 

In  2019,  the  Commission  continued  its  thorough  review  of  mergers  and  acquisitions  in  the 
pharmaceutical sector, to ensure the availability of diversified and affordable medicines and 
medical devices to patients and medical practitioners across the EU, and to protect innovation.  

On 10 July 2019, the Commission approved the acquisition of Pfizer’s Consumer Healthcare 
business  by  GlaxoSmithKline,299  subject  to  the  divestment  of  Pfizer’s  ThermaCare-branded 
products, designed for the treatment of topical pain. The Commission had identified the risk 
that GlaxoSmithKline, a leading supplier of products for the treatment of topical pain with its 
Volta-branded  products,  could  have  increased  prices  for  topical  pain  management  products 
sold over-the-counter in a number of EEA countries.   

On  29  July  2019,  the  Commission  unconditionally  approved  the  acquisition  of  Celgene  by 
BMS.300 The Commission conducted a detailed assessment of the companies’ products under 
development,  primarily  in  the  area  of  autoimmune  diseases  and  oncology,  but  ultimately 
concluded that the transaction did not raise any competition concerns, because a large number 
of  R&D  organisations  compete  with  the  parties  in  the  therapeutic  areas  where  they  have 
overlapping research programmes. 

The  European  Commission  approved,  on  18  December  2019,  the  acquisition  of  General 
Electric's  Healthcare  Life  Sciences  Biopharma  Business  by  Danaher  Corporation.301  The 
approval was conditional on the divestiture of a remedy package. Danaher and GE Biopharma 
are  both  active  in  the  manufacturing  of  products  and  services  used  in  the  bioprocessing 
industries. Following its investigation, the Commission had serious doubts that the transaction 

296   Case AT.39686 Cephalon, see: IP/17/2063 of 17 July 2017: http://europa.eu/rapid/press-release_IP-17-2063_en.htm . 
297   Case AT.40394 Aspen. See: IP/17/1323 of 15 May 2017: http://europa.eu/rapid/press-release_IP-17-1323_en.htm and  

http://ec.europa.eu/competition/antitrust/cases/dec_docs/40394/40394_235_3.pdf. 

298   The Italian competition authority adopted an infringement decision against Aspen on 29 September 2016. 
299   Case M.9274 GlaxoSmithKline / Pfizer Consumer Healthcare Business. Commission decision of 10 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9274. 

300   Case M.9294 BMS / Celgene. Commission decision of 29 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9294. 

301   Case M. 6809 Danaher / GE Biopharma. See: https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6809. 

77 

 
                                                           
 
 
 
as notified would have reduced competition and resulted in higher prices, less innovation and 
the  risk  of  discontinuation  of  certain  products  in  the  markets  for  microcarriers,  bioprocess 
filtration,  chromatography  and  molecular  characterisation.  To  address  the  Commission 
concerns,  Danaher  committed  to  divest  five  of  its  biopharma  businesses.  On  this  basis,  the 
Commission  concluded  that  the  transaction,  as  modified  by  the  commitments,  would  no 
longer raise competition concerns.  

State aid initiatives in the health services sector 

In accordance with the Better Regulation framework, the Commission launched in June 2019 
an  evaluation  of  the  State  aid  rules  for  health  and  social  Services  of  General  Economic 
Interest (SGEI) and the SGEI de minimis Regulation,302 which expires in December 2020. By 
carrying  out  the  evaluation,  the  Commission  aims  to  get  a  better  and  more  detailed 
understanding of the potential issues that Member States may have had in implementing the 
rules. Moreover, the Commission will assess to what extent the current rules have encouraged 
and/or deterred Member States from designing new or adapting existing SGEI compensation 
measures for health and social services in line with the currently applicable SGEI rules. 

As part of this evaluation, a public and a targeted consultation was carried out between July 
and December 2019. Furthermore,  on 24 December 2019 a call for tender was published in 
the  Official  Journal  for  an  external  expert  study  with  the  aim  to  get  a  better  insight  in  the 
development of health and social services in the Member States and the level of competition 
in  these  sectors.  On  the  basis  of  the  results  of  the  consultations  and  the  expert  study,  the 
Commission envisages to conclude the evaluation by the first quarter of 2021.  

8. 

TRANSPORT AND POSTAL SERVICES 

Overview of key challenges in the sector 

The transport and postal services sectors account for approximately 5% of the EU economy, 
and their performance can have many beneficial effects for other sectors in the EU. Transport 
is  the key to  both  an integrated internal  market  and to  an open economy integrated into the 
world economy. In the postal sector, parcel services are supplied by competitive transnational 
suppliers  while  other  services  are  mostly  in  the  hands  of  incumbent  postal  operators  which 
often  depend  on  compensation  from  their  governments  for  providing  a  universal  postal 
service. 

