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Document 52011SC0690
COMMISSION STAFF WORKING PAPER Accompanying the
COMMISSION STAFF WORKING PAPER Accompanying the
COMMISSION STAFF WORKING PAPER Accompanying the
/* SEC/2011/0609 final */
52011SC0690
COMMISSION STAFF WORKING PAPER Accompanying the /* SEC/2011/0609 final */
ANNEX TO THE
COMMISSION STAFF WORKING PAPER ACCOMPANYING THE COMMISSION REPORT ON COMPETITION
POLICY 2010 Brussels, February 2011 State aid: Overview of national measures
adopted as a response to the financial/economic crisis (See table attached in
annex) This information
is compiled from a range of sources and is provided for information only. The
European Commission cannot confirm the completeness or accuracy of the
information. Communications from the Commission
to provide guidance to Member States Communication
from the Commission — The application of State aid rules to measures
taken in relation to financial institutions in the context of the current
global financial crisis, 13 October 2008 (see IP/08/1495). Communication
from the Commission — The recapitalisation of financial institutions
in the current financial crisis: limitation of aid to the minimum necessary and
safeguards against undue distortions of competition, 5 December 2008 (see IP/08/1901). Communication
from the Commission on the Treatment of Impaired Assets in the
Community Banking Sector, 25 February 2009 (see IP/09/322). Communication
from the Commission – Temporary framework for State aid measures to
support access to finance in the current financial and economic crisis, adopted on 17 December
2008 (see IP/08/1993),
as
amended on 25 February 2009. Communication
from the Commission – The return to viability and the assessment of restructuring
measures in the financial sector in the current crisis under the State aid
rules, 23 July 2009 (see IP/09/1180). Communication
from the Commission – on the application, from 1 January 2011, of
State aid rules to support measures in favour of banks in the context of the
financial crisis (see IP/10/1636). State aid cases
– situation as of 31 December 2010 Decisions adopted by the Commission in 2008/2009/2010[1] Austria Type of measure / Beneficiary || Type of Decision || Date of adoption N557/2008 – Aid scheme for the Austrian financial sector (guarantees, recapitalisation & other) || Decision not to raise objections IP/08/1933 || 9 December 2008 N352/2009 – Prolongation || EXME/09/0630 || 30 June 2009 N663/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N241/2010 – Extension || IP/10/839 || 25 June 2010 SA.32018 – Extension || EXME/10/16.12 || 16 December 2010 N214/2008 – Recapitalisation of Hypo Tirol || Decision not to raise objections IP/09/928 || 17 June 2009 N640/2009 – BAWAG – capital injection and asset guarantee || Decision not to raise objections IP/09/1989 || 22 December 2009 C16/2009 + N698/2009 – Emergency aid to Hypo Group Alpe Adria || Decision not to raise objections IP/09/1998 || 23 December 2009 Belgium Belgium/Luxembourg NN45-49-50/2008 – Guarantee on liabilities of Dexia || Decision not to raise objections IP/08/1745 || 19 November 2008 Prolongation || IP/09/1662 || 30 October 2009 N255/2009 and N274/2009 – Additional aid measures in favour of Fortis Bank and Fortis Bank Luxembourg || Decision not to raise objections IP/09/743 || 12 May 2009 Belgium/France/Luxembourg C9/2009 – Guarantee in favour of Dexia on certain assets in FSA || Decision not to raise objections IP/09/399 || 13 March 2009 C9/2009 – Approval of restructuring plan for Dexia || Final conditional decision after formal investigation procedure IP/10/201 || 26 February 2010 Belgium/Luxembourg/Netherlands N574/2008 – Measures in favour of Fortis || Decision not to raise objections IP/08/1746 || 19 November 2008 NN42-46-53A/2008 – Restructuring aid to Fortis Bank and Fortis Bank Luxembourg || Decision not to raise objections IP/08/1884 || 3 December 2008 Belgium N602/2008 – Recapitalisation measure in favour of KBC || Decision not to raise objections IP/08/2033 || 18 December 2008 NN57/2008 – Capital Injection for Ethias Group || Decision not to raise objections IP/09/254 || 12 February 2009 C18/2009 – Recapitalisation and asset relief for KBC Group || Decision not to raise objections IP/09/1063 || 30 June 2009 C18/2009 – Asset relief and restructuring package for KBC || Final conditional decision after formal investigation procedure IP/09/1730 || 18 November 2009 N256/2009 – Restructuring aid for Ethias || Decision not to raise objections IP/10/592 || 20 May 2010 SA.29833 – Monitoring of KBC: extension of the target date of certain divestments by KBC || – || 16 December 2010 Cyprus N511/2009 – Cypriot scheme to support credit institutions (guarantee) || Decision not to raise objections IP/09/1569 || 22 October 2009 Denmark NN36/2008 – Rescue aid to Roskilde Bank || Decision not to raise objections (IP/08/1222) || 31 July 2008 NN39/2008 – Liquidation aid Roskilde bank || Decision not to raise objections IP/08/1633 || 5 November 2008 NN51/2008 – Guarantee scheme for banks in Denmark || Decision not to raise objections IP/08/1483 || 10 October 2008 N31a/2009 – Amendment of the guarantee scheme || IP/09/206 || 17 August 2009 N20/2010 – Second prolongation || EXME/10/0201 || 1 February 2010 N257/2010 – Extension || IP/10/854 || 28 June 2010 N31a/2009 – Recapitalisation scheme (and amendment of the guarantee scheme) || Decision not to raise objections IP/09/206 || 3 February 2009 NN46/2009 – Prolongation || EXME/09/0817 || 17 August 2009 N628/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 NN23/2009 – Rescue aid for Fionia Bank || Decision not to raise objections IP/09/819 || 20 May 2009 N407/2010 – Danish fund for winding up of banks || Decision not to raise objections IP/10/1266 || 30 September 2010 SA.31938 (N537/2010) – Prolongation || EXME/10/1207 || 7 December 2010 N560/2009 – Aid for the liquidation of Fionia Bank || Decision not to raise objections IP/10/1374 || 25 October 2010 Finland N567/2008 – Finnish guarantee scheme || Decision not to raise objections IP/08/1705 || 13 November 2008 N44/2009 – Amendment to the guarantee scheme || || 5 February 2009 N239/2009 – Prolongation and modification || IP/09/681 EXME/09/0430 || 30 April 2009 N674/2009 – Second prolongation and modification || EXME/09/1217 || 17 December 2009 NN2/2009 – Guarantee for Kaupthing Bank Finland || Decision not to raise objections IP/09/82 || 21 January 2009 N329/2009 – Capital injection scheme || Decision not to raise objections IP/09/1303 || 11 September 2009 N110/2010 – Prolongation || EXME/10/0414 || 14 April 2010 France N548/2008 – Financial support measures to the banking industry in France (Refinancing) || Decision not to raise objections IP/08/1609 || 30 October 2008 N251/2009 – Extension of the scheme || IP/09/750 || 12 May 2009 N613/2008 – Financial support measures to the banking industry in France (Recapitalisation) || Decision not to raise objections IP/08/1900 || 8 December 2008 N29/2009 – Amendment to the Decision || IP/09/158 || 28 January 2009 N164/2009 – Amendment to the Decision || IP/09/461 || 23 March 2009 N249/2009 – Capital injection for Caisse d'Epargne and Banque Populaire || Decision not to raise objections IP/09/722 || 8 May 2009 Germany C9/2008 – Restructuring aid to Sachsen LB || Conditional decision (after formal investigation procedure IP/08/849 || 4 June 2008 C10/2008 – Restructuring aid to IKB || Conditional decision (after formal investigation procedure) IP/08/1557 || 21 October 2008 NN44/2008 – Rescue aid to Hypo Real Estate Holding || Decision not to raise objections IP/08/1453 || 2 October 2008 N512/2008 – Aid scheme for financial institutions in Germany (guarantees, recapitalisations & other) || Decision not to raise objections IP/08/1589 || 27 October 2008 N625/2008 – Amendment to the Decision || || 12 December 2008 N330/2009 – Prolongation || EXME09/22.06 || 22 June 2009 N665/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N222/2010 – Extension || IP/10/789 || 23 June 2010 N615/2008 – Guarantee and recapitalisation for Bayern LB || Decision not to raise objections IP/08/2034 || 18 December 2008 N655/2008 – Guarantee for NordLB || Decision not to raise objections IP/08/2056 || 22 December 2008 N412/2009 – Prolongation || EXME/09/0910 || 10 September 2009 N639/2008 – Guarantee for IKB || Decision not to raise objections IP/08/2055 || 22 December 2008 N17/2009 – Guarantee for SdB – Sicherungseinrichtungsgesellschaft deutscher Banken mbH || Decision not to raise objections IP/09/114 || 22 January 2009 N244/2009 – Commerzbank capital injection || Decision not to raise objections IP/09/711 || 7 May 2009 C43/2008 – Aid for the restructuring of West LB || Conditional decision (after formal investigation procedure) IP/09/741 || 12 May 2009 N531/2009 – Temporary additional aid to West LB || Decision not to raise objections IP/09/1434 || 7 October 2009 N264/2009 – Recapitalisation of HSH Nordbank || Decision not to raise objections IP/09/854 || 29 May 2009 C17/2009 – Recapitalisation and asset relief for LBBW (Landesbank Baden Württemberg) || Decision not to raise objections IP/09/1058 || 30 June 2009 N314/2009 – German asset relief scheme || Decision not to raise objections IP/09/1216 || 31 July 2009 N400/2009 – Additional aid (guarantees) for IKB || Decision not to raise objections IP/09/1235 || 17 August 2009 N456 /2009 – Scheme to facilitate the refinancing of export credits || Decision not to raise objections IP/09/1319 || 15 September 2009 N48/2010 – Prolongation || EXME/10/0309 || 9 March 2010 C17/2009 – Landesbank Baden Württemberg "LBBW" – restructuring plan and impaired assets relief measure || Conditional decision (after formal investigation procedure IP/09/1927 || 15 December 2009 N694/2009 – State guarantees for Hypo Real Estate || Decision not to raise objections IP/09/1985 || 21 December 2009 N555/2009 – Rescue aid for WestLB; in-depth investigation into bad bank || Decision not to raise objections IP/09/1996 || 22 December 2009 N161/2010 – Recapitalisation of Hypo Real Estate || Decision not to raise objections || 19 May 2010 N380/2010 – Temporary authorisation of additional State support (guarantees) for Hypo Real Estate and creation of a bad bank structure, and extension of the ongoing investigation procedure C15/2009 || Decision not to raise objections IP/10/1172 || 24 September 2010 C32/2009 – Restructuring of savings bank Sparkasse KölnBonn || Decision not to raise objections IP/10/1192 || 29 September 2010 SA.29510 – WestLB divestments || || 21 December 2010 Greece N560/2008 – Aid scheme to the banking industry in Greece (guarantees, recapitalisation & other) || Decision not to raise objections IP/081742 || 19 November 2008 Prolongation and modification || EXME/09/0918 || 18 September 2009 N690/2009 – Prolongation || EXME/10/0125 || 25 January 2010 N163/2010 – Amendment || || 12 May 2010 N260/2010 – Extension and amendment || IP/10/864 || 30 June 2010 SA. 31998 – Fourth extension || - || 21 December 2010 N328/2010 – Scheme for the recapitalisation of credit institutions in Greece under the financial Stability Fund (FSF) || IP/10/1092 || 3 September 2010 SA. 31999 – Prolongation || EXME/10/14.12 || 14 December 2010 Hungary N664/2008 – Financial support measures to Hungarian financial industry in form of recapitalisation and guarantee scheme || Decision not to raise objections IP/09/253 || 12 February 2009 N355/2009 – Prolongation and modification || EXME/09/0903 || 3 September 2009 N662/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N224/2010 – Third prolongation of Hungarian recapitalisation scheme || IP/10/789 || 23 June 2010 SA.31928 (N536/2010) – Fourth prolongation || EXME/10/07.12 || 7 December 2010 N 358/2009 – Hungarian Mortgage Support Scheme || Decision not to raise objections IP/09/1123 || 13 July 2009 N603/2009 – Prolongation || EXME/09/1124 || 24 November 2009 SA.31922 – Prolongation || EXME/10/08.12 || 8 December 2010 NN68/2009 – Hungarian liquidity support scheme || Decision not to raise objections IP/10/19 || 14 January 2010 N225/2010 – Extension || IP/10/854 || 28 June 2010 SA.31927 (N 535/2010) – Prolongation || EXME/10/07.12 || 7 December 2010 Ireland NN48/2008 – Guarantee scheme for banks in Ireland || Decision not to raise objections IP/08/1497 || 13 October 2008 N9/2009 – Recapitalisation of Anglo Irish Bank || Decision not to raise objections IP/09/50 || 14 January 2009 N356/2009 – Recapitalisation of Anglo Irish Bank || Decision not to raise objections IP/09/1045 || 26 June 2009 N61/2009 – Change of ownership of Anglo Irish Bank || Decision not to raise objections IP/09/271 || 17 February 2009 N149/2009 – Recapitalisation of Bank of Ireland || Decision not to raise objections IP/09/483 || 26 March 2009 N241/2009 – Recapitalisation of Allied Irish Bank || Decision not to raise objections IP/09/744 || 12 May 2009 N349/2009 – Revised Irish guarantee scheme for financial institutions (Eligible Liabilities Guarantee scheme) || Decision not to raise objections IP/09/1787 || 20 November 2009 N198/2010 – Prolongation || EXME/10/0531 || 31 May 2010 N254/2010 – Extension || IP/10/854 || 28 June 2010 N487/2010 – Extension (including guarantees on short-term liabilities) || Decision not to raise objections EXME/10/10.11 || 10 November 2010 N725/2009 – Irish impaired asset relief scheme (National Asset Management Agency (NAMA)) || Decision not to raise objections IP/10/198 || 26 February 2010 NN11/2010 – Temporary approval of Rescue measure in favour of INBS || Decision not to raise objections IP/10/400 || 30 March 2010 NN12/2010 and C11/2010 – Temporary approval of second recapitalisation of Anglo Irish Bank and restructuring of Anglo Irish Bank || Decision not to raise objections on recapitalisation, and opening of proceedings on restructuring IP/10/400 || 31 March 2010 N160/2010 – Temporary approval of recapitalisation of EBS || Decision not to raise objections IP/10/658 || 2 June 2010 N564/2009 – Approval of restructuring plan of Bank of Ireland || Decision not to raise objections IP/10/954 || 15 July 2010 N331/2010 – Approval of the transfer of the first tranche of impaired assets under the Irish asset relief scheme NAMA || Decision not to raise objections EXME/10/03.08 || 3 August 2010 NN35/2010 – Temporary approval of third recapitalisation of Anglo Irish Bank || Decision not to raise objections IP/10/1046 || 10 August 2010 N347/2010 – Guarantee scheme for Irish Financial Institutions || Decision not to raise objections IP/10/1154 || 21 September 2010 SA.31919 – Approval of the transfer of the second tranche of impaired assets under the Irish asset relief scheme NAMA || Decision not to raise objections EXME/10/29.11 || 29 November 2010 SA.31891 – Second recapitalisation of Allied Irish Bank || Decision not to raise objections IP/10/1765 || 21 December 2010 SA.32057 – Temporary approval of fourth recapitalisation and certain guarantees in favour of Anglo Irish Bank || Decision not to raise objections IP/10/1765 || 21 December 2010 SA.31714 – Second recapitalisation of Irish Nationwide Building Society (INBS) || Decision not to raise objections IP/10/1765 || 21 December 2010 Italy N520a/2008 – Guarantee scheme for Italian banks || Decision not to raise objections IP/08/1706 || 14 November 2008 N328/2009 – Prolongation || IP/09/929 || 16 June 2009 N648/2008 – Recapitalisation scheme || Decision not to raise objections IP/08/2059 || 23 December 2008 N97/2009 – Amendment || || 20 February 2009 N466/2009 – Prolongation || MEX/09/1006 || 6 October 2009 N425/2010 – Prolongation || EXME/10/21.10 || 21 October 2010 Latvia NN68/2008 – Public support measures to Parex Banka || Decision not to raise objections IP/08/1766 || 24 November 2008 NN3/2009 – Amendment to the Decision || || 11 February 2009 N189/2009 – Amendment to the Decision || IP/09/732 || 11 May 2009 N638/2008 – Guarantee scheme for banks || Decision not to raise objections IP/08/2054 || 22 December 2008 N326/2009 – Prolongation || EXME/09/0630 || 30 June 2009 N664/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N223/2010 – Extension || IP/10/839 || 24 June 2010 NN60/2009 – Capital injection for Mortgage Bank of Latvia || Decision not to raise objections IP/09/1742 || 19 November 2009 C26/2009 – Restructuring of Parex Banka || Final positive decision IP/10/1127 || 15 September 2010 Lithuania N200/2009 and N47/2010 – Support Package for Lithuanian Financial Institutions (guarantees, recapitalisations and asset relief) || Decision not to raise objections IP/10/1032 || 5 August 2010 Luxembourg N344/2009&N380/2009 – Restructuring aid for Kaupthing Bank Luxembourg || Decision not to raise objections IP/09/1107 || 9 July 2009 Netherlands N524/2008 – Guarantee scheme for Dutch financial institutions || Decision not to raise objections IP/08/1610 || 30 October 2008 N379/2009 – Prolongation and modification || EXME/09/0707 || 7 July 2009 N669/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N238/2010 – Extension || IP/10/864 || 29 June 2010 N528/2008 – Measure in favour of ING || Decision not to raise objections IP/08/1699 || 13 November 2008 N569/2008 – Measure in favour of Aegon || Decision not to raise objections IP/08/1822 || 27 November 2008 N611/2008 – SNS REAAL/New capital injection by Dutch authorities || Decision not to raise objections IP/08/1951 || 10 December 2008 C10/2009 – ING Illiquid asset facility || Decision not to raise objections IP/09/514 || 31 March 2009 C10/2009 – ING restructuring plan and illiquid asset back-up facility || Final positive decision IP/09/1729 || 18 November 2009 N371/2009 – Approval of recapitalisation of SNS REAAL || Decision not to raise objections IP/10/82 || 28 January 2010 N19/2010, NN2/2010, C11/2009 – Temporary approval of additional recapitalisation package in favour of ABN AMRO and Fortis Bank Nederland || Decision not to raise objections IP/10/138 || 4 February 2010 N372/2009 – Approval of recapitalisation of AEGON || Decision not to raise objections IP/10/1053 || 17 August 2010 SA.29832 – ING call of hybrid instruments || IP/10/1619 || 30 November 2010 Poland N208/2009 – Polish support scheme for financial institutions (guarantee and liquidity support) || Decision not to raise objections IP/09/1360 || 25 September 2009 N658/2009 – Prolongation || EXME/10/0209 || 9 February 2010 N236/2010 – Second Extension || IP/10/864 || 29 June 2010 SA.31923 – Third Prolongation || EXME/10/16.12 || 16 December 2010 N302/2009 – Polish bank recapitalisation scheme || Decision not to raise objections IP/09/1979 || 21 December 2009 N262/2010 – Prolongation || || 5 July 2010 SA.31924 – Second extension || EXME/10/16.12 || 16 December 2010 Portugal NN60/2008 – Guarantee scheme for credit institutions in Portugal || Decision not to raise objections IP/08/1601 || 29 October 2008 N51/2010 – Prolongation || EXME/10/22.02 || 22 February 2010 N315/2010 – Extension || IP/10/997 || 23 July 2010 NN71/2008 – State guarantee for Banco Privado Português || Decision not to raise objections IP/09/400 || 13 March 2009 N556/2008 – Bank recapitalisation scheme || Decision not to raise objections IP/09/818 || 20 May 2009 N80/2010 – Prolongation || EXME/10/0317 || 17 March 2010 N314/2010 – Second prolongation || IP/10/997 || 23 July 2010 C33/2009 – Banco Privado Português – recovery of illegal State aid || Negative decision with recovery IP/10/972 || 20 July 2010 Slovakia N392/2009 – Slovak bank support scheme (guarantees and recapitalisations) || Decision not to raise objections IP/09/1889 || 8 December 2009 Slovenia N531/2008 – Guarantee scheme for credit institutions in Slovenia || Decision not to raise objections IP/08/1964 || 12 December 2008 N331/2009 – Prolongation || EXME/09/22.06 || 22 June 2009 N651/2009 – Second prolongation || EXME/09/1217 || 17 December 2009 N245/2010 – Extension || IP/10/864 || 29 June 2010 N637/2008 – Liquidity scheme for financial sector || Decision not to raise objections IP/09/452 || 20 March 2009 N510/2009 – Prolongation || EXME/09/19.10 || 19 October 2009 N113/2010 – Second Prolongation || EXME/10/0415 || 15 April 2010 N321/2010 – Extension || IP/10/1066 || 24 August 2010 Spain NN54a/2008 – Fund for the Acquisition of Financial Assets in Spain || Decision not to raise objections IP/08/1630 || 4 November 2008 Modification || Decision not to raise objections || 8 April 2009 N337/2009 – Prolongation || EXME/09/0807 || 7 August 2009 NN54b/2008 – Spanish guarantee scheme for credit institutions || Decision not to raise objections IP/08/2049 || 22 December 2008 Prolongation || EXME/09/0625 || 25 June 2009 N588/2009 – Second prolongation || EXME/09/1201 || 1 December 2009 N263/2010 – Extension || IP/10/854 || 28 June 2010 SA.32921 – Prolongation || EXME/10/29.11 || 29 November 2010 N28/2010 – Spanish recapitalisation scheme for credit institutions (Fondo de Reestructuración Ordenada Bancaria" (FROB)) || Decision not to raise objections IP/10/70 || 28 January 2010 N317/2010 – Prolongation || IP/10/997 || 23 July 2010 NN61/2009 – Restructuring aid for Caja Castilla La Mancha || Decision not to raise objections IP/10/855 || 29 June 2010 N392/2010 – Restructuring aid for Spanish saving bank Caja Sur || Decision not to raise objections IP/10/1479 || 8 November 2010 Sweden N533/2008 – Support measures for the banking industry in Sweden (guarantees) || Decision not to raise objections IP/08/1600 || 29 October 2008 N26/2009 – Amendment to the decision || IP/09/186 || 28 January 2009 N154/2009 – Amendment and prolongation || IP/09/652 || 28 April 2009 N544/2009 – Prolongation || EXME/09/1026 || 26 October 2009 N127/2010 – Second Prolongation || EXME/10/0422 || 22 April 2010 N207/2010 – Extension of Swedish guarantee scheme || EXME/10/0615 || 15 June 2010 SA.31949 – Prolongation || EXME/10/01.12 || 1 December 2010 NN64/2008 – Emergency rescue measures regarding Carnegie Investment Bank || Decision not to raise objections IP/08/1977 || 15 December 2008 N69/2009 – Recapitalisation scheme || Decision not to raise objections IP/09/241 || 11 February 2009 N436/2009 – Prolongation || EXME/09/0805 || 5 August 2009 NN18/2010 – Clearance of restructuring aid for Carnegie Investment Bank || Decision not to raise objections IP/10/558 || 12 May 2010 United Kingdom NN41/2008 – Rescue aid to Bradford and Bingley || Decision not to raise objections IP/08/1437 || 1 October 2008 N507/2008 – Aid scheme to the banking industry in the UK (guarantees, recapitalisation & other) || Decision not to raise objections IP/08/1496 || 13 October 2008 N650/2008 – Amendment to the Decision || || 23 December 2008 N193/2009 – Prolongation || IP/09/586 || 15 April 2009 N537/2009 – Prolongation || EXME/09/13.10 || 13 October 2009 N677/2009 – Prolongation || EXME/09/17.12 || 17 December 2009 N111/2009 – Working capital guarantee scheme || Decision not to raise objections IP/09/471 || 24 March 2009 UK Asset backed Securities guarantee scheme || Decision not to raise objections IP/09/613 || 21 April 2009 Prolongation || EXME/09/27.10 || 27 October 2009 C14/2008 – Restructuring package for Northern Rock || Final conditional decision after formal investigation procedure IP/09/1600 || 28 October 2009 N428/2009 – Restructuring plan of Lloyds Banking Group || Decision not to raise objections IP/09/1728 || 18 November 2009 N422/2009 and N621/2009 – Royal Bank of Scotland, impaired asset relief measure and restructuring plan || Decision not to raise objections IP/09/1915 || 14 December 2009 N194/2009 – Liquidation aid to Bradford & Bingley || Decision not to raise objections IP/10/47 || 25 January 2010 NN19/2009 – Restructuring of Dunfermline Building Society || Decision not to raise objections IP/10/48 || 25 January 2010 Cases currently under formal investigation procedure
(in-depth investigation under the EC Treaty’s rules on state aid) Country || Type of measure / Beneficiary || Date of decision regarding the opening of formal investigation || Germany || C15/2009 – Aid package for Hypo Real Estate (restructuring) Extension and temporary approval of capital injections || 7 May 2009 IP/09/712 13 November 2009 IP/09/1708 || Case under assessment Germany, Austria || C16/2009 – Aid package for Bayern LB and its Austrian subsidiary Hypo Group Alpe Adria Extension C16/2009 – Extension of temporary approval of restructuring aid for Hypo Group Alpe Adria || 12 May 2009 IP/09/742 23 December 2009 IP/09/1998 22 June 2010 IP/10/774 || Case under assessment Germany || C29/2009 – Aid package for HSH Nordbank AG || 22 October 2009 IP/09/1577 || Case under assessment Germany || C43/2009 – WestLB: in-depth investigation into bad bank C43/2009 – Prolongation of temporary approval of aid to WestLB C43/2009 – Extension || 22 December 2009 IP/09/1996 22 June 2010 IP/10/774 5 November 2010 IP/10/1472 || Case under assessment Ireland || C11/2010 – Temporary approval of Second recapitalisation of Anglo Irish Bank and restructuring of Anglo Irish Bank || 31 March 2010 IP/10/400 || Case under assessment Ireland || C25/2010 – Restructuring of EBS || 11 October 2010 IP/10/1310 || Case under assessment Netherlands || C11/B/2008 – State measures in favour of Fortis Bank Nederland (FBN) and the activities of ABN Amro Extension || 8 April 2009 IP/09/565 4 February 2010 IP/10/138 || Case under assessment Hungary || SA.29608 – Recapitalisation of FHB* || 16 December 2010 IP/10/1731 || *Decision replaced on 24 January 2011 [1] As a general rule, aid schemes are
reviewable six months after approval. Some individual decisions are subject to
a review and possible restructuring plan. TABLE OF CONTENTS I – Instruments.............................................................................................................................. 7 A – Follow-up to the implementation of the
crisis framework for state-aid...................................... 7 1........... Crisis-related
support for the financial sector................................................................... 7 2........... Application
of the Temporary Framework....................................................................... 8 3........... Exit
strategy.................................................................................................................... 9 4........... Contribution of competition policy to the economic adjustment
programmes of Greece and Ireland 11 4.1........ Greek economic adjustment programme........................................................................ 11 4.2........ Irish economic adjustment programme........................................................................... 12 B – Antitrust – Articles 101 and 102 TFEU................................................................................. 13 1........... Shaping and applying the rules....................................................................................... 13 1.1........ Shaping the rules: review of Block Exemption Regulations.............................................. 13 1.1.1..... Block Exemption Regulation on vertical agreements....................................................... 13 1.1.2..... Block Exemption Regulations on horizontal cooperation agreements............................... 15 1.1.3..... Sectoral Block Exemption Regulations.......................................................................... 17 1.2........ Private enforcement of the EU antitrust rules.................................................................. 18 1.3........ Applying Article 101: Cartels and other agreements and concerted
practices.................. 19 1.3.1..... Cartels......................................................................................................................... 19 1.3.2..... Other agreements and concerted practices.................................................................... 21 1.4........ Applying Article 102 TFEU: Abuse of dominant positions.............................................. 21 2........... Selected Court cases.................................................................................................... 22 2.1........ Exclusivity agreements.................................................................................................. 22 2.2........ Margin squeeze............................................................................................................ 23 2.3........ Level of fines................................................................................................................ 24 2.4........ Legal professional privilege and in-house lawyers........................................................... 24 2.5........ Misuse of intellectual property rights and regulatory procedures..................................... 25 2.6........ Lack of sufficient Union interest..................................................................................... 26 2.7........ Commitments............................................................................................................... 26 C – Merger control..................................................................................................................... 27 1........... Shaping and applying the rules....................................................................................... 27 2........... Selected Court cases.................................................................................................... 29 2.1........ Quantitative evidence and econometric studies............................................................... 29 2.2........ Minority shareholdings.................................................................................................. 30 D – State aid control................................................................................................................... 31 1........... Shaping and applying the rules....................................................................................... 31 1.1........ Horizontal aid............................................................................................................... 33 1.1.1..... Regional aid.................................................................................................................. 33 1.1.2..... Environmental aid and security of electricity supply........................................................ 34 1.1.3..... Research & Development & Innovation (R&D&I) aid................................................... 34 1.1.4..... Aid to promote risk capital and urban development....................................................... 35 1.2........ Sectoral and individual State aid.................................................................................... 35 1.2.1..... Rescuing and restructuring aid for industry..................................................................... 35 1.2.2..... Aid to the transport sector............................................................................................ 36 1.2.3..... State aid for Broadband networks................................................................................. 37 1.2.4..... Aid to the coal sector.................................................................................................... 37 1.2.5..... Aid to the agricultural sector.......................................................................................... 38 1.2.6..... Aid for compensating provision of Services of General Economic
Interest: Social Housing undertakings 38 1.3........ State aid enforcement by national courts........................................................................ 39 1.4........ Ex-post monitoring of State aid measures...................................................................... 40 1.5........ Recovery policy............................................................................................................ 40 2........... Selected Court cases.................................................................................................... 41 2.1........ Notion of aid................................................................................................................ 41 2.2........ Compatibility assessment.............................................................................................. 43 2.3........ Recovery of aid............................................................................................................ 44 II – Sector Developments........................................................................................................... 45 A – Financial services................................................................................................................. 45 1........... Overview of sector....................................................................................................... 45 2........... Policy developments..................................................................................................... 47 2.1........ Antitrust enforcement.................................................................................................... 47 2.1.1..... Antitrust enforcement in the payments services sector.................................................... 47 2.1.2..... Securities Trading, Clearing and Settlement (C&S)........................................................ 49 2.1.3..... Insurance sector........................................................................................................... 50 2.2........ Merger control............................................................................................................. 51 2.3........ State aid control: restructuring of financial institutions...................................................... 52 B – Energy & Environment.......................................................................................................... 58 1........... Overview of sector....................................................................................................... 58 2........... Policy developments..................................................................................................... 59 2.1........ Antitrust enforcement.................................................................................................... 59 2.2........ State aid control........................................................................................................... 61 C – Information, Communication and Media................................................................................ 64 1........... Overview of sector....................................................................................................... 64 1.1........ Telecommunications...................................................................................................... 64 1.2........ Information and Communication Technology (ICT)........................................................ 66 1.3........ Media.......................................................................................................................... 66 2........... Policy developments..................................................................................................... 67 2.1........ Policy developments in telecommunications sector......................................................... 67 2.1.1..... Antitrust enforcement.................................................................................................... 68 2.1.2..... Merger control............................................................................................................. 68 2.1.3..... State aid
control........................................................................................................... 68 2.2........ Policy developments in ICT sector................................................................................ 69 2.2.1..... Antitrust enforcement.................................................................................................... 69 2.2.2..... Merger control............................................................................................................. 71 2.3........ Policy developments in the Media and Sport sector....................................................... 72 2.3.1..... Antitrust and regulatory enforcement............................................................................. 72 2.3.2..... Merger control............................................................................................................. 73 2.3.3..... State aid control........................................................................................................... 73 D – Pharmaceutical industry & Health......................................................................................... 74 1........... Overview of sector....................................................................................................... 74 1.1........ Overview of the pharmaceutical sector.......................................................................... 75 1.2........ Overview of the health services sector........................................................................... 75 2........... Policy developments..................................................................................................... 76 2.1........ Policy developments in the pharmaceutical sector.......................................................... 76 2.1.1..... Antitrust enforcement.................................................................................................... 77 2.1.2..... Merger control............................................................................................................. 79 2.2........ Policy developments in the health services sector........................................................... 80 2.2.1..... Antitrust enforcement.................................................................................................... 80 2.2.2..... Merger control............................................................................................................. 80 2.2.3..... State aid control........................................................................................................... 80 E – Transport............................................................................................................................. 82 1........... Overview of sector....................................................................................................... 82 2........... Policy developments..................................................................................................... 83 2.1........ Air transport................................................................................................................. 83 2.1.1..... Antitrust enforcement.................................................................................................... 83 2.1.2..... Merger control............................................................................................................. 85 2.1.3..... State aid control........................................................................................................... 85 2.2........ Rail and inland transport................................................................................................ 87 2.2.1..... Merger control............................................................................................................. 87 2.2.2..... State aid control........................................................................................................... 88 2.3........ Maritime transport........................................................................................................ 89 2.3.1..... Antitrust enforcement.................................................................................................... 89 2.3.2..... Merger control............................................................................................................. 89 2.3.3..... State aid control........................................................................................................... 90 F – Postal Services..................................................................................................................... 91 1........... Overview of sector....................................................................................................... 91 2........... Policy developments..................................................................................................... 92 2.1........ Merger control............................................................................................................. 92 2.2........ State aid control........................................................................................................... 92 G – Automotive industries........................................................................................................... 95 1........... Overview of the automotive sector................................................................................ 95 2........... Policy developments..................................................................................................... 97 2.1........ Antitrust enforcement.................................................................................................... 97 2.1.1..... Vertical agreements in the vehicle sales markets............................................................. 97 2.1.2..... Vertical agreements in the repair and spare parts markets.............................................. 98 2.2........ Merger control............................................................................................................. 99 2.3........ State aid control........................................................................................................... 99 H – Food supply chain.............................................................................................................. 100 1........... Overview of sector..................................................................................................... 100 2........... Policy developments................................................................................................... 101 2.1........ Food supply chain...................................................................................................... 101 2.2........ Dairy sector................................................................................................................ 102 2.3........ State aid to the agricultural sector................................................................................ 103 III – The European Competition Network and
cooperation with National Courts....................... 105 1........... Cooperation on policy issues....................................................................................... 105 1.1........ The ECN Brief........................................................................................................... 106 1.2........ Cooperation in individual cases................................................................................... 106 1.2.1..... Case allocation........................................................................................................... 106 1.2.2..... Coherent application of the rules................................................................................. 107 2........... Application of EU Competition rules by National Courts in the EU............................... 107 2.1........ Assistance in the form of providing information or in the form of
issuing an opinion........ 107 2.2........ Amicus curiae interventions under
Article 15(3) of Regulation 1/2003......................... 108 2.3........ Financing the training of national judges in EU competition law..................................... 109 IV – International activities........................................................................................................ 109 1........... Multilateral cooperation.............................................................................................. 109 1.1........ International Competition Network (ICN)................................................................... 109 1.2........ OECD....................................................................................................................... 110 1.3........ UNCTAD.................................................................................................................. 110 2........... Bilateral cooperation................................................................................................... 111 2.1........ Agreements with the USA, Canada, Japan, South Korea and Switzerland.................... 111 2.2........ Cooperation with other countries and regions.............................................................. 112 3........... Enlargement and Neighbourhood Policy...................................................................... 113 V – Dialogue with Consumer organisations and
other stakeholders............................................. 114 1........... Dialogue with consumer organisations.......................................................................... 114 1.1........ The European Consumer Consultative Group (ECCG)................................................ 114 1.2........ Training of European consumers' representatives – the TRACE
programme................. 115 1.3........ Interactive consumer corner on Competition website and point of
contact with consumers 115 2........... Dialogue with stakeholders.......................................................................................... 115 VI – Inter-institutional cooperation............................................................................................ 116 1........... Cooperation with the European Parliament.................................................................. 116 2........... Cooperation with the Council...................................................................................... 117 3........... Cooperation with the European Economic and Social Committee................................. 118 I – Instruments A – Follow-up to
the implementation of the crisis framework for state-aid 1. Crisis-related support for the financial sector 1.
