Competition Express 27 November Issue 72

Transcription

1 Competition Express 27 November Issue 72 A regular EU competition law news alert service Produced by Bird & Bird, Brussels Table of Contents Antitrust Status of Microsoft investigation Statement of objections to E.ON Energie for breaking a seal ECJ preliminary ruling on information exchanges between competitors Merger Commission conditionally approves merger of Gaz de France and Suez State aid Investigation into aid to DHL and Leipzig/Halle airport Commission approves revised UK film tax incentive scheme Contact details Outlook 2003 Users Only: Due to the enhanced security provided by MS Outlook 2003, users of this version of Outlook will need to add our domain (twobirds.com) to their safe senders list in order for them to view publications from Bird & Bird with their full content. For information and instructions on the MS Outlook filtering, please click here. Antitrust Status of Microsoft investigation Microsoft has submitted further information necessary to allow non-microsoft work group servers to achieve full interoperability with Windows PCs and servers, the Commission announced. Further to a warning on 15 November 2006 that the Commission was still not satisfied with the technical documentation submitted in July, Microsoft turned in revised packages in order to meet its remedial obligation. The technical documentation will now be reviewed by potential licensees in order to assess whether it contains the necessary information to allow the development of interoperable work group server operating system products. The Monitoring Trustee appointed by the Commission will also test the documentation in order to verify its accuracy. In July 2006, the Commission imposed on Microsoft daily penalties of 1.5 million from 16 December 2005 to 20 June 2006 (for a total of million) for failure to comply with the remedy on interoperability. It also decided that the level of daily penalty for continued non-compliance would increase to up to 3 million as of 31 July 2006, subject to a further decision. The Commission will decide in due course whether or not Microsoft is now in compliance with its obligations or whether the 3 million daily penalty should be imposed. [23 November 2006]

2 Statement of objections to E.ON Energie for breaking a seal The European Commission has recently confirmed that on 2 October 2006, it sent a statement of objections to E.ON Energie AG for intentionally, or at least negligently, breaking an official Commission seal, which had been fixed by Commission officials during a dawn raid. The dawn raid took place on 29 and 30 May 2006 at the premises of several energy companies in Germany, where the Commission was looking for evidence of infringements of Articles 81 and/or 82 EC. During the course of their unannounced inspection on the site of E.ON Energie AG, Commission officials placed a seal on an office door in order to secure documents found, as they are entitled to do under Article 20(2)(d) of Regulation 1/2003. E.ON Energie was given one month to reply in writing to the statement of objections (i.e. until the beginning of November). If E.ON Energie is found to have broken the seal, the Commission could impose a fine of up to 1 per cent of its total turnover. This proceeding is distinct from the substantive investigation which led to the inspection and is still pending. [22 November 2006] ECJ preliminary ruling on information exchanges between competitors On preliminary ruling, the European Court of Justice (ECJ) has ruled that a system for the exchange of information between Spanish credit institutions (members of ASNEF-EQUIFAX) does not, in principle, have a restrictive effect on competition if it meets a number of conditions. The Spanish Supreme Court referred questions to the ECJ asking whether agreements between financial institutions for the exchange of information about the solvency of their customers and lateness of payments by them may infringe Article 81(1) EC. It also asked whether the arrangements could be authorised by the national competition authority under Article 81(3) EC. The ECJ first noted that such information exchange systems (IES) are used in a number of countries to reduce the risk of lending. Such systems do not, therefore, have as their object of restricting or distorting competition. It is for the national court to determine whether the system under review has the effect of restricting competition. Information exchanges breach Article 81(1) EC if they reduce or remove the degree of market uncertainty with the result that competition is restricted. Companies should determine their commercial policies autonomously and are prohibited from any direct or indirect contact between them, which could influence the conduct of competitors or notify competitors of proposed conduct by others, where this would alter normal market conditions. This, however, does not deprive companies of the right to adapt themselves intelligently to the existing or anticipated conduct of competitors. The compatibility with competition rules of an information exchange system cannot therefore be determined in the abstract. It depends on the market conditions and the characteristics of the system itself (in terms of type of information, the periodicity of the information and whether it is important in fixing prices or volumes or conditions of service). Where (i) the market is not concentrated, (ii) the identity of lenders is not disclosed and (iii) access is non discriminatory, an IES will reduce uncertainty as to risk, but will not be liable to reduce uncertainty as to the risks of competition. The participating companies will still act independently and autonomously and it cannot be presumed that the mere existence of such a credit information exchange could lead to collective anti-competitive conduct. Under those conditions, the ECJ concluded that Article 81(1) EC must be interpreted to the effect that an agreement for the exchange of information between financial institutions, concerning their customers' solvency and default records, does not, in principle, have a restrictive effect on competition.