In 2019, the Commission used its competition tools to keep the transport and postal markets 
open and competitive, and to facilitate market entry. Moreover, the Commission continued to 
facilitate  State  aid  enabling  interoperability  between  different  modes  of  transport  and  to 
stimulate a modal shift to more environmentally-friendly types of transport, as well as State 
aid for modernising infrastructure. 

Contribution of EU competition policy to tackling the challenges 

Merger review in air transport 

The  EU  air  transport  sector  is  still  fragmented.  In  the  EU,  there  are  more  than  150  airlines 

302   See: https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2019-3777435_en. 

78 

 
 
                                                           
offering scheduled air passenger transport. The five largest airlines in the EU -  Lufthansa, Air 
France/KLM, the International Consolidated Airlines Group (IAG)303, Ryanair and easyJet - 
account  for  around  50%  of  the  EU  market.  A  likely  increase  in  consolidation  in  the  EU 
aviation markets was demonstrated by the financial difficulties encountered by two medium-
sized  EU  airlines.  The  German  airline  Germania  went  into  bankruptcy  while  UK  regional 
carrier  Flybe  was  acquired  by  Connect  Airways.  Several  small  airlines  like  Aigle  Azur  and 
XL exited EU aviation markets. 

The Commission  reviewed the  acquistion  of  a 31% joint-controlling  interest  of  Air  France-
KLM  in  Virgin  Atlantic  Limited,  an  international  airline  with  headquarters  in  the  UK.  The 
acquisition led to joint control over Virgin Atlantic by Air France-KLM, Delta Air Lines Inc. 
and  Virgin  Group.304  The  Commission  found  that  none  of  the  overlapping  routes  raised 
competition  concerns, despite a small number of overlap routes with  high combined market 
shares. The Commission concluded that Virgin Atlantic, Delta and Air France-KLM are not 
close  competitiors  and  continue  to  face  significant  competition  from  other  carriers  on  the 
overlap  routes.  The  Commission  also  investigated  whether  the  companies’  combined  slot 
portfolio  post-transaction  would  prevent  competitors  from  entering  or  expanding  their 
presence at London Heathrow and Manchester airports and found that the increase in the slot 
portfolio  of  the  merged  entity  was  unlikely  to  have  a  negative  effect  on  passengers.  In 
addition,  no  serious  doubts  arose  with  regard  to  the  effects  of  the  transaction  on  the  other 
markets  investigated  by  the  Commission,  such  as  air  cargo  transport.  The  Commission 
therefore cleared the acquistion unconditionally on 12 February 2019. 

The Commission also assessed the acquisition of Flybe by Connect Airways, a consortium by 
Virgin  Atlantic,  Stobart  Aviation  and  Cyrus.305  The  Commission  investigated  the  impact  of 
the  transaction  on  the  market  for  air  passenger  transport  on  routes  from  British  airports  to 
other  EU  airports  as  well  as  some  intra-UK  routes.  The  Commission  found  that  the 
transaction  would  have  led  to  quasi-monopolies  on  two  direct  EU  routes,  namely 
Birmingham-Amsterdam  and  Birmingham-Paris.  To  address  these  competition  concerns, 
Connect Airways committed to release five daily slot pairs at Amsterdam Schiphol and three 
daily slot pairs at Paris Charles de Gaulle airport. These slots will be released to competing 
airlines  that  want  to  fly  the  Birmingham  -  Amsterdam  and  Birmingham-Paris  routes.  The 
Commission  considered  that  the  commitments  fully  addressed  the  competition  concerns 
identified  by  the  Commission  regarding  Connect  Airways'  acquisition  of  Flybe.  The 
Commission  concluded  that  the  transaction,  as  modified  by  the  commitments,  would  no 
longer raise competition concerns and authorised it on 5 July 2019.  

In  the  framework  of  commitments  attached  to  previous  clearance  decisions  in  aviation 
markets,  the  Commission  received  in  2019  a  number  of  new  applications  for  slots.  The 
Commission received requests for additional slots by Flybe on the routes connecting London 
Heathrow  to  Edinburgh  and  London  Heathrow  to  Aberdeen.306  Furthermore,  Transavia 
requested additional slots at Ibiza and Paris airports for the city pair Paris-Ibiza in accordance 
with  the  commitments  given  when  the  Commission  authorised  Iberia's  takeover  of  Clickair 

303   IAG is the parent company of Aer Lingus, British Airways, Iberia, and Vueling. 
304   M.8964 Delta/Air France-KLM/Virgin Group/Virgin Atlantic, Commission decision of 12 February 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8964. 