Since the beginning of the global financial
crisis in the autumn of 2008, the Commission has issued four Communications
which provided detailed guidance on the criteria for the compatibility with the
Treaty on the Functioning of the European Union (TFEU) of temporary
crisis-related support for financial institutions[1]. The first three of these
Communications set out the criteria for compatibility of State support in the
form of State guarantees, recapitalisations and asset relief measures. The
fourth addressed the follow-up to such support measures. Through the
application of State aid rules, the Commission ensured that distortions of
competition within the internal market were limited to a minimum despite the
important amounts of State aid and that beneficiary banks were restructured
when necessary. 2.
As a result of policy intervention, the severe
shortage of bank funding that occurred in autumn 2008 was overcome relatively
quickly. However, the sovereign crisis which struck in the first half of 2010
clearly showed that, although the level of stress in financial markets had
fallen significantly from its peak in late 2008, there was still a need for
crisis-related support in 2010. 3.
During the crisis, the availability of
government guarantees proved to be an appropriate and effective tool to improve
access to funding for banks and to restore market confidence. However, a review
by the Commission of the use of guarantees showed that by the early months of
2010, the more solid financial institutions were no longer significant issuers
of guaranteed debt. The conditions of compatibility of guarantee schemes were
therefore reviewed and tightened with effect from 1 July 2010[2]. 4.
Twelve Member States extended their guarantee
schemes, on these new conditions, until 31 December 2010[3]. A further seven Member States
which previously had guarantee schemes in place terminated these schemes or
allowed them to expire[4].
Despite the continuance of a significant number of guarantee schemes, their use
has been diminishing. The monthly average volume of guaranteed bond issuance
under schemes, which in 2009 was EUR 37.2 billion, was EUR 2.8 billion
for the first eight months of 2010. 5.
Of the 15 Member States which have at some time
introduced a recapitalisation scheme, six still had such a scheme in force as
of 31 December 2010[5].
However, the use of such schemes during 2010 was limited; as for ad hoc
interventions, these continued to take place during 2010. However, the overall
situation showed a reduction in the use of State capital injections in 2010
compared to 2009. 6.
The restructuring of a number of European banks
was among the main challenges of 2010. The
restructuring process of banks is based on the crisis-related State aid rules
as laid down in the Restructuring Communication of 22 July 2009. The
Communication provides guidance on the conditions under which restructuring aid
for banks in need of financial assistance beyond an emergency rescue can be
authorised. It is based on the three principles of return to long-term
viability without State aid, burden sharing between the bank and its
stakeholders and the State and limitation of competition distortions, usually
through structural (divestment) and behavioural measures (acquisition bans or
limitations on aggressive commercial behaviour). The Commission approved in
2010 restructuring or liquidation plans for 14 banks and adopted one negative
decision (see Section II.A.2.3., points 176 to 206 for detailed description of
restructuring cases). 7.
Between 1 October 2008 and 1 October
2010, the Commission took more than 200 decisions on State aid measures to the
financial sector aiming to remedy a serious disturbance in Member States'
economies. These decisions authorised, amended or prolonged more than 40
schemes and addressed with individual decisions the situation of more than 40
financial institutions in 22 Member States[6].
The maximum volume of Commission-approved measures until 1 October 2010
amounted to EUR 4 588.9 billion, of which the greatest bulk was
approved as guarantees (76% of the maximum volume). Not all the approved aid
was used by Member States. In 2009, the nominal amount of aid used by Member
States constituted EUR 1 106.65 billion or 9.3% of EU Gross Domestic
Product (GDP), whereas the figure for 2008 was EUR 1 236 billion[7]. 2. Application of the Temporary Framework 8.
In 2008, the Commission adopted the Temporary Framework
(TF)[8] which was due to expire on 31 December
2010 and had as its main objective to facilitate companies' access to finance.
The Commission collected information on the use and impact of the Framework via
a questionnaire sent to the Member States on 17 March 2010. Third parties
had also the opportunity to submit comments. The additional possibilities to
grant State aid provided by the TF were generally very well received by the
Member States and stakeholders. 9.
Between its introduction and 1 October
2010, the Commission approved 73 schemes and four ad-hoc aid measures under the
TF. The volume of aid approved in 2009 was EUR 82.5 billion (0.7% of EU
GDP). Member States tried to fix aid envelopes of a sufficient size to reassure
the markets; however, the amount taken up was much lower. Both the availability
of market funding for some companies on one hand, and budgetary constraints on
the other, contributed to smaller actual use of the TF measures. 10.
The main measures used were the compatible
limited amount of aid (the so called "500k" – EUR 500 000 –
measure), the subsidised guarantees and the subsidised loans. The relaxation of
the conditions for exceptional acceptance of government export credit insurance
within the Community were also largely used and contributed to effectively
sustain trade. 11.
The risk capital adaptation was positively
perceived by the Member States as an important signal for private investors.
Austria, Belgium, France, Germany, Italy, Spain and the United Kingdom made use
of this possibility. 12.
The fact that Member States originally planned
higher budgets than the amount effectively granted is evidence of a cautious
budgetary approach given the uncertainties as to the depth and duration of the
crisis and the need to send the markets a clear signal of public authorities'
availability to meet potential demand. Moreover, Member States appear to have
applied the conditions for granting the aid strictly, largely in view of
budgetary constraints, which in turn is likely to have kept the number of
beneficiaries small. 3. Exit strategy 13.
An appropriate and timely "exit
strategy" from the exceptional crisis measures constitutes a key element of
the European recovery. The exit process should, for the financial sector as
well as for the real economy, lead to viable solutions that do not discriminate
between Member States while promoting a return to normal market functioning. 14.
The Commission collected information on the use
of the TF as well as on the state of credit supply to creditworthy companies
and the use of exceptional crisis-related support by banks in order to adopt an
informed decision on the exit process for both the financial sector and the
real economy. On the one hand, there were encouraging signs of stabilisation in
financial markets and of a recovery in Member States' economies. On the other
hand, the recent sovereign crisis and the perception of the risk of a
double-dip recession illustrated the fragility of the recovery process and the
risk of serious setbacks. 15.
In view of this objective, the main elements
that the Commission took into account when deciding on the phasing-out of the
TF was the evolution of access to finance to creditworthy companies and its
usefulness as a credit support tool beyond 2010. It was considered premature to
let it expire in its entirety at the end of 2010 because of the fragility of
the recovery. However, considering that the market situation was far from being
as dramatic as it was at the turn of 2008/2009, a full prolongation was not an
option either. In a forward-looking perspective, it was necessary to be mindful
of the usefulness of the TF as an instrument to promote the economic recovery
in the longer term as well as a progressive return to normal State aid rules
while sustaining Member States' efforts towards fiscal consolidation and higher
effectiveness of public spending. 16.
A progressive phasing-out of the TF was thus
considered the most suitable response to the current market situation. On this
basis, the Commission approved a limited prolongation of the TF[9] until the end of 2011 with a
special focus on SMEs and a limited spectrum of measures: –
Maintenance of measures that address outstanding
market failures: in particular the remaining problems on access to finance,
notably for SMEs; –
Tightening of conditions: the measures prolonged
during 2011 would be subject to tighter conditions to reflect a gradual
transition into the normal State aid regime; –
Encouraging long term recovery in line with the
Europe 2020 priorities[10]:
measures that contribute to the Europe 2020 objectives should be encouraged (e.g.
prolongation of subsidised loans for the production of green products). 17.
This approach was also in line with the
initiatives adopted for the financial sector. The first step in the exit
process for financial institutions was the modification of the regime applying
to guarantee schemes, which took place with effect from 1 July 2010[11]. A review by the Commission of
the use of government guarantees concluded that the more solid and
unquestionably sound institutions were no longer significant issuers of
guaranteed debt. On this basis, the conditions for use of government guarantees
were tightened by applying an increased guarantee fee and requiring a viability
plan for beneficiaries having recourse to new guarantees and exceeding certain
thresholds. These criteria were aimed at sending a clear signal that financial
institutions need to prepare to secure their financing without State support. 18.
A similar approach, of extending the validity of
crisis-related rules while bringing those rules closer to the normal State aid
regime, was also adopted for other support to financial institutions. On 1 December
2010, the Commission adopted a Communication extending the validity of the
crisis-related measures for the financial sector until the end of 2011[12]. However, given the evidence
that banks were facing fewer difficulties in raising capital on the markets at
the time of adoption of the Communication, the Commission no longer considered
it appropriate to distinguish between distressed banks, from which a
restructuring plan had previously been required in connection with any
recapitalisation, and their fundamentally sound counterparts, from which only a
viability review had been needed. Instead, from 1 January 2011, a restructuring
plan will be required from every beneficiary of a recapitalisation or an
impaired asset measure. 4. Contribution
of competition policy to the economic adjustment programmes of Greece and
Ireland 4.1. Greek
economic adjustment programme 19.
In 2009, already before the sovereign crisis,
Greece had put together a banking rescue package, including a Guarantee Scheme,
a Bond Loan Scheme and a Recapitalisation Scheme, which provided for liquidity
and capital support to banks in Greece. This support package was used by all
major Greek banks; ten banks were recapitalised in May and July 2009 and had to
present restructuring plans to the Commission. 20.
In the course of 2010, Greece found itself in a
weak fiscal position. To support the Greek government's efforts to get its
economy back on track, the Commission, the European Central Bank and the
International Monetary Fund (IMF) pledged on 2 May 2010 a three-year
economic adjustment programme[13]
financed by Euro Area Member States in bilateral loans totalling EUR 80 billion
and supported by the IMF with a stand-by arrangement of about EUR 30 billion,
bringing the joint commitment to a total financing of EUR 110 billion. 21.
The Greek authorities agreed to a multi-annual
programme of fiscal consolidation and structural reforms in order to put the
Greek economy on a sustainable path, to restore confidence on sovereign debt
markets and to preserve the stability of the Euro area. The programme includes
a sustainability-enhancing fiscal consolidation through measures that generate
savings in public sector expenditure and improve the government's
revenue-raising capacity as well as financial sector policies aiming at
stabilising the Greek financial system. The programme also includes medium-term
structural reforms in order to improve the Greek economy's competitiveness
through the modernization of the public sector, the increase in efficiency and
flexibility of product and labour markets and the creation of a more open and
accessible business environment for domestic and foreign investors, including a
reduction of the State's direct participation in domestic industries. 22.
In order to strengthen the Greek financial
system, two important support instruments were put into place: –
Issuance of additional Government guarantees: the
main purpose of these guarantees is to use them as collateral in order to
obtain funding from the ECB. An additional amount of EUR 25 billion was
authorised by the Commission in the summer of 2010[14]. Another extension of the
scheme, by EUR 30 billion, is planned for the first half of 2011. –
The establishment of an independent Financial
Stability Fund (FSF) as a safety net to preserve the solvency of the financial
sector, by providing capital support to banks. EUR 10 billion were
earmarked which have not been used so far. The granting of aid was subject to a
scheme which was also authorised by the Commission in the summer of 2010[15]. 23.
In line with EU State aid rules, on 1 October
2010 Greece submitted to the Commission the restructuring plans for six of the
recapitalised banks. The Commission entered into discussion with Greece in
particular regarding the banks in which the State holds significant stake such
as Agricultural Bank of Greece (ATE), Hellenic Postbank (TT), Attica Bank and
the Consignment Deposit and Loan Fund (CDLF). A need for in-depth restructuring
of ATE and CDLF was identified and restructuring plans are to indicate measures
that lead to the restoration of viability of the bank in the long-term without
State aid, and be accompanied by adequate burden-sharing and measures to
minimise distortions of competition. 24.
As regards structural reforms, competition
policy was identified as an important pillar to support the increase in
efficiency of product markets. Greece thus cooperated with the Commission on drafting
a new investment law, on reforming the Hellenic Competition Authority and on
liberalising closed professions. 4.2. Irish
economic adjustment programme 25.
As regards Ireland, the
situation became very stressed for both the banks and the Sovereign debt in the
last quarter of the year. The combination of a severe
economic crisis and of the huge losses taken by a banking sector several times
bigger than the Irish economy led to great pressure on the Irish sovereign debt.
Ireland and the Irish banks faced the drying up of access to wholesale funding,
severe deposit outflows, the collapse of the Irish property market and a
considerable down-turn of the economy with a severe fall
in GDP in the last years and rising unemployment. 26.
The Irish authorities therefore made an
application to the EU/IMF financial stability facilities in place on
22 November 2010. On 28 November 2010, a
Programme was agreed between the Commission, the European Central Bank (ECB),
the IMF and the Irish authorities[16].
The Programme foresees a loan of EUR 85 billion to Ireland, of which EUR 35 billion
are available to restore banks' viability. 27.
As part of the Programme, two domestic banks
will be wound down (Anglo Irish Bank & INBS), while others will be
capitalised and restructured in compliance with EU State aid rules. This means
that all the Irish banks currently under restructuring will receive extra aid,
currently estimated at a total of EUR 10 billion. A new capital adequacy
review will be undertaken early 2011 by the Financial Regulator together with
the Commission, ECB and IMF in order to determine whether further capital injections
would be needed. At the end of 2010, bank recapitalisations totalled more the
30% of Irish GDP. 28.
Furthermore, deleveraging targets will be set
for each of the viable banks. The Programme foresees that the viable banks will
submit to the Commission, under EU State aid rules, a restructuring plan in the
second quarter of 2011 that shows: (i) how they will reach these targets, (ii)
how they intend to fulfil the other requirements of the Commission's
Restructuring Communication (return to viability, burden-sharing, measures
limiting the distortion of competition). EU State aid rules are therefore not
lifted by the Programme and continue to apply to the rescue and restructuring
of the Irish banks. 29.
As regards competition-related structural
reforms, a number of policy measures will be taken to bolster competition in
product and energy markets and other network industries. This includes
introducing legislative changes to remove restrictions to trade and competition
in sheltered sectors, addressing the current exclusion of certain sectors from
the scope of the national competition law and improving deterrence of
anticompetitive behaviour. B – Antitrust –
Articles 101 and 102 TFEU 1. Shaping
and applying the rules 1.1. Shaping
the rules: review of Block Exemption Regulations 1.1.1. Block
Exemption Regulation on vertical agreements 30.
On 20 April 2010, the Commission adopted a
revised Block Exemption Regulation[17]
(BER) and Guidelines[18]
regarding vertical agreements, i.e. agreements between suppliers and buyers
operating at different levels of the production and distribution chain for the
supply and distribution of products and services. The revision was carried out
in view of the expiry, on 31 May 2010, of the Block Exemption Regulation
adopted in 1999[19]
and which marked the evolution from an approach mainly centred on the form of
an agreement to one consisting in assessing its likely effects on the market.
The basic principle formulated in 1999 was that, absent any hardcore
restriction of competition, if a supplier only has limited market power, its
vertical agreements are either unlikely to restrict competition, or that the
efficiencies that they bring about are likely to prevail over any restrictive
effects so that on balance the agreements are either neutral or beneficial to
the consumers. For that reason, under the 1999 Regulation vertical agreements
concluded by suppliers with a market share not exceeding 30% were exempted
"as a block" from the prohibition set out in Article 101(1) TFEU. 31.
The basic principle set out in the revised rules
remains that, in the presence of limited market power, companies are free to
decide how their products are distributed, provided their agreements do not contain
price-fixing or other hardcore restrictions. However, the rules were revised to
the effect that in order to be block exempted all parties to the agreement,
i.e. not just the supplier but also the buyer, must have a market share not
exceeding 30%. This change was motivated by the fact that in the light of the
increasing concentration of distribution, it cannot be assumed that agreements
involving powerful buyers are neutral or beneficial for consumers as a general
rule and that they should therefore be block exempted whenever the supplier's
market share does not exceed 30%. Cases tackled in particular by some National
Competition Authorities in the last years have shown that such an assumption is
indeed not justified. The introduction of a market share threshold that takes
into account the buyers' potential market power means that a case-by-case
approach will be applied to vertical agreements where the buyer has a market
share exceeding 30%, similarly to what is already being applied to agreements
involving suppliers' market power. There is no presumption of illegality
outside the block exemption. This revision will allow for instance to tackle
more effectively than under the previously applicable rules vertical restraints
led by powerful distributors that may cause prejudice to SMEs and to the final
consumers. 32.
The Regulation and accompanying Guidelines were
also revised in order to take into account the rapid development since the
adoption of the previous BER in 1999 of the internet as a force for online
sales and for cross-border commerce, which increases consumer choice and price
competition. This part of the revision did not entail any change of policy or
of the scope of the rules, but rather responded to calls made to the Commission
to provide more explicit guidance to firms regarding the restrictions that may
and may not be agreed regarding on-line distribution. 33.
The revised Guidelines make it clear that under
the BER, approved distributors must be free to sell on the internet without
limitation on quantities, customers' location and restrictions on prices. At
the same time, a supplier and buyer can agree that the latter must have a
physical point of sales ("brick and mortar shop") and that its
on-line distribution must comply with certain quality and other requirements
that are equivalent with the conditions governing the sales from brick and
mortar shops. The Guidelines also provide examples of restrictions (such as an
agreement between the supplier and the distributor where the latter limits the
proportion of sales made over the internet) that are not exempted under the BER
and are considered hardcore resale restrictions. Through the added clarity and
thereby greater predictability of the new rules, distributors have a clear
basis and incentives to develop online activities to reach and be reached by
customers throughout the EU and fully take advantage of the internal market.
This can be expected to contribute to the development of online commerce and
the digital internal market. 34.
Finally, the third major strand of the revision
consisted in clarifying the notion of hardcore restriction of competition,
whose inclusion in a vertical agreement entails that the agreement as a whole
cannot benefit from the block exemption. Based on case experience, it is presumed
that agreements containing one or more hardcore restrictions restrict
competition and are unlikely to fulfil the four conditions of Article 101(3),
i.e. are unlikely to produce outweighing positive effects. The Guidelines
clarify that this double presumption does not, contrary to a widespread
perception, amount to considering hardcore restrictions as illegal per se. In
line with case law, the Guidelines specify that undertakings may demonstrate
pro-competitive effects, in an individual case, and that the agreement meets
all the conditions set out in Article 101(3), not least that there is an
eventual net benefit for the consumers. The Guidelines further provide examples
of pro-competitive effects that could, in certain circumstances, be associated
with hardcore restrictions such as resale price maintenance. 1.1.2. Block
Exemption Regulations on horizontal cooperation agreements 35.
On 14 December 2010, the Commission adopted
new rules and guidelines for the assessment of horizontal cooperation
agreements, i.e., agreements concluded between companies operating at the same
level of the supply chain, such as agreements to cooperate on research and
development, production, purchasing, commercialisation, standardisation, and
exchange of information. This new regime consists of a set of guidelines, the
so-called "Horizontal Guidelines", and two Block Exemption
Regulations[20]
(BER) regarding research and development agreements on one hand and
specialisation and joint production agreements on the other hand. 36.
Horizontal cooperation can lead to substantial
economic benefits and allow companies to respond to increasing competitive
pressures and a changing market environment driven by globalisation. However,
they can also lead to serious competition problems, in particular where they
increase the market power of the parties to an extent that enables them to
increase prices, limit output or reduce innovation efforts. The Commission's
approach enshrined in the new rules is to leave companies maximum freedom to cooperate
while at the same time protecting competition from such cooperations which are contrary
to Article 101 TFEU, e.g. by being harmful to consumers. 37.
The Commission published drafts of the revised
Guidelines and BERs for public consultation in May and June 2010. Almost 120
stakeholders submitted contributions during the public consultation. This
allowed the Commission to further improve and refine the texts prior to
adopting the final versions. 38.
The new rules should be seen as an evolution,
not a revolution. They aim at giving comprehensive guidance and adequate legal
certainty for companies wishing to cooperate with competitors. Whilst the
Commission's view on how competitors can cooperate has not fundamentally
changed since the previous rules were put in place in 2000, the new Horizontal
Guidelines[21]
are more detailed and user-friendly than the previous ones. Two key features of
the reform include the insertion of a new chapter on information exchange and a
substantial revision of the chapter on standardisation agreements. 39.
A well functioning system for standard-setting
is vital for the European economy as a whole and in particular for the
information, communication and telecoms (ICT) sector. The objective of
improving the efficiency and effectiveness of the European standardisation has
been set out as a priority of the Flagship Initiative of the Europe 2020
Strategy on "An Integrated Industrial Policy for the Globalisation
Era"[22].
The revision of standardisation chapter of the Horizontal Guidelines fits into
this context by promoting a standard-setting system that is open and
transparent and thereby increases the visibility of licensing costs for
Intellectual Property Rights (IPRs) used in standards. In doing so it attempts
to find a balance between the sometimes contradictory interests of companies
with different business models (from the pure innovator to the pure
manufacturer) involved in the standard-setting process. The system will thus
provide sufficient incentives for further innovation and at the same time
ensure that the traditional benefits from standardisation are passed on to
consumers. 40.
Concretely, the chapter on standardisation
agreements contains certain criteria, which, if fulfilled by standard-setting
organisations, provide comfort that the Commission will not take issue with a
standard-setting agreement (safe harbour). These criteria include: (i) that the
procedure for adopting the standard is unrestricted with participation open to
all relevant competitors on the market; (ii) transparency to ensure that stakeholders
are able to inform themselves of upcoming, on-going and finalised work on standards,
also for those involving IPR; and (iii) a balanced IPR policy with good faith
disclosure of those IPRs which are essential for the implementation of a
standard, and a requirement for all IPR holders that wish to have their
technology included in the standard to provide an irrevocable commitment to
license their IPR on fair, reasonable, and non-discriminatory terms
("FRAND commitment"). However, these criteria are not a
"straight jacket": not fulfilling them does not mean that a
standardisation agreement infringes EU competition rules. Consequently, the
Commission gives detailed guidance for those standard-setting organisations
whose rules do not meet the safe harbour criteria, in order to allow them to
assess whether their agreements are in line with EU competition law. 41.
Certain standard-setting organisations may wish
to provide for their members to unilaterally disclose, prior to setting a
standard, the most restrictive licensing terms that they would charge for their
IPRs if those were to be included in the standard. Such a system could enable a
standard-setting organisation and the industry to take an informed choice not
only on quality but also on price when selecting which technology should be
included in the standard. The Commission gives comfort to standard-setting
organisations that such a system would normally not infringe EU competition
rules. 42.
Information exchange can be pro-competitive when
it enables companies to gather general market data that allow them to become
more efficient and better serve customers. It also enables consumers to make
better informed choices when deciding which product to purchase. However, there
are also situations where the exchange of market information can be harmful for
competition, for instance when companies use sensitive information to
coordinate their pricing. The new chapter on information exchange in the
Horizontal Guidelines is the first Commission document to give clear and comprehensive
guidance on how to assess the compatibility of information exchanges with EU
competition law and will therefore play a significant practical role for
businesses and their legal advisors. The chapter sets out the various factors
relevant for the assessment and their interplay and contains a number of
practical examples to help businesses assess typical information exchange
scenarios. 43.
With a view to facilitating innovation in
Europe, the Commission has considerably extended the scope of the R&D Block
Exemption Regulation, which now not only covers R&D activities carried out
jointly but also so-called "paid-for research" agreements where one
party merely finances the R&D activities carried out by the other party. In
addition, the new Regulation gives parties more scope to jointly exploit the
R&D results. Moreover, the list of "hardcore restrictions" has
been streamlined and it has been clarified that restrictions on active sales to
territories not exclusively allocated to one party are considered hardcore and
can therefore not benefit from the BER. It has furthermore been clarified that
passive sales restrictions with regard to customers, and not only those with
regard to territories, are also considered hardcore restrictions. 44.
The scope of the Specialisation BER has been
slightly extended so that its benefit applies to specialisation agreements,
even where one of the parties to the agreement only partly ceases production.
This enables a company that has two production plants for a certain product to close
down one of its plants, outsource the output of the closed plant, and still
avail of the Specialisation BER. The Specialisation BER also provides that,
where the products concerned by a specialisation or joint production agreement
are intermediary products which one or more of the parties use captively for
the production of certain downstream products which they also sell, the
exemption is also conditional upon a 20% market share threshold downstream. In
such a case, merely looking at the parties' market position at the level of the
intermediary product would ignore the potential risk of closing off inputs for
competitors at the level of the downstream products. Consequently, such a
specialisation or joint production agreement will not benefit from the
Specialisation BER but will be subject to an individual assessment. 1.1.3. Sectoral
Block Exemption Regulations 45.
In the field of insurance, the new Insurance
Block Exemption Regulation[23]
(BER) was adopted on 24 March 2010. The previous BER was due to expire on
31st March 2010. Following a two and a half years review, involving all
interested market players and National Competition Authorities, the Commission
decided not to renew two of the four types of cooperation that the previous BER
covered, namely agreements concerning (i) standard policy conditions (SPCs) and
(ii) security devices (see Section II.A.2.1.3., points 167 to 172). 46.
On 27 May 2010, the Commission adopted new
competition rules for agreements between vehicle manufacturers and their
authorised dealers, repairers and spare parts distributors. Agreements
regarding the aftermarkets are subject to the general vertical BER of 20 April
from 2010 onwards. Agreements regarding the markets for the sale of new
vehicles will be subject to the same general vertical BER from 2013. In
addition, the Commission adopted Regulation 461/2010[24], which sets out three
supplementary hardcore clauses relating to spare parts distribution, and a
detailed set of supplementary Guidelines[25]
for assessing vertical agreements in the sector. The new rules broadly align
competition policy in the car market to the general regime applicable to other
sectors (see Section II.G.2.1., points 362 to 370). 1.2. Private
enforcement of the EU antitrust rules 47.
Private enforcement of the EU antitrust rules is
an essential complement to a strong public enforcement by the Commission and
National Competition Authorities (NCAs). In its 2008 White Paper on antitrust
damages actions[26],
the Commission suggested a number of measures to improve the possibilities for
consumers and businesses to obtain compensation for harm caused to them by
antitrust infringements. Collective redress and quantification of damages were
among the issues addressed in the White Paper. 48.
The Commission's suggestions on collective redress
have triggered a broad public debate that goes beyond the boundaries of the
antitrust field and focuses on the role to be played by collective redress more
generally in any circumstances where a single infringement of EU rules harms
large groups of victims. Indeed, collective redress may be necessary to ensure
effective and efficient access to justice also in other areas of EU law. On 12 October
2010, Vice-Presidents Reding and Almunia and Commissioner Dalli jointly
presented to the College an information note "Towards a Coherent European
Approach to Collective Redress: Next Steps"[27], discussing horizontal issues
such as effective compensation, safeguards against abusive litigation, the role
of alternative dispute resolution, jurisdictional rules and funding. On the
basis of the note, the Commission decided to prepare a public consultation
which should contribute to identify a set of common principles that shall guide
any future legislative proposals concerning collective redress, including in
the antitrust field. A Communication presenting such principles has been
scheduled for adoption in 2011[28].
49.
As regards quantification of antitrust damages
in civil proceedings, the Commission announced in the White Paper that it
intended to draw up a non-binding Communication providing a succinct and easily
accessible overview of the methods and techniques that can be used by courts
and parties to antitrust damages actions when faced with the often complex task
of quantifying damages. As part of the expertise sought in the preparation of
the Communication on quantification of harm, a group of economic consultants
and lawyers produced for the Commission an external study on quantifying
antitrust damages[29].
The Directorate-General for Competition also organised on 26 January 2010
a workshop with external economists to discuss a range of issues concerning
this topic[30].
A Communication on quantification of harm in antitrust damages actions has been
scheduled for adoption in 2011[31]. 1.3. Applying
Article 101: Cartels and other agreements and concerted practices 1.3.1. Cartels 50.
In 2010 the Commission adopted seven cartel
decisions[32]
imposing fines totalling over EUR 3 billion on 70 undertakings. As the
fight against cartels continued to be one of its main priorities, the
Commission focused on making the process more efficient through the application
of the settlement procedure, which was applied in 2010 for the first time in
two cases. Moreover, against the background of difficult economic conditions, a
number of mainly small and medium-sized enterprises were granted a fine
reduction in application of point 35 of the Fines Guidelines[33] (inability to pay). 51.