3 It is for the national court, however, to determine whether the four cumulative conditions laid down in Article 81(3) EC are satisfied. The referring court asked for particular guidance in respect of the second condition for a restrictive practice to be exempted: that consumers must be allowed a fair share of the resulting benefit. The ECJ noted that the IES is capable of helping to prevent situations of over-indebtedness for consumers of credit and, in principle, to lead to greater overall availability of credit. It would be for the national court to verify whether these benefits outweigh any restriction of competition. It is not necessary that every individual customer obtain a benefit, but that the overall effect on consumers is favourable. ECJ judgment of 23 November 2006 in case C-283/05, Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios Merger Commission conditionally approves merger of Gaz de France and Suez The merger of Gaz de France (GDF) and the Suez group has received conditional approval of the Commission, pursuant to Article 8(2) of the EC Merger Regulation. The parties have agreed to a package of remedies, including divestment of certain subsidiaries. GDF is currently controlled by the French State and is the incumbent gas operator in France. It is also active in other European countries including Belgium, where it has joint control of SPE, the second largest operator in the Belgian electricity and gas sectors. There are discussions in France concerning the privatisation of GDF in Suez is a French group active in energy, water and environmental services, with its activities in the energy sector focused in Belgium. It has recently entered the gas and electricity markets in France. Following an in-depth investigation into the proposed merger between GDF and Suez, the Commission concluded that the merger would significantly impede effective competition on the gas and electricity markets in Belgium and France. In particular, it concluded that: The merged entity would have very high combined market shares in Belgium and would remove GDF as the main competitor to Suez's main subsidiaries, Distrigaz (gas) and Electrabel (electricity). The removal of the competitive pressure exerted by GDF in Belgium would cause concerns about the supply by the merged entity of gas to gas-fired power stations which compete with Electrabel. There would remain no competitor in Belgium who would be able to exert the same level of competitive pressure as GDF due to GDF's specific assets and strengths. The merged entity's position in the Belgian gas markets would be further strengthened by high barriers to entry. In particular, the merged entity would have access to most of the gas imported into Belgium and would hold almost all the long-term import contracts. By virtue of Suez's subsidiary, Fluxys (the Belgian gas network operator), the merged entity would have privileged access to supply infrastructure and storage in Belgium. This could disadvantage competitors and discourage new entry. GDF's dominant position in the gas markets in France would be strengthened. Distrigaz is one of GDF's best placed competitors and the merger would remove the competitive pressure that Distrigaz currently exerts on GDF. There are high barriers to entry to gas markets and infrastructure in France, which further strengthen GDF's dominant position. There would be further concentration in the district heating market in France by virtue of the combination of Suez, the largest operator in this market, with GDF, the second largest competitor. In order to remove these concerns, the parties have agreed to an extensive package of remedial undertakings:

4 Suez will divest its holding in Distrigaz to an independent party to be approved by the Commission. The purchaser must have relevant expertise in the energy sector and, in particular, in the downstream supply to final customers. The divestment package will include all tangible and intangible assets of Distrigaz, including its upstream supply contracts. Prior to divestment, the merged entity will enter into supply contracts with Distrigaz to cover Electrabel's supply needs (for its power stations). The volume of gas supplied will decline within set limits over a five year period. Finally, the parties have agreed to transfer to Distrigaz, at any time, the storage capacity that it might need to supply any customers which transfer to it from Electrabel. GDF will sell its 50 per cent shareholding in the company through which it exercises joint control of SPE. Fluxys will be reorganised into two entities. One entity, Fluxys International, will own the liquified natural gas (LNG) terminal at Zeebrugge and Fluxys's non-regulated Belgian and international assets. The other entity, Fluxys s.a., will own the entire Belgian gas transmission/transit system and the Belgian gas storage infrastructure. The parties will transfer other gas transmission and transit holdings to Fluxys s.a, which will operate all the infrastructures regulated under Belgian law. The parties have agreed not to control Fluxys s.a. In particular, they will not own more than 45 per cent of Fluxys s.a's capital; will not have more than seven of the 21 Board members; will ensure that no Fluxys s.a. director has responsibility for gas supply activities; will set up an executive committee within Fluxys s.a. with exclusive management powers and rights to develop the company's investment plan; they will not control the executive committee (de facto, de jure or by way of a shareholders agreement). The parties will not own more than 60 per cent of Fluxys International. In addition, the Fluxys s.a. executive committee will draw up an overall investment plan for the LNG terminal and Zeebrugge hub which cannot be rejected by Fluxys International except to protect its financial interests. Where Fluxys International rejects any other investment plans suggested on the initiative of Fluxys s.a, the merged entity's board representatives must vote to allow such investments to be financed by third parties, including, as necessary, opening up the capital of Fluxys International to third parties. To create a single point of entry at Zeebrugge to bring together the pipeline hub, the LNG terminal and the point of arrival of other terminals. To develop new storage capacity at gas storage sites and terminals in France by certain specified deadlines. This capacity must be offered to the market. A transparent and nondiscriminatory mode of commercialisation of new capacity must be established. A series of other measures and investments in relation to the gas networks in France, including improvement of the "use it or lose it" mechanisms, investment in a deodorisation plant and measures to improve governance and transparency. To divest GDF's subsidiary Cofathec Coriance and the district heating networks operated by Cofathec Services in France. The Commission is satisfied that this package of remedies is sufficient to remove all the competition concerns and has therefore concluded that the merger would not significantly impede competition in the EEA or any substantial part of it. This decision does not affect the proceedings launched in May 2006 against Distrigaz for allegedly abusing its dominant position by concluding long term contracts with industrial customers and barring new entry on the Belgian market. [14 November 2006]

