CELEX: 31995M0568
Language: en
Date: 1995-06-08 00:00:00
Title: COMMISSION DECISION of 08/06/1995 declaring a concentration to be compatible with the common market (Case No IV/M.568 - EDF / EDISON ISE) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

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31995M0568

COMMISSION DECISION of 08/06/1995 declaring a concentration to be compatible with the common market (Case No IV/M.568 - EDF / EDISON ISE) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)  

Official Journal C 241 , 16/09/1995 P. 0004

 COMMISSION DECISION of 08/06/1995 declaring a concentration to be compatible with the  common market (Case No IV/M.568 - EDF / EDISON-ISE) according to Council Regulation (EEC)  No 4064/89  (Only the English text is authentic).  The paper version of the decision is available through the sales offices of the Office of Official  Publications of the European Communities. PUBLIC VERSION MERGER PROCEDURE ARTICLE 6(1)(b) DECISION To the notifying parties Dear Sirs, Subject:<ind> Case No IV/M.568 - EDF/EDISON-ISE <tab> <ind> Your notification of 28 April 1995 pursuant to Article 4 of Council Regulation No.  4064/89 1.<ind> The above operation involves the joint acquisition by Edison S.p.A. (Edison) and EDF  International S.A.(EDFI) of 73.96% of the share capital of Ilva Servizi Energie S.r.l. (ISE). 2.<ind> After examination of the notification the Commission has concluded that the proposed  operation falls within the scope of Council Regulation No 4064/89 and does not give rise to serious  doubts as to its compatibility with the common market and the EEA Agreement. I THE PARTIES 3.<ind> EDFI is a subsidiary of the French state owned company Electricité de France (EDF), the  French state-owned electricity company ensuring the production, transportation and distribution of  electricity in France. EDF is also active outside France both through associations with local  producers and through exports of electricity to other national operators, in particular ENEL in Italy,  which is EDF's third largest international customer with a total purchase of 15.2 billions of kWh. 4.<ind> Edison is a subsidiary of the Italian group Montedison and is active in the production of  electrical energy as well as the exploration, production, and distribution of natural gas and crude  oil. 5.<ind> ISE is active in the production of electrical energy in Italy. Its main assets are: one  thermoelectrical power plant and two turbo-generators in Taranto, two thermoelectrical plants in  Piombino and one hydroelectrical plant in Terni. Another thermoelectrical plant is being constructed  in Taranto, which should double the current power generation capacity of ISE (passing from 600  MW to 1100 MW). II<tab> THE OPERATION 6.<ind> On June 28, 1994, an invitation to bid for 73.96% of the share capital of ISE (the  controlling stake) was launched in the framework of the privatisation of the ILVA group. Following  this invitation, Edison and EDFI concluded on December 21 1994 a preliminary agreement  attributing 60% of the controlling stake to Edison and 40% to EDFI. On December 22 1994, they  submitted a joint binding offer as a result of which a transfer agreement was entered between ILVA  as seller, and Edison and EDFI as purchasers. 7.<ind> On April 20 1995, the parties entered into an agreement by which they created a non- operating company under Italian law (Newco), through which they will acquire the controlling stake  in ISE. III CONCENTRATION <tab> Joint Control 8.<ind> The 73.96% controlling stake will confer on the parties through Newco joint control of ISE.  The share capital of Newco will reflect the sharing of the control stake agreed upon between the  parties in the agreement of December 21 1994, referred to above (60% Edison, 40% EDFI).  However, unanimous approval of both parents is required for the main strategic decisions of Newco,  which include the approval and implementation of the investment programme and business plan of  ISE, the appointment of the management of ISE, the appointment and the organisation of ISE's  consultative committee, and the definition of ISE's organisation structure. 9.<ind> In light of the above, ISE will be jointly controlled by Edison and EDFI. <tab> Full Function 10.<ind> ISE will go on performing on a lasting basis, after the operation, all the functions of an  autonomous economic entity as it did before the joint acquisition and is not intended to deliver  electricity to its parent companies. <tab>Absence of Co-ordination 11.<ind> Although ENEL, the Italian public monopoly for electricity, sources electricity from both  foreign producers (including EDF) and independant Italian producers (including Edison), the  operation willl not lead to a coordination between the two parent companies as Edison's degree of  flexibility in determining its behaviour vis-à-vis ENEL is very low. 12.