305   M.9287 Connect Airways/Flybe, Commission decision of 5 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9287. 

306   Case M.6447 IAG/bmi, Commission decision of 11 November 2019 concerning the assessment of the viability of the Applicant and  
evaluation of its formal bid pursuant to Clause 1.4.9 of the Commitments attached to the Commission decision of 30 March 2012 in  
case M.6447 IAG/bmi. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_6447. 

79 

 
                                                           
 
 
and Vueling.307 

On  6  February  2019,  the  Commission  accepted  KLM’s  request  for  a  waiver  of  the 
Commitments  applying  to  the  Amsterdam-New  York  route,  considering  that  KLM  has 
demonstrated the existence of exceptional circumstances.308  

State aid to airports and airlines 

The Commission’s ongoing Fitness check in the State aid area includes the 2014 Guidelines 
on  State  aid  to  airports  and  airlines309  and  the  relevant  rules  under  the  2017  General  Block 
Exemption Regulation (GBER).310 The objective of the Fitness check is to determine whether 
the  Aviation  Guidelines  fulfil  their  initial  objectives  of  preventing  undue  distortions  of 
competition while allowing airports to contribute to regional development and connectivity. 

Following  the  adoption  of  the  GBER  concerning  aid  to  airports  in  2017,  the  Commission 
received  few  notifications  of  investment  aid  in  2019.  Most  of  the  notifications  the 
Commission  received  concerned  operating  aid  to  airports311,  in  most  cases  smaller  regional 
airports with fewer than 700,000 passengers per year. 

The  majority  of  the  Commission’s  State  aid  cases  in  the  aviation  sector  examine  possible 
illegal operating aid to airlines, often in the context of agreements concluded with airlines by 
airports or local authorities.312 

After  a  formal  investigation,  the  Commission’s  concluded  that  marketing  agreements  
concluded by the French local authorities with Ryanair to promote Montpellier airport gave 
Ryanair  an  unfair  and  selective  advantage  over  its  competitors  and  caused  harm  to  other 
regions and other regional airports.313 On 2 August 2019, the Commission adopted a negative 
decision  finding  these  marketing  agreements  to  be  illegal  and  incompatible  State  aid  and 
ordered France to recover EUR 8.5 million from Ryanair.  

The Commission adopted a no aid decision in the Riga airport case.314 The operator of Riga 
international airport claimed it had granted illegal aid to Ryanair by signing an airport-airline 
agreement  that  was  unprofitable  for  the  airport.  The  Commission  did  not  accept  the  re-
constructed ex-ante profitability analysis submitted by the operator in support of its claim, but 
instead, on the basis of different  assumptions as regards expected traffic development, costs 
and  revenues,  the  Commission  concluded  that  the  agreement  was  in  line  with  the  market 
economy operator principle. 

307   Case M.5364 Iberia/Clickair/Vueling, Commission decision of 12 November 2019 concerning the assessment of the Applicant pursuant 

to Clauses 3.3 and 3.4 of the Commitments attached to the Commission decision of 9 January 2009 in case M.5364 – 
Iberia/Clickair/Vueling. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_5364. 
308   Case M.3280 Air France/KLM, Commission decision of 6 February 2019 on Air France-KLM’s request for a waiver of the 

Commitments applying to Amsterdam New York pursuant to Clause 14 of the commitments package annexed to the Commission 
decision of 11 February 2004 in case M.3280 Air France/KLM. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_3280. 

309   See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52014XC0404%2801%29.  
310   See: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1497952641554&uri=CELEX:32017R1084. 
311   Case SA.45140 Antwerp Airport, Commission decision of 12 November 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_45140.  

312   Case SA.38145 Alleged illegal State aid to Ryanair, Commission decision of 04 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_38145.  

313   Case SA.47867 Aide présumée en faveur de Ryanair à l'aéroport de Montpellier, Commission decision of 2 August 2019. See:  

https://ec.europa.eu/commission/presscorner/detail/en/IP_19_4991. 

314   The Market Economy Operator Principle (MEOP) is a concept developed by the Commission to determine whether a transaction  
entered into by a public body gives an advantage to a particular undertaking with the potential of distorting competition and trade  
between Member States. 