In the Airfreight case[34] the Commission fined 11 air
cargo carriers almost EUR 800 million for coordinating surcharges for fuel
and security from December 1999 to February 2006. Airlines providing airfreight
services primarily supply air transport services to freight forwarders, who
arrange "door to door" carriage of goods including associated
services and formalities on behalf of shippers. All carriers were granted a 50%
reduction on sales between the EEA and third countries in order to take into
account the fact that on these routes part of the harm of the cartel fell
outside the EEA. All carriers received a reduction of 15% on fines on account
of the general regulatory environment in the sector which can be seen as
encouraging price coordination. One carrier received immunity from fines, and
ten others fines reductions, under the Commission's Leniency policy[35] for undertakings that cooperate
with its investigations. 52.
An important issue in the area of cartels was
settled by the Court of Justice in 2010, namely the question of scope of Legal
Professional Privilege (LPP) protection, raised by Akzo Nobel Chemicals Ltd,
one of the parties in the Heat Stabilizers case[36]. In its judgment of 14 September
2010[37],
the Court of Justice upheld the position of the Commission, confirming that
correspondence with an in-house lawyer is not covered by LPP (see Section
I.B.2.4., points 69 and 70). Settlements procedure 53.
In 2010 the Commission adopted its two first
settlement decisions: a full settlement decision in DRAMs case[38] and a hybrid settlement
decision in Animal Feed Phosphates case[39]. 54.
The DRAMs case constituted a milestone in EU
cartel practice, not only because it brought the first settlement decision but
also because of the characteristics of the DRAMs cartel. Ten producers in a
high technology setting were involved in a network of anticompetitive contacts
and secret information sharing, mostly on a bilateral basis, through which they
coordinated the price levels and price quotations for DRAMs (a form of memory
chips, the so-called Dynamic Random Access Memories – DRAM) sold to major PC
and server equipment manufacturers in Europe. The settlement of this highly
complex cartel comprised all ten undertakings; the Commission imposed an almost
EUR 330 million fine. The decision was not appealed, entailing large cost
savings for all concerned. 55.
In the other settlement case, Animal Feed
Phosphates, which concerned a cartel lasting over 30 years in the animal
nutrition sector, one group of undertakings discontinued the settlement
proceedings (hybrid case). The finalization of this first hybrid case proved
that the Commission can successfully conclude settlement even when one party
withdraws from the settlement process. Inability to pay 56.
Against the background of the economic crisis,
the seven cartel decisions adopted in 2010 dealt with 32 applications for a
fine reduction on grounds of inability to pay, nine of which were granted.
Point 35 of the Fines Guidelines states that "in exceptional cases, the
Commission may, upon request, take account of [an] undertaking's inability to
pay in a specific social and economic context". The purpose of this
provision is to avoid that the Commission's fines drive financially distressed
undertakings out of the market and cause adverse social and economic
consequences. After an intense scrutiny of their individual financial
situation, fines were reduced because of inability to pay for a total number of
nine undertakings in the Bathroom Fittings, Pre-stressing Steel and Animal Feed
Phosphates cases. 57.
The Bathroom fittings and fixtures cartel case[40] concerned an important number
of relatively small companies. In this case, the Commission received ten
applications for inability to pay. The Commission carried out a thorough
analysis of the financial situation of each of the undertakings and assessed
the specific social and economic context for those undertakings whose financial
situation was found to be sufficiently critical. In this context, the impact of
the global economic and financial crisis on the bathroom fitting sector was
taken into account. The Commission concluded for five undertakings concerned
that the fine would cause their assets to lose significant value and reduced
their fines. The final decision adopted on 23 June 2010 imposed a fine of
over EUR 622 million on 17 undertakings. 1.3.2. Other
agreements and concerted practices 58.
In 2010, the Commission took three major
decisions regarding agreements and concerted practices in addition to the fight
against cartels. The Commission put an end to a major investigation under
Article 101 in the air transport sector by making legally binding commitments
offered by British Airways, American Airlines and Iberia[41]. This decision will entail
significant benefits for European consumers by ensuring that sufficient
competition on the transatlantic flights, in particular from London, is
maintained (see Section II.E.2.1.1., points 309 to 312). In the financial
sector, the Commission made binding Visa Europe's commitments[42] on Multilateral Interchange
Fees for immediate debit cards transactions applicable to cross-border
transactions in the EEA and to domestic transactions in nine EEA countries[43] . The decisions brings Visa
Europe's MIFs for consumer immediate debit cards transactions in line with
MasterCard's unilateral undertakings of 1 April 2009[44] and the
"merchant-indifference methodology" to modes of payment (see Section
II.A.2.1.1., points 157 to 160). The Commission also adopted its first
antitrust decision in the health services market. It imposed a fine of EUR
5 million on the French Association of Pharmacists[45] condemning its market
behaviour in the French market for clinical laboratory testing (see Section
II.D.2.2.1., points 294 and 295). 1.4. Applying
Article 102 TFEU: Abuse of dominant positions 59.
The Commission continued its enforcement
activities of Article 102 TFEU, notably in the energy sector, where it took
four decisions and in the Information and Communication Technology (ICT)
sector, where it opened several proceedings. 60.
In the energy sector, the Commission continued
in 2010 its work following its 2007 energy sector inquiry, adopting four major
antitrust decisions under Article 9 of Regulation 1/2003[46], whereby the Commission makes
binding the commitments proposed by undertakings to put an end to a potential infringement.
They relate to incumbents of France, Germany, Italy and Sweden foreclosing
access to their domestic markets through various means, such as long-term
supply contracts with resale restrictions or limiting available transport or
export capacities on energy networks (see Section II.B.2.1., points 211 to 215). 61.
The Commission was also active in the field of
ICT markets to monitor potential abuse of dominant position. In spring, the
Commission launched two preliminary investigations into Apple's business
practices relating to the iPhone (the limitation of warranty rights to the
country of purchase and the imposition of restrictions on independent developer
tools for iPhone applications), which were both subsequently closed after Apple
proposed to change these practices[47].
The Commission opened in July proceedings against IBM concerning potential
abuses of a dominant position: IBM is alleged inter alia to have engaged
in illegal tying of its mainframe hardware products to its allegedly dominant
mainframe operating system[48].
In November 2010, the Commission initiated formal proceedings against Google
with a view to further investigating allegations that Google has abused a
dominant market position in online search, online advertising and online
advertising intermediation, following complaints from
several search service providers[49]
(see Section II.C.2.2.1., points 253 to 255). 2. Selected
Court cases 2.1. Exclusivity
agreements 62.
The Tomra Systems and
Others v European Commission[50]
judgment of the General Court of 9 September 2010 relates to a
Commission decision of 2006 prohibiting Tomra's practices consisting of
exclusivity agreements, individualised quantity commitments and individualised
retroactive rebate schemes in the markets for reverse vending machines in a
series of national markets. The judgment of the General Court re-affirms
long-standing case law on exclusivity agreements. The Court paid particular
attention to the fact that the Commission analysed the structure and
characteristics of the market, the position held by Tomra and its competitors,
the size of the customers, the terms of the agreement, the development of
demand, the coverage and duration of the contracts, and the "suction
effect" of the rebate schemes. The General Court established that the potential
foreclosure by a dominant undertaking of a substantial part of the market
cannot be justified by showing that the contestable part of the market is still
sufficient to accommodate a limited number of competitors, because the
customers on the potentially foreclosed part of the market should have the
opportunity to benefit from whatever degree of competition is possible on the
market and competitors should be able to compete on the merits for the entire
market and not just for a part of it, and because it is not the role of the
dominant undertaking to dictate how many viable competitors will be allowed to
compete for the remaining contestable portion of demand. 2.2. Margin
squeeze 63.
The Deutsche Telekom AG v Commission of the
European Communities[51]
judgment of the Court of Justice of 14 October 2010 dismissed Deutsche
Telekom's appeal against the General Court's judgment of 2009[52] which upheld the Commission's
decision of 2003 finding that Deutsche Telekom (DT) had squeezed its
competitors out of the market by charging abusive prices to access the local
loop (the "last mile" connecting the network to end-users). This landmark
judgment re-confirms the principles for assessing an abuse of a dominant
position in the form of a margin squeeze under Article 102 that had been set
out by the General Court in its judgment of 2008. The Court established that
margin squeeze is a stand alone abuse in the sense that there is no need to
demonstrate that wholesale prices or retail prices are, in themselves, abusive
since the abusive nature of the incumbent's conduct is connected with the
unfairness of the spread between its prices for wholesale access and its retail
prices. 64.
The Court upheld the lawfulness of the method
used by the Commission to establish a margin squeeze, namely the use of the
equally efficient competitor test. This test establishes whether DT would have
been able to offer its retail services to end-users otherwise than at a loss if
it had first been obliged to pay its own wholesale prices for local loop access
services. The Court required that in order for a margin squeeze to be
considered abusive, it must be shown that it is capable of making market entry
or market penetration of competitors, who are at least as efficient as the
dominant undertaking, more difficult or impossible. In this regard, the Court
noted that since the wholesale local loop access services provided by DT are indispensable
to its competitors' effective penetration of the retail markets for the
provision of services to end-users, a margin squeeze resulting from the spread
between wholesale prices for local loop access services and retail prices for
end-user access services, in principle, hinders the growth of competition in
the retail markets in services to end-users, since a competitor who is as
efficient as the incumbent cannot carry on his business in the retail market
for end-user access services without incurring losses. The Court of Justice
underlined that where a dominant undertaking actually implements a pricing
practice resulting in a margin squeeze of its equally efficient competitors,
with the purpose of driving them out of the relevant market, the fact that the
desired result is not ultimately achieved does not alter its categorisation as
abuse within the meaning of Art. 102 TFEU. 65.
Finally, the margin squeeze at issue was
attributable to DT, since the latter had sufficient scope to adjust the retail
prices charged to its end-users, notwithstanding the presence of price
regulation. It thus confirms that decisions of national regulators (in this
case, the approval by the German telecommunications Regulator RegTP of DT's
wholesale prices) do not shield a dominant company from respecting competition
rules. The Court held that regardless of the national price regulation, DT had
sufficient scope to adjust its prices to end the margin squeeze and fulfil its
obligations under competition law. In other words, decisions of national
authorities under EU telecommunications law do not in any way affect the
Commission's power to find infringements of EU competition law. 2.3. Level
of fines 66.
On 19 May 2010, the General Court delivered
six judgments[53]
on the appeals launched by several undertakings against the Copper Plumbing
Tubes[54]
Commission's decision of 3 September 2004, punishing a cartel in the
market for copper tube manufacturing. The General Court clarified a number of
questions related to the level of fines. 67.
In KME Germany AG, KME France SAS, KME Italy SpA
v Commission, the General Court dismissed the appeal of the applicants. On the
assessment of the gravity of the infringement, the General Court confirmed that
the actual impact on the market of cartels is irrelevant for their
classification as "very serious" infringements under the 1998 Fines
Guidelines. Therefore, the question to what extent a cartel resulted in a
market price higher than without the cartel is not a decisive factor for
determining the level of fines. The assessment of the size of the sector
affected by the cartel is relevant to determine the basic amount of the fine.
The applicants claimed that, when assessing the size of the sector affected by
the cartel, the Commission was wrong in including the price of raw materials
(metal) in market turnover, since that price is set by daily listings on the
London Metal Exchange and is therefore outside their control. The General Court
rejected that argument, stating that despite its approximate nature, turnover is
currently considered as an adequate criterion in the context of competition law
for assessing the size and economic power of the undertakings concerned. The
General Court also stated that when the Commission increases the amount of the
fine to take into account the duration of the infringement, it is not bound to
fix the increase for each year of participation by reference to the intensity
of the infringement (i.e. frequency of collusive meetings). 68.
In the IMI plc, IMI Kynoch Ltd, Yorkshire Copper
Tube case, the General Court partially annulled the Commission's decision and
reduced the starting amount of the fine paid by the applicant because, unlike
the other cartelists, the applicant participated in only one branch of the
cartel. The applicants claimed that they suspended their involvement in the
cartel for more than 16 months before being involved again in the cartel
arrangements. Other cartelists were meeting regularly during that time. The
Commission was not able to provide any evidence that the applicants were
attending those collusive meetings during the 16 month "break".
Although the applicants were not disputing that the cartel was a single and
continuous infringement, the General Court decided to reduce the amount of the
fine imposed on the applicants in order to take account of their sequential
participation in the cartel. 2.4. Legal
professional privilege and in-house lawyers 69.
In its judgment of 14 September 2010[55], dismissing in its
entirety the appeal brought by Akzo Nobel Chemicals Limited and Akcros
Chemicals Limited against the Commission, the Court of Justice confirmed the
position in the previous case of AM&S Europe v Commission[56] that internal company
communications with in-house lawyers do not attract legal professional
privilege (LPP) in the context of EU competition investigations. 70.
The Court of Justice considered that in-house
lawyers are in a different position to external lawyers, due to the in-house
lawyer's relationship of employment with his client. In-house lawyers fail to
fulfil the two cumulative conditions for legal privilege, first set down by the
Court in the case of AM & S Europe v Commission. These conditions require
that: (i) the advice is requested and given for the purposes of the client's
rights of defence, and (ii) that the advice must emanate from "independent
lawyers, that is to say, lawyers who are not bound to the client by a
relationship of employment". The in-house lawyer is economically dependent
on and has "close ties" with his employer, resulting in a different
level of professional independence from that which is enjoyed by an external
lawyer. This is despite any professional ethical obligations to which in-house
lawyers are subject. Legal privilege will only extend to advice from
independent external lawyers. Accordingly, any communication from in-house
lawyers with, or advice they provide to, their commercial colleagues on matters
that may give rise to competition issues may be subject to full review by the
Commission in the context of an investigation. This is what happened in the
present case, which concerned e-mails and notes exchanged between the General
Manager of Akcros, and a member of the Dutch bar, employed as the competition coordinator
for Akzo Nobel seized by the Commission in the context of a cartel investigation. 2.5. Misuse
of intellectual property rights and regulatory procedures 71.
The judgment of the General Court in AstraZeneca
plc v. European Commission[57]
is of particular importance as it largely upheld the first Commission decision
on abuse of dominance in the pharmaceutical sector and made it clear that
misuse of regulatory procedure, including the patent system, may constitute an
infringement of the EU competition rules. The General Court confirmed the
Commission's finding that Astra Zeneca's submission of misleading information
to patent authorities for the
purpose of obtaining the issue of Supplementary Protection
Certificates (SPC), to which
it was not entitled or to which it was entitled for a shorter period, was
a practice based exclusively on methods falling outside the scope of
competition on the merits and was inconsistent with the special responsibility
of an undertaking in a dominant position. The General Court emphasised that it
followed from the objective nature of the concept of abuse that the misleading
representations made to public authorities must be assessed on the basis of
objective factors and that the proof of the deliberate nature of the conduct
and of the bad faith of the dominant undertaking is not required for the
purpose of identifying an abuse of a dominant position. The intention of the
dominant undertaking nonetheless can constitute a relevant factor which may,
should the case arise, be taken into consideration by the Commission. 72.
The General Court also upheld the Commission's
conclusion that a key purpose underlying AstraZeneca's deregistration of market
authorisations for Losec capsules in selected EEA countries was to exclude
competition from generic firms and parallel traders. The General Court ruled
that the purpose of a market authorisation is to confer the right to market a
pharmaceutical product and not to exclude competitors from the market. However,
according to the General Court, the Commission failed to establish that the
deregistration of Losec capsules in two of the three countries was capable of
restricting parallel imports in those countries and thus annulled the
Commission decision in this part. 2.6. Lack
of sufficient Union interest 73.
The ruling of the General Gourt in Confédération
européenne des associations d’horlogers-réparateurs (CEAHR) v European
Commission[58]
provides a rare example of annulment of a Commission rejection decision
grounded on insufficient Union interest. The Commission rejected the complaint
of CEAHR alleging that the refusal by several Swiss watch manufacturers to
supply spare parts to independent watch repairers constituted infringements of
Articles 101 and 102 TFEU. The Commission's finding of insufficient Union
interest was based essentially on the limited impact of the conduct on the functioning
of the internal market, the limited likelihood of establishing infringement and
the fact that national competition authorities and courts appeared well placed
to address the alleged infringement. None of these considerations persuaded the
Court. 74.
First, the General Court was not convinced by
the Commission's finding that the market concerned was of limited size, given
that the Commission decision did not take into account the territory affected
and did not rely on figures or estimates to support its finding. The judgment
makes it clear that, while there is no rule of law obliging the Commission to
determine the size of the market in assessing the Union interest, it has the
duty to give sufficient reason if it decides to rely on the argument of limited
market size. Secondly, the General Court found flaws in the Commission's prima
facie assessment of the relevant market, in particular in the fact that the
primary market was examined together with the aftermarket for spare parts and
repair services. Those errors undermined the rest of the Commission's analysis
and its conclusion that there was a low probability of there being
infringements. As regards the argument that national competition authorities
and courts were well place to address the infringement, the Court noted that
the practice at stake existed in at least five Member States and was
attributable to undertakings having their head offices and place of production
outside the European Union. In the General Court's view these factors suggested
that action at the European level could be more effective than various actions
at national level. The judgment provides useful clarifications on the
Commission's duties in relation to the assessment and the rejection of
complaints for lack of sufficient Union interest. 2.7. Commitments 75.
In European Commission v Alrosa Company Ltd[59], the Court of Justice set
aside the judgment of the General Court annulling the Commission's commitment
decision which had made binding De Beers' commitments to phase out its
purchases of rough diamonds from Alrosa. The Court of Justice gave a final
judgment in the matter, upholding the Commission decision. The ruling
establishes that the Commission enjoys considerable latitude in deciding
whether to accept commitments under Article 9 of Regulation 1/2003 to conclude
investigation. It emphasised the specific characteristics of the mechanisms
provided for in Articles 7 and 9 of Regulation No 1/2003 and that the means of
action available under each of those provisions are different. This implies that
the obligation on the Commission to ensure that the principle of
proportionality is observed has a different extent and content, depending on
whether it is considered in relation to the former or the latter article. The
Court of Justice pointed out that undertakings which offer commitments on the
basis of Article 9 of Regulation 1/2003 consciously accept that the concessions
they make may go beyond what the Commission could itself impose on them in a
decision adopted under Article 7 of that Regulation after a thorough
examination. On the other hand, the closure of the infringement proceedings
brought against those undertakings allows them to avoid a finding of an
infringement of competition law and a possible fine. The Court of Justice
disagreed with the General Court's interpretation of Alrosa's right to be heard
in the Commission proceedings. Alrosa could not be considered an
"undertaking concerned" in proceedings under Article 102 TFEU as it
was not the dominant undertaking. The Commission was thus right in considering
Alrosa an interested third party which enjoyed less extensive rights. C – Merger
control 1. Shaping
and applying the rules 76.
In 2010 the number of mergers notified remained
low due to the economic crisis. In total, 274 transactions were notified to the
Commission (compared to 259 in 2009 and 347 in 2008), 16 decisions were
submitted to conditions and no prohibition was decided. The large majority of
the mergers notified were approved without conditions both under the normal
procedure and the simplified procedure, which represented 55% of notifications. 77.
In 2010 the Commission took three decisions
following an in-depth analysis in second phase investigation for the Oracle /
Sun Microsystems[60], Monsanto / Syngenta[61] and Unilever
/ Sara Lee Body[62]
mergers. 78.
On 21 January 2010, the Commission cleared
the planned acquisition of Sun Microsystems, by Oracle Corporation, the leading
proprietary database software vendor. Following a second phase investigation into
the database software market, the Commission concluded that the transaction
would not lead to a significant impediment to effective competition (see
Section II.B.2.2.2., point 257). 79.
On 17 November 2010, after an in-depth
investigation, the Commission cleared the acquisition of the global sunflower
seed business of the US company Monsanto by Syngenta of Switzerland conditional
upon the divestment of Monsanto's sunflower hybrids, commercialised or under
official trial in Spain and Hungary, as well as the parental lines used in the
creation of those hybrids or currently under development for the creation of
hybrids for Spain and Hungary. The Commission's investigation showed that the
transaction, as initially notified, would have resulted in high market shares
combined with limited prospects of entry and expansion in both the Spanish and
the Hungarian markets for the commercialisation of sunflower hybrids. It would
also have increased the ability and incentives for the merged entity to
significantly reduce its activities of exchange and licensing of sunflower
varieties in the EU, leading notably to a reduction in innovation, a
foreclosure of competitors in the markets for the commercialisation of
sunflower seeds and ultimately to a reduction of choice of sunflower seed
hybrids for customers. The scope of the remedy package ensures that the
businesses to be divested can be run in a viable and sustainable manner and
that the purchaser will be able to take over the competitive role exercised by
Monsanto in the markets for the trading of sunflower varieties in the EU and
for sunflower seed commercialisation in Spain and Hungary. In light of the
commitments, the Commission concluded that the transaction would not
significantly impede effective competition in the internal market or any
substantial part of it. 80.
On 17 November 2010, the Commission also
cleared the planned acquisition by the Anglo-Dutch consumer goods company
Unilever of the body and laundry care businesses of Sara Lee Corp of the US,
subject to conditions. The Commission's in-depth investigation had shown that
the merger would give Unilever a very strong leadership position in a number of
deodorants markets by combining the parties' brands, most notably Sanex with
Dove and with Rexona which presently compete against each other. The Commission
found that the merger, as initially notified, would raise competition concerns
in Belgium, the Netherlands, Denmark, the United Kingdom, Ireland, Spain and
Portugal where it would remove an important competitive force and would likely
have led to price increases. To remedy these concerns, the merging parties
offered to divest Sara Lee's Sanex brand and related business in Europe. In
light of these commitments, the Commission concluded that the proposed
transaction would not significantly impede effective competition in the
European Economic Area (EEA) or any substantial part of it. 81.
Air transport witnessed significant
consolidation activity in 2010. The Commission examined the effects of the
British Airways / Iberia and United Airlines / Continental Airlines mergers
notably on competition on transatlantic routes[63].
The Commission's investigation showed that the merged entities will continue to
face sufficient competition from other carriers active on these routes as well as
on other long-haul routes. In terms of short-haul routes, the Commission
examined notably the impact of the merger between British Airways and Iberia on
the London-Madrid and London-Barcelona routes, where it appeared that
passengers have adequate alternative options on these and other short-haul
routes. The Commission continues to ensure that consolidation in the airline
industry does not take place at the expense of certain categories of consumers (see
Section II.E.2.1.2., points 315 to 316). 82.
Merger activity also took place in relatively new
markets during 2010, which led to assessing potential competition issues
relating to market foreclosure, standardisation and open source products. The
merger between UK subsidiaries of T-Mobile and Orange[64] led to analyse whether the
important share of combined radio spectrum of the two entities would not block
future access of competitors to fourth generation telephony markets (see
Section II.C.2.1.2., point 246). The acquisition by Microsoft of Yahoo's internet search and search advertising
businesses led the Commission to analyse the dynamic online search market[65] (see Section II.C.2.2.2., point
258). Some mergers in the pharmaceutical sector also concerned the dynamic
market of biotech products, such as in the Teva /Ratiopharm and the Abbot /
Solvay cases[66]
(see Section II.D.2.1.2., points 291 and 292). 83.
Merger control activity in 2010 was also related
to a number of cases stemming directly from decisions taken by the Commission
in the application of the temporary rules for the State aid in the context of the
economic and financial crisis. Restructuring plans in the financial sector
involved divestments of activities by restructuring entities; these divestments
were, where relevant, examined under the EU merger control rules (see Section II.A.2.2.,
points 174 to 175). 84.
Finally, the Merger Working Group established on
13 October 2009 in common agreement between the National Competition
Authorities of the EU Member States and the Commission (observer status was
given to the EEA Member States) met three times in 2010. The purpose of this
group is to exchange best practices and to contribute to foster consistency,
convergence and cooperation among the EU merger jurisdictions. The discussions this
year dealt with the review at the national level of mergers with potential
cross-border effects and the assessment of merger remedies. 2. Selected
Court cases 2.1. Quantitative
evidence and econometric studies 85.
In Ryanair v Commission[67], Ryanair appealed a Commission decision of June 2007 prohibiting
Ryanair's acquisition of its Irish competitor Aer Lingus. The General Court upheld
the Commission's prohibition decision, acknowledging in particular the
Commission's very detailed and careful analysis of the competitive effects of
the merger and the remedies proposed by Ryanair. The Court thereby again[68] endorsed the Commission's
approach to analyse horizontal mergers on the basis of the analytical framework
set out in Horizontal Merger Guidelines[69]. 86.
The ruling also clarified important aspects of
the Commission's investigative powers, notably concerning the Commission's
extensive use of quantitative evidence and econometric studies in the decision.
The Court noted that the Commission was fully entitled to use this type of
evidence for the assessment of the effects of the merger, in particular since
quantitative evidence and economic studies were used by the Commission to complement
and not to substitute the Commission's findings in the market investigation. 87.
It further confirmed the Commission's analytical
approach to airline mergers, notably concerning market definition and
acceptable remedies. It endorsed the Commission's practice to analyse the
effects of airline mergers on the basis of individual routes on which both
companies' activities overlap, and not on bundles of routes or by countries.
The Court also followed the Commission in that it distinguishes in its
assessment between mergers involving players active from different airports and
mergers of companies operating from the same airport. 88.
Finally, the Court confirmed that the Commission
was right to reject the remedies proposed by Ryanair at different stages of the
procedure because of their formal shortcomings (inter alia unclear and
contradictory formulations of some key parts of the remedies offer), thereby
setting clear limits to the parties' freedom to disregard procedural rules set
out in the Merger Regulation[70]
and the Merger Remedies Notice[71]. 2.2. Minority
shareholdings 89.
In a separate ruling on Aer Lingus v Commission[72], the Court provided some
important clarifications with regard to the Commission's powers under the
Merger Regulation in cases of minority shareholdings. Prior to the merger
notification, Ryanair had acquired a non-controlling minority share in Aer
Lingus (currently 29.4%) which it maintained after the Commission's prohibition
decision. Aer Lingus asked the Commission to order Ryanair to fully divest its
remaining minority shareholding, but the Commission's rejected this request by
way of a decision, which was subsequently appealed by Aer Lingus. 90.
The General Court confirmed that the Commission
was right to reject Aer Lingus' claim to divest Ryanair's non-controlling
shareholding in Aer Lingus. According to the Court, Ryanair's acquisition of a
minority share could, in the absence of a controlling minority shareholding,
neither be regarded as "full" nor as "partial"
implementation of a concentration. The Commission therefore had no power under
the rules of the Merger Regulation to order Ryanair to divest its minority
share. D – State aid
control 1. Shaping
and applying the rules Overview of the Commission's
activities in the field of State aid control in 2010 91.
In addition to work conducted on State aid
related to the economic and financial crisis, the Commission adopted in 2010
around 450 decisions in other State aid cases in the industry and services
sectors. 92.
The majority of aid approved in the industry and
services sectors related to horizontal objectives of common interest. It
included among others: culture and heritage conservation aid (49 cases),
regional aid (48), aid in support of environment protection (26), aid in
support of research, development and innovation (29) and compensations of
damages caused by natural disaster (10). The Commission also authorised aid for
rescuing and restructuring firms in difficulty (25 cases) and for development
of a specific sector such as coal or broadband networks (42 cases). The Commission
also approved 39 cases in the transport sector, which focused mainly on the following
objectives: sectoral aid (19 cases), regional development aid (7 cases) and rescuing
firms in difficulty aid (5 cases). 93.
Member States have made wide use of the
possibilities offered by the General Block Exemption Regulation (GBER)[73], whereby measures which fulfil
its criteria may be granted without prior notification to the Commission. In
2010, the Commission was informed about the introduction of 414 such new
measures by Member States. The Commission also authorised 321 schemes and
approved 114 individual measures. Over the year, the Commission took 14 fully
or partly negative decisions related to State aid cases. Overview of aid amount authorised by
the Commission, excluding crisis measures (2009) 94.
In terms of amount of aid authorised, figures
are compiled with one year delay in the bi-yearly State aid Scoreboard. The latest
Autumn update[74]
shows that the overall aid volume increased in 2009 compared to 2008, almost
exclusively due to crisis measures. Disregarding the exceptional crisis
measures, it is still higher but within the average of the past ten years. 95.
Total aid excluding crisis-related measures
amounted in 2009 to 0.62% of GDP or EUR 73.2 billion, at a slightly higher
level than 2008 (0.58% of GDP). State aid for industry and services amounted to
EUR 58.1 billion (79% of total), while aid to agriculture, fisheries and
transport amounted to EUR 15.1 billion (21%). 96.
On average, 84% of aid to industry and services
was directed towards horizontal objectives of common interest while sectoral
aid stood at 16%. The largest proportion of aid was earmarked for regional
development (around EUR 14 billion, 24% of total State aid for industry
and services), followed by environmental aid (EUR 13 billion, 23%) and aid
earmarked to Research & Development & Innovation activities (around EUR
10.6 billion, 19%). Together, these three objectives represented around two
thirds of total aid to industry and services. All other horizontal objectives
taken together account for roughly 18% of total aid to industry and services:
SMEs (7% of total aid), employment (4%), culture and heritage conservation
(3%), training (2%), social support for individual consumers (2%), risk capital
and other horizontal objectives (roughly 1%). Although figures for 2010 are not
yet available, the volume and share of non-financial aid should not change dramatically
in 2010 compared to 2009. 97.
Aid granted through block exemption, in
particular the GBER, represented an increasingly important share of aid volumes
at 19% of total aid to industry and services in 2009 (EUR 10.8 billion),
compared to 16% in 2008 and 12% in 2007. The vast majority of aid (69%) was
granted through schemes; individual aid accounted for the last 12%. State aid control – the Simplification
Package 98.
2010 was the first year of functioning with the
Simplification Package in place. This Package, in force since 1 September
2009, comprises a Best Practice Code[75]
and a Notice on a Simplified Procedure[76],
both of which aim at improving the effectiveness, transparency and
predictability of State aid procedures. 99.
The Best Practices Code details how State aid
procedures should be carried out in practice. It includes a certain number of
voluntary arrangements between the Commission and Member States to achieve more
streamlined and predictable procedures at each step of a State aid
investigation. One year after its entry into force, the first results of the
Code were encouraging: in particular, it had a significant impact on
complaints-handling, with an increasing number of complainants informed of the
status of their complaints. The Commission is committed to further enhancing
cooperation with the Member States, especially as regards the quality of
notifications and exchange of information during the proceedings. 100.
The Simplified Procedure aims at improving the
Commission's treatment of straightforward cases, such as those clearly in line
with existing Guidelines or established Commission decision-making practice.
The Commission wants to ensure that clearly compatible aid measures are
approved within one month from a complete notification by a Member State. A
transparency provision also ensures that third parties can provide their input.
It thus took less time for the Commission to approve decisions in 2010 under
the Simplified Procedure compared to the normal procedure. 1.1. Horizontal
aid 1.1.1. Regional
aid 101.
In accordance with the Guidelines on national
regional aid for 2007-2013[77]
(RAG 2007), the Commission carried out the review of the State aid status and
the aid ceiling of the statistical effect regions[78] that benefited transitionally from
a status as an assisted area pursuant to Article 107(3)(a)[79] until the end of 2010. As from
1 January 2011, those regions will benefit from eligibility to regional
aid on the basis of Article 107(3)(c)[80],
with the exception of four regions (Hainaut, Kentriki Makedonia, Dytiki
Makedonia and Basilicata) that maintain their status as Article 107(3)(a)
assisted areas with an aid intensity of 30% as their GDP per inhabitant over
the period 2005-2007 was below 75% of the EU25 average[81]. 102.
Similarly, in the framework of the mid-term
review of 2010 foreseen in the same Guidelines, the Commission accepted changes
to national regional State aid maps notified by three Member States (France,
Ireland and Italy) for certain areas eligible to regional aid on the basis of
Article 107(3)(c). 103.
On the basis of the RAG 2007, the Commission
approved in 2010 regional aid to six large investment projects. Four of these
projects are in the photovoltaic sector, three in Germany (Solibro, Wacker
Chemie and Sovello3)[82]
and one in Spain (Silicio Solar)[83],
while the other investment projects are in the mechanics industry (Liebherr in
Germany and Fiat Powertrain in Italy)[84].
Furthermore, five ad hoc aid measures in favour of single enterprises
for investments in areas under the Regional Aid maps 2007-2013 were approved,
as well as ten regional aid schemes, five of which regarding outermost regions. 104.