<ind> The independent Italian producers can only supply ENEL or auto-consume the electricity  they produce. Edison for example is active; on the one hand, in the production of hydroelectricity  mainly for the supply of group consumption (autoproduction) and; on the other hand in the operation  of thermoelectric production plants dedicated to ENEL through long term agreement <ind> These long term regulated agreement do not provide the Italian independent producers,  including Edison, with very limited flexibility as far as the operation of the plants dedicated to  ENEL is concerned. The determination of prices and conditions of supply to ENEL by the  independant producers follows strict regulated rules spelled out in the mandatory provisions for  supply agreements laid down by the Italian law. <ind> Each plant is subject to one of these long term publicly regulated agreement. Such agreements  include fixed rules as regards the price to be paid for peak and off-peak hours and the amount of  electrical power dedicated to ENEL. The agreement includes also a yearly production diagram  detailing the number of operating days (in the case of Edison the plants are operating all year except  maintenance time detailed in the yearly diagram). Based on this yearly diagram, ENEL issues a  detailed weekly production plan which details hour per hour its requirements. The producer is  required to strictly comply with the weekly plan. It is not allowed to produce more than requested  and is subject to penalties if it produces less than requested. ENEL is subject to take or pay  conditions and cannot request the plant to stop more than a limited number of time per year. There is  thus very little flexibility on each side after the long term publicly regulated contract is signed IV<tab> COMMUNITY DIMENSION 16.<ind> The operation has a Community dimension. The worldwide turnover of all the  undertakings concerned amounted in 1993 to more than 5,000 million Ecu (Edison: 365 million  Ecu; EDF 28,500 million Ecu; ISE 83.6 million Ecu). The Community-wide turnover of both Edison  and EDF exceeded 250 million Ecu. The parties did not achieve more than two thirds of their  aggregate Community-wide turnover within one and the same Member State.  V<ind> COMPATIBILITY WITH THE COMMON MARKET <tab> Product and geographic market 17.<ind> The Commission already decided [Case IV/M-493. Tractebel/Distrigaz] that electricity  should be considered as a relevant product market distinct from the market for gas or the market for  other energy sources.  <ind> From a demand-side point of view, electricity is characterized by the universality of its usages.  It is possible to distinguish between the exclusive usages (essentially lighting and the utilization of  electricity to get some chemical reactions) and the usages for which there exists, from a technical  point of view, a potential substitutability with other sources of energy utilized by households as well  as by industrial operators (in particular traction and the production of heat). This technical  substitutability relates only to the non-exclusive usages, essentially the production of heat. It remains  very imperfect as electricity is produced from another source of energy, and is therefore necessarily  more expensive. It is thus utilized only when the characteristics of heat and the technical process  require it. Lastly, this substitutability could take place only over a long period of time because it  involves different choices of equipment, according to the source of energy chosen.  <ind> From a supply-side point of view, every source of energy presents some different requirements  as far as production, storage and transport are concerned. This distinguishes electricity from other  sources of energy as it requires specific and important investments.  18.<ind> As regards the geographical market, those companies involved in the production, transport  and distribution of electricity are essentially active on a national basis, so that the structure of supply  is different in each country [Case IV/M-493. Tractebel/Distrigaz]. The regulatory frameworks may  evolve [In particular, the Commission challenged the monopolies on imports in several member  States including Italy.] and consequently national markets may develop into wider markets at some  point in the future. However, they are to be considered as national, at least for the foreseeable future.   <ind> Assessment 19.<ind> The demand for electricity in the Italian market is about 250 billion kWh per year and is  mainly satisfied by the public national operator ENEL while the independent producers represent a  production of 36 billion kWh per year. Edison is the largest of these independent producers in Italy.  Its annual production in 1994 was over 9 billion kWh representing a share of about 3.6% of the  Italian electrical energy market, and corresponding to 24% of the total production of independent  producers. Edison operates 21 hydro power plants and 4 thermo-power plants connected through  2400 Km high- voltage overhead lines to industrial customers and to the ENEL grid.  <ind> After the operation and the start-up of the CET3 Taranto plant, the combined market share of  Edison and the JV will amount to 5.5% of the Italian electricity market, as Edison's current share of  the Italian electricity market will increase by 1.9%. 20.<ind> For the above reasons, the concentration will not create or strengthen a dominant position  in the EEA territory or a substantial part of it.  VI<tab> CONCLUSION 21.<ind> For the above reasons, the Commission has decided not to oppose the notified operation  and to declare it compatible with the common market and with the functioning of the EEA  Agreement. This decision is adopted in application of Article 6(1)(b) of Council Regulation No  4064/89. For the Commission,