80 

 
                                                           
 
 
 
 
 
 
On 28 October 2019, the Commission  opened a formal investigation in  relation  to  plans by 
the Spanish region of Valencia to grant EUR 9 million to the regional airline Air Nostrum for 
the renewal  of its  fleet.315  The Commission  has doubts  that the intended support constitutes 
aid  for  environmental  protection  in  line  with  the  GBER  or  the  Guidelines  on  State  aid  for 
environmental  protection  and  energy  (EEAG).316  In  particular,  the  Commission  doubts  that 
the requirement of an incentive effect under both the GBER and the EEAG is met in this case. 
The  beneficiary  Air  Nostrum  is  a  large  company  and  there  is  no  evidence  at  this  stage  that 
without  the  aid,  it  would  not  have  acquired  the  more  fuel-efficient  CRJ-1000  aircraft.  It  is 
worth  noting  that  airlines  have  an  economic  interest  in  acquiring  fuel-efficient  aircraft  to 
lower their operating costs. 

On  22  February  2019,  the  Commission  approved  the  EUR  25  million  restructuring  aid 
awarded to Aerdorica S.p.A.317, the ailing operator of the Italian Aeroporto delle Marche, as it 
was  compliant  with  the  compatibility  conditions  under  the  2014  Rescue  and  Restructuring 
Guidelines. A sound restructuring plan aiming at restoring the company’s long-term viability 
was  provided.  The  plan  contained  contributions  from  the  company's  own  resources  and 
private  market  players  (including  EUR  15  million  of  new  capital  by  a  new  investor  taking 
control of the company). The plan also laid down appropriate measures to limit distortions of 
competition arising from the public aid, in particular vis-à-vis airports in the same geographic 
catchment area. 

 On 14 October 2019, the Commission authorised a EUR 380 million rescue loan backed by a 
State guarantee in favour of the German airline Condor.318 The airline faced an acute liquidity 
shortage after the entry into liquidation of its UK parent company, the Thomas Cook Group. 
Moreover,  Condor  had  to  write  off  significant  claims  against  other  Thomas  Cook  Group 
companies,  which  Condor  was  no  longer  able  to  collect.  The  Commission  assessed  the 
measure  under  the  2014  Rescue  and  Restructuring  Guidelines.  In  line  with  the  Guidelines, 
Germany  submitted  a  detailed  liquidity  plan,  justifying  the  company’s  short-term  liquidity 
needs.  Moreover, Germany committed that after  six  months, Condor would either repay the 
loan  or  carry  out  an  in-depth  restructuring  to  become  viable  in  the  long-term.  The  possible 
restructuring  would  be  subject  to  the  Commission's  assessment  and  approval.  The 
Commission concluded that the loan would help to ensure orderly air transport in the interest 
of  passengers,  while  the  stringent  conditions  attached  to  the  loan  and  its  limited  duration 
would  reduce  to  a  minimum  the  distortion  of  competition  potentially  triggered  by  the  State 
support.  

On  28  October  2019,  the  Commission  opened  a  formal  investigation  into  various  financing 
measures  awarded  to  Malév  Ground  Handling,  totalling  some  EUR  21  million,  granted  by 
Hungarian  State-owned  entities.319  Malév  Ground  Handling  provides  ground  handling 
services  at  Budapest  airport and is  a former subsidiary of Malév, the Hungarian flag carrier 
that went bankrupt in 2012. Currently owned by the State asset management company MNV, 
Malév Ground Handling has faced financial difficulties since Malév’s bankruptcy. In August 
2017,  Budport,  a  private  competitor  and  former  subcontractor  of  Malév  GH,  lodged  a 

315   Case SA.50707 Air Nostrum fleet renewal, Commission decision of 28 October 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_50707. 

316   See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52014XC0628%2801%29. 
317   Case SA.49901 Restructuring aid to Aerdorica S.p.A – Airport Marche/Ancona, Commission decision of 22 February 2019 See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49901.  

318   Case SA.55394 Germany - Rescue Aid to Condor, Commission decision of 14 October 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55394. 

319   Case SA.49073 Hungary- Alleged State aid to Malév GH, Commission decision of 28 October 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49073. 

81 

 
                                                           
 
 
 
 
complaint alleging that Malév Ground Handling had benefitted from State aid in the form of 
various  capital  injections,  debt  write-offs  and  loans.  The  opening  decision  reflects  the 
Commission’s doubts that these measures appear to constitute incompatible State aid within 
the  meaning  of  article  107(1)  TFEU.  The  financial  support  may  have  given  Malév  Ground 
Handling an unfair competitive advantage over other ground handling operators at Budapest 
airport. 