The Commission closed in 2010 three formal
investigations (Deutsche Solar, Sovello and Fri-el Acerra)[85], with one positive and two
negative decisions. The negative decisions concerned an illegitimate SME bonus
in favour of Sovello AG, to be recovered by Germany as the beneficiary of the
aid did not qualify for the SME status, and an incompatible aid measure in
favour of Fri-el Acerra because of the absence of incentive effect and
insufficient regional contribution of the investment in Region Campania in
Italy. 1.1.2. Environmental
aid and security of electricity supply 105.
In 2010, the Commission approved 36 State aid
measures under the Environmental Aid Guidelines[86] or directly based on Article
107(3)(c) TFEU. 20 concerned aid schemes and 16 individual applications. The
Commission took no negative decisions and opened two formal investigations.
Eight decisions not to raise objections were taken on individual applications
after a detailed economic assessment under the Environmental Aid Guidelines. 106.
The approved schemes included inter alia
aid to secure supply of electricity, aid for renewable energy and to carbon
capture and storage project. Investigations concerned a German measure to
compensate non-ferrous metal producers for CO2 costs contained in
electricity costs[87] and aid to the energy incumbent in Malta intended
to bring the Delimara Power Station in early compliance with emission standards
laid down by EU environmental law[88].
The Commission also authorised aid to remediate two contaminated sites in
Austria[89].
(see Section II.B.2.2., point 222). 1.1.3. Research
& Development & Innovation (R&D&I) aid 107.
Innovation has been placed at the heart of the
Europe 2020 Strategy and the Flagship Initiative on an Innovation Union[90] outlines the necessity to
improve the financing of innovation in Europe to boost its performance. The
Community Framework for research and development and innovation[91] supports this objective by
making it easier for Member States to better target State aid to the relevant
market failures. In 2010, the Commission approved twelve aid schemes, with an
overall budget of more than EUR 5 billion, on the basis of this Framework,
and decided to initiate the formal investigation procedure regarding one
further case which was subsequently withdrawn. Out of those measures, five were
pure R&D schemes, four were innovation-oriented schemes and four were
mixed, pursuing both R&D and innovation objectives. 108.
In addition, and following an in-depth economic
assessment, the Commission decided not to raise objections to ten individually
notifiable aids to large R&D projects referring to new processes for
bio-methane production, use of composite materials for the fabrication of
specific components of aero-structures, and lithography for semiconductor
devices. Furthermore, it monitored information submitted on aids to 52 other
R&D projects, which exceeded EUR 3 million although without falling
under the obligation of individual notification. 109.
As to State aid granted in favour of R&D
projects under the GBER, there were 40 schemes providing aid for fundamental
research, 91 for industrial research and 86 for experimental development. At
the same time, the GBER was also used by Member States for measures relating to
innovation, 42 of which related to industrial property rights for SMEs, 21 to
young innovative enterprises, 24 to innovation advisory and support services,
and eleven to the loan of highly qualified personnel. 1.1.4. Aid
to promote risk capital and urban development 110.
In the area of risk capital financing for SMEs,
the Commission approved seven measures under the Risk capital guidelines[92], with an overall budget of EUR
380 million. Out of those measures, three did not comply with the safe harbour
provisions and were therefore subject to a detailed assessment. Furthermore, eleven
additional aid schemes were implemented in 2010 under the GBER, which some
Member States increasingly used for risk capital purposes. 111.
In the view of the progressive deployment of the
JESSICA initiative[93],
the Commission started to reflect on the development of general economic
principles on the basis of which its funding mechanism, to the extent that it
contains elements of State aid, could be assessed. The approach would build on
the Commission's practice in the urban regeneration area and apply by analogy
the relevant criteria from existing rules, notably the Risk capital guidelines.
In particular, it would aim at ensuring that the envisaged measures address
clearly identifiable market failures or equity objectives and have an incentive
effect, and that any aid granted through JESSICA investments is limited to the
minimum necessary to make urban projects commercially attractive for private
sector investors. 1.2. Sectoral
and individual State aid 1.2.1. Rescuing
and restructuring aid for industry 112.
In 2010, the Commission adopted 21 decisions concerning
rescuing and restructuring of firms in difficulty in the industrial sector. The
Commission decided to open five formal investigation procedures[94]. Three formal investigation
procedures were closed in 2010 with a no aid decision for Hydral[95], a no-competence decision in
the case of Mittal Steel Roman[96]
and a positive conditional decision in case of Varvaressos[97]. 113.
In February 2010, the Commission launched an
in-depth investigation on the EUR 55 million capital injection of the FMEA
(Fonds de Modernisation des Equipementiers Automobiles) to the automotive
supplier Trêves[98].
That investigation will allow it to be determined if the FMEA's investment is
imputable to the French State and if it took place under market conditions. 114.
In July 2008 the Commission approved a rescue
aid for fibre producer Varvaressos, a large company in difficulty, in the form
of a State guarantee for a EUR 2.4 million loan. In January 2009, Greece
notified a restructuring aid of EUR 14 million for the company. In the process of the restructuring plan's assessment, the
Commission discovered that the company had already been granted a State
guarantee for existing loans of EUR 23.4 million in May 2007, contrary to
what Greece had declared (in November 2007) when it notified the rescue aid
measure. On the basis of that new information as well as of the notified
measure, the Commission opened the formal investigation procedure in March 2010
on a EUR 16.7 million restructuring package, raising doubts on the
company's eligibility for restructuring aid, its
contribution to the restructuring costs and the proposed compensatory
measures. In December 2010, following clarifications from the Greek authorities
and additional compensatory measures, the Commission closed the formal
investigation procedure with a positive conditional decision. 115.
In August 2010, the Commission closed a formal
investigation procedure into the restructuring plan of
the Polish company PZL Hydral, a State-owned aeronautics civil and military
parts supplier, with a no aid decision. Initially, the Polish authorities
intended to grant as much as EUR 30 million of State aid to finance the
restructuring of the company. Following the emergence of a potential private
buyer of part of the assets of the company, the Polish authorities abandoned
their plan to grant State aid and limited their interventions to debts waivers
and debt to equity swaps in line with what private creditors already accepted.
Thus those measures were considered as free of aid by the Commission since they
merely reflected the behavior of any market operator in similar circumstances. 1.2.2. Aid
to the transport sector 116.
In 2010, the Commission adopted 53 decisions in
the transport sector, including 14 decisions in the railway sector, most of
them on the basis of the 2008 Community guidelines on State aid for railway
undertakings[99],
13 decisions in the aviation sector, mainly on the basis of the 2005 Community
Guidelines on financing of airports and start-up aid to airlines departing from
regional airport[100]
and eleven in the maritime sector. As regards the latter, the decisions are
mainly based on the Community guidelines on State aid to maritime transport[101]. The Commission also adopted
its first decision applying Regulation No 1370/2007 on public passenger
transport services[102],
which entered into force on 3 December 2009 and broadly follows the
Commission's previous practice in the field. It is also worth noting that in
2010 more than 40 notifications were introduced by Member States and close to
50 complaints were lodged in the field of transport. That activity demonstrates
the importance of this field in applying State aid rules (see Section II.E.2.,
points 317 to 321, 328 to 330 and 335 to 339). 1.2.3. State
aid for Broadband networks 117.
In 2010, the Commission continued to support the
development of broadband networks on the basis of the Community Guidelines for
the application of State aid rules in relation to rapid deployment of broadband
network[103],
adopted in 2009. It authorised 20 schemes for public support to the development
of broadband network, approving approximately EUR 1.8 billion of public
funding which could generate up to EUR 3.5 billion in investment (see
Section II.C.2.1.3., points 247 and 248). 118.
State aid policy authorises properly justified
and proportionate broadband schemes if the distortion of competition and the
effect on trade are limited and thus significantly contributes to the realisation
of the objectives stated under the Digital Agenda for Europe[104] of reaching fast broadband
coverage (at least 30 Mbps) for all European citizens and ultra-fast broadband
(above 100 Mbps) subscriptions for at least 50% of European households by 2020.
1.2.4. Aid
to the coal sector 119.
Following a proposition from the Commission in
July 2010, the Council adopted a decision on State aid to facilitate the
closure of uncompetitive coal mines[105]
on 10 December 2010 in light of the expiry of the previous Regulation in
December 2010[106].
It provides that Member States might grant aid in two circumstances. First, aid
may be given to cover coal production if there is a closure plan whose deadline
does not extend beyond 31 October 2018. While the Commission favoured a shorter
closure period, it took into account the strong political message from the
Member States and the European Parliament and agreed to the compromise. Second,
aid may be granted until 2027 to cover exceptional costs (such as social
welfare, rehabilitation of sites or removal of waste water) associated with the
closure of mines. Any closure aid must be decreasing over time with a specified
rate and accompanied by measures to mitigate the negative environmental impact
of coal production. No investment aid to hard coal mining may be granted under
this decision. During 2010 the Commission approved aid schemes to the coal
sector in Germany[107]
and Poland[108]
intended to support access to coal reserves and cover exceptional costs. 1.2.5. Aid
to the agricultural sector 120.
The Commission assesses State aid granted to the
agriculture and to the forestry sector on the basis of the Guidelines for State
aid in the agriculture and forestry sector 2007 to 2013[109]. In 2010, 214 new State aid
cases were registered and 161 decisions were adopted (see Section II.H.2.3.,
points 387 to 391). 121.
Since the introduction of the possibility for
Member States to approve EUR 15 000 in limited amounts of aid to primary
producers under the Temporary Framework, 14 Member States submitted schemes
which were approved by the Commission. 1.2.6. Aid
for compensating provision of Services of General Economic Interest: Social
Housing undertakings 122.
During 2010, the Commission continued to examine
a number of complaints lodged by private building companies and real estate
developers acting on the housing market in competition with public operators. In
analysing the various elements pertaining to the alleged presence of State aid
granted in favour of social housing undertakings, the Commission found that public
support often constitutes public service compensation granted to social housing
undertakings carrying out activities qualified as services of general economic
interest (SGEI) by the Member State concerned. In the
field of State aid control regarding social housing, such compensations for SGEI
are in principle covered by the 2005 Commission decision[110], exempting them from notification regardless of the turnover of the
beneficiaries and the level of the compensation they receive. 123.
In that context, in December 2009, the
Commission had adopted a decision (published in 2010) declaring the Dutch
Social Housing system compatible with EU State aid rules on SGEI[111]. The State support given to
social housing corporations takes the form mainly of loan guarantees and grants.
Following an in-depth investigation, the Commission endorsed commitments from
the Dutch authorities to change the existing social housing system in order to
bring it in line with EU State aid rules. In particular, the Dutch authorities
will ensure that State funding is not used for commercial activities and that
housing is attributed in a transparent manner according to objective criteria,
focusing on a clearly defined target group of socially less advantaged persons.
In addition, the Commission in that decision approved for the next ten years
new aid amounting to EUR 750 million for social housing projects in
declining urban areas. In April 2010, the Commission's decision was challenged by
private developers and the social housing undertakings in front of the General
Court, and those annulment proceedings are currently pending[112]. 1.3. State
aid enforcement by national courts 124.
The Commission has exclusive competence for
approving State aid. National courts nevertheless play an important role in the
State aid field, since they can offer possible complainants effective legal
protection "close to home" by ordering suspension and recovery of
State aid granted in violation of the notification obligation of Article 108(3)
TFEU. According to a recent study[113],
more and more cases are brought before national courts, covering an increasing
variety of issues. 125.
The potential of the private enforcement of the
stand-still obligation[114]
in national courts was underlined in the Notice on State aid enforcement by national
courts[115]
issued by the Commission in April 2009. A year after its adoption, the first
responses have been encouraging, with increasing numbers of requests for
information and opinions being received by the Commission. 126.
In 2010, the Commission continued its efforts to
improve the system of private enforcement of the stand-still obligation in
national courts, focusing on enhancing communication with national judges. In
October, it published a handbook on the "Enforcement of EU State aid law
by national courts"[116]
in order to assist national judges in dealing with State aid cases. The handbook
gathers the most important EU rules and relevant guidance material. It explains
the role of national courts in the State aid field as defined by the European
Courts and offers national courts practical and user-friendly support in
individual cases. 127.
Given the importance of public awareness for
effective and successful private enforcement of the stand-still obligation in
national courts, the Commission continued its advocacy on the issue through
dedicated web pages, publications, participation in conferences and trainings
for national judges. In particular, eight out of the 14 sessions organised in
2010 under the national judges' training programme dealt with State aid. 1.4. Ex-post
monitoring of State aid measures 128.
The Commission has
launched regular ex-post monitoring exercises since 2006 in order to ensure effective enforcement of the State aid rules, since an
increasing number of aid measures are no longer subject to the notification
obligation because they are granted through general schemes allowing for
subsequent individual application or through Block Exemptions (BER)[117]. 129.
Monitoring implies a check at two levels: first,
at the level of the general legislation in order to determine whether the
national legislation is in line with the requirements of EU State aid rules
(approved scheme or BER). In a second stage a few significant individual
applications of the national aid measure are examined in detail in order to
determine whether in practice EU State aid rules are also respected (typically
cases above EUR 500 000). Respect of conditions such as the maximum aid
intensity, maximum aid amount and the correct qualification of the eligible
costs will typically be scrutinised at that level. 130.
Since 2006, the Commission has covered an
important part of the main substantive types of aid: aid to SMEs, training aid,
employment aid, regional aid, R&D aid, environmental aid, as well as rescuing
and restructuring aid. In 2010, ex-post monitoring also included
measures covered by the GBER, as well as, for the first time, aid in the form
of risk capital, aid in the transport sector, aid in the broadband area,
cultural aid and aid to the shipbuilding sector. The Commission also addressed
aid measures adopted by 25 of the 27 Member States, thereby ensuring a balanced
geographical coverage. The measures reviewed under the ongoing exercise concern
primarily environmental and regional aid (20% each), R&D&I (17%), aid
to SMEs and for the promotion of risk capital (17%). 131.
The results of the first exercises show that
this part of the existing State aid architecture (schemes and BERs) functions
in a satisfactory manner. In a minority of cases substantive problems or
procedural issues (such as transparency, reporting, speed and quality of
answers) were identified. The cases in which no appropriate solution was
identified are still being investigated (one from 2006, and three from 2008).
Finally, all Member States cooperated with the Commission, although many
submitted the requested information with considerable delay. 1.5. Recovery
policy 132.
When a negative decision is taken in cases of
unlawful State aid, the Commission shall decide that the Member State must take
all necessary measures to recover the aid from the beneficiary. Recovery is not
a penalty, but a means to restore the situation previous to the granting of the
unlawful aid. This objective is obtained once the aid (plus compound interest)
is repaid by the recipient who enjoyed an advantage over its competitors in the
market. 133.
A Member State is deemed to comply with the
recovery decision when the aid (plus compound interest) has been fully
reimbursed within the prescribed time limit or, in the case of an insolvent
beneficiary, when the company is liquidated under market conditions. Where the
Member State concerned has not complied with the recovery decision, and where
it has not been able to demonstrate the existence of absolute impossibility,
the Commission may initiate infringement proceedings under Article 108(2) TFEU[118] or Article 260(2) TFEU[119]. The applicable rules
regarding recovery, as well as detailed and concrete guidance to Member States,
are provided in the Notice on the implementation of decisions ordering Member
States to recover unlawful and incompatible State aid (Recovery Notice)[120]. 134.
By 31 December 2010, the amount of illegal
and incompatible aid recovered had increased from EUR 2.3 billion in
December 2004 to EUR 10.9 billion[121].
The percentage of illegal and incompatible aid still to be recovered has
evolved accordingly from 75% at the end of 2004 to 14% at the end of 2010. The
share of the total amount recovered has slightly decreased between December
2009 and December 2010 (from 88.0% to 86%) due to high amount of aid identified
in several pending cases[122].
Over the year 2010, the Commission adopted six decisions regarding recovery and
ensured the recovery of over EUR 500 million by Member States. 135.
In order to ensure better enforcement of its
decisions, the Commission brought proceedings under Article 108(2) in three
cases and under Article 260(2) in one case, thus leading to 26 cases under
litigation. 41 recovery cases are currently pending. 2. Selected
Court cases 2.1. Notion
of aid 136.
In Hellenic Republic, Olympic Airways and
Olympic Airlines v European Commission[123]
the General Court partially annulled the Commission decision finding that
certain measures granted to Olympic Airways (OA) and Olympic Airlines (NOA),
the new airline formed by the Greek State and which had taken over the flying
activities of OA, constituted incompatible State aid. The General Court
recalled first of all that, if there is economic continuity, NOA could be
considered as the beneficiary of the aid granted to OA before NOA took over its
flying activities. The Court confirmed that the economic continuity was
sufficiently demonstrated in this case and that aid granted to OA before the
creation of NOA could thus be recovered from NOA. However, the Court found that
the unlawful aid granted to OA after NOA took over its flying activities, could
not be recovered from the latter on the mere ground that it derived an indirect
benefit. This factor does not suffice to conclude that NOA was the effective
recipient of that aid, as the finding of economic continuity is irrelevant for
the measures granted after the take-over. The Commission should have clearly
identified the alleged advantage granted by OA to NOA and assessed separately
whether, having regard to the market economy investor principle, it constituted
State aid. 137.
Furthermore, as regards the application of the
market economy investor principle, the Court recalled the Commission's
obligation to examine the difference between the rents for the sub-leasing of
aircraft paid by NOA and those available in normal competitive conditions on
the market. From a procedural perspective, the Court recalled that the
Commission had to prove that the rents were not in line with market conditions and
that it can only adopt a decision based on the information available if the
Member State does not provide the required information in spite of an
information injunction. 138.
In Bundesverband Banken v Commission[124] the General Court upheld the
Commission's decision and confirmed that the Commission had correctly applied the
market economy investor principle in its assessment of a silent partnership
contribution of capital of unlimited duration by the Land of Hessen to one of
Germany's largest banks Landesbank Hessen-Thüringen Girozentrale (Helaba). 139.
As regards the notion of advantage in the
context of compensation for public service obligations, in Commission v
Deutsche Post[125] the Court of Justice, basing its reasoning
on the Altmark jurisprudence[126],
upheld the General Court's annulment of the Commission's decision of 2002. The
Court rejected the partial approach of the Commission which, instead of
carrying out a comprehensive analysis of whether Deutsche Post had been
overcompensated for its public service obligations in the postal sector, had
focused exclusively on Deutsche Post's allegedly below-cost pricing strategy
for door-to-door parcels. The Court emphasized the necessity to conduct a
comprehensive analysis of all universal service revenues and costs to determine
whether Deutsche Post was under- or over-compensated for its public services
obligations. 140.
As further regards the notion of advantage, the
General Court ruled in Mediaset SpA v Commission[127] that a State subsidy granted
to every user who purchased or rented equipment for the reception of TV signals
transmitted using digital terrestrial technology was not technologically neutral
and enabled cable operators and digital terrestrial broadcasters, such as
Mediaset, to benefit, as compared with satellite broadcasters, from an
advantage. The Court held that the measure, of which the direct beneficiaries
were the final consumers, constituted an indirect advantage for operators on
the digital TV market. 141.
In case ACEAElectrabel[128], the Court upheld the
judgment of the General Court and confirmed that the Commission is not obliged
to carry out a detailed assessment of the potential advantages of a measure, in
particular in relation to its impact on competitors, in order to state the
presence of aid. It furthermore confirmed that the notion of economic entity in
the context of State aid may differ from that in other areas of competition law
and endorsed the Commission's application of the Deggendorf jurisprudence. 142.
In France and others v.
Commission[129] the General
Court annulled the Commission's decision regarding the credit line offered by
the French authorities to France Télécom. The Commission's decision had
declared this measure incompatible State aid. The judgment established that for
each State measure involved, advantage, State resources and the link between
these two elements (connexité) set out in Article 107(1) have to be established
for finding State aid. The Court dismissed the global approach by the
Commission to consider the credit line in the context of the declarations made
by the French authorities and to base its finding of State aid on that link.
The Court reasoned that earlier oral and written statements of a French
Minister and the French authorities to support France Télécom, which were not
themselves classified as State aid by the Commission and which took place in
July, September and October 2002, could not be taken into account by the
Commission to demonstrate that the credit line proposal of December contained
an advantage granted by State resources. It dismissed the Commission's
reasoning that the credit line was a "realisation of the earlier
statements" by the French authorities to support France Télécom. The
General Court found there was a rupture between those earlier and the notified
events and that they were not sufficiently linked. Given this rupture, the
Court found that, even if there were State resources involved in the credit
line, it was not sufficiently demonstrated they were resulting from the
advantage granted through the earlier statements. The judgment has been
appealed by France Télécom's competitors and by the Commission[130]. 143.
In case The Netherlands and Nederlandse Omroep
Stichting v Commission[131],
the General Court confirmed the Commission decision and deals with the notion
of "undertaking". Its reference to the notion of
"undertaking" in competition cases appears to confirm that the same
notion is also applicable in a State aid context. 2.2. Compatibility assessment 144.
In British Aggregates
and Others v Commission[132]
the General Court annulled the Commission's decision because the Commission was
not entitled to adopt lawfully the decision not to raise objection by failing
to examine the question of possible tax discrimination between domestic
products and imported products originating in Ireland. The judgment recalled
the obligation on the part of the Commission to ensure that Articles 107 and
108 are applied consistently with other provisions of the Treaty, especially
where those other provisions also pursue the objective of undistorted
competition in the internal market, as Articles 28 and 30 or Article 110 do in
seeking to safeguard the free movement of goods and competition between domestic
and imported products. 145.
In Freistaat Sachsen and Land Sachsen-Anhalt v
Commission[133] the General Court upheld the Commission's decision,
in which the latter had found that part of the notified training aid lacked
incentive effect. That part of the aid covered costs of training which the
company was anyway required by law to provide. The Court indicated that
training aid which produces positive external effects cannot be considered
compatible with the internal market where it does not fulfill the criterion of
necessity. 146.
The case Métropole télévision (M6) and
Télévision française 1 SA v Commission[134] concerned the capital injection by the French State into France Télévisions due to the critical financial situation of France
Télévisions which experienced a sharp decline in advertising revenues. The
Commission found in a no objections decision that the injection was necessary
for the fulfillment of France Télévisions' public service obligation and thus
compatible under Article 106(2) TFEU. In particular, in the Commission's
assessment, there was no overcompensation as the injection was substantially
lower than the public service costs. The General Court upheld the Commission's
decision on all points and confirmed that the broadcaster's efficiency is not
an element of the assessment whether public service compensation is compatible
with Article 106(2). 147.
The Court of Justice dismissed on 2 December
2010[135]
the appeal lodged by Holland Malt against a judgment[136] of the General Court relating
to the application of the Agricultural Guidelines[137]. According to the General
Court, the Commission was right in deciding that an aid which does not fulfil a
certain condition of the Agricultural Guidelines (namely the presence of normal
outlets on the relevant market) is not compatible with the internal market,
without taking into consideration the beneficial effects of that aid. The
Commission is bound by the guidelines it issues, to the extent that they do not
depart from the rules in the Treaty. 2.3. Recovery
of aid 148.
In CELF and Ministère de la Culture et de la
Communication v Société internationale de diffusion et d'édition (SIDE)[138], the Court of Justice confirmed that
national courts must freeze illegal aid until a final binding authorisation is
given by the Commission. It is for the national courts to take appropriate
actions in order to remedy the unlawfulness of the implementation of the aid,
so that the aid does not remain at the disposal of the recipient pending a
final decision of the Commission. The Court also
clarified that the adoption by the Commission of three successive decisions
declaring aid to be compatible with the common market, which were subsequently
annulled by the Community judicature, is not, in itself, capable of
constituting an exceptional circumstance such as to justify a limitation of the
recipient's obligation to repay that aid, in the case where that aid was
implemented contrary to Article 108(3). 149.
In Scott SA, Kimberly Clark SAS, v Ville
d’Orléans[139],
the Court of Justice clarified that a national court may annul a recovery order issued by a national
authority on grounds of there being a procedural defect as long as the
annulment of the recovery order would not lead, even provisionally, to a new
payment of the aid, where it had already been reimbursed. Otherwise, the
annulment of the recovery order would prevent the immediate and effective
execution of the recovery decision and thus be incompatible with the Member
State's recovery obligations. 150.
Finally, the Court confirmed the non execution of
the recovery decisions in cases Commission/Italy and Commission/Slovakia[140] and clarified how Member
States should implement their obligation to "adopt all the necessary
measures" to implement a recovery decision. II – Sector
Developments A – Financial services 1. Overview
of sector 151.
The economic and financial crisis highlighted
the key role financial markets play in the functioning of modern economies.
They provide access to finance for businesses and consumers and are an
essential instrument of economic activity. Their level of integration and
competitiveness goes hand in hand with the efficiency level of allocation of
capital and with long-term economic performance. Financial services include
retail banking, wholesale banking, payment services, financial information
services and insurance services. 152.
With the financial and economic crisis
continuing into 2010, the year has been another difficult one for the financial
sector in the EU and Member States have continued to be active in granting
support measures. 153.
State aid was one of the main pillars of action
in helping to counter the effects of the financial crisis from its beginning. The
regulatory framework was established in 2008 and 2009 through the
Communications on Banking, Recapitalisation, Impaired Assets and Restructuring[141], which seek to preserve financial stability and to ensure legal
certainty continued to play a central role. The temporary State aid rules for
financial institutions defined and implemented by the Commission provided a coordination mechanism from the early stages of the
crisis, which ensured that national support programmes were established in a
way which avoided undue distortions of competition and ensured that financial
institutions and their shareholders bear a fair part of the burden of rescuing
them. Their implementation was the main focus of competition enforcement over
the year, in particular in the field of restructuring of State supported
financial institutions (see Section I.A.1., points 1 to
7). 154.
This year, the Commission set out its roadmap
for financial reform[142]
and made a number of key legislative proposals which are designed to increase
transparency, foster a responsible attitude to risk taking, improve supervision
of market participants and help mitigate the impact of any future crises. Key
proposals include the AIFM Directive, the revision of the Capital Requirements
Directive and the Communication on Crisis Management and Bank Resolution Funds
together with the OTC derivatives and short selling initiative, the
establishment of the new European supervisory authorities and the adoption of
measures to strengthen the supervision of credit ratings agencies. The
Commission has also started the review of the Markets in Financial Instruments
Directive[143]
(MiFID) which will enhance competition in financial markets, in particular through:
(i) targeted improvements to ensure that market data is made available to
participants on an equitable basis; (ii) reduction of information asymmetries
in less transparent markets such as those for bonds and derivatives, while
trading in more standardised derivatives is foreseen to move to exchanges and
electronic trading platforms where trading conditions are most conducive to
open competition and (iii) more equitable conditions between organised trading
venues such as regulated markets and Multilateral Trading Facilities. Regarding
credit rating agencies (CRAs), currently regulated under the Credit Rating
Agencies Regulation of 2009[144],
the Commission is exploring further measures to enhance competition in this
industry such as for instance the creation of a network of small and medium
CRAs. 155.
However, other competition policy challenges
affecting the financial sector also drew the attention of the Commission. The
Single Euro Payments Area (SEPA) continued to be an important focus of
antitrust advocacy in the field of financial services. SEPA is a self
regulatory initiative launched by the European Banking Industry and led by the
European Payments Council to move to an integrated Euro payments area, so that
cross border payments are as easy and efficient as domestic payments. Once
fully implemented, SEPA will cover credit transfers, payment cards and direct
debits. SEPA, whilst primarily devised by the industry itself, is strongly
supported by the European Central Bank and the Commission. Since it is based on
decisions of and agreements between undertakings that are (potential)
competitors it is subject to close competition scrutiny. Reinforcing and
strengthening the competition dimension of SEPA will in turn help to achieve
better services at a better price for retailers and consumers. SEPA should also
help to remove the problem of cross border payments on the Internet which
remains one of the barriers to a greater use of e-commerce. 2. Policy
developments 2.1. Antitrust
enforcement 156.
Antitrust investigations focused on the payments
services sector but also on the use of standard identifiers for financial
instruments, and the distribution of trading data and financial information.
Two meetings of the European Competition Network were held regarding wholesale
financial services markets and retail financial services markets to better
understand the issues being faced by National Competition Authorities and to
maintain close cooperation within the Network. 2.1.1. Antitrust
enforcement in the payments services sector The Visa case 157.
Following the adoption of a Statement of
Objections against Visa Europe, Visa Inc. and Visa International Service
Association in 2009[145],
Visa Europe offered commitments in April 2010 concerning in particular its
Multilateral Interchange Fees (MIFs) for immediate debit cards transactions
applicable to cross-border transactions in the EEA and to domestic transactions
in those EEA countries where the domestic MIF rates apply in the absence of
other MIFs or are set directly by Visa Europe. MIFs are fees agreed upon by
Visa's member banks and charged by a cardholder's bank (the issuing bank) to a
merchant's bank (the acquiring bank) for each sales transaction made at a
merchant outlet with Visa card. MIFs form a large part of the merchant service
charge, the fee a merchant must pay to his bank for accepting the card as means
of payment. On 8 December 2010, the commitments were made legally binding for
four years by virtue of a decision pursuant to Article 9(1) of Council
Regulation (EC) No 1/2003 ("the commitments decision"). 158.
Following the entry into force of the commitments
decision, Visa Europe's maximum weighted average MIF for cross-border immediate
debit cards transactions in the EEA will be reduced to 0.2%. This cap will also
apply separately in each of those EEA countries for which Visa Europe directly
sets specific domestic consumer immediate debit MIF rates and in each of those
EEA countries where the cross-border consumer immediate debit MIF rates apply
in the absence of other MIFs. In addition, Visa Europe will modify its network
rules which should increase transparency and competition in the payment cards
market. The MIF reduction and the transparency measures
are expected to generate direct benefits to merchants
and consumers and contribute to the promotion of efficient payment instruments. 159.
The MIF reduction
to 0.2% is in line with the unilateral undertakings
given by MasterCard in April 2009[146].
The reduction reflects the application of the "merchant-indifference
methodology", which seeks to establish the MIF at a level at which
merchants will be indifferent as to whether a payment is made by immediate debit
card or by cash. The cap of 0.2% is based on four studies published by the
central banks of the Netherlands, Belgium and Sweden comparing the costs of
cards with those of cash. This cap can be reviewed if new information regarding
the costs of cards compared to the costs of cash become available, in
particular as a result of the study aimed at comparing the costs of different
means of payment, which is currently being carried out by the Commission. 160.
The commitments do not apply to Visa Europe's
MIFs for consumer credit and deferred debit cards or for commercial cards. The
Commission's investigation of Visa's consumer credit and deferred debit card
MIFs is still ongoing. Investigations into the domestic MIFs set by local banks
for transactions with payment cards were also launched by eight European NCAs,
four of which have already adopted decisions on this issue. Single Euro Payments Area (SEPA) 161.
SEPA continued to be an important focus of
antitrust advocacy in the field of financial services in 2010. As a result of
an informal dialogue with the European Payments Council (EPC), a number of
competition concerns were addressed. For instance it was clarified that SEPA
compliant card schemes do not need to cover all 32 States of the SEPA
territory, giving new schemes a real chance of entering the market. 162.
As regards SEPA Direct Debit (SDD), the Commission working document on the "Applicability
of Article 81 of the EC Treaty to multilateral interbank-payments in SEPA
Direct Debit" was published on 3 November 2009. It sets out
principles for the assessment of collective financing mechanisms under European
competition rules. A public consultation was launched to collect the
substantive input from the market actors and other interested stakeholders. On
16 December 2010, the Commission adopted a proposal to the Council and
Parliament on establishing technical requirements for credit transfers and
direct debits in euros[147].
This proposal includes provisions to forbid MIFs per transaction for SEPA
Direct Debit after a transitional period but to allow MIFs for rejected
transactions under certain conditions. Financial services information 163.
Access to financial services information and the
availability of high quality and timely market data in relation to prices and
structures of financial instruments is crucial for the functioning of financial
markets. The markets for the provision of financial information are often
characterised by a high degree of concentration and the major global financial
institutions and information services providers enjoy significant market power.
Industry standardisation in such markets can lead to the development of quasi
monopolistic providers of de facto market standard products, services,
financial identifiers and indices. The Commission is investigating a number of
issues arising in this sector such as access to information or services, standard
setting, IP rights and interoperability between different products or services[148]. 2.1.2. Securities
Trading, Clearing and Settlement (C&S) 164.
