Final report of the hearing officer in case COMP/ M.3696 — E.ON/MOL

(pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.)

(2006/C 223/07)

(Text with EEA relevance)

On 2 June 2005, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 (‘the Merger Regulation’) whereby the German group E.ON intends to acquire sole control over the gas wholesale, marketing and trading activities as well as gas storage activities of MOL Hungarian Oil and Gas Company Rt. (‘MOL’, Hungary). Furthermore, E.ON intends to acquire MOL's 50 % shareholding in Panrusgáz, a joint venture between MOL and Gazexport (a subsidiary of Gazprom).

At the end of the first phase of the investigation, the Commission concluded that the concentration raised serious doubts as to its compatibility with the common market and with the EEA Agreement. In particular, the transaction was found to have significant impact on the gas and electricity sector in Hungary, given that MOL has an almost exclusive control over the procurement of gas (imports and domestic production) and therefore enjoys a gatekeeper position for access to gas resources and to the gas infrastructures in Hungary.

On 7 July 2005, the Commission therefore initiated proceedings in accordance with Article 6(1)(c) of the Merger Regulation.

On 20 July and 2 August 2005, E.ON was provided with access to the ‘key documents’ in the Commission file in accordance with chapter 7.2. of the ‘Best Practices on the conduct of EC merger control proceedings’.

On 2 August 2005, the procedure was suspended for eight days pursuant to Article 10(4) of the Merger Regulation owing to the fact that E.ON did not respond in a comprehensive and timely manner to a decision requiring information pursuant to 11(3) of the Merger Regulation.

A statement of objections was sent to E.ON on 19 September 2005. As agreed between E.ON and MOL, a version of the SO without E.ON's business secrets was transmitted to MOL by E.ON's legal representatives. In the following days, access to the Commission's file was granted. E.ON and MOL were given the opportunity to comment on the Commission's preliminary findings as set out in the statement of objections by 3 October 2005. This deadline was subsequently extended to 6 October 2005 at the parties' request. E.ON's reply was received on 5 October 2005.

The parties did not request to develop their arguments in a formal oral hearing.

On 21 October 2005, I granted the request of Energie Baden-Württemberg AG to be admitted as an interested third party. The same day, the Commission sent them a non-confidential summary of the statement of objections.

On 20 October 2005, E.ON offered commitments which were amended on 11 November and on 16 November 2005 respectively. Further to the market testing of the proposed undertakings, E.ON substantially improved their draft commitments, in particular as regards the duration of the gas release program and the price mechanism of the gas release auctions.

I have not been asked to verify the objectivity of the enquiry.

In agreement with and following an express request by the parties, the Commission issued a decision on 10 November 2005 pursuant to article 10(3) second paragraph of the Merger Regulation in order to extend the procedure by 11 working days.

In the light of the commitments eventually proposed and having analysed the results of the market test, the draft decision concludes that the proposed concentration is compatible with the common market and with the EEA Agreement.

In the light of the above, I consider that the rights to be heard of all participants to the present proceeding have been respected.