5 State aid Investigation into aid to DHL and Leipzig/Halle airport The Commission has opened an in-depth investigation under Article 88 EC into possible aid granted by the German Land of Saxony to DHL and Leipzig/Halle airport. In April 2006, Germany notified the Commission of certain arrangements relating to the construction and operation of a new southern runway at Leipzig/Halle airport. This new runway is related to the development of DHL's new air logistics centre. The Commission is concerned about two aspects of the notified arrangements: (i) financial support and (ii) State guarantees. (i) Financial support by capital contributions from the Land of Saxony for the construction of the new runway, which appears to be reserved for DHL use only. The Commission is concerned that the revenues that would be generated from the runway might not be sufficient to cover the public investment on terms that would be acceptable to a market investor. The Commission intends to investigate further whether the public financing is giving an economic advantage to DHL and the airport. (ii) State guarantee by the Land of Saxony that the DHL hub at Leipzig/Halle airport will be able to operate 24 hours a day, seven days a week in future years. The Commission is concerned that the appropriate guarantee has not been granted on market terms but may amount to State aid to DHL. Such aid could distort competition in the European express parcel market. The Commission has, therefore, opened an in-depth investigation. [22 November 2006] Commission approves revised UK film tax incentive scheme The Commission has approved a 120 million revised tax incentive scheme to encourage filmmakers to produce cultural British films. The scheme provides for tax deduction and credit. A specific tax deduction allowing the filmmaker to benefit from a higher deduction of certain production costs than would be permissible under normal UK tax rules. A tax credit allowing the filmmaker to receive a payment of 25 per cent of any tax loss, after applying the specific tax deduction. The scheme is intended to encourage filmmakers to produce cultural British films. Eligibility under the scheme depends on whether the film is a European co-production or, if not, whether it meets a test to ensure that the film has cultural content. To pass this test, a film must achieve at least 16 of the possible 31 points across four different criteria, including cultural content and cultural contribution. The Commission has approved the tax scheme on the basis that it meets the conditions established in its 2001 Communication on cinema and audiovisual production in Europe. This Communication explains how the Commission determines whether Article 87(3)(d) of the EC Treaty applies to determine the compatibility of aid to promote culture or heritage conservation where such aid does not affect trading conditions to an extent contrary to the common interest. This Communication is due to expire on 30 June 2007, and any changes to the rules will have to be implemented by the UK. In particular, the authorisation to impose territorial conditions (limiting the proportion of the film production expenditure incurred in the territory granting the aid) in aid schemes, provided that they do not exceed 80 per cent of the film production budget, may be revised after May [22 November 2006]

6 Contact Details Wilko van Weert Indiana de Seze Bird & Bird Avenue d'auderghem B-1040 Brussels Belgium Tel: Fax: Please note that the content of this document serves as information only. It is not intended as a basis for decisions in specific cases and professional advice should always be sought before action is taken. Items may be reproduced if source attribution is made clear at all times. HTML is the equivalent of a web page delivery direct to your inbox. This format allows us to send you a branded issue of "Competition Express" without attachments. Some recipients may have browsers that do not support HTML or, companies may, through the use of firewalls, prevent their Internet users from receiving in this form. Please contact your IT support department to ensure you can access HTML . To STOP receiving this news service a blank reply.