Clearing and settlement[149] are financial activities
which are carried out by so-called post trade infrastructure providers (in
particular Clearing Houses and Central Securities Depositories) after a
financial transaction has taken place. Whereas the
industry-led Code of Conduct on clearing and settlement[150] signed on 7 November
2006 achieved some positive developments as regards unbundling of services and
price transparency, progress on access and interoperability between different
post trade infrastructure providers remained limited, partially because of the
opposing commercial interests of incumbent providers. The post-trade sector
thus remains fragmented along national lines, making cross-border trades more complex
and costly. 165.
Future regulation will aim at increasing
competition between post trade infrastructure providers. On 15 September
2010, the Commission presented a proposal for a Regulation of the European
Parliament and of the Council on over-the-counter (OTC) derivatives, central
counterparties and trade repositories[151]. The draft Regulation foresees a common
framework for central counterparties (CCPs) in the EU and lays down the
conditions for the establishment of interoperability arrangements between CCPs
for cash equities while ensuring that potential risks arising out of such
interoperability arrangements are appropriately managed. Interoperability
arrangements increase competition between different CCPs. They give customers a
choice and allow them to consolidate clearing volume at a single entity. Irrespective of ongoing regulatory initiatives to increase
competition in post trading markets, it remains the responsibility of
(incumbent) market infrastructure owners to respect competition rules when facing
access requests from other infrastructures wishing to compete[152]. 166.
The proposed Regulation on OTC derivatives,
central counterparties and trade repositories also includes several measures aiming at making OTC derivatives markets safer and
at enhancing financial supervision. It also requires market participants to
clear eligible OTC derivative contracts via CCPs, which reduces counterparty
risk and should be welcomed from a financial stability point of view. As a
result of this requirement, some CCPs may attract all or a large part of
existing clearing volumes for specific financial instruments. Such providers
need to ensure that their conduct is in compliance with competition law
principles. The high degree of concentration in individual OTC derivatives
markets (such as Credit Default Swaps) requires close market monitoring from a
competition policy point of view. 2.1.3. Insurance
sector Insurance Block Exemption Regulation 167.
In November 2007, the Commission began the
review of the functioning of the insurance Block Exemption Regulation (BER)
which expired on 31st March 2010[153].
In the context of a great number of individual notifications, the insurance
sector has been covered by consecutive sector-specific BERs since 1992. A BER
allows market players the benefit of a safe harbour from competition rules
provided they comply with the BER's conditions. Agreements not covered by a BER
are not presumed to be illegal, but instead must be assessed under Article
101(1) of the Treaty and if appropriate, Article 101(3). The previous BER
applied Article 101(3) of the Treaty to four categories of agreements,
decisions and concerted practices in the insurance sector, namely agreements in
relation to (i) joint calculations, tables and studies; (ii) standard policy
conditions (SPCs) and models on profits; (iii) the common coverage of certain
types of risks (pools); and (iv) security devices. 168.
On the basis of the evidence gathered, the
Commission adopted, on 24 March 2009, a report to the European Parliament and
Council, which was published on the same day with a detailed accompanying
working document[154].
The Report examined the functioning of the previous BER and made initial
proposals for its amendment. 169.
Following a two and a half years review,
involving all interested market players and National Competition Authorities,
the Commission adopted on 24 March 2010 Commission Regulation (EU) No
267/2010, the new insurance BER[155],
applying Article 101(3) to two categories of agreements, decisions and
concerted practices in the insurance sector, namely agreements in relation to
(i) joint compilations, tables and studies and (ii) the common coverage of
certain types of risks (pools). 170.
As a result of its findings following the review
process, the Commission decided not to renew two of the four types of
cooperation covered under the previous BER, namely agreements concerning (i)
standard policy conditions (SPCs) and (ii) security devices. The decision was primarily
taken because the evidence gathered during the review indicated that such
agreements are not specific to the insurance sector and therefore their
inclusion in such an exceptional legal instrument would have resulted in
unjustified discrimination in relation to other sectors which do not benefit
from a BER in this respect, such as the banking sector. In addition, although
these two forms of cooperation may generate some benefits to consumers, the
Review showed that they can also give rise to certain competition concerns. 171.
In this context, the Commission considered it
more appropriate that a compliance analysis for these types of agreements be
conducted on a case-by-case basis under Article 101(1) and if appropriate
101(3). The issue of SPCs is now addressed in the standardisation chapter of
the Horizontal Guidelines adopted in 2010 (see Section I.B.1.1.2., points 35 to
44). As presented through the insurance specific example given in those
Guidelines, SPCs do not generally raise competition problems. Indeed, as long
as there is no standardisation of the insurance products and as long as SPCs
are not binding, the conditions provided in Article 101(3) are likely to be
fulfilled. 172.
Similarly, agreements on security devices are
now to be assessed on the basis of the new standardisation chapter of the new
Horizontal Guidelines and an example specific to the insurance sector was also
introduced in these Guidelines. In accordance with this example, agreements on
security devices could be pro-competitive as long as they do not have effects
on the downstream market by excluding manufacturers through very specific and
unjustified requests. Maritime insurance 173.
As regards the maritime insurance sector, the
Commission opened formal proceedings against 13 Protection and Indemnity
(P&I) Clubs that are part of the International Group of P&I Clubs (IG)
on 26 August 2010. In the framework of the IG, the clubs have concluded
two separate agreements: (i) the International Group Agreement and (ii) the
Pooling Agreement that contain rules on the sharing of insurance claims and
joint reinsurance as well as rules on the contractual relationships between the
P&I Clubs and their members. The Commission is concerned that such
provisions could restrict competition between the P&I Clubs and exclude, to
some extent, commercial insurers and other mutual P&I insurers from the
relevant markets. 2.2. Merger
control 174.
The trend of reduced merger activity continued
in 2010 in the financial sector. The Commission examined cases in the sectors
of retail banking services[156],
asset management[157]
and distribution of mutual funds services[158],
further consolidating its practice in these areas. 175.
A number of cases resulted directly from State
aid decisions taken by the Commission during the financial crisis and were
examined under the EU merger control rules. In particular the decision in the State
aid case approving State measures to Royal Bank of Scotland[159] led to three notified cases,
regarding three businesses that had been committed to be divested, including
certain retail and commercial banking assets[160],
its merchant payment services[161]
and its commodities trading arm[162].
This involved close cooperation with the relevant National Competition
Authorities. All cases were cleared in first phase without remedies. 2.3. State
aid control: restructuring of financial institutions 176.
Restoring viability of individual financial
institutions is a prerequisite for restoring the viability of the EU banking
sector as a whole. Lending to the real economy, re-establishing a level playing
field across financial institutions, and the smooth functioning of the European
internal market can be ensured only through viable financial institutions. In
2010, the Commission approved, subject to applicable conditions, a number of
restructuring measures in respect of banks that received State support. Over
the year, the Commission approved for 14 banks restructuring or liquidation
plans and adopted one negative decision in applying the Restructuring
Communication. Some examples are detailed in this section, which aim at
providing a view across the diversity of restructuring decisions, in terms of
Member States concerned, type of financial institutions restructured and of
conditions of restructuring. 177.
The restructuring process of banks is based on
the crisis-related State aid rules as laid down in the Restructuring
Communication of 22 July 2009[163].
The Communication provides guidance on the conditions under which restructuring
aid for banks in need of financial assistance beyond an emergency rescue can be
authorised. The first principle is the return to long-term viability without
State aid, based on a sound restructuring plan (including stress-testing of the
bank's financial projections). The second principle is burden-sharing between
the bank/its stakeholders and the State. Shareholders and other capital holders
must adequately contribute to bearing the costs of financial, organisational
and other necessary restructuring measures. Finally, the third principle
requires measures to limit competition distortions. They usually comprise
structural measures (divestitures) and behavioural measures (e.g. acquisition
bans or limitations on aggressive commercial behaviour financed by State aid).
The measures are decided on a case-by-case basis. 178.
The Commission requests and analyses detailed
regular reports on the implementation of the restructuring plans. Moreover,
separate managers, so-called monitoring trustees and divestiture trustees, are
being appointed to assist the Commission in determining that the approved restructuring
plans are being implemented properly. Aegon 179.
Aegon is a Dutch company providing life
insurance, asset management and retirement products. It has a total balance
sheet of EUR 298.6 billion. In November 2008, the Dutch State made
available EUR 3 billion in new capital for Aegon, in the form of
convertible core capital securities. The coupon of those instruments is set to
be the highest of either 8.5% or an increasing percentage of the dividend paid
on ordinary shares. The repurchase price of the securities is fixed at 150% of
the issue price. One third of the securities could be repaid within 12 months
at more favourable terms. Alternatively the securities can be converted into
ordinary shares after three years from issuance. 180.
The Commission temporarily approved the rescue
measure on 27 November 2008, subject to the submission of a restructuring plan[164]. The Dutch authorities
submitted the preliminary plan on 19 November 2009 and the final plan was
submitted on 26 July 2010 and approved on 17 August 2010[165]. Under that plan Aegon is
supposed to implement further changes to its activities to rebalance its
business model. 181.
The businesses affected by the plan are mainly
those that were at the origin of difficulties of Aegon: the institutional
spread-based business is going to be closed down and exposure to equity risk
stemming from variable annuities is being hedged. The overall size of general
account of Aegon USA is going to be reduced by USD 25 billion (EUR 19 billion).
The plan includes financial projections in a stress scenario and a sensitivity
analysis demonstrating capacity of Aegon to withstand adverse developments in
the future. 182.
In November 2009 Aegon paid back EUR 1 billion
while the plan provides for a repayment schedule for the remaining State
capital. On 30 August 2010 Aegon repaid EUR 500 million of the State
capital securities. The repayment was made under more favourable conditions
than initially agreed, ensuring an internal rate of return for half of the
State capital securities of 15%. Such an amendment of the initially agreed
repayment conditions resulting in additional State aid was considered
acceptable for the Commission in view of the incentive for early repayment, the
high level of overall return achieved by the State and the in-depth restructuring
measures committed to by Aegon. The remaining EUR 1.5 billion of State
capital securities will be repaid before the end of June 2011 at the initially
agreed repurchase price of 150%. Depending on the repayment date, the rate of
return will be between 17.8% and 21%. 183.
Until full repayment of the aid, Aegon will be
subject to a price leadership ban in specific segments of the Dutch market and
to a rating withdrawal of its main life subsidiary in the Netherlands, in order
to limit competitive distortions in the Dutch mortgage and savings and pensions
markets. Furthermore, Aegon is subject to an acquisition ban during the same
period. Bank of Ireland 184.
Bank of Ireland is one of the two largest banks
in Ireland, with operations mainly focused on its domestic market, but also
with significant activity in the UK and some niche lending operations in the
US, France and Germany. It operates mainly in retail and corporate banking, but
is also active in areas such as investment banking, insurance and pension products. 185.
In March 2009, the Irish State provided EUR 3.5 billion
in preference shares to ensure the bank was adequately capitalised[166]. The bank also participates
in Ireland's National Asset Management Agency (NAMA), an impaired asset relief
scheme for financial institutions, approved by the Commission in February 2010[167]. The transfer of loans with a
book value of EUR 12.2 billion is expected to include an aid element of
about EUR 1.0 billion. The bank also used State guarantees under the Irish
guarantee scheme for financial institutions' access to finance, approved by the
Commission in October 2008, and the eligible liabilities guarantee scheme, also
approved by the Commission in January 2010 and subsequently prolonged by the
Commission in May and June 2010[168]. 186.
The Commission, by its decision of 15 July
2010, approved Bank of Ireland's restructuring plan[169]. The Commission concluded
that the restructuring plan fulfilled the criteria of the Restructuring
Communication, as it is supposed to lead to a restoration of viability of the
bank, and there seemed to be sufficient own contribution and burden-sharing by
the bank as well as sufficient measures limiting the distortion of competition. 187.
The proposed measures are supposed to ensure the
viability of the bank by exiting risky portfolios and by implementing more
prudent risk management practices. In particular, in order to contribute to the
costs of its own restructuring and to limit the distortions of competition
created by the aid, Bank of Ireland will reduce its presence in certain market
segments through the transfer or winding down of assets and through
divestitures. 188.
In addition, Bank of Ireland will also implement
other measures aimed at enhancing competition on the Irish banking market.
Specifically, the bank is supposed to offer certain services to new entrants or
to small banks already active in Ireland to reduce the cost for competitors to
develop business in Ireland. That action comprises a "Service
Package", which enables competitors to access certain back-up services,
for example access to its ATM network, and a "Customer Package" to
help reduce the costs of acquiring new customers that involves Bank of Ireland
presenting customers with alternative services for their current account and
credit card products. 189.
Finally, the Irish authorities committed to a
number of market opening measures in order to enhance competition in the Irish
banking market by facilitating the entry and expansion of competitors and by
increasing consumer protection in the financial sector. They include for
example measures enhancing customer mobility between banks and furthering
electronic banking. 190.
After the 15 July approval of Bank of
Ireland's restructuring plan, the economic and financial situation in Ireland
deteriorated further; that development led to the country's economic adjustment
programme in November 2010. While confirming that all commitments undertaken in
the restructuring plan will be honoured, the Irish authorities committed to
notify any further State aid in favour of Bank of Ireland for approval under EU
competition rules (see Section I.A.4.2., points 25 to 29). Dexia 191.
Dexia is a bank active in financing to local
authorities in a number of countries worldwide and in retail banking, mainly in
Belgium, Luxembourg and Turkey. The capital of Dexia is held mainly by the Caisse
des dépôts et consignations, Holding communal SA, Arcofin SA, and, since the
capital injection undertaken in September 2008, by the Belgian and French
Governments. The balance sheet of Dexia totalled EUR 578 billion on 31 December
2009. 192.
On 26 February 2010 the Commission approved
aid granted by Belgium, France and Luxembourg for the restructuring of Dexia[170], subject to its meeting a
number of conditions, including liquidity ratios, and implementing the
structural and behavioural measures notified to the Commission. 193.
In response to the difficulties threatening the
survival of the bank, Belgium, France and Luxembourg had granted four aid measures
that consisted of: (i) a capital injection of EUR 6 billion, of which the
Commission regards EUR 5.2 billion as State aid[171]; (ii) a guarantee by the
Belgian, French and Luxembourg Governments in respect of certain of Dexia's
liabilities up to a maximum of EUR 150 billion, reduced to EUR 100 billion
since 1 November 2009; (iii) an emergency liquidity support from the
Belgian National Bank, guaranteed by the Belgian State, and (iv) a guarantee by
the Belgian and French Governments in respect of a portfolio of impaired assets
held by Financial Security Assurance Asset Management (FSAM) for a nominal
amount of USD 16.6 billion (EUR 12.9 billion) at 30 January
2009. Some of these aid measures
were subject to an earlier temporary Commission rescue approval of
19 November 2008. 194.
Under the restructuring plan, the group will focus
on its core banking activities and its traditional markets in Belgium, France
and Luxembourg. In order to decrease its funding needs, Dexia must reduce its
public-sector lending activity outside those markets and its bond portfolio,
which will be isolated in a specific division in the bank, and progressively
amortised according to a predefined plan. In addition, Dexia has to continue to
reduce its market activities and to cease proprietary trading. Dexia will also have to improve the stability, quality and maturity
of its sources of financing by respecting a number of target ratios. 195.
The Commission concluded that the restructuring
measures should allow Dexia to restore its long-term viability, in particular
by reducing its dependence on the money and bond markets. In this respect,
compliance by Dexia with quantitative targets for improving its financing is
expected to improve the stability, quality and maturity of its sources of funding.
Dexia will also make a sufficient own contribution to the restructuring costs
by suspending, for two years, any cash dividend payments and interest payments
on instruments constituting own funds. Finally, the Commission takes the view
that the gradual cessation of certain activities provided for in the
restructuring plan will be enough to offset the distortions of competition
caused by the aid. Parex 196.
Before the crisis, Parex was the second largest
bank in Latvia in terms of assets. It was partly nationalised in November 2008
as the financial and economic crisis exposed serious weaknesses in its business
model. The bank benefitted from State guarantees, recapitalisation and
liquidity support for a total of around LVL 1.1 billion (EUR 1.6 billion).
The measures were cleared temporarily as emergency aid in 2008 and 2009. On 29 July
2009, the Commission opened an in-depth investigation on the restructuring[172]. 197.
Under the restructuring plan submitted by the
Latvian authorities, the core assets and operations of Parex were transferred
into a new viable bank called Citadele banka on 1 August 2010. The Latvian
State (75%) and the European Bank for Reconstruction and Development (25%) are
the shareholders of this new bank. The business model of Citadele banka focuses
on business in the Baltic countries, whilst discontinuing lending and leasing
in the Commonwealth of Independent States, which is considered riskier. By
refocusing on its core activities and by materially reducing the size of its
total assets, Citadele banka is expected to return to profitability in 2011 and
repay the State liquidity support received. 198.
Until the full repayment of the State liquidity
measures, Citadele banka is subject to market presence caps in deposits and
lending markets and to an acquisition ban, aiming at limiting competition
distortions caused by the aid. The plan also includes an adequate contribution
of the (former) shareholders and holders of subordinated debt to the
restructuring costs. In fact the main shareholders lost their ownership rights
and the remaining legacy minority shareholders and the subordinated debt holders
have a claim only against "old Parex", which keeps the remaining
impaired and non-strategic assets. Sparkasse KölnBonn 199.
Sparkasse KölnBonn is the second-largest savings
bank in Germany with a balance sheet of EUR 30 billion. In the wake of the
financial crisis, the capital of Sparkasse KölnBonn was strengthened by a total
of EUR 650 million, through the issue of certificates of participation with
a coupon of 8% and a "silent participation" whereby investors receive
remuneration (12-month Euribor plus 7.25%) but do not have voting rights. 200.
In November 2009, the Commission opened an
in-depth investigation to examine the compatibility of the measures with EU State
aid rules as it had doubts whether the remuneration on both instruments was
still sufficient after the market for hybrid instruments had completely dried
up as of the end of 2008. 201.
The Commission approved the restructuring plan the
bank submitted following the opening decision on 29 September 2010[173]. According to the plan,
Sparkasse KölnBonn will focus on its statutory core business model of a
regional savings bank and will thus concentrate on providing retail banking
services to its traditional customer segments, i.e. private customers
and SMEs. It will withdraw from proprietary trading and investments in
structured products and will furthermore divest non-core subsidiaries which
were a major source for the losses SparkasseKölnBonn incurred. Overall, the
restructuring measures will result in a balance sheet reduction of 17% (not
including growth in the traditional local customer segments) by the end of 2014
as compared to the end of 2008. 202.
Following the in-depth investigation, the
Commission found, in particular, that the restructuring plan ensures the
long-term viability of Sparkasse KölnBonn, as the main causes of its
difficulties, the subsidiaries related to the regional development and the
exposure to volatile investments, are addressed through the divestments of the
respective investments and subsidiaries and a gradual withdrawal from those
activities. The holders of hybrid instruments bear to the extent possible the
losses incurred, as both coupon payments and the principal of the hybrid
capital were suspended or participated in the absorption of Sparkasse
KölnBonn's losses. The Commission further found that Sparkasse KölnBonn
adequately contributed to the restructuring through divestments of profitable
non-core subsidiaries and cost-cutting measures which will result in a cost
reduction of EUR 28 million per year by the end of the restructuring
period, representing 6% of its total costs. The divestments of non-core
subsidiaries and the behavioural commitments provided by the German authorities
sufficiently limit the distortions of competition brought about by the aid. Banco Privado Português 203.
Banco Privado Português (BPP) was a Portuguese
bank that provided private banking, corporate advice and private equity
services. The bank ran into severe financing difficulties after the collapse of
Lehman Brothers and the ensuing severe crisis in the financial markets. 204.
A guarantee was granted by the Portuguese State
to six banks in Portugal to lend EUR 450 million to BPP at the height of
the financial crisis, on 5 December 2008. The State guarantee was
prolonged, without prior Commission approval, on 5 June and on 5 December
2009. 205.
The Commission, in early 2009, temporarily
approved the loan guarantee as emergency support on the condition that Portugal
would submit a restructuring plan within six months. As the Commission did not
receive the plan despite several reminders, in November 2009 it opened a formal
investigation procedure. The main reason was that it had concerns that the bank
was being kept alive artificially. Moreover, it had concerns that the pricing
of the guarantee was below the level required under the Communication on the
application of the State aid rules to public support to banks during the
crisis. On 15 April 2010, the Bank of Portugal revoked the banking licence
of BPP and initiated the process of its liquidation. Consequently, the six
Portuguese banks called the State guarantee and were re-paid the loan by the
Portuguese government on 7 May 2010. 206.
The Commission took a decision on 20 July
2010 that the guarantee granted by the Portuguese State on 5 December 2008
and its prolongations, constituted illegal and incompatible State aid for the
period from 5 December 2008 until 15 April 2010, given the
non-compliance with the obligation to present a restructuring plan and the low
fee paid for the guarantee[174].
While the liquidation of the bank addresses the competition distortion stemming
from the aid, the Portuguese government must file its claim as a creditor in
the liquidation procedure and recover from BPP the difference between the price
the bank should have paid for the guarantee and the lower fee actually paid,
including accrued interest. Portugal stated that it has already filed the
necessary claims to enforce its privileged and priority rights over the
collateral it holds over BPP and that it would continue to do so until it has
recovered the full loan which it had to pay to the creditor banks in execution
of the guarantee. B – Energy &
Environment 1. Overview
of sector 207.
The energy sector is of significant importance
in Europe. In 2009, total retail sales of gas and electricity were over EUR 500 billion
while crude oil sales were more than EUR 390 billion. Environmental
services will become an increasingly important part of the European economy and
will be one of the drivers of the economic recovery (turnover in this sector
was over EUR 300 billion in 2009[175]). 208.
Article 194 TFEU spells out the three central
goals for European energy policy: sustainability, security of supply and
competitiveness. While some progress has been made towards these goals, of
which an open and undistorted energy market is a fundamental instrument, the
remodelling of Europe's energy systems is not proceeding as swiftly as could be
hoped. Improving the functioning of the markets to provide secure energy
supplies at competitive prices while limiting the environmental impact of
energy production and use is thus one of the priorities set out in the Europe
2020 Strategy[176]. 209.
An open and competitive single EU market should contribute
to the energy and climate change objectives for 2020, ensuring a secure and sustainable supply of energy at competitive prices by encouraging
the rapid development of renewable energies and promoting the development of
new environmentally friendly technologies. To meet these objectives, the
Commission has defined a new energy strategy for the next ten years in the framework of the Flagship Initiative of the Europe 2020
strategy on a "Resource Efficient Europe"[177]. 210.
The remaining anti-competitive practices in the
energy sector will need to be tackled effectively, not only by the Commission
but also by Member States. The Commission will seek to promote the further
liberalisation of the energy markets and unbundling. It will continue to act
against abuses of a dominant position in the energy and environment sectors.
Through its State aid policy it will seek to ensure the development of
sustainable energy sources and act against Member States' policies that distort
competition. 2. Policy
developments 2.1. Antitrust
enforcement 211.
In 2010 the Commission continued to follow up
its 2007 energy sector inquiry, adopting four major antitrust decisions under
Article 9 of Regulation 1/2003[178],
in which the Commission makes binding the commitments proposed by undertakings
to put an end to potential infringements. The Commission also initiated proceedings
relating to procedural infringements under Article 23 of Regulation 1/2003 against
certain undertakings which had been the target of surprise inspections by the
Commission. 212.
In the EDF Customer Foreclosure[179] case, the Commission had
concerns that EDF may have abused its dominant position in France by (i)
concluding supply contracts which foreclosed the market given their scope,
duration and exclusive nature and by (ii) including resale restrictions in its
supply contracts. In reaction to the Commission's concerns, EDF offered, for a
period of ten years, to ensure that other suppliers could compete for on
average 65% of the electricity EDF contracts with large French industrial users
each year and to limit the duration of any new contract concluded with large
industrial users to five years. In addition, EDF committed to remove all resale
restrictions in its supply contracts and to assist customers wishing to resell
electricity. These commitments were planned to come into effect on 1 July
2010, but were postponed to 1 January 2011. 213.
In the Svenska Kraftnät (SvK)[180] case the Commission had
concerns that SvK may have
abused its dominant position in the Swedish electricity transmission market by limiting
the export capacity available on interconnectors. Its objective was to relieve
internal congestion on its network and to reserve domestic electricity for
domestic consumption, thus favouring Swedish consumers. To address the Commission's concerns, SvK offered, from
1 November 2011, to operate the Swedish electricity market on the basis of
several flexible bidding zones. This will allow electricity trading to adjust
to available transmission capacity through market prices, rather than through
arbitrary measures. In the transition period, SvK has committed to manage
congestion in its network by using counter trade which involves paying
generators and consumers to adjust respectively their production and consumption
schedules. Once the zones are operative, SvK will manage congestion in the
Swedish transmission system without limiting trading capacity on interconnectors.
The only exception is the West-Coast-Corridor where SvK will build and operate
a new 400 kV transmission line by 30 November 2011 at the latest. 214.
In E.ON Gas[181],
the Commission's investigation showed that E.ON had reserved, on a long-term
basis, the largest part of the available transport capacity at the entry points
to its gas transmission networks. This may have prevented other gas suppliers
from accessing the German gas market. The Commission reached the preliminary
view that the long-term reservations might have infringed EU rules on the abuse
of a dominant market position[182].
E.ON undertook to release capacity, corresponding to about 15% of pipeline
capacity, at the entry points to its gas networks by October 2010. From October
2015, E.ON will further reduce its bookings of entry capacity in the NetConnect
Germany grid to 50% and in E.ON's grid for low-calorific gas to 64% of the
pipeline capacity. The commitments are expected to have a major structural
impact, allowing other companies to compete on the German market. 215.
In the ENI[183]
case, the Commission had concerns that ENI may have
abused its dominant position in the gas transport markets by refusing to grant
competitors access to capacity available on the transport network (capacity
hoarding), by granting access in an impractical manner (capacity degradation)
and by strategically limiting investment (strategic underinvestment) in ENI's
international transmission pipeline system. ENI may also have had the incentive
to foreclose rivals to protect its margins in the downstream gas supply
markets. ENI has committed to the structural divestment
of its international transport activities for the import of gas into Italy, from Russia (TAG) and from Northern Europe (the system TENP/Transitgas). In the case of TAG, ENI will divest its share to a public entity controlled
by the Italian Government. The sale of ENI's shares in the international
transport pipelines will be carried out under the supervision of a trustee and
the buyers will need to be approved by the Commission. These commitments are
expected to increase the opportunity for other companies to transport gas into
Italy and to compete on the Italian market to the benefit of gas consumers as
the gas transport networks will be owned and managed independently of ENI. 216.
In two of the inspections carried out in the
energy and environment sectors the Commission encountered difficulties. In
April, the Commission carried out surprise inspections in France in the water
and waste water sectors[184]. During the inspection at the premises of Lyonnaise des Eaux (a
wholly owned subsidiary of Suez Environnement), a seal affixed upon an office
door was broken, in serious breach of the rules governing the Commission's
powers of investigation. On the basis of these facts the Commission sent a
Statement of Objections to Lyonnaise des Eaux and to Suez Environnement. On
17 May, the Commission initiated proceedings against the J&T Group and
Energetický a průmyslový holding, active in the electricity sector in the
Czech Republic[185], for a possible obstruction of the Commission inspectors during site inspections
in November 2009. A number of incidents relating to the handling of e-mail
accounts and access to electronic records occurred. In both cases a fine of up
to 1% of the previous business year's turnover of the company concerned may be
imposed if the allegations are proven. 2.2. State
aid control Regulated electricity tariffs 217.
In the context of the open investigations, the
Commission is still examining aid granted in the form of regulated electricity
tariffs in France and Spain. Regulated tariffs may result in undue price
advantages for electricity end-users and create market foreclosure. In the
majority of Member States, regulated tariffs in favour of medium and large
undertakings have been abolished or are being phased-out. France will phase-out
regulated tariffs for medium and large undertakings in 2015, in the framework
of a reform of the electricity market (loi Nome) which is set to be implemented
as of 2011. Spain abolished such tariffs in 2009. Partial exemptions from feed-in tariffs
for energy intensive industries 218.
After partially clearing an Austrian scheme subsidising feed-in tariffs in favour of producers
of renewable energies, the Commission continued to investigate certain
provisions of the scheme which seemed to favour large energy consumers[186]. Feed-in tariffs are the higher tariffs available to producers of
sustainable energy to compensate them for their higher costs. The Commission
expressed doubts as to the compatibility of the scheme with State aid rules
since the partial exemption of energy intensive industries from the feed-in
tariffs may provide these industries with an unfair competitive advantage that
does not seem justified. These costs are then passed on to consumers. The
partial exemption granted by the Austrian scheme would lower the costs of the
companies benefitting from it. The Commission also
opened an investigation into a German scheme granting operating aid to energy intensive large non-ferrous metal producers (i.e.
aluminium, zinc, and copper) in the form of compensation for the CO2 costs included in their
electricity prices[187], thus putting them in a more favourable position than competitors
in other Member States who have to pay the full CO2
costs. Support for energy saving and
renewable energy production 219.
The Commission cleared a number of measures in
support of energy saving and renewable energy production under the horizontal Environmental
Aid Guidelines[188].
An increasing number of these notifications concerned relatively large
individual aid measures (i.e. above EUR 7.5 million investment aid
per undertaking), which were subject to a detailed economic assessment[189] as part of the more economic
approach to State aid analysis. The Commission analysed in detail the possible
negative effects of a State aid measure on competition and balanced these
effects against the positive effects of the aid for the environment. 220.
The Commission authorised investment aid for the
implementation of an innovative production process to one German steel producer
and investment aid to another German steel producer for the implementation of a
process recycling the gas emitted in the steelmaking process[190]. In France, the Commission
cleared investment aid for the construction of a biomass boiler[191]. Investment aid was also
approved for the construction of a high-efficiency combined heat and power
plant in Austria[192].
Aid related to carbon capture and
storage 221.
The Commission also dealt with two individual
support measures for industrial-scale carbon capture and storage (CCS) demonstration
projects. The Commission authorised investment aid for a CCS demonstration
project in Rotterdam covering the whole cycle where the CO2 from
power generation is captured and stored in a depleted gas field[193]. The project was granted
funds from the European Energy Programme for Recovery
(EEPR)[194]. The Commission also approved investment aid to a Dutch power
generator for a project in which the CCS technology is tested on a coal
gasification process[195]. Remediation of contaminated sites 222.
The Commission authorised a grant of more than
EUR 145 million to Voestalpine Stahl for the remediation of a site owned by the
company in Linz (region of Upper Austria) and whose contamination dates back to
World War II[196].
The Commission found the state support to be in line with EU rules on State aid
for environmental protection. In particular, it respected the "polluter
pays" principle and did not result in overcompensation. This measure was
preceded by a similar case involving the remediation of an Austrian landfill
site in Brückl, which was contaminated with chlorinated hydrocarbons from the
production of chlorides[197]. Security of energy supply 223.
The Commission dealt with a number of cases in
the area of security of electricity supply. It authorised
a Spanish aid scheme intended to compensate electricity generators for using
indigenous coal for some of their production as a public service obligation[198]. The Electricity Market
Directive[199]
allows Member States to take such measures for security of supply reasons.
However, such measures are also subject to the State aid provisions in the
Treaty and hence, the Commission verified that the scheme met all the
requirements of the Community framework for State aid in the form of public
service compensation[200].
This framework takes into account the wide margin of discretion given by EU
case law to Member States in defining their public service obligations.
Besides, it contains precise rules concerning the level of financial
compensations granted to companies on which such obligations are imposed. In
its assessment, the Commission found no manifest error of assessment in the
justifications made by Spain as regards the definition of the public service
obligation and verified that all the requirements of the framework were
satisfied. Furthermore, the scheme being of a transitional
nature, Spain undertook not to extend it beyond 2014. Finally, the Commission
obtained from Spain commitments ensuring consistency between this measure and
current and future EU rules on State aid to the coal industry. 224.
The Commission also approved aid for the
construction of a 400 MW thermal power plant in Latvia[201] on the basis of a number of
special factors including the effective isolation of the Latvian energy market,
Latvia's increasing dependence on gas and the closure of the Lithuanian
Ignalina nuclear power plant at the end of 2009. In addition the competitive
selection process would minimise the aid and limit distortions of competition. 225.