Antitrust enforcement in maritime transport  

The  Commission  has  finalised  its  evaluation  of  the  Consortia  Block  Exemption  Regulation 
(CBER).320  The  Commission  analysed  responses  received  during  a  public  consultation  in 
2018  and  carried  out  its  own  assessment.  The  Commission  published  its  findings  in  a  Staff 
Working  Document  dated  20  November  2019.  Based  on  the  evaluation,  the  Commission 
proposed prolonging the CBER for four years. A roadmap of the initiative as well as a draft 
regulation  prolonging the CBER  were published for feed-back of interested stakeholders  on 
20 November 2019.  

Merger review in maritime transport 

The  global  container  shipping  industry  is  undergoing  a  period  of  change  in  reaction  to  the 
challenges  it  has  been  facing  in  recent  years.  The  sector  is  characterised  by  overcapacity, 
resulting from several carriers' expansion and investment in ultra-large vessels in recent years 
as well as a slow recovery of demand following the economic crisis. To improve efficiency 
and  reduce  operating  costs,  container  shipping  companies  do  not  only  provide  services 
individually,  but  also  conclude  operational  agreements,  such  as  consortia  or  alliances  with 
other shipping companies. After a wave of consolidation between 2014 and 2017 the focus of 
the  industry  has  shifted  towards  vertical  integration.  The  carriers  aim  to  become  integrated 
logistics players offering not only deep-sea container services but also door-to-door transport 
services. 

In  this  regard,  the  Commission  assessed  the  acquisition  of  control  by  French  group  CMA 
CGM    of  Switzerland-based  company  Ceva  Logistic.  CEVA  offers  freight  forwarding  and 
contract logistics services. CMA CGM is active in freight forwarding services and container 
liner  shipping  services,  the  latter  being  inputs  to  the  freight  forwarding  services.  The 
Commission  analysed  whether  the  vertically  integrated  entity  would  have  the  ability  and 
incentive to engage in input or customer foreclose. The Commission considered that, even if 
CMA CGM were to engage in an input foreclosure strategy by limiting its supply only to its 
downstream arm, competing carriers would start providing container liner shipping services to 
the other freight-forwarders on the downstream market. As regards customer foreclosure, the 
Commission concluded that the merged entity’s market shares in the downstream markets for 
freight  forwarding  services  were  limited.  Since  CEVA’s  demand  represented  a  very  small 
percentage of the total demand in the EEA, CEVA could not be considered as an important 
customer  with  a  significant  degree  of  market  power.  The  transaction  was  cleared  without 
conditions in a decision adopted on 6 February 2019.321 

State aid enforcement in the maritime transport sector 
In 2019, the Commission approved a number of state aid schemes under the Maritime State 

320   Commission Regulation (EC) No 906/2009 of 28 September 2009 on the application of Article 81(3) of the Treaty to certain categories 

of agreements, decisions and concerted practices between liner shipping companies (consortia)  

321   Case M.9221 CMA CGM/CEVA, Commission decision of 6 February 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_9221. 

82 

 
                                                           
 
aid Guidelines,322 which allow tax reliefs for shipping companies. The aim of the Guidelines 
is to maintain the EU maritime sector's competitiveness in relation to third countries.  

On 22 February 2019, the Commission approved the extension to new types of vessels of a 
Danish  seafarer  scheme.323  Under  the  amended  scheme,  shipping  companies  opting  for  the 
Danish  International  Register  of  Shipping  (DIS)  scheme  and  employing  seafarers  aboard 
certain specialised vessels providing off-shore activities can benefit from an exemption from 
income taxes for their seafarers. The scheme, as extended, applies to the same types of vessels 
covered  by  the  extension  of  the  Danish  tonnage  tax  scheme,  which  was  approved  by  the 
Commission on 12 October 2018.324  

On  26  July  2019,  the  Commission  approved  the  prolongation  of  certain  amendments  to  the 
Dutch  tonnage  tax  scheme,  subject  to  the  implementation  of  certain  changes  to  the  tonnage 
tax  law.  The  prolonged  amendments  concern  a  reduced  tonnage  tax  rate  for  large  vessels 
exceeding 50 000 net tons, a reduced tonnage tax base for ship management companies and 
the  application  of  the  tonnage  tax  schemes  to  cable-laying  vessels,  pipeline  laying  vessels, 
research vessels and crane vessels and were for the first time approved in 2009 and 2010.325 

On 16 December 2019, the Commission adopted several decisions on tonnage tax schemes as 
well  as  seafarer  schemes.  First,  the  Commission  approved  the  prolongation  of  the  Cypriot 
tonnage tax and seafarer scheme for a ten-year period until 31 December 2029.326 Second, the 
Commission adopted a decision covering a tonnage tax and a seafarer scheme for Estonia.327 
Both schemes will enter into force on 1 July 2020 and will have a duration of 6 years. Estonia 
does  not  have  any  maritime  scheme  in  place  at  the  moment  and  at  present  no  cargo  vessel 
engaged  in  international  transport  flies  the  Estonian  flag.  The  schemes  are  thus  expected  to 
boost the competitiveness of Estonia as a maritime country. Third, the Commission adopted a 
Decision approving a 10-year prolongation of a Danish seafarer scheme for dredgers.328 The 
scheme guarantees that seafarers on board dredgers benefit from similar exemptions to those 
foreseen by the Danish DIS scheme. Fourth, the Commission approved the introduction of a 
Polish  scheme  reducing  the  income  tax  for  seafarers.329  Finally,  the  Commission  authorised 
the  prolongation  of  a  Swedish  scheme  reducing  both  income  tax  and  social  security 
contributions as well as a fee on wages of seafarers by 99%.330 In both the Polish and Swedish 
case,  the  Commission  ensured  that  the  national  scheme  is  applied  in  a  non-discriminatory 
manner  to  all  seafarers  working  on  any  EEA-flagged  vessel  and  that  it  is  not  restricted  to 
national vessels only. 

State aid enforcement in the rail and intermodal transport sectors  

322   Commission communication C(2004)43 – Community guidelines on State aid to maritime transport, OJ C 13, 17.1.2004, p. 3-12. 
323   Case SA.52069 Prolongation of the Danish seafarer regime for dredgers, Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52069 . 

324   Case SA.45300 Amendment of the Danish Tonnage Tax scheme (Extension of the tonnage tax scheme to cover a number of specialized  

vessels), Commission decision of 12 October 2018 See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_45300. 

325   Case SA.51263 Prolongation of the Dutch tonnage tax scheme for ship managers, large vessels and service vessels, Commission 

decision of 26 July 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51263. 

326   Case SA.51809 Prolongation of the Cyprus tonnage tax and seafarer scheme. Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51809. 

327   Case SA.53469 State aid in favour of maritime transport, Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53469. 

328   Case SA.52069 Prolongation of the Danish seafarer regime for dredgers Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52069. 

329   Case SA.46380 Poland – Reduction of income tax for seafarers, Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_46380. 

330   Case SA.46740 Sweden – Tax deduction scheme for seafarers, Commission decision of 16 December 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_46740. 

83 

 
                                                           
 
 
 
 
 
 
 
 
In  2019,  the  Commission  approved  numerous  schemes  supporting  rail331  and  intermodal332 
transport  on  the  basis  of  the  2008  State  aid  Guidelines.333  Approved  measures  include  for 
example aid for external costs, infrastructure aid, aid to support measures for noise reduction 
and  aid  to  support  research  into  environmentally-friendly  rail  transport  and  support  for 
systems ensuring interoperability, in particular to enhance the deployment of ERTMS.334 All 
these measures supports  the shift of freight and passenger transport from road to rail, as the 
safer and more environmentally-friendly transport mode.  

Moreover, in 2019, the Commission proceeded with the evaluation of the State aid rules in the 
railway  sector,  mainly  laid  down  in  the  Community  guidelines  on  State  aid  for  railway 
undertakings adopted in  2008  in the framework  of the State aid  Fitness  check.  The exercise 
involved  internal  analyses  and  a  public  consultation  to  assess  whether  the  rules  fulfil  their 
initial  objective  of  enhancing  a  Single  European  Railway  area  by  supporting  the  rail  sector 
where  needed  while  minimising  competition  distortions.  The  assessment  aims  to  determine 
whether to prolong the rules in case they are still fit for purpose or to review them if the rules 
no longer meet their initial objectives. The results of the Fitness Check will be published in 
2020. 

State aid review in the road sector 

The  Commission  continued  to  enforce  Regulation  No  1370/2007  on  public  passenger 
transport services. No decisions were adopted in 2019.  

State aid review in the postal services sector 

The  postal  sector  continues  to  evolve  and  traditional  letter  delivery,  due  to  electronic 
substitution,  is  declining.  Nevertheless,  postal  services  continue  to  have  a  significant 

331   Cases SA.51714(Italy) and SA.51559 (France) Prolongation de l’aide au service transitoire d’autoroute ferroviaire alpine, Commission  

decisions of 02 August 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51714 and  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51559; SA.52898 Financial measure to stimulate rail 
freight, Commission decision of 08 July 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52898; SA.54990 Aid in favour of rail freight  
transport in Emilia-Romagna region, Commission decision of 10 October 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54990; SA.55025 Prolongation of Rail Freight  
Transport Scheme 2020-2022. Commission decision of 15 November 2019, See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55025. 