Similarly, the Commission authorised a Dutch
scheme using tax deductions to encourage investment in the exploration and
exploitation of small, marginal gas fields on the Dutch continental shelf in
the North Sea[202].
The Commission found that the measure increases the supply of natural gas and
as such enhances the delivery security in the Netherlands and, on a wider
scale, for a number of countries within the EU which import Dutch gas. The
Commission also approved State aid amounting to EUR 390 million for the
construction or capacity increase of four underground gas storage sites in
Poland as a project of common European interest[203], these projects positively
contributing to the security of supply in Poland and in the EU. 226.
The Commission cleared EEPR support combined
with a government guarantee for the construction of an undersea electricity
interconnection between Malta and Sicily and an extension of its 132 kV network
to integrate the interconnection[204].
The Commission found that the measure did not constitute State aid since the
European funds from the EEPR do not constitute State aid and the guarantee was
priced at market terms. 227.
The Commission opened an in-depth investigation
into Maltese aid to the energy incumbent intended to bring the Delimara Power
Station in early compliance with emission standards laid down by EU
environmental law[205].
The Commission raised doubts on the security of supply arguments brought
forward by Malta and, moreover, the planned aid does not seem in line with the
rules of the environmental aid guidelines. 228.
An Italian scheme designed to remunerate
industrial companies for the provision of instant interruptibility services (i.e.
the acceptance of power cuts to avoid black outs for other consumers) in
Sardinia and Sicily[206]
was considered not to involve State aid because the remuneration will be
established through public tenders open to a wide range of companies. The
scheme aims to provide a transitory solution to continuity of supply problems
identified by the network operator linked to the inadequate interconnection
with the mainland, obsolete power plants which are prone to outages and a high
proportion of wind-power generation. 229.
Furthermore, the Commission cleared a State aid
scheme aimed at compensating power generators for certain costs resulting from
the termination of long-term power purchase agreements in Hungary (so-called
stranded costs)[207]. C – Information,
Communication and Media 1. Overview
of sector 1.1. Telecommunications 230.
Communication technologies ranging from the
basic telephone service to the latest satellite systems and personal area
networks are converging, allowing the delivery of increasingly powerful
Information Society services. This convergence stimulates growth – electronic
communications services account for about 2.5-3% of European GDP. The social
impact of telecommunications has concurrently become significant – for example,
the facts that there are more than 250 million daily internet users in
Europe and that virtually all Europeans own mobile phones has changed the
European life style. 231.
As a part of the Europe 2020 Strategy[208], the Commission launched on
26 August a Flagship Initiative on a Digital Agenda for Europe[209]. The European Digital Agenda
notes, among other things, that the current economic crisis wiped out years of
economic and social progress in the digital market. It sets out the Commission's
priorities in the field of the digital economy and highlights the creation of a
single market for content and telecom services as a vital tool to turn this
development around. In particular, it puts forward the Commission's objective
to bring to near zero the difference between roaming and national tariffs by
2015. It also sets ambitious target for fast and ultra-fast internet access in
Europe. 232.
In 2010, more effective competition due to
competition law enforcement, sector regulation, technological developments and
new business models resulted in lower prices for electronic communication
services and innovative service offers. A Commission report released on 1 June
2010[210]
shows that EU telecom markets have become more competitive thanks to the
Commission's guidance in the consultation and review process under the EU
Regulatory Framework for Electronic Communications[211] (known as the "Article 7
procedure"). 233.
Providers of electronic communications services are
bound to operate within this framework which is designed to facilitate access
to legacy infrastructure, foster investment in alternative network
infrastructure and bring choice and lower prices for consumers. Article 7 of
the Framework Directive gives the Commission power to oversee draft national
regulatory measures through a consultation at EU level. This ensures consistent
regulation and brings more transparency into the regulatory process. Ex ante
regulation under the Regulatory Framework builds on competition law principles. 234.
As regards retail competition, the trend towards
lower prices for electronic communications services persisted and the market
for traditional fixed voice telephony continued to decline. In the mobile voice
markets, penetration increased again, while growth of revenues slowed down. 235.
There has been an increase in the deployment of
optical fibre networks to provide very high bandwidth broadband internet
services in many Member States. Gradual availability of very high bandwidth
will allow content providers to market new broadband applications and services.
The emergence of new contents and services creates a desire for further
increase in bandwidth, even where it is not profitable for market operators to
offer access, e.g. in remote and sparsely populated areas. This often
triggers use of public funding; therefore numerous aid schemes have been
motivated in the past by the need to follow the above evolution. Public
intervention in some Member States is now gradually shifting towards support
for very high speed broadband networks, the so-called "next generation
access" (NGA) networks. 1.2. Information
and Communication Technology (ICT) 236.
The ICT sector accounts for 5-6% of EU GDP. It
is characterised by digital convergence and the concomitant growing importance
of interoperability and standards. Efficient ICT products and services are a
key contributor to the smart growth put forward as a major objective of the
Europe 2020 Strategy. In order for the EU to fully take advantage of the
potential of the digital economy, it is essential to preserve the opportunity
of new firms to enter the market and challenge established players. The
Commission therefore carefully scrutinised in 2010 allegedly anti-competitive
business practices of dominant market players highlighted by its ongoing
investigation of IBM practices[212].
In the context of its investigation of Google practices[213], the Commission has also
started to look into new web based services such as search services which have
experienced a considerable increase in popularity during the last years and are
of crucial importance to a competitive online marketplace. 237.
Due to the fast evolution of digital markets the
Commission's regulatory activities in the ICT sector are increasingly
challenged by the emergence of new business environments such as "cloud
computing", which is aimed at integrating communication, data storage,
data management and application services for businesses, or mobile eco-systems
providing users with all the services they need in one device. To ensure that
multi-sided digital platforms such as application stores yield the positive
network externalities that they are capable of bringing about, it is crucial
for them to remain as open as possible, as illustrated by the Commission's
preliminary investigation into Apple's iPhone related business practices. 238.
Also with regard to increasingly networked
services, interoperability and standards remain the key issues for competition
since they typically favour entry by a greater number of players and drive down
the costs of innovation. Limiting the availability of interoperability
information can be used as a technical means to stifle competition and
therefore warrants careful scrutiny. It is also essential to ensure that
standard-setting procedures work well and that access to standards is available
on fair, reasonable and non-discriminatory (FRAND) terms. 1.3. Media 239.
Media is vital for the development of
information and communication technologies as well as for the development and
preservation of culture, information, education and democracy. The European
media industry generated total revenues of over EUR 180 billion in 2009[214]. 240.
Access to attractive content is a key for media
development and innovation. As highlighted in the Commission's Digital Agenda
for Europe, access to attractive content is restricted by the fact that Europe
is still a patchwork of national markets which results in the complex licensing
of content. A key priority of the Digital Single Market pillar of the Digital
Agenda set by the Commission is to simplify copyright clearance and
cross-border licensing of content. 241.
The two general trends in the media sector which
were identified in the Report on Competition Policy 2009[215] continued in 2010. First, the
multiplication of distribution platforms, ongoing technological development,
and changing consumption patterns are transforming the traditional market roles
and power structures between market players in the television, music and book sectors.
This transformation of the marketplace will lead to increased competition and
business uncertainty, which in turn will lead to pressure upon these players to
secure their positions in the new digital marketplace. 242.
Second, media convergence[216] will create conditions
conducive to entry by more efficient market players with new business models
seeking to offer new products and services at competitive prices. These
efficient market players will seek to maximize efficiencies resulting from
online technological advances enabling offerings on a multi-language,
multi-country basis and will no longer be constrained by technologies tied to
physical presence on national territories. Potential competition issues
resulting from these trends will generally fall into three categories: (i)
availability of attractive content, (ii) access and digitisation issues
(including copyright bottlenecks) and (iii) challenges posed by new
revenue-generating models (monetisation issue). 243.
The switch from analogue to digital broadcasting,
which Member States are due to complete by the beginning of 2012[217], concerns all commonly
available broadcasting transmission platforms. A number of Member States are
providing public funding to encourage broadcasters and consumers to facilitate
the switchover. The Commission has no general objection to the granting of
State aid in this area. However, the General Court confirmed in a judgment of 10 June
2010 that Member States have to demonstrate in particular that the aid is
neutral regarding the technology employed[218].
2. Policy
developments 2.1. Policy
developments in telecommunications sector 244.
In 2010, the Commission received 136
notifications from National Regulatory Authorities and adopted 91 comments
letters and 32 no-comments letters within the Community consultation mechanism
under Article 7 of the Framework Directive. Eight notifications were withdrawn
by the notifying NRA, whereas four cases were still open at the end of 2010. In
one of these notifications, the Commission raised serious doubts as to the
compatibility of the notified measures with EU law and opened a second phase
investigation under Article 7(4) of the Framework Directive. The measures were
later on withdrawn by NRA in phase II. Two cases notified in 2009 where closed
in 2010 by veto (PL/2009/1019-1020). 2.1.1. Antitrust
enforcement 245.
In the Telekomunikacja Polska case[219], the Commission sent a
Statement of Objections to the Polish telecoms incumbent operator on 1 March
2010, in which it came to the preliminary conclusion that Telekomunikacja
Polska had infringed Article 102 by abusing its dominant position in refusing
to supply remunerated access to its wholesale broadband services. 2.1.2. Merger
control 246.
The T-Mobile / Orange case[220] concerning the merger of
France Télécom's and Deutsche Telekom's UK subsidiaries highlighted the
importance of spectrum ownership in the development of 4G networks. The investigation
showed that the parties' combined contiguous spectrum could result in the new
entity being the only mobile network operator (MNO) in the UK able to offer
next-generation mobile data services through long term evolution technology at
the best possible speeds in the medium term. The clearance decision of
1 March 2010 was conditional upon divestiture of a quarter of the parties'
combined spectrum in the 1800 MHz band and the amendment of the Radio Access
Network[221]
sharing agreement with 3UK, another MNO, to ensure that the competitive
constraint exercised by the latter would not be eliminated as a result of the
proposed transaction. 2.1.3. State aid control 247.
The Commission stated in the European Digital
Agenda its objective to reach fast broadband coverage (at least 30 Mbps) for
all European citizens and ultra-fast broadband (above 100 Mbps) subscriptions
for at least 50% of European households by 2020. The Commission thus takes a
favourable view as regards aid measures having the objective to provide
adequate broadband coverage at affordable prices for all European citizens. In
its assessment of public funding schemes under the State aid rules, the
Commission acknowledges that private operators may not have sufficient market
incentives to provide adequate broadband services, typically in rural and
remote areas. The Commission has built up a clear and consistent State aid
policy in the last years and authorises properly justified and proportionate
broadband schemes if the distortion of competition and the effect on trade is
limited, on the basis of the Community Guidelines for the application of State
aid rules in relation to rapid deployment of broadband networks (Broadband
Guidelines)[222]. 248.
In 2010, the Commission assessed and approved
the use of State aid and other types of public funding of approximately EUR 1.8 billion
in Europe which could generate total investments in broadband networks of up to
EUR 3.5 billion. The schemes increasingly address the rollout of, and the
upgrade of existing broadband infrastructure to very high speed broadband
networks. 249.
Member States may also qualify and design the
operation of a broadband network as a service of general economic interest
(SGEI). In this regard, the Commission approved the public financing of the
rollout of a NGA network in Estonia[223].
The Commission concluded that the public funding constituted State aid, but in
the form of a compensation for performing a SGEI. 2.2. Policy
developments in ICT sector 2.2.1 Antitrust
enforcement Guidelines on horizontal cooperation
agreements and standardisation 250.
Standards are of particular importance for the
ICT sector. In the fast evolving digital economy, the swift establishment of
technical specifications for ICT products and services is critical to satisfy
the constantly decreasing time-to-market. Given that the ICT sector is prone to
network effects, successful products and services can easily become the platform
for further product development and innovation. Against this background, the
Commission sought to provide more guidance on standardisation agreements in the
framework of its review of the regime for the assessment of horizontal
cooperation agreements under the EU competition rules (see Section I.B.1.1.2., points
39 to 41). 251.
A public consultation on these revised rules was
held between 4 May and 25 June 2010[224]. The chapter on
standardisation agreements turned out to be of utmost interest to the
participating stakeholders of which about two thirds provided comments. While
the majority of stakeholders welcomed the additional guidance on
standardisation, further clarification was required in particular with regard
to the IPR policy standard setting organisations could implement in line with
competition rules. 252.
To this end, the new Horizontal Guidelines[225] identify some minimum
requirements that must be met to ensure that the positive effects of
standardisation can fully materialise. The standard-setting process should be
transparent and accessible to all interested market players. In addition,
holders of intellectual property rights are encouraged to commit to license on
fair, reasonable and non-discriminatory terms (FRAND commitment) and
effectively adhere thereto to ensure accessibility of the standard. Cases developments 253.
On 26 July 2010, the Commission initiated
formal antitrust investigations against IBM Corporation based on two different
alleged infringements of EU antitrust rules related to the abuse of a dominant
position[226].
Both potential infringements are related to IBM's conduct on the market for
mainframe computers. Mainframes are powerful computers which are used by many
large companies and government institutions worldwide to store and process
critical business information. It is estimated that the vast majority of
corporate data worldwide resides on mainframes. The first part of the
Commission's investigation follows complaints by emulator software vendors T3
and TurboHercules, and focuses on IBM's alleged tying of mainframe hardware to
its mainframe operating system. The complaints contend that the tying shuts out
providers of emulation technology which could enable the users to run critical
applications on non-IBM hardware. The second part of the investigation was
initiated on the Commission's own initiative and focuses on IBM's alleged
exclusionary practices towards competing suppliers of mainframe maintenance
services. 254.
In spring 2010, the Commission launched two
parallel preliminary investigations into Apple's business practices relating to
the iPhone[227].
Apple had made warranty repairs service available only in the country where the
iPhone was bought, which made the exercise of warranty rights throughout the
EU/EEA difficult and could have potentially led to a partitioning of the EU/EEA
market. At the same time, Apple had restricted the terms and conditions of its
licence agreement with independent developers of iPhone applications (apps)
requiring the use of Apple's native programming tools and approved software
languages to the detriment of third-party software. This could have ultimately
resulted in shutting out competition from applications developed for running on
other than Apple's mobile platforms. In September, Apple decided to introduce
cross-border iPhone warranty repair services within the EU/EEA and to relax the
restrictions on the development tools for iPhone apps giving developers more
flexibility. The Commission therefore decided to close both investigations without
opening formal proceedings. 255.
On 30 November 2010, the Commission
initiated formal proceedings against Google[228]
with a view to further investigating allegations that Google has abused a
dominant market position in online search, online advertising and online
advertising intermediation. The Commission's probe focuses in essence on the
following allegations. First, the Commission is investigating whether Google
has lowered the ranking of unpaid search results of competing services which
are specialised in providing users with specific online content such as price
comparisons (so-called vertical search services). Second, whether Google has
accorded preferential placement to the results of its own vertical search
services in order to shut out competing services. Third, the Commission is looking
into allegations that Google has lowered the "Quality Score", one of
the factors that determine the price paid to Google by advertisers, for
sponsored links of competing vertical search services. Fourth, the Commission's
investigation focuses on allegations that Google has imposed exclusivity
obligations on advertising partners, preventing them from placing certain types
of competing ads on their web sites, as well as on distribution partners such
as computer and software vendors, with the aim of shutting out competing search
tools. Finally, the Commission's probe also covers alleged restrictions on the
portability of online advertising campaign data to competing online advertising
platforms. 256.
On 16 December 2009, the Commission made
legally binding Microsoft's commitments to address the competition concerns
raised in a Statement of Objections in January 2009 relating to the tying of
Microsoft's Internet Explorer web browser to its dominant client PC operating
system, Windows[229].
Microsoft committed (i) to distribute a Choice Screen software update to users
of Windows client PC operating systems within the EEA that offers users an
unbiased choice between the most widely used web browsers, and (ii) to make
available a mechanism in Windows 7 and subsequent versions of Windows in the
EEA enabling PC manufacturers and end users to turn Internet Explorer on and
off. In 2010, as foreseen in the Commitment decision, Microsoft sent to the
Commission the first two reports on the implementation of the Choice Screen. By
the end of November 2010, the Choice Screen had been seen more than 270 million
times, and more than 84 million web browsers had been downloaded through
it. 2.2.2. Merger
control 257.
On 21 January, the Commission cleared the
planned acquisition of Sun Microsystems by Oracle Corporation, the leading
proprietary database software vendor[230].
One of the complex issues raised by the case was how to assess the competitive effect
of open source software products, such as Sun's database MySQL. Following a
second phase investigation into the database software market, the Commission
concluded that the transaction would not lead to a significant impediment to
effective competition. The Commission's investigation showed that although
MySQL and Oracle compete in some segments of the database market, they are not
close competitors in others, such as the high-end segment. Furthermore, another
open source database, PostgreSQL, was considered by many users as a credible
alternative to MySQL, and could be expected to replace to some extent the
competitive force exerted by MySQL. Given the specificities of the open source
software industry, the Commission also took into account the open source nature
of MySQL, as well as certain public announcements made by Oracle concerning
issues such as the continued release of future versions of MySQL under the
General Public License (open source license). 258.
In the Microsoft / Yahoo! Search Business case[231] cleared on 18 February
2010, the Commission analysed the dynamic online search market. The case
concerned the acquisition by Microsoft of Yahoo's
internet search and the search advertising businesses. The investigation revealed that market participants expected
the transaction to increase competition in internet search and search
advertising. The Commission cleared the concentration unconditionally. 259.
On 29 March 2010, the Commission
conditionally approved the acquisition of Tandberg by Cisco[232]. The investigation revealed
concerns regarding the market for high-end videoconference products due to
interoperability issues between the merged entity's solutions and those of its
competitors. The decision was conditional notably upon the divestment of the telepresence
interoperability protocol developed by Cisco for its videoconference solutions
to an independent industry body to ensure interoperability and allow other
vendors to participate in the development of the protocol. The Commission
actively cooperated with the US Department of Justice on this case to identify
suitable remedies. 2.3. Policy
developments in the Media and Sport sector 2.3.1. Antitrust
and regulatory enforcement 260.
The Commission's main objective from a
competition perspective is to ensure a level playing field in the media sector,
and that the opportunities created by digitization for firms seeking to offer
new and more efficient products and services to European consumers at
competitive prices are not artificially blocked. 261.
The Commission continued to closely monitor the
transition from analogue to digital broadcasting in the EU Member States. In
September 2010, in the context of the ongoing infringement procedure concerning
the Italian broadcasting legislation, the Italian Authority for Communications
(AGCom) adopted criteria and rules aimed at ensuring that more frequencies
resulting from the "digital dividend" are assigned to newcomers and
smaller existing companies. The tender for such frequencies will likely be
launched in 2011 through a beauty contest procedure meant to take into account
both quantitative and qualitative criteria. 262.
Moreover, on 24 November 2010, the
Commission sent a letter of formal notice to the French authorities regarding
the 2007 French law which had granted to the existing analogue TV broadcasters
the possibility to obtain an additional national TV channel at the date of the
digital switchover. The Commission considered that, in the absence of
convincing evidence that such TV broadcasters obtained the additional channels
based on objective, transparent, non-discriminatory and proportionate criteria
required by Directive 2002/77[233],
the French law appeared to be in breach of EU law. 263.
In the area of sport, the
Commission closed a preliminary investigation in June 2010 into two cases related to rules of handball federations[234] and based on complaints by
the Spanish handball league and a group of handball clubs. The complainants
alleged, among others, that the rules of the European Handball Federation and
the International Handball Federations on the release of players for matches of
the national teams playing in international competitions were in breach of
Article 101 and 102. Prompted by the Commission's preliminary investigation,
the European handball stakeholders sought an amicable solution, eventually
agreed in May 2010. 2.3.2 Merger
control 264.
The ProSiebenSat.1 / RTL interactive / JV case[235] dealt with the increasing
convergence between TV and the Internet. ProSiebenSat.1 and RTL planned to
create an Internet catch-up-TV platform allowing consumers to watch repeats of
TV programmes free-of-charge. On 24 September 2010, the Commission
referred the case to the Austrian and German competition authorities at their
request. 265.
In December 2010, the Commission cleared the
acquisition by News Corporation of the UK pay-TV operator British Sky
Broadcasting (BSkyB)[236].
The Commission assessed in particular whether the transaction could lead to
anticompetitive effects of a vertical and conglomerate nature (such as input or
customer foreclosure, bundling or tying) in the audiovisual sector, in
newspaper publishing and in advertising. The Commission concluded that the
transaction would not lead to a significant impediment to effective
competition. The Commission's findings concern solely the competition aspects
of the transaction. They are without prejudice to the investigation by the
competent UK authorities of whether the proposed transaction is compatible with
the UK interest in media plurality. 2.3.3. State
aid control Public Service Broadcasting 266.
In line with the interpretative Protocol No 29 on
the system of public service broadcasting in the Member States, annexed to the
TEU and the TFEU, the Commission recognises that it is the prerogative of
Member States to organise the functioning and funding of public service
broadcasting. The objective of the Commission's policy is to ensure that public
funding does not exceed what is necessary for public broadcasters to fulfil
their public service mission and does not lead to unnecessary distortions of
competition. 267.
The Commission continued to approve State
financing for public service broadcasters where both the public service remit
and the financing are determined in full transparency and where the State
funding does not exceed what is necessary to fulfil the public service mission.
On 26 January 2010, the Commission closed the investigation into the existing
financing regime for the Dutch public service broadcasters, following
amendments made to this regime and formal commitments by the Netherlands
regarding the definition of the public service remit and in particular the
entrustment of the broadcasters with new audiovisual services in line with the
Amsterdam Protocol[237].
On 20 July 2010, the Commission closed with a
positive decision the formal investigations into the new system of financing
public service broadcasters in France and Spain in view of the phasing out of
advertising by these chains. The Commission assessed concerns regarding a
potential over-compensation by the envisaged measures and the way the public broadcasters
will in the future be financed from taxes on telecom operators and on commercial
television companies[238]. State aid for films 268.
As in previous years, there were several State
aid decisions approving film support schemes. Some of the schemes were designed
to attract major film productions. The Commission also authorized aid for various audiovisual productions of Austrian commercial and
non-commercial broadcasters other than the public service broadcasters, under
condition that these productions qualify as a cultural product[239]. D – Pharmaceutical
industry & Health 1. Overview
of sector 269.
Health care is an important economic sector
representing about 9% of EU GDP, comprising the pharmaceutical sector for
prescription and non prescription medicines (close to 2% of EU GDP) and the
health services (6.5%)[240].
Other expenses, e.g. for medical devices and other health products,
account for the remaining 0.5% of EU GDP. The health care sector is essential
for the welfare of European citizens who need access to innovative, safe and
affordable health products and services. 270.
Member States bear directly or indirectly the
largest share of the costs for the provision of health care whereas patients
pay directly out of their pockets over 11% of the costs, equivalent to EUR 122 billion
per year. Total expenditures on healthcare are rising faster than economic growth
in EU Member States, leading to an increasing ratio of health spending to GDP.
Moreover, several structural factors contribute to the further increase of health
care costs in the future: increased costs of medical services through
technological change, higher expectations of patients regarding quality of
treatment and ageing of the European population. 271.
The recent economic downturn further accentuated
the increase in the ratio of health spending to GDP while public budgets underwent
significant constraints. A number of Member States therefore took measures to
reduce health care costs, in particular in the pharmaceutical sector, such as
unilateral price cuts of up to 27% in Greece. Moreover, price increases for
health services have been increasingly charged for directly to patients inter
alia through higher co-payments. This has potentially negative effects on
consumer welfare and even possibly on health status, an issue which triggered a
number of NCA-led initiatives[241].
272.
In order to adjust to the challenges raised by
the health care sector, DG Competition has integrated its antitrust activities
regarding all health care sectors in a new unit operating under the title
"Antitrust: Pharma and Health services", responsible for the
enforcement of competition law for all health products and services. The
mandate of the European Competition Network Pharma subgroup was also extended
to cover health services and health products others than pharmaceuticals. 1.1. Overview
of the pharmaceutical sector 273.
The pharmaceutical sector is highly regulated
and R&D driven. On the supply side, originator companies aim to bring
innovative products to the market. The patent system provides the legislative
framework allowing the companies to reap the benefits of their successful
R&D activities. Upon loss of patent exclusivity, generic companies enter
the market with bio-equivalent versions of the originator products, however at
much lower prices. This contributes to keep public budgets under control and
gives originator companies incentives to develop new proprietary drugs. 274.
Price setting for pharmaceuticals falls into
national competences under EU law. Many Member States introduced, or reflected
upon, measures reducing the prices and encouraging the use of generic
medicines. Within this context, the Court of Justice confirmed by its judgment
of 22 April 2010[242]
a UK scheme that provides incentives for doctors to prescribe with preference similar
medicines within the same therapeutic class (e.g. generic products). The
Court of Justice rejected the argument that the UK scheme would be illegal
under the EU law, as it would amount to a commercial promotion of medicines[243]. Moreover, no danger to
public health was established, since all medicines are constantly reviewed by
health authorities. However, the Court required that national schemes must not
discriminate between national medicines and those of other Member States and
that Member States make public, inter alia, the therapeutic evaluations
relating to such schemes. 275.
Many patent protected blockbuster (i.e.
with high sales volumes) drugs will loose exclusivity in the years to come,
which will be a challenge for the originator industry, in particular if they
are not able to find and develop new innovative products. This gives originator
companies incentives to defend the revenue of existing blockbusters against
approaching generic entry and contributes to the overall trend of industry consolidation.
Consolidation has been taking place in all forms: acquisition of generic and
originator (including biotech) companies by other originator companies, as well
as mergers between generic companies. 1.2. Overview
of the health services sector 276.
The organisation of the health care sector is
primarily the responsibility of Member States under Article 168 TFEU. However,
to the extent that the activities in question involve offering goods or
services on the market[244],
the provision of health care services is generally subject to EU competition
rules. 277.
Health services are mainly provided on a
national or even local scale. The service providers are very often small or
medium-sized undertakings such as physicians, pharmacists and hospitals. They
are usually organised in professional associations with mandatory membership (i.e.
being a member of such association is a precondition for entering the market).
As a consequence of different regulations in Member States, the competitive
environment may vary across Member States. Generally, a market entry of a
health services provider in another Member State seems more burdensome than in
many other services sectors, possibly due to the high degree of regulation and
control on the basis of national public policy. 278.
The Council of Ministers adopted on 13 September
2010 its first-reading position on a draft Directive concerning the application
of patients´ rights in cross-border health care[245]. The proposed Directive would
provide more clarity about possibilities to seek and be
reimbursed for healthcare in another Member State and also foster cooperation
in areas such as health technology assessment or cross-border recognition of
medical prescriptions. The Directive can increase the intra-community
competition between health service providers in certain areas. Although the
vast majority of EU patients receive healthcare in their own country, they may
prefer to seek certain types of healthcare abroad (for example for highly
specialized care where access, quality and price are of importance for the
patient concerned). 279.
The main antitrust issues identified so far
include practices of national associations of healthcare professionals, such as
recommendations of minimum prices, influencing market behaviour of their
members or certain exclusionary practices. The fact that professional
associations are often entrusted with tasks in the public interest does not
exclude them from scrutiny under competition rules. As for the effect of such
practices on trade between Member States, the jurisprudence of the Court of
Justice confirms that practices extending over the whole of the territory of a
Member State have, by their very nature, the effect of reinforcing the
partitioning of markets on a national basis and may therefore affect
intra-Union trade[246]. 2. Policy
developments 2.1. Policy
developments in the pharmaceutical sector 280.
Following the conclusion of the inquiry into the
pharmaceutical sector in 2009[247],
the Commission's focus shifted in 2010 to the implementation of the policy
recommendations. Apart from enforcement action under EU competition law, the
Commission announced that it would examine a possible revision of Council
Directive 89/105/EEC[248]
(the so-called Transparency Directive) setting minimum rules for pricing and
reimbursement procedures. The review will examine ways to improve the
transparency of such measures and to avoid market access delays linked to
pricing and reimbursement procedures, in particular for generic medicines.
Commission proposals will be based on an extensive impact assessment and are
foreseen by end 2011. 281.
The sector inquiry also contributed to the
momentum towards the adoption of the Community patent and the specialised
patent litigation system in Europe as advocated and proposed by the Commission.
On 10 December 2010 the Council indicated that an enhanced cooperation, as
provided for in the EU treaty, is the only option for moving ahead on the
creation of a unified EU patent system. The Commission submitted such a
proposal on 14 December 2010[249].
The advantage of this approach is that those Member States willing to go ahead
with the patent reform can do so, whilst the others can join in at a later
stage if they wish. 282.
The discussions in Council and Parliament on other
legislative proposals concerning the pharmaceutical sector are ongoing, in
particular regarding the pharmaceutical package consisting of the fight against
counterfeits, pharmacovigilance (the process and science
of monitoring the safety of medicines and taking action to reduce their risks
and increase their benefits) and information to patients.
283.
Finally, a number of Member States have taken up
recommendations from the sector inquiry on improving market access for generic
medicines, for instance through accelerated approval procedure or through
prohibition for national bodies to link market approval or pricing and
reimbursement status for generic medicines to the patent status of the
originator reference product – the so-called patent linkage. This shows that
the sector inquiry also produced important results at national level. 2.1.1. Antitrust
enforcement Monitoring of patent settlements 284.
As a follow up to the sector inquiry, the
Commission started the monitoring of patent settlements in the EU[250]. The first monitoring report identified
three types of patent settlements potentially raising competition concerns: (i)
those based on a sham or unmeritous patent, (ii) those containing restrictions
going beyond the exclusionary zone of the patent ("out of scope
settlements") and (iii) those limiting generic entry and containing a net
value transfer from the originator to the generic company. The monitoring
exercise showed that the number of patent settlements in the pharmaceutical
sector that are potentially problematic fell to 10% of total patent settlements
in the sector in the period from July 2008 to December 2009 compared with 22%
in the period covered by the sector inquiry (January 2000 – June 2008). Also the
level of direct value transfers foreseen in the settlements decreased from more
than EUR 200 million recorded in the sector inquiry period to less than
EUR 1 million in total in the period covered by the first monitoring. The
overall number of patent settlements nonetheless increased, showing that
companies are not prevented from concluding settlements by the Commission's
ongoing enforcement action. The Commission will continue monitoring patent
settlements in 2011. Cases developments 285.
As a follow up to the sector inquiry, different
enforcement actions under EU competition law are under way. Amongst others, the
Commission is investigating patent settlement agreements concluded by Servier
and a number of generic operators for the hypertension drug perindopril[251]. Unrelated to this
investigation, the Commission issued a Statement of Objections against Servier
in July 2010, stating its preliminary view that Servier had submitted incorrect
and misleading information in reply to a simple request for information in the
context of the sector inquiry[252].
286.
The Commission also opened formal proceeding
against the Danish pharmaceutical undertaking Lundbeck[253] to examine potential breaches
of Articles 101 and 102. This investigation relates to its antidepressant drug
citalopram and concerns among others potentially anticompetitive patent
settlements. 287.
In 2010, the Commission also carried out
surprise inspections at the premises of a number of pharmaceutical companies
and continued investigations on inspections which had been carried out in 2009. 288.
On 1 July 2010, the General Court largely
confirmed the decision of the Commission taken in the AstraZeneca case in 2005[254]. In this decision, the
Commission had imposed a fine of EUR 60 million on the pharmaceutical
company AstraZeneca for having abused its dominant position in the market of
proton pump inhibitors by (i) misusing the patent system and (ii) by
selectively withdrawing marketing authorisations for its product Losec in
certain Member States with the sole purpose of preventing or delaying generic
market entry. The Court confirmed the
assessment of the market and AstraZeneca's dominance by the Commission. The
judgment also contains very important clarifications on the relationship
between exclusive rights (such as intellectual property rights) and EU
competition law. The General Court declared that the submission to public
authorities of misleading information liable to lead them into error and
therefore to make possible the grant of an exclusive right to which an
undertaking is not entitled, or to which it is entitled for a shorter period,
constitutes a practice falling outside the scope of competition on the merits which
may be particularly restrictive of competition. Moreover, the Court found that,
in so far as an undertaking in a dominant position is granted an unlawful
exclusive right as a result of an error, it is required, at the very least, to
inform the public authorities of this so as to enable them to rectify those
irregularities. However, the Court reduced the fine to EUR 52.5 million in
view of limited effects on parallel trade. The judgment is under appeal. 289.