332   Case SA.51613  Combined transport aid scheme for Luxembourg 2019-2022, Commission decision of 08 July 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_51613; SA.52499 Extension of the Integrated  
Transport Scheme in the Province of Trento, Italy, Commission decision of 06 March 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52499; SA.52828 Incentive scheme for combined 
cargo transport, Commission decision of 04 February 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_52828; SA.53158 Aide à l'exploitation de services  
réguliers de transport combiné de marchandises alternatifs au mode tout routier pour la période 2018-2022, Commission decision of  
29 October 2019, See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53158; Commission decision of 
18 October 2019, SA.54860 Mode Shift Revenue Support (MSRS) scheme. See :  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_54860; SA.55507 Austria - Support for rail transport 
in the mountainous regions, Commission decision of 16 December 2019, see:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55507; SA.55443 Poland - Aid for the implementation 
of projects to reduce noise emissions by freight wagons, Commission decision of 16 December 2019, see:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55443. 

333   Communication from the Commission: Community guidelines on State aid for railway undertakings, OJ of 22 July 2008, C 184, p. 13, 

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:184:0013:0031:EN:PDF.  

334   Commission decision of 05 November 2019, SA.55451 - The Netherlands - Support for ERTMS-upgrade, see:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_55451. See: 
https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6223. The European Rail Traffic Management System ERTMS aims at 
ensuring interoperability of train control and command systems in the European Union. 

84 

 
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
 
 
 
economic  and  social  value.  In  a  shrinking  market  for  traditional  letter  delivery,  postal 
operators are diversifying their activities 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  a  key  factor  in  allowing  e-commerce  to  realise  its 
potential for growth and creating jobs.  

Through State aid control in the postal sector, the Commission pursues multiple related goals. 
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 distort competition between postal incumbents and new entrants. State aid should not 
shield  the  recipients  from  competitive  pressures  and  market  developments,  but  should 
incentivise efficiency, innovation and investment.  

On 19 March 2019, the General Court upheld the Commission Decision from 26 November 
2015  on  financing  of  Polish  Post’s  universal  service  obligation  via  a  compensation  fund.335 
The  judgment  confirms  the  Commission’s  approach  for  the  assessment  of  universal  service 
compensations under the SGEI framework.336 The judgment also clarifies the approach to be 
taken for compensation funds as well as the interplay between the Postal Directive337 and the 
SGEI Framework. The judgment was appealed by InPost and the appeal is still pending.338  

On 14 June 2019, the Commission opened an in-depth investigation to assess whether capital 
injections granted by Denmark and Sweden to  PostNord and by PostNord to Post Danmark 
are  in  line  with  EU  State  aid  rules.339  Post  Danmark  is  the  national  postal  operator  in 
Denmark and a wholly-owned subsidiary of PostNord, which is owned by the Danish (40%) 
and Swedish (60%) States.  

On 22 July 2019, the Commission approved a EUR 171.74 million public service 
compensation granted by Italy to Poste Italiane for distributing, at reduced tariffs, newspapers 
and publications of book publishers and non-profit organisations for the period 2017-2019.340  

335   Case T-283/16 (Joined Cases T-282/16, T-283/16) Inpost Paczkomaty v Commission Judgment of the General Court (Third Chamber,  

Extended Composition) of 19 March 2019 Inpost Paczkomaty sp. z o.o. and Inpost S.A. v European Commission.   

336   Communication from the Commission — European Union framework for State aid in the form of public service compensation (2011), 

OJ C 8, 11.1.2012, p. 15-22. 

337   Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the 
internal market of Community postal services and the improvement of quality of service, as amended by Directives 2002/39/EC and 
2008/6/EC, OJ L 15, 21.2.1998, p. 14-25. See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:01997L0067-20080227.  

338   C-431/19 P - Inpost Paczkomaty v Commission, case pending.  
339   Cases SA.49668 Denmark - Alleged State aid to Post Danmark, Commission decision of 14 June 2019. See:  

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_49668 and SA.53403 Sweden - Alleged State aid to  
Danmark Commission decision of 14 June 2019. See:  
https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_53403. 

340   SA.48492 Italy - Compensation to Poste Italiane for reduced tariffs for publishers and not-for profit organizations 2017-2019,  

Commission decision of 14 June 2019. See: https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_48492. 

85 

 
 
                                                           
 
 
 
 
 
ANNEX 
Banking State aid cases: Decisions adopted by the Commission in 2019 

By country 

Member 
State 

Case Number/Title 

Type of Decision 

Date of 
Adoption 

1 

Austria 

SA.51650(2018/N) - 

2 

Austria 

SA.45840(2019/N) - 

3 

Croatia 

SA.51814(2018/N) - 

4 

Cyprus 

SA.35534(2019/N) - 

5 

Denmark 

SA.54807(2019/N) - 

France/ 
Belgium 

SA.53554(2019/N) 
and SA.53592(2019/N 
- 

Germany 

SA.49094(2019/N) - 

6 

7 

8 

Greece 

SA.53123(2019/N) - 

9 

Greece 

SA.43365 (2015/N) - 

Sale of 25 % + 2 shares of 
Landes-Hypothekenbank 
Steiermark AG to Raiffeisen-
Landesbank Steiermark AG 

Tax Incentives for Mid-Sized 
Business Financing 
Companies 

Reintroduction of the 
resolution scheme for small 
credit institutions with total 
assets below EUR 1,5 billion 

Second amendment to the 
liquidation aid for the orderly 
market exit of Cyprus 
Cooperative Bank Ltd 

Prolongation of the winding-
up scheme for small banks 

Renouvellement de la 
garantie de refinancement de 
Dexia au-delà du 31 
décembre 2021 

Market-conform measures 
for strengthening capital and 
restructuring of 
Norddeutsche Landesbank 

Pre-approval for Eurobank 
merger transaction with 
Grivalia in accordance with 
State aid commitments 

Amendment of the 
restructuring plan approved 
in 2014 and granting of new 
aid to National Bank of 
Greece 

86 

No aid  

21.01.2019 

No objection 

31.07.2019 

No objection 

14.01.2019 

No objection 

29.11.2019 

No objection 

23.08.2019 

No objection 

27.09.2019 

No aid 

5.12.2019 

No objection 

07.02.2019 

No objection 

10.05.2019 

 
 
10 

Greece 

SA.54332(2019/N) - 

11 

Greece 

SA.53520(2019/N) - 

12 

Greece 

SA.53519(2019/N) - 

13 

Ireland 

SA.54005(2019/N) - 

14 

Ireland 

SA.54244(2019/N) - 

15 

Ireland 

SA.54724(2019/N) - 

16 

Ireland 

SA.55542(2019/N) -  

17 

Italy 

SA.52917(2019/N) - 

18 

Italy 

SA.53518 (2019/N) - 

19 

Italy 

SA.21445(C42-2006) - 

20 

Italy 

SA.55121(2019/N) - 

21 

Poland 

SA.54463(2019/N) - 

Prolongation of the Greek 
State Guarantee Scheme for 
banks (Art. 2 law 3723/2008) 

Primary Residence 
Protection Scheme 

Hellenic Asset Protection 
Scheme ('Hercules') 

Ninth prolongation of the 
Credit Union restructuring 
and stabilisation scheme 

15th prolongation of the 
Credit Union Resolution 
Scheme 2019-2020 

Limited extension of 
NAMA’s lifespan to work 
out residual loans 

10th prolongation of the 
Credit Union restructuring 
and stabilisation scheme 

Liquidity support to Banca 
Carige - Cassa di Risparmio 
di Genova e Imperia 

Third prolongation of the 
Italian guarantee scheme for 
the securitisation of non-
performing loans 

Poste Italiane SpA - 
BancoPosta: remuneration of 
current accounts deposited 
with the Treasury 

Banca Monte dei Paschi di 
Siena - Amendments to the 
list of commitments of the 
Republic of Italy to the 
European Commission 

Third prolongation of the 
resolution scheme for 
cooperative banks and small 

87 

No objection 

11.06.2019 

No objection 

19.09.2019 

No aid  

10.10.2019 

No objection 

27.05.2019 

No objection 

24.06.2019 

No objection 

25.07.2019 

No objection 

27.11.2019 

No objection 

18.01.2019 

No objection 

27.05.2019 

No aid 

02.08.2019 

No objection 

12.09.2019  

No objection 

29.10.2019 

 
commercial banks 

22 

Poland 

SA.54734(2019/N) - 

Ninth prolongation of the 
Credit Unions Orderly 
Liquidation Scheme 

No objection 

13.08.2019 

23 

Romania 

SA.53869(2019/N) - 

Market-conform 
recapitalisation of CEC Bank 

No aid 

29.10.2019 

24 

25 

The 
Netherlands 

United 
Kingdom 

SA.47821(2019/N) - 

Invest-NL 

No objection 

06.06.2019 

SA.54557(2019/N) - 

Funding and remit of the 
British Business Bank 2020-
2024 

No objection 

28.10.2019 

88