For a number of National Competition Authorities
(NCAs) the pharmaceutical sector has also become a priority sector. For
instance, in the UK, the Office of Fair Trading (OFT) issued a Statement of
Objections to Reckitt Benckiser in February 2010 which admitted the
infringement and agreed to pay a fine of GBP 10.2 million[255]. According to the OFT, the
pharmaceutical company withdrew one of its products (Gaviscon Original Liquid)
from the National Health Service (NHS) list of prescription drugs after the
patent had expired, but before the publication of the generic name for it so
that more prescriptions would be issued for its alternative product Gaviscon
Advance Liquid. Pharmacies that receive prescriptions for Gaviscon Advance
Liquid must dispense it, as it is patent protected and there are no generic
equivalent medicines. The company received a GBP 1.8 million
reduction for agreeing to cooperate with the OFT during the investigation,
admitting the infringement of UK and EU competition law. 290.
The Italian NCA recently opened a formal
investigation against the originator company Pfizer over a potential abuse of
the patent system by artificially prolonging patent protection for the drug latanoprost
aimed at delaying generic entry. 2.1.2. Merger
control 291.
The trend of consolidation in the pharmaceutical
sector continued in both the originator and the generic segment of the market. The
main cases that were examined were Abbott / Solvay Pharmaceuticals[256], Teva / Ratiopharm[257] and Novartis / Alcon[258]. These cases were cleared in the
first phase with commitments. 292.
The Abbott / Solvay Pharmaceuticals case
involved two originator companies active in pharmaceutical and in vitro
diagnostics markets. In light of concerns arising in cystic fibrosis
diagnostics products, parties committed to the divestment of Solvay's entire
EEA cystic fibrosis diagnostics business. The Teva / Ratiopharm case involved the
acquisition by the largest generic company in the world of a strong European
generic company. Despite both companies having a wide portfolio of products, concerns
arose only in a limited number of areas, primarily in the Netherlands. In light
of these concerns, the commitment entailed, in the first place, the divestment
of Ratiopharm's respective products. As an alternative divestment in the
Netherlands, the commitment also included the entire Ratiopharm business in
case a suitable buyer was not found for the initial divestment products. The Novartis
/ Alcon case involved the acquisition by a global pharmaceutical company of a global
medical specialty company focused on eye care. Although the acquisition was largely complementary, it raised competition
concerns in a broad range of national markets for ophthalmic pharmaceuticals
and consumer vision care products. In light of these concerns,
the commitment primarily entailed the divestment of a number of Novartis'
products on an EEA wide or national basis. 293.
Given that pharmaceutical companies are often
active worldwide, the procedures involved cooperation with other competition
authorities around the world. In particular, the Commission coordinated with
the US federal Trade Commission work on the Novartis / Alcon case since both US
and EU markets were significantly impacted by the merger. 2.2. Policy
developments in the health services sector 2.2.1 Antitrust
enforcement 294.
The Commission adopted its first antitrust
decision in the health services market imposing a fine of EUR 5 million on
the French Association of Pharmacists (ONP)[259].
In its decision, the Commission condemned the market behaviour of ONP in the
French market for clinical laboratory testing. The Commission established that
ONP limited possible price reductions (through rebates) for clinical testing and
restricted the development and growth of certain (larger) groups of
laboratories with a view to protecting the economic interests of the majority
of its members. The Commission established in particular that the prices for
comparable services in other Member States were considerably lower. 295.
On 26 October 2010, the General Court
confirmed that the inspections carried out by the Commission in the ONP case
were fully compatible with EU law[260].
ONP had claimed that it could not be a rightful addressee of a Commission's
inspection decision because it lacked legal personality. Furthermore, it was
argued by ONP that the inspection mandate was drafted too broadly so that the
applicants´ rights of defence were violated. Finally, ONP and its sections
would not be bounded by EU competition rules as ONP is entrusted with a public
mission and a part of its members are not undertakings. The court rejected
those arguments and declared the inspection decision of the Commission as
legal. 2.2.2 Merger
control 296.
Over the course of 2010, the Commission examined
a limited number of mergers in the health care services sector. Most of them
were cleared through simplified procedure since they did not raise competition
concerns. On 21 May 2010, the proposed acquisition by the British
investment group 3i of the French Vedici group of health care facilities was
cleared[261]
because the vertical relationship between Vedici's activities in the hospital
care sector and the provision of bio-medical tests by the laboratories of Labco
SAS, a subsidiary of 3i, was found not to pose a significant impediment to
effective competition. 2.2.3 State
aid control 297.
The public support granted to the provision of
health care services may not be considered State aid provided that the strict
conditions defined by the Court of Justice case law are rigorously complied
with[262].
Should such financial support measures constitute State aid, they can
nevertheless be declared compatible with the internal market pursuant to Article
106(2) if they are necessary and proportionate to fulfil an appropriately
entrusted mission of Services of General Economic Interest (SGEI), under
certain conditions set out in the Commission framework on public service compensation[263].
Furthermore, State aid granted to hospitals providing medical care to be
qualified as SGEI is covered by
the block exemption contained in the 2005 Commission decision on public service
compensation[264],
regardless of the turnover made by such hospitals and the level of the
compensation they receive. Pursuant to case law[265], Member States enjoy a wide
margin of discretion regarding the definition and entrustment of SGEI, and also
the determination of the cost compensation. The control exercised by the
Commission and other EU institutions in this regard is therefore limited to
verifying the existence of a manifest error in the way the Member State uses
its wide margin of discretion. 298.
During 2010, the Commission examined a number of
complaints lodged by private health service providers acting on the relevant
markets in competition with public operators, in particular concerning hospital
and home care. Most of the complaints on subsidies for hospitals and home care
providers came from operators in Member States with health care markets more
open to competition (e.g. Belgium, France, Germany and the Netherlands).
Many such complaints were filed by private hospitals or private health care
associations against their allegedly unfair treatment or against allegedly excessive
compensation of publicly-owned hospitals in various Member States, the latter
often being subject to allegations of cross-subsidising commercial activities
from public financing they received. 299.
The Commission assessed whether the
corresponding activities qualified as economic or
non-economic activities, and examined the definition and entrustment of the
respective public service missions and the necessity and proportionality of the
compensation received by the beneficiaries (such as public hospitals), as well
as the absence of cross-subsidisation and compliance with EU transparency
requirements[266]. Practice again highlighted that the main challenges for national
authorities continued to be the establishment of transparent entrustment acts
which precisely define public services and their public funding and the accurate
separation of accounts between public and commercial services. The Commission
thus required appropriate amendments where necessary. 300.
At the end of 2009, the Commission adopted a
decision concerning the public financing granted in
favour of the public hospitals in the Brussels Region
(Belgium)[267]
following a State aid complaint by two Belgian associations representing the
leading private hospitals operating in the same region. The Commission's positive decision found that these public funds were granted for the provision of the health and
social public service missions entrusted to the public hospitals concerned and
were in line with the requirements set out under Article 106(2). In March 2010,
the Commission's decision was challenged by one of the original complainants in
front of the General Court, and the Court case is currently pending[268]. 301.
The Commission also continued to examine cases
involving possible State aid in the field of health insurance, in particular in
countries with competitive health insurance markets. In this context, in July
2010 the Commission approved an extension of the risk equalisation scheme
applicable to health insurance in the Netherlands[269], which had been approved by
the Commission in 2005. E – Transport 1. Overview
of sector 302.
Transport is an essential component of the
European economy. The provision of transport services (including storage,
warehousing and other auxiliary activities) account for about 4-5% of EU GDP
and for some 4.4% of the total workforce, more than 9.2 million persons[270]. The transport sector
includes passenger transport (~30% of value-added from transport and storage),
freight transport (~35%) and logistics services (~35%). The efficient
functioning of the transport sector in Europe contributes to the productivity
of all economic sectors and is an essential part of the strategy towards a more
sustainable growth in Europe. 303.
The economic downturn in 2009 had a significant
impact on almost all transport sectors while 2010 proved to be a year of progressive
recovery. By the end of 2010, prices in air and maritime transport had largely
come back to pre-crisis levels. 304.
Within the EU, the airline liberalisation
package of 1992 removed all barriers to intra-EU airline mergers. Outside of
the EU, the aviation sector is still governed by bilateral treaties that
prevent or restrict cross-border airline mergers. Because of this regulatory
landscape, EU airlines tend to consolidate among themselves via mergers and
acquisitions – which are assessed under the EU Merger Regulation[271] – while they integrate
operations with non-EU airlines via alliances, joint ventures or other forms of
looser cooperation, which are assessed under Article 101. Airport congestion
remained a critical issue. In this context, the Commission worked in 2010 on
the revision of the Slot Regulation planned for 2011[272]. 305.
The inter-EU passenger rail transport market
started being liberalised as of 2010, with gradual opening up of Member States'
markets planned by 2012. Competitors have entered the rail freight market but
monopolies still exist both for freight and for passenger transport services in
many Member States. For new entrants, access to the infrastructure and
rail-related services, which are often owned and operated by the incumbent rail
undertaking, is of critical importance[273].
306.
As for maritime transport, it has now undergone
a full modernisation of its competition law framework, bringing it within the
generally applicable competition rules. This regulatory work was complemented
by investigation and enforcement actions. 307.
As described above, competition policy
challenges in the field of transport differ significantly from one modal market
to the other. On a general basis, the Commission remained vigilant to any signs
of crisis cartels, protectionist measures or other forms of anticompetitive
behaviour. In 2010, the Commission also examined proposed mergers – pertaining
to a broad spectrum of passenger and freight/cargo transport activities,
including air, rail, road and maritime transport and logistics, and assessed a
number of cooperative agreements, with a view to ensuring that such market
consolidation was not to the detriment of consumers. 308.
As regards State aid, a significant number of
rescuing and restructuring measures were notified and authorised by the
Commission in 2010, in particular in aviation, maritime and railway sectors.
This increased number of notifications is inter alia linked to the
consequences of the economic downturn, which worsened the structural
difficulties encountered by the undertakings concerned. Despite the progressive
recovery of the sector, this trend is expected to continue in 2011, especially
as regards airlines. 2. Policy
developments 2.1. Air
transport 2.1.1. Antitrust
enforcement 309.
On 14 July 2010, the Commission made legally
binding the commitments[274]
offered by three members of the Oneworld airline alliance, British Airways
(BA), American Airlines (AA) and Iberia (IB). The commitments were offered in
response to the Commission's concerns that the planned joint venture between
the parties could violate EU antitrust rules and harm consumers on
transatlantic routes. After a market test, the Commission concluded that the
commitments offered were suitable to remedy the competition concerns. The
decision, based on Article 9 of Regulation 1/2003[275], does not conclude on whether
there was any infringement of EU competition rules. It legally binds BA, AA and
IB to the commitments offered and ends the Commission's investigation. In the
event that BA, AA and IB should break their commitments, the Commission can
impose a fine of up to 10% of each company's total annual turnover without
having to prove a violation of the EU competition rules. These commitments will
be binding on BA, AA and IB for ten years. A trustee was appointed to monitor
their implementation. Throughout its investigation, the Commission has been in
close contact with US authorities, in particular the US Department of
Transportation, which is conducting a parallel review under US rules. 310.
The three airlines BA, AA and IB, concluded
agreements to involve in extensive cooperation in their air passenger services
on transatlantic routes between Europe and North America. In particular, the
parties agreed to coordinate prices, capacity, schedules, marketing and sales,
as well as to share revenues. The Commission's investigation identified
competition concerns on five routes from London to the US (Boston, Chicago,
Dallas, Miami and New-York) and on one route from Madrid to Miami. The
investigation of the Commission showed that on these routes of concern the
parties provided overlapping non-stop services and held a strong market
position protected by high barriers to entry, notably the lack of landing and
take-off slots at London Heathrow airport. The Commission's concerns related to
restriction of competition between the parties and between them and third party
airlines. The latter restriction was likely because of the potential of the
parties to limit their competitors' access to connecting traffic, which was
important for viable operations on the routes of concern. 311.
To address the identified competition issues,
BA, AA and IB offered the following commitments on the routes of concern (i) to
release seven daily slot pairs at London Heathrow or London Gatwick airports –
at the competitor's choice – on four routes of concern; (ii) to offer fare
combinability agreements (which would enable competitors to offer services on
the parties' flights); (iii) to offer special pro-rate agreements (which would
enable competitors to obtain connecting traffic from the parties on favourable
terms); and (iv) to provide competitors access to the parties' frequent flyer
programmes. The Commission found these commitments sufficient to enable
competitors to start new or maintain existing services on the routes of concern.
312.
The close cooperation between the Commission and
the US authorities, in particular the US Department of Transportation resulted
in compatible sets of remedies adopted on both sides of the Atlantic. The investigation
was particularly important since the commitments adopted facilitate additional competition
on some of the largest extra-EU routes to the benefit of air passengers and the
European economy. This case constitutes a useful precedent for future
assessments of cooperation between airlines. 313.
On 16 November 2010, the Commission
published a report on the role of alliances in the market for transatlantic air
services[276].
This report was the outcome of the qualitative phase of the research project
jointly launched by the Commission and US Department of Transportation (DoT) in
2008. The report examined the competitive structures of the airline industries
in Europe and the United States and compared the respective legal regimes and
analytical frameworks applied by the Commission and DoT. The report concluded
that the competitive structures of the airline industries are similar. Despite
important differences in legal regimes, the report found that there is scope
for the Commission and DoT to work towards the promotion of compatible
regulatory approaches, as specified in Annex 2 to the EU-US Air Transport
Agreement, to achieve pro-competitive outcomes for consumers and the airline
industry. This project marked a step forward in the regulatory cooperation
between the Commission and DoT. 2.1.2. Merger
control 314.
In 2010, air transport concentrations
constituted an important focal point in merger control, especially in light of
the ongoing industry consolidation. The economic and financial crisis caused a
sudden and sharp drop in both cargo and passenger traffic, and this accelerated
the trend towards consolidation in the airline industry, either through mergers
or the exit of loss-making airlines from the market. These mergers allowed some
of the larger flag-carriers to consolidate their position as market leaders.
This development was reflected in an increase in the number of airline merger
cases that the Commission has had to deal with over the past couple of years. 315.
On 14 July 2010, the Commission cleared the
merger between BA and IB following a market investigation, which showed that
the merged entity will continue to face sufficient competition in passenger and
air cargo transport as well as ground handling[277]. On 27 July 2010, the
Commission approved the merger of United Airlines and Continental Airlines,
which are both U.S. carriers providing scheduled air passenger and cargo
transport between the EEA and the US[278].
The market investigation confirmed the complementary nature of United's and
Continental's transatlantic networks. On 30 July 2010, the Commission
opened an in-depth investigation of the planned merger between Olympic Air and
Aegean Airlines following initial indications that the proposed concentration
would lead to very high market shares on a number of routes[279]. 316.
On 14 September 2010, the Commission
cleared the proposed acquisition of the German tour operator Öger Tours GmbH by
Thomas Cook Group plc of the UK, as the combined market position of the two
parties on the wholesale markets for hotel accommodation and airlines seats
would not be sufficient to foreclose other tour operators from accessing these
capacities[280].
2.1.3. State
aid control 317.
The Eyjafjallajökull volcano eruption in Iceland
in April 2010 created a cloud of volcanic ash which covered most of Europe,
except the Mediterranean region airspace. In its information note of 27 April
2010[281],
the Commission acknowledged the impact on the air transport industry of the
closing of the affected airspace. In that context, the Commission proposed a
series of short-term emergency measures and of structural measures to respond
to the situation created by the flight restrictions. With regard to possible
compensation for the air transport industry, this note indicated that the
Commission "could prepare a communication clarifying the requirements to be
fulfilled” to provide State aid in the relevant context. In the conclusions on
the EU response to the consequences of the volcanic ash cloud on air transport
adopted by the Extraordinary TTE (Transport) Council of 4 May 2010[282], the Council agreed to
"recall the existing legal framework[283]
applicable to potential support measures by Member States". However, as no
Member State expressed in 2010 its intention to grant State aid to the air
transport industry in the above mentioned context, the adoption of a communication
did not appear appropriate. 318.
As in previous years, several State aids for
investments in airport infrastructure were approved as compatible with the
internal market for airports in the United Kingdom (Derry Airport)[284], in Finland (Vaasa airport and
Oulu airport)[285]
and in Latvia (Riga Airport)[286].
The Commission also approved in June 2010 a guarantee granted by the Region of
Murcia (Spain) to the consortium awarded to build, exploit and manage the new
airport[287].
319.
The Commission closed the formal investigation
procedure into the agreement concluded until 2016 between Bratislava Airport
and Ryanair concerning Ryanair's operations at this airport. Having carried out
a cost-benefit-analysis of this agreement, the Commission concluded that in
similar circumstances a private investor operating under normal market
conditions would have entered into the same or similar commercial arrangement
as the operator of Bratislava Airport. Therefore, no advantage was being
granted to Ryanair[288].
As regards start-up aid[289],
the Commission authorised in May and September 2010 two schemes intended,
through airport fees reduction, at the creation of new air routes and
additional frequencies from Dijon-Longvic[290]
and Antwerp[291]
to other EU airports. 320.
The Commission opened in February 2010 a formal
investigation procedure on the State aid aspects of a loan granted to
ČSA-Czech Airlines by a State-owned entity (Osinek) as well as a
subsequent liberation of the collaterals of the loan[292]. In December, the Commission
initiated an in-depth investigation into several measures granted by the
Hungarian authorities to support Malév, the national air carrier in the context
of its privatisation and subsequent re-nationalisation[293]. Two formal investigation
procedures were also opened into compensation for losses incurred by SEA
Handling, an Italian ground handling company operating at airports in Milan[294], and concerning the public
financing to cover losses incurred by the Reggio Calabria airport in Italy[295]. 321.
Finally, the Commission authorised in November 2010
a loan facility worth EUR 52 million for the Maltese flag carrier[296]. Air Malta is a small carrier
operating 12 aircrafts mainly in Europe. It is of key importance for Malta's
economy that heavily depends on tourism. This rescue aid is a short-term measure
to tackle liquidity problems faced by Air Malta and a sound restructuring plan
of the company should be submitted to the Commission within six months. 2.2. Rail
and inland transport 322.
The Commission adopted a proposal to recast the
first railway package on 17 September 2010[297]. The proposal aims at
increasing competition on rail market. In particular, it seeks to improve
access to rail-related services such as terminals and maintenance facilities.
The proposal strengthens the powers of the national rail regulators, notably by
extending their competence to rail-related services, and enhances their
independence vis-à-vis other public authorities. 2.2.1. Merger
control 323.
On 22 January 2010, the Commission approved
the proposed acquisition of Financière Ermewa, a Swiss company involved in rail
freight wagon and tank container hire in several EU Member States, by TLP, a
subsidiary of the French rail transport company SNCF[298]. This approval was
conditional upon the divestment of Ermewa's activities related to the transport
of cereals. 324.
On 17 June 2010, the Commission decided to
give the go-ahead to the proposed creation of the "New Eurostar"
joint venture by the SNCF and London Continental Railways[299]. This decision was
conditional upon commitments ensuring an effective access for new entrants to
international stations served by Eurostar. 325.
On 14 July 2010, the Commission cleared the
acquisition of Giraud, an international road freight group by Geodis, which
belongs to the SNCF group as well[300].
The Commission considered that there would be no incentive for SNCF to restrict
access to its rail transport services following the acquisition. 326.
On 11 August 2010, the Commission approved
the proposed acquisition of rail and bus operator Arriva plc of the UK by
Deutsche Bahn[301].
This decision was conditional upon Deutsche Bahn's commitment to divest Arriva
Deutschland, which includes the entire rail and bus business of Arriva in
Germany. 327.
On 12 August 2010, the Commission approved
the merger of Veolia Transport's and Transdev's activities in the area of
scheduled international transport by coach[302],
but it referred the examination of the merger's impact in France and the
Netherlands to the respective National Competition Authorities. 2.2.2. State
aid control 328.
In February 2010, the Commission adopted its
first decision applying the new regulation on public passenger transport
services which entered into force on 3 December 2009[303]. By this decision, the
Commission concluded the formal investigation procedure initiated in 2008
regarding the public-service contracts concluded with the Danish railway
company Danske Statsbaner (DSB)[304].
The Commission found that the compensation paid by the government every year to
DSB for the costs incurred in meeting its public-service obligations was
limited to what was strictly necessary to cover those costs. 329.
As regards the rail freight transport sector
which has been fully liberalised since 2007, the Commission authorised on 26 May
2010 the plan of Société nationale des chemins de fer belges (SNCB) to
restructure its freight activities[305].
The Commission considered that the restructuring plan would address the
problems affecting SNCB's freight activities and ensure the viability of those
activities without unduly distorting competition in the internal market. In
accordance with the 2008 Community guidelines on State aid for railway
undertakings[306],
the SNCB's freight division shall be legally separated and transformed into a
commercial company under ordinary commercial law. The creation of an
independent operator is designed to ensure that there will be no cross-subsidisation
between freight and passenger transport activities. The restructuring plan also
includes a substantial reduction in the capacity of SNCB's freight activities
to contribute to healthy competition in the market concerned. Generally, a division
of an undertaking, namely an economic entity without legal personality, is not
eligible for restructuring aid on the basis of the 2004 Guidelines on State aid
for restructuring[307].
Due to the very specific situation of the European rail freight sector, a
specific approach for restructuring of freight divisions of railway
undertakings was maintained for a transitional period, namely for
restructurings notified before 1 January 2010. This case will thus be the
only case of application of those provisions. 330.
Finally, the Commission authorised in December 2010
a rescue aid of approximately EUR 128 million for BDZ EAD, the 100%
State-owned Bulgarian railway which operates on both freight and passenger
railway markets[308].
This short-term measure is intended to tackle BDZ EAD's liquidity problems and
enable the company to pay creditors and properly maintain its rolling stock
pending the implementation of a restructuring plan to be submitted to the
Commission within six months. 2.3. Maritime
transport 2.3.1. Antitrust
enforcement 331.
On 26 April 2010, the Commission's new
Block Exemption Regulation for Consortia entered into force[309]. It will apply for five years.
A consortium is an operational cooperation between liner shipping carriers to
provide a joint service for the carriage of cargo on a route. In substance the
new regulation notably reviewed the list of exempted activities and the
applicable market share threshold. . 332.
Moreover, in 2010 the Commission continued to
pursue advocacy efforts in the area of maritime antitrust vis-à-vis
third countries. Regulation 1419/2006[310]
– the regulation that repealed the block exemption regulation for liner
shipping conferences, which are a type of price-fixing cartel – contains a
recital that calls on the Commission to take "appropriate steps to advance
the removal of the price fixing exemption for liner conferences that exist
elsewhere". The Commission's consistent message towards third countries is
to advocate the exemption of certain consortia to some extent, whilst
prohibiting all forms of anti-competitive price-fixing and capacity-fixing
agreement. To this end, DG Competition officials held face-to-face meetings or
conference calls with Australian, Canadian, Chinese, Hong Kong, Japanese,
Korean, and US transport ministries and competition authorities. 333.
In January 2010, the Commission initiated
proceedings against the "Baltic Max Feeder" scheme whereby owners of
container vessels intended to jointly cover the costs of removing vessels from
service. The investigation aimed to establish whether the scheme's purpose was
to reduce capacity and, therefore, push up the charter rates the owners charged
for such vessels. In response to the initiation of proceedings by the
Commission the planned scheme was abandoned and the case was closed[311]. 2.3.2. Merger
control 334.
The Commission cleared on 17 June 2010 the
acquisition of Norfolk, which provides ferry and cargo shipping services in the
North Sea area, by DFDS of Denmark[312].
Clearance was conditional on the conclusion by DFDS of a space charter
agreement with a new entrant on routes between the UK and Denmark. 2.3.3. State
aid control 335.
In January 2010 the Commission approved for the
first time State aid for launching a "Motorways of the Sea" project
on the basis of both the Maritime Guidelines and the Complementary aid
Guidelines[313]. The aid is complementary to Union financing
granted under Marco Polo II Programme. The project concerns the establishment
of a maritime link operated by GLD Atlantique between the French port of
Nantes-Saint Nazaire and the Spanish port of Gijón[314]. The aim is to capture
between 3% and 5% of the road traffic which currently passes through the west
of the Pyrénées. The overall financing of the project (State aid and Marco Polo
grant) is limited to 35% of the eligible costs within the first four years of
its operation. 336.
In April 2010, the Commission authorised the
extension of the Dutch tonnage tax scheme to cable layers, pipeline layers,
research vessels and crane vessels[315].
This decision was based on the approach adopted in 2009[316], when the activities of
cable-layers were considered to be eligible for State aid by applying by
analogy the Maritime Guidelines[317].
Similarly, the Commission authorised the Cypriot tonnage tax scheme[318] as well as reduced social
contributions rates for seafarers in Germany[319].
337.
In August 2010 the Commission approved a rescue
aid for the company SeaFrance[320].
The company is a 100% subsidiary of French SNCF. It operates exclusively on the
route between Calais and Dover and transports both passengers and freight. The
company was placed in insolvency by the Tribunal de Commerce of Paris on 30 June
2010. The aid was intended to allow the company to weather its financial
difficulties until it is either restructured or taken over by new investors and
to finance the social cost of the severe employment cuts made necessary to
ensure SeaFrance is brought back to profitability. 338.
In November 2010 the Commission authorised
rescue aid for Tirrenia di Navigazione S.p.A[321] and through Tirrenia, its regional subsidiary, Siremar – Sicilia
regionale Marittima S.p.A. The companies faced severe difficulties and were
admitted to the collective insolvency procedure foreseen under Italian law for
large companies, "amministrazione straordinaria". 339.
As regards State aid to finance ports
infrastructure, the Commission decided to launch a study to collect information
to better understand the functioning of ports and the public financing of their
infrastructure. On the basis of its results, the Commission will be able to
define a reliable approach for moving forward in that field. F – Postal Services 1. Overview
of sector 340.
Postal services generate about 1% of EU GDP and
an annual corresponding turnover of EUR 94 billion. Sectors such as
e-commerce, publishing, mail order, insurance, banking and advertising heavily
depend on the postal infrastructure. Postal services also bring social benefits
which cannot always be qualified in economic terms. Postal services are labour
intensive and are one of the principal public employers in Europe. Employment
in the sector is principally provided by Universal Service Providers (USP) and has
been stable over time, with about 1.8 million persons employed[322]. As defined in the Postal
Directive[323],
USP are public or private companies, usually the former public monopolistic
incumbent, which are required to provide universal postal services or parts
thereof to all residents of a Member State. In accordance with the provisions
of the Postal Directive, Member States are required to notify the Commission
the identity of the USP they designate. Since providing services to all
residents may not be an economically profitable activity, USP may receive
compensation from the Member States. Virtually all USP in the EU are public
undertakings, i.e. owned by the Member States, with the notable
exceptions of Germany and Netherlands. 341.
Postal services continue to evolve
substantially. Postal operators are facing increasingly fierce pressure from
electronic means of communication. This is in turn forcing them to adapt their
businesses to better respond to customers' needs and to improve efficiency. The
market entry of new and more efficient postal operators is also increasing the
pressure on USP to realise significant efficiency gains. In addition, physical
mail is being supplemented by multi-channel delivery and tailor-made solutions
for customers, for example via hybrid mail services (e-mail and physical
letter). Moreover, many postal operators are entering adjacent markets by
developing IT services for their customers or other new and value-added
services. 342.
Under the third revision of the Postal
Directive, most Member States will have to accomplish full market opening by
eliminating any remaining reserved area by 31 December 2010, with a
further two years to accomplish this being allowed for eleven Member States,
most of which recently joined the Union[324].
The liberalisation process is progressing swiftly and
certain Member States (Estonia, Finland, Germany, the Netherlands, Sweden and
the United Kingdom) already fully opened their postal markets ahead of the EU
deadline. Moreover, the 2008 Directive confirms the minimum
scope and standard of the postal universal service and reinforces the role of
national regulatory authorities. The Directive also offers a variety of
measures that Member States may take to safeguard and finance the universal
service, if this proves to be necessary. 343.
Despite the progress to-date, genuine
competition, notably in the letter mail segment, is only just beginning to
emerge even in cases where the monopoly has been completely abolished or
substantially reduced. In the letter post segment, market shares of
competitors, although increasing, remain at a low level even in Member States
that have fully liberalised their postal markets. Estimated market shares of
competitors in these Member States ranged from around 8% to 12% in 2007. Thus,
whereas the parcels/express market is increasingly open to competition across
Member States, the letters market remains traditionally subject to monopoly and
dominated by incumbents, holding over 95% market share. It is declining in the
old Member States, whereas still growing (though from much lower levels) in the
new Member States. Some Member States have already partly or fully privatised
their incumbent operator (Belgium, Denmark, Germany, the Netherlands) whereas
others have indicated similar reforms (UK). 344.
Major competition policy challenges in the
postal sector services relate to avoiding distortion of competition linked to
the status of universal service provider. In particular, ensuring that the
compensation received by a USP for its delivery of public service is consistent
with the actual costs of the services and does not constitute an indirect
advantage (through cross-subsidisation of other services for example) is
essential to ensure a level playing field and the market entry of new
competitors. Another challenge in the years to come will be to ensure the
development of competition in former reserved areas, where barriers to entry,
such as the VAT exemption or excessive licensing requirements, still remain.
Market behaviours of incumbents will have to be monitored closely. 2. Policy
developments 2.1. Merger
control 345.
On 30 November 2010 the Commission cleared the
proposed creation of a joint venture between the Österreichische Post and the
Schweizerische Post in the area of direct mailing[325]. 2.2. State
aid control 346.
Within the postal sector, the State aid
assessment carried out by the Commission includes a verification of any compensation
granted to postal operators for discharging public service obligations in order
to ensure that it does not exceed what is necessary to cover the costs incurred
in doing so (taking into account the relevant receipts and a reasonable profit)
and that commercial activities outside the Services of General Economic
Interest (SGEI) are not cross-subsidised. The compatibility principles the
Commission applies in its assessment are contained in the Community framework
for State aid in the form of public service compensation (the Framework)[326]. However, the third Postal
Directive provides for a new way of calculating the net costs of postal
universal services, based on the net avoided cost methodology which departs
from the mere accounting approach of actual loss compensation embodied in the
Framework. In the new methodology, the cost for providing the universal service
is calculated as the difference between the net cost for a designated universal
service provider of operating with the universal service obligations and the
same postal service provider operating without those universal service
obligations. Deutsche Post 347.
In 2010 the Commission continued its
investigation, opened in 2007, into the alleged overcompensation of Deutsche
Post AG[327]
for carrying out its universal service obligations from 1989 to 2007. The main
focus is on two public measures concerning the subsidy which Deutsche Post
received from its affiliate Deutsche Telekom between 1990 and 1995 to cover its
losses and the public financing which Deutsche Post has received since 1995 in
order to finance the pensions of its civil servants. 348.
At the end of 2009, the Commission received an
expert's final report aiming to quantify the possible amount of
overcompensation. Germany submitted several comments and counter-expertise in
2010 which were analysed by the Commission. In September 2010 the Court of
Justice upheld[328]
the Court of First Instance's annulment[329]
of the 2002 Commission decision which had found certain aid measures for Deutsche
Post AG to be incompatible with the internal market, because the Commission did
not take into account all income and costs related to the universal services.
The ongoing investigation follows the comprehensive approach as demanded by the
Court of Justice. In separate proceedings, the General Court confirmed the
validity of the Commission's information injunction of 30 October 2008
(which had requested from Germany the information necessary for the expert's
report), ruling that the actions for annulment brought by Germany and Deutsche
Post against that information injunction were inadmissible[330]. Belgian Post 349.
In 2010, the Commission continued its formal
investigation procedure opened in 2009 in order to examine whether certain
measures in favour of the Belgian postal operator De Post - La Poste are in
line with EU State aid rules[331]. 350.
The Commission's initial approval of a series of
measures in favour of De Post - La Poste in 2003 was overturned by the Court of
First Instance on 10 February 2009[332],
which found that a formal investigation procedure was required in order to
guarantee the possibility for competitors to submit their views to the
Commission. The Court of First Instance's annulment of the Commission decision
has been challenged by Belgium before the Court of Justice. The court case is
currently pending. The Commission's current investigation, opened on 13 July
2009, aims to establish in a comprehensive way whether the totality of the
measures in favour of De Post - La Poste since its incorporation in 1992 can be
considered compatible with the internal market. The investigation concerns a
large number of measures, including the yearly compensation granted by Belgium
for public service tasks, capital injections, relief of pension liabilities,
transfer of buildings and tax exemptions. The investigation is progressing
swiftly with active cooperation of the Belgian authorities. Unlimited guarantee to the French La
Poste 351.
With its final decision of 26 January 2010[333], the Commission closed the formal
investigation procedure opened in 2007 in which it had examined an alleged
State aid granted in favour of La Poste in the form of an unlimited State guarantee
resulting from its public-law status. The closure of the formal investigation
procedure followed the adoption by the French Parliament on 12 January
2010 of the Law on the public company La Poste and on postal activities[334]. 352.
The Commission considered that due to its public
law status, an implicit government guarantee had been set on all the
liabilities of La Poste, under which individual creditors were assured of having
their debt repaid. This status also provided La Poste with an institutional
guarantee of its continued existence and/or its obligations. The double
guarantee would thus enable La Poste to access financing at rates lower than
its competitors. The guarantee was considered unlimited in time, un-remunerated
and not limited to activities of the universal postal service but also covering
commercial activities exercised by La Poste, granting it an economic advantage
over its competitors, who operate without such a guarantee. The guarantee was
therefore deemed to distort competition in postal markets and considered to
constitute incompatible State aid. Considering that the legal provisions
concerned had been in force since before 1 January 1958, the Commission applied
the rules concerning existing aid. Consequently, France was not obliged to
recover the alleged aid from La Poste but was required to put an end to the
State guarantee. 353.
The Commission concluded that the incorporation of
La Poste into a limited liability company ("société anonyme") on 1 March
2010, as provided for under the mentioned Law, would effectively put an end to
the de facto unlimited State guarantee it enjoyed. It was therefore an
appropriate measure to eliminate the State aid element involved in its previous
legal status. France sought the annulment of the Commission decision on 2 April,
mainly disputing the existence of the State guarantee and the economic
advantage that the guarantee would grant to La Poste. 354.
By its final decision, the Commission did not
challenge the public service mission of La Poste, nor its public ownership and
control, particularly in light of the neutrality of European rules as concerns
the various property regimes applicable in Member States. Only the State
guarantee that resulted from the special status of La Poste, and not its
ownership, was considered to represent incompatible State aid. Therefore, only
that State guarantee was required to be removed, which reflects the fact that
the relevant European competition rules apply equally to private and public
undertakings. Polish Post (Poczta Polska) 355.
At the end of 2009, the Commission had
authorised under EU State aid rules the scheme intended to compensate Poczta
Polska as the universal postal service provider in Poland for net losses
incurred in discharging its public service obligations until 31 December
2011[335].
During 2010, the Commission actively monitored the
fulfilment of the conditions which had been attached to this decision. 356.
Further to a 2004 notification from the Polish
authorities of the aid scheme "Compensation to Poczta
Polska for carrying out universal postal services",
the Commission opened a formal investigation on 29 June 2005 in this case.
In its 2009 decision, the Commission found the compensation mechanism to be
compatible with Article 106(2), in accordance with the Commission's framework
on public service compensation. The measure was thus authorised, subject to the
fulfilment of certain conditions. In particular, Poland was required to improve
the entrustment act and to ensure that any significant changes to the cost
allocation method for compensatory payments remain compatible with the cost
accounting rules of Article 14 of the first Postal Directive. G – Automotive industries 1. Overview
of the automotive sector 357.
The EU is the world's largest producer of motor
vehicles with around 18 million vehicles a year
and 33% of the world's passenger cars. The automotive industry’s direct weight
in the EU GDP is less than 1% but reaches almost 3.5% in countries such as
Germany or the Czech Republic. More than 5 million people in the EU are
directly employed in the industry, 2.3 million by original equipment
manufacturers (OEM) and another 3 million by their suppliers. In total, the
European automotive industry directly and indirectly supports 13 million jobs
in the EU, accounting for one third of the manufacturing employment, is the
largest investing sector in Research and Development with EUR 28 billion
and is an important contributor to net external EU trade[336]. 358.
In 2010, the motor vehicle sector began to
emerge from the economic crisis that hit it particularly hard in 2008 and 2009.
However, although the total production of motor vehicles in the EU increased by
34% in the first quarter of 2010 from the corresponding period of 2009, it was
still 17% down compared with 2008[337]. The negative
effects on vehicle registrations of the expiry of car scrapping schemes in late
2009 and during 2010 in many Member States was more than outweighed by a surge
in export activity, particularly in the premium segment. 359.
The effects of the economic and financial crisis
on US car manufacturers also had significant consequences on the car sector in
Europe. The re-launched General Motors returned to profit in May 2010 after
emerging from bankruptcy and eventually undertook to restructure its
Opel/Vauxhall subsidiary without further government support. Meanwhile, Fiat
entered into a broad partnership with Chrysler, which also came out of
bankruptcy after being reorganised within the framework of Chapter 11 of the
United States Bankruptcy Code[338].
360.
In May 2010, the Commission revised the
competition framework for vertical agreements in the motor vehicle sector,
comprising a set of supplementary guidelines and three additional hard core
clauses. This framework applies to agreements for the repair of motor vehicles
and for the distribution of spare parts as of 1 June 2010, and will apply
to vehicle sales agreements from 1 June 2013. The new rules represent a
major alignment with the general regime for vertical restraints (see section I.B.1.1.1.,
points 30 to 34) and a more proportionate approach to the differing intensities
of competition in the various markets. 361.
Future challenges for the industry will involve
the launch of more resource-efficient and "greener" cars, in
particular new electric and hybrid models, the need to tailor existing
distribution networks to demand levels and the increasing competition from
emerging countries' car manufacturers, including in the "green car"
markets. Competition issues relating to market developments include managing
the necessary restructuring of the sector, fostering the development of
"greener" cars while maintaining a level playing field. The
after-sales market, which represents a significant part of consumer expenditures
linked to car ownership, experiences specific competition issues, relating to misuse
of vehicle warranties or independent operators' access to technical information. 2. Policy
developments 2.1. Antitrust
enforcement 362.
On 27 May 2010, the Commission adopted new
competition rules for agreements between vehicle manufacturers and their
authorised dealers, repairers and spare parts distributors. The new framework
applies the general Vertical Block Exemption Regulation[339] of 20 April to such
agreements from 2010 as regards the aftermarkets, and 2013 as regards the
markets for the sale of new vehicles. In addition, the Commission adopted
Regulation 461/2010[340], which sets out three supplementary hardcore clauses relating to
spare parts distribution, and a detailed set of supplementary guidelines for
assessing vertical agreements in the sector[341].
The new rules represent a flexible and proportionate response to the differing
intensities of competition on the primary and aftermarkets and broadly align
the rules applicable to agreements between car manufacturers and their
authorised dealers, repairers and spare part distributors with the general
regime applicable to other sectors. 2.1.1. Vertical
agreements in the vehicle sales markets 363.
The Commission's analysis showed that on the
vehicle sales markets, the restrictive nature of the legal framework laid down
by Regulation 1400/2002[342]
was out of place given the intensity of competition manifested by low profit
margins, falling real prices and increased choice brought about by new entries
and expanding brand ranges. Many of the sector-specific clauses in the
Regulation, such as those relating to contractual protection, to dealers
selling vehicles from different manufacturers (multi-branding) and to the use
of location clauses[343]
had not achieved their aims, and in some cases had led to unsatisfactory
results. For example, with a view to protecting intra-brand competition, the
Regulation aimed to promote multi-brand sales by allowing dealers to sell the
brands of different manufacturers within the same showroom. In the face of this
provision, vehicle manufacturers pushed up investments required of dealers in
order to protect brand image and corporate identity. This in turn increased
distribution costs, to the detriment of consumers. 364.
The new regime adopted on 27 May 2010
therefore provides that the sector will be subject to the same rules that apply
to vertical agreements in other areas from 2013. The three-year transition was
decided upon in order to allow dealers to amortise investments that they may
have made pursuant to the old regime, in particular in multi-brand premises. 365.
As well as doing away with the conditions and
hardcore clauses relating specifically to the sale of new vehicles, the
alignment with the general regime will also imply a reduction in the market
share threshold for exemption from 40% to 30% market share of manufacturers for
the quantitative selective distribution agreements that are the norm in this
sector[344].
This in turn implies that there will be more national markets on which those
agreements will need to be self-assessed. The supplementary Guidelines give
extensive clarifications on the treatment of particular clauses both above and
below the exemption threshold, and also explain the advantages in terms of compliance
brought about by transparency in contractual relations. 2.1.2. Vertical
agreements in the repair and spare parts markets 366.
The competitive conditions on the vehicle sales
markets are in stark contrast to those on the repair and spare parts
distribution, where the authorised networks commonly have market shares in
excess of 50%. Their competitors, the independent repairers, have to rely on
the vehicle manufacturers for essential inputs in the form of technical
information and spare parts. There is therefore a clear risk that carmakers may
seek to give an advantage to their contractual partners by withholding these
inputs. The repair and maintenance markets are of great importance to consumers
since these services make up 40% of the total cost of vehicle ownership. Prices
have moreover been rising in real terms. The spare parts markets are also
potentially problematic since many spare parts are captive to the vehicle
manufacturers, mainly because of design rights protection in several Member
States. This implies that the complete range is only available from the
authorised repair networks, implying in turn a situation of dependence of the
independent repairers on their authorised competitors. 367.
In these circumstances, the sector-specific
regime set out in Regulation 1400/2002 appeared incongruous since it was more
favourable than the general rules, in particular because it granted an
exemption up to a 100% market share for the qualitative selective agreements
that are the norm in the motor vehicle repair and spare parts distribution
sectors. This created two difficulties: –
Firstly, when faced with anti-competitive
behaviour in the context of an agreement, the Commission was forced to check
whether the behaviour related to one of the hardcore clauses, since if it did
not, the agreement would be protected by the safe harbour and the only option
open to the Commission would be to disapply the block exemption. This made it
more difficult for the Commission to act in respect of new types of
anti-competitive behaviour that had not been foreseen when Regulation 1400/2002
was adopted, and had not therefore been included in the hardcore list. One such
issue may arise when carmakers make warranties conditional on all repairs being
carried out in the authorised networks. –
The second problem related to a particular
hardcore clause – Article 4(2) on the provision of technical information to
independent operators. The scope of this clause was defined in Recital 26 of
the Regulation so as to exclude information relating to safety and security,
and proved to be a particular problem since today's vehicles contain complex
systems in which it is difficult to disentangle security and safety functions
from features such as engine management and ride control. 368.
Aligning the rules applicable to agreements
between car manufacturers and authorised repairers with the general regime
applicable to other sectors means that a 30% exemption threshold will apply to
such agreements. Because of the prevailing high market shares noted above, the
majority of these agreements will no longer be block exempted, and it will
therefore be easier for the Commission and National Competition Authorities to
tackle possible abuses that threaten to foreclose independent repairers from
the market to the detriment of consumers. In view of stakeholders' desire for
clarity, the Commission included detailed explanation in the Guidelines on
issues such as access to the authorised repair networks, the release of
technical information and the abuse of warranties. 369.
As regards spare parts distribution, the
Commission responded to stakeholders' views and maintained three additional
hardcore clauses in the new Regulation 461/2010 concerning the supply of spare
parts by component manufacturers, and the ability of independent repairers to
access "captive" parts that are only available from the vehicle
manufacturers and the members of their authorised networks. A block exemption
was felt to be an effective instrument given the difficulty of defining product
markets in this field. 370.
The rules adopted on 27 May 2010 therefore
implied a major alignment with the general regime for vertical restraints set
out in Regulation 330/2010. There will be fewer constraints on relationships
between vehicle manufacturers and dealers; on the aftermarket, it will be
easier for the Commission to act against anti-competitive agreements. The
commonality of rules will also make life simpler for firms in the sector and
for legal practitioners. 2.2. Merger
control 371.
In 2010, 15 mergers in the automotive industry
were notified to the Commission. Most of these transactions involved automotive
suppliers establishing joint ventures[345].
Only one case – the acquisition of Volvo Cars by the Chinese companies Geely
and Daqing[346]
– dealt with car manufacturers. All cases were cleared in the first phase
without commitments. 2.3. State
aid control 372.
The automotive sector had the possibility to
make use of the exceptional support measures contained in the State aid
Temporary Framework as long as the approved schemes were not restricted to this
activity but open to all the sectors of the economy. In particular, the
Commission authorised on 8 February 2010 plans notified by Sweden to
provide a guarantee that would enable Saab Automobile AB to access a loan from
the European Investment Bank[347].
The EUR 400 million loan aimed at co-financing
Saab's business plan in the light of its sale by General Motors to Dutch
carmaker Spyker Cars N.V. According to the business plan, Saab intended to use
the EIB loan for an investment project worth EUR 1 billion related inter
alia to fuel efficiency and car safety. The Commission found that 82.8% of
the guarantee to be provided by Sweden was in line with the Temporary
Framework. In particular, Saab paid an adequate remuneration for the guarantee
and provided sufficient securities in case the guarantee would be drawn. On 16 December 2010, the Commission authorised a comparable
guarantee by Sweden to enable Volvo Cars Corporation to access a EUR 500 million
loan from the EIB to finance research and engineering activities related to
fuel efficiency and road safety[348].
This decision modified the terms of the guarantee authorised by the Commission
on 5 June 2009[349],
which Volvo Cars had never used. 373.
In July 2010, the Commission extended its formal
investigation initiated in October 2009 under State aid rules regarding
Hungarian aid for an investment project of Audi Hungaria Motor Kft. in its
existing plant in Győr[350].
This extension became necessary to take into account the change in the initial
investment project and concentrated on the question of the appropriate
definition of the relevant geographic market. The Commission doubted the
argument put forward by Hungary that not the EEA but the global market is the
relevant geographic market for passenger cars. The extension decision gave
interested third parties the possibility to comment on the issue at stake. 374.
In June 2010, the Commission authorized State
aid measure in favor of Fiat Powertrain[351],
a subsidiary of the Fiat Group, for the production of car transmissions in
Verrone, Piedmont, Italy, an area eligible for regional investment aid under Article
107(3)(c). An existing plant is to be equipped with new machining and assembly
lines to produce an innovative transmission unit intended for mid-range
vehicles. The investment is expected to reach full production in 2013. In order
to approve this State aid, the Commission had to assess the company's (and the
Fiat Group's) position in the relevant transmission and car market segments. H – Food supply chain 1. Overview
of sector 375.
The food supply chain connects three important
sectors of the European economy – agriculture, the food processing industry and
the distribution sectors – that together make more than 5% of European
value-added and 7% of employment. Moreover, its performance has direct
consequences for all European citizens, since food represents 16% of European
households' expenditures. 376.
The food sector continued to draw much political
and public attention in the context of the economic downturn and global
developments in agricultural commodity prices. A decrease in prices paid to
farmers whilst food prices remained relatively high at consumer level in many
Member States raised concerns regarding the functioning of the food supply chain.
The situation in the dairy sector, where the price drop was the sharpest, has
been in particular in the spotlight. 377.
In July 2010, the Commission set up a High Level
Forum for a Better Functioning Food Supply Chain[352] to discuss and follow-up the
implementation of the policy initiatives laid down in the Communication of
October 2009 on "A better functioning food supply chain in Europe"[353]. The policy initiatives
proposed by the Commission aimed at three main objectives: promoting
sustainable and market-based relationships between stakeholders in the food
supply chain, increasing transparency along the food supply chain to encourage
competition and improve its resilience to price volatility and foster the
integration and competitiveness of the European food supply chain across Member
States. 378.
One of the main priorities of the High Level
Forum will be to tackle unfair trading practices resulting
from contractual imbalances and differences in bargaining power between
suppliers and buyers in the food supply chain. These practices, which must be
distinguished from anticompetitive practices which may be caught by Articles
101 and 102 TFEU, have been addressed at national level through different policy
tools other than competition law instruments such as, for example, contract law
or unfair commercial practices laws. An ad hoc Expert
Platform on Business-to-Business Contractual Practices in the Food Supply Chain
was set up as a working group of the High Level Forum to address this issue. 379.
The functioning of the food supply chain in
Europe also raises challenges directly relating to competition policy and
enforcement. A coherent application of competition rules across Member States
requires attention, as the food supply chains are mostly national and even
local. The concentration of retail markets has been a source of concern in some
Member States. New and increasingly prevalent business practices, stemming
either from the food industry or the distribution sector, also require detailed
analysis to assess their potential impact on competition. 2. Policy
developments 2.1. Food
supply chain 380.
In its Communication on "A better
functioning food supply chain in Europe", the Commission set as a priority
the strengthening of the application of competition rules in food markets
through a coordinated approach between National Competition Authorities (NCAs)
within the framework of the European Competition Network (ECN). 381.
The ECN Food Subgroup continued to serve as an operational
framework for discussion and coordination among NCAs on specific competition
issues related to food markets. Indeed, NCAs are often well placed to
investigate any possible anticompetitive behaviour affecting these markets in
their respective Member States given the national or regional scope of food
markets. In line with the experience of past years, NCAs gave due priority in
2010 to the pursuit of anticompetitive practices on food markets by applying
the legal instruments at their disposal to investigate and sanction numerous
infringements of competition rules affecting consumer welfare. 382.
A significant number of NCAs also actively
undertook sector inquires so as to identify potential malfunctionings of food
and retail markets. The different enforcement, advocacy and monitoring actions
taken by the NCAs over the last years in the food sector are due to be reported
by the Commission to the Forum. 2.2. Dairy
sector 383.
Special attention was devoted to the dairy
sector in light of the difficulties faced by dairy farmers during the recent
milk crisis. In this context, the High Level Group on Milk, established by the
Commission in October 2009, continued its works aimed at identifying medium and
long-term solutions for the dairy sector taking into account the phasing out of
the milk quota system by 2015. The issues under discussion included in
particular the contractual relationships between farmers and processors, the
possibility of strengthening farmers' bargaining power and the role of producer
organisations and inter-branch organisations in the dairy sector. 384.
The Directorate-General for Competition,
together with the French Autorité de la Concurrence and the German Bundeskartellamt,
actively participated in these discussions and, in coordination with the ECN
Joint Working Team on Milk, presented at the meeting of the High Level Group of
23 February 2010 the state of play of the existing
EU legal framework governing cooperation agreements between farmers in the
dairy sector. For this purpose, DG Competition published an explanatory Brochure on "How EU competition policy helps dairy
farmers in Europe" and a Working Paper on "The interface between EU
competition policy and the Common Agriculture Policy (CAP): competition rules
applicable to cooperation agreements between farmers in the dairy sector"[354]. 385.
Both documents, elaborated in cooperation with
NCAs in the framework of the ECN Joint Working Team on Milk, reflect the common
understanding of Competition Authorities about the role that competition policy
should play in the dairy sector in the context of the recent milk crisis. They
also represent a joint advocacy initiative on how EU competition policy can
contribute to encourage the creation of efficiency-enhancing forms of cooperation
whilst ensuring an effective level playing field in dairy markets. In
particular, they clarify the various forms of cooperation that milk farmers can
develop in order to adopt more market-oriented business models and strengthen
their bargaining position vis-à-vis their buyers without infringing EU
competition law. Such forms, which must be assessed under the rules applicable
to horizontal agreements between competitors, can range from joint
commercialisation (e.g. use of a common broker) to joint production
agreements (e.g. use of common facilities for milk collection or the development
of cooperatives active at the processing stage). 386.
The High Level Group on Milk concluded its work
in June and submitted to the Commission a Report including several recommendations
aimed at addressing the future challenges of the EU dairy sector[355]. Further to these
recommendations, the Commission adopted a legislative proposal in December 2010
on contractual relationships in the milk sector[356]. The proposal allows collective
bargaining negotiations by producer organisations of milk farmers subject to certain
limits based on their share of EU-wide and national milk production volumes, so
as to reduce the risk of undue restrictions of competition on raw milk
procurement markets within the EU. The proposal also provides for a "safety
clause" that allows the competent NCA or the Commission to decide that the
negotiations by a producer organisation may not take place where they would
limit competition severely or where they would inflict a serious prejudice to
dairy processors, in particular SMEs. 2.3. State
aid to the agricultural sector 387.
The Commission assesses State aid granted to the
agriculture and to the forestry sector on the basis of the Guidelines for State
aid in the agriculture and forestry sector 2007 to 2013[357]. In 2010, 214 new State aid
cases were registered and 161 decisions were adopted. 388.
On 20 July 2010, the Commission adopted a
final conditional decision on the parafiscal charge for the promotion of wine
applied by Portugal[358].
The Commission concluded that the parafiscal charges, levied by Portugal in
favour of the IVV (Vine and Wine Institute) in view of promoting wine, were
illegal. The decision considered the aid to be compatible provided that
Portugal repaid to the contributors of the parafiscal charge the part of the
charge imposed on products from other Member States. This condition aimed at
remedying the violation of Article 110 TFEU, since charges had been imposed on
imported products which did not benefit from the aid in the same measure as the
domestic products. Portugal has brought annulment proceedings which are now pending
before the General Court[359]. 389.
The Court of Justice dismissed in a judgment of 2 December
2010[360]
the appeal by Holland Malt against a judgment of the General Court[361] relating to the application
of the Agricultural Guidelines. According to the General Court, the Commission
was right in deciding that an aid which does not fulfil a certain condition of
the Agricultural Guidelines (namely the presence of normal outlets on the
relevant market) is not compatible with the internal market, without taking
into consideration the beneficial effects of this aid. The Commission is bound
by the guidelines it issues, to the extent that they do not depart from the
rules in the Treaty. 390.
The Commission requested, pursuant to Article
263 TFEU, that the Court of Justice should annul four Council decisions on the
granting of State aid by Poland, Lithuania, Latvia and Hungary for the purchase
of agricultural land between 1 January 2010 and 31 December 2013[362]. The Council, by adopting the
contested decisions, overturned the Commission's decision resulting from the
proposal for appropriate measures in Point 196 of the 2007 Agricultural
Guidelines and from its unconditional acceptance by Poland, Lithuania, Latvia
and Hungary, obliging them to bring to an end existing aid schemes for the
purchase of agricultural land by 31 December 2009 at the latest. Under the
guise of exceptional circumstances, the Council in fact allowed the Member
States mentioned above to maintain their schemes for the purchase of
agricultural land until the expiry of the 2007 Agricultural Guidelines on 31 December
2013. The Commission has argued that the Council lacked competence to take such
a decision and that the circumstances put forward by the Council as the grounds
for its decisions are self evidently not exceptional circumstances of such a
nature as to justify the decisions taken and make no allowance for the
Commission's decision on these schemes. 391.
Since the introduction of the possibility for Member
States to approve EUR 15 000 in limited amounts of aid to primary
producers under the Temporary Framework, 14 Member States submitted schemes
which were approved by the Commission for a total aid volume of EUR 1 210 million.
The Italian scheme was prolonged until end 2011 and France, Germany, Hungary
and the Netherlands notified prolongations of their respective schemes until
the same date (apart from France until end of March 2011). In addition,
Romania notified such a new scheme. III – The
European Competition Network and cooperation with National Courts 392.
In 2010, the European Competition Network (ECN),
the network for cooperation between National Competition Authorities (NCAs) of Member
States and the Commission for the enforcement of EU antitrust rules, continued
to be a very active forum for discussion and exchange of good practices. As in
previous years, the network functioned efficiently under the mechanisms laid
down in Regulation 1/2003[363],
with a view to ensure the efficient and consistent enforcement of Articles 101
and 102 TFEU. 1. Cooperation
on policy issues 393.
The ECN provides a platform for EU competition
authorities to constructively coordinate enforcement action, ensure consistency
and discuss policy issues of common interest. During 2010, the ECN met in the
following fora: –
The new Director-General of DG Competition met
the Heads of NCAs in the ECN context for the first time on the occasion of an ad
hoc Meeting on 1 June 2010. The regular annual meeting at Director-General
level took place on 16-17 November 2010. –
Two ECN Plenary meetings served as an important
tool for debates about general issues of common interest and exchange of
experiences and know-how. –
Various working groups dealt with
non-sector-specific issues. The long-standing Working Group on Cooperation
Issues and Due Process pursued its work on enhancing cooperation within the
ECN. The Cartels Working Group, following on from the earlier Leniency Group,
met three times during 2010 to discuss questions of practice and policy within
its remit. The Working Groups on horizontal agreements and on vertical
restraints were particularly active this year by reviewing national case
experiences and providing input to the Commission in the context of the review
of the vertical and horizontal Block Exemption Regulation and accompanying
Guidelines. These groups suspended their discussions with the adoption of the
relevant block exemptions and guidelines (see Section I.B.1.1., points 30 to
44). Finally, the Merger Working Group met three times in 2010 and discussed the
review at national level of mergers with potential cross-border effects and the
assessment of merger remedies. –
The ECN also gathered several sector-specific
Working Groups, relating to the energy, environment, financial services, food,
pharmaceuticals, telecommunications and transport sectors. 1.1. The
ECN Brief 394.
In 2010, the ECN launched the ECN Brief, a
publication by NCAs and the Commission, for the attention of the legal and
business communities as well as of consumer organisations and academics. The
ECN Brief provides news on the activities of both NCAs and the Commission in
the area of competition law enforcement and advocacy. It includes information
on cases based on Articles 101 and 102 TFEU, on legislation and policy
developments as well as on events and key actors of competition policy in
Europe. It aims at increasing public awareness of the activities conducted by
the ECN. 395.
In 2010, the ECN Brief was published five times
(January, March, June, October and December). In addition to the regular ECN
Brief, a "Special Issue" was published on 16 December 2010
compiling contributions on common activities of the ECN as well as presentation
pages of each National Competition Authority[364]. 1.2. Cooperation
in individual cases 396.
Cooperation between the ECN members in
individual cases is organised around two obligations on the NCAs under
Regulation 1/2003, namely to inform the Commission when new cases are opened
(Article 11(3)) and before the final enforcement decision is taken (Article
11(4)). Informing the Commission and the Network about new cases facilitates
swift reallocation of cases if necessary and promotes enhanced and effective
enforcement. The second requirement contributes to the consistent application
of EU law. 1.2.1. Case
allocation 397.
The Commission was informed under Article 11(3) of
Regulation 1/2003 of 158 new case investigations launched by NCAs in 2010.
Amongst the new cases, 47% concerned the application of Article 101 TFEU, 42%
concerned the application of Article 102 TFEU and the remainder concerned the
application of both. The figure for Article 101 cases includes notably the
enforcement action of the NCAs in the area of cartels. Large numbers of cases
could be observed inter alia in the transport, energy, manufacturing, media
and telecom sectors. 398.
With regard to work-sharing within the Network,
the flexible and pragmatic approach introduced by Regulation 1/2003 and by the
Network Notice[365]
continued to function well in practice. Work-sharing may occur when a complainant
or a leniency applicant chooses to contact both the Commission and one or more NCAs.
In 2010, there were once more very few instances where discussions on
allocation of cases took place, and even fewer occasions where a case changed
hands after initial allocation. A small number of complaints were re-allocated
from the Commission to NCAs that were willing to follow up the matters raised. Collaboration
on cases also took place through assistance by NCAs in respective national
investigations under Article 22 of Regulation 1/2003, underscoring the ability
of NCAs to deal with investigations involving cross-border aspects. 1.2.2. Coherent
application of the rules 399.
In 2010, there was a significant increase in the
number of enforcement decisions reported by NCAs in the field of the
application of Articles 101 and 102 TFEU. The Commission services reviewed a
record 94 envisaged decisions under Article 11(4) of Regulation 1/2003, as well
as advised on a number of informal requests and queries from NCAs. The number
of envisaged decisions went up by 36% compared with 2009. The envisaged
decisions submitted to the Commission related to a broad range of infringements
in different sectors of the economy. 400.
As in previous years since the implementation of
Regulation 1/2003, the Commission did not initiate in 2010 any proceedings with
the view to ensuring coherency in decision-making, as foreseen by Article 11(6)
of Regulation 1/2003. 2. Application
of EU Competition rules by National Courts in the EU 2.1. Assistance
in the form of providing information or in the form of issuing an opinion 401.
Article 15(1) of Regulation 1/2003 allows
national judges to ask the Commission for information in its possession or for
an opinion on questions concerning the application of the EU competition rules.
In 2010, the Commission responded to two requests from national courts (Spain
and Belgium). 402.
On 17 December 2009, the Commission
submitted an opinion upon request by a Belgian court. The Tribunal de Commerce
de Bruxelles/Rechtbank van koophandel Brussel asked the Commission a number of
questions concerning inter alia the definition of the relevant market,
the assessment of a dominant position and a possible abuse of dominant
position. The questions were raised in the context of the assessment of a
vertical distribution agreement and unilateral practices related to sales of
smart mobile phones. As for the assessment of the relevant market, the
Commission underlined that there is a need to assess whether products exist
which are interchangeable or substitutable with the product assessed in the
case. As for the assessment of a dominant position in the
market, the Commission referred to the case-law of the EU courts. In this
opinion, the Commission addressed elements which are relevant for the assessment
of an abusive practice in a form of "refusal to supply". Finally, as
for an abuse of dominance in a form of discrimination, the Commission suggested
that in this case the court should examine whether different treatment by a
dominant undertaking of certain partners distorts competition in the retail
market and harms consumers. 403.
The Commission also replied on 29 March
2010 to a request for an opinion by the Juzgado de lo Mercantil nº4 of Madrid
in the context of litigation following the acquisition of Dalphi Metal España's
(DME) car airbag and steering wheel business by TRW Automotive (TRW), a US
automotive component manufacturer. The questions raised were the same as those
raised in the framework of litigation in 2009 before the Juzgado de lo Mercantil
nº1 de Madrid and which were already responded to, as summarised in paragraphs
504 and 505 of the Annual Competition Report 2009. The Commission received
confirmation that the Juzgado nº4 obtained the Opinion issued on that occasion
from the Juzgado nº1, and that it accordingly closed the matter. 2.2. Amicus
curiae interventions under Article 15(3) of Regulation 1/2003 404.
Article 15(3) of Regulation 1/2003 provides that
where the coherent application of Articles 101 or 102 TFEU so requires, the
Commission, on its own initiative, may submit written observations to courts of
the Member States, and may also make oral observations with the permission of
the court in question. In 2010, the Commission submitted such written
observations in three cases: before the High Court of Ireland, before the Supreme Court of the Slovak Republic and
before the Dutch Supreme Court. 405.
In its written observations lodged before the
High Court of Ireland[366]
on 30 March 2010, the Commission discussed the conditions of Article
101(3) TFEU with a particular focus on capacity-reducing restructuring
agreements relying on both the jurisprudence of the EU Courts and the
principles underlying the Commission's 2004 Guidelines on the application of
Article 101(3) TFEU[367].
In January 2011, the Beef Industry Development Society (BIDS) withdrew its
claims that the agreement by its members that some would leave the beef
processing industry in return for payment could be justified on efficiency
grounds under Article 101(3) TFEU. 406.
The Commission submitted written observations
before the Slovak Supreme Court relating to the application of the concepts of
economic continuity of undertakings and the effectiveness of fines. The case
involved the review of a judgment by the Regional Court of Bratislava annulling
a decision by the Slovak NCA. 407.
The Commission observed that economic continuity
is a concept of EU competition law which should be applied in a consistent manner throughout the EU. The application of
economic continuity must guarantee that a successor company can be held liable
for the behaviour of its predecessor. The aim is to
avoid the effectiveness of EU competition rules being compromised by changes in the legal structure of undertakings. Its application
must guarantee that the successor company can be held fully liable for the
conduct of its predecessor and, thus, bear all the consequences resulting from
such liability, including the fines. Moreover, the fact that the successor has
to bear a fine for the infringement committed by the predecessor is not a
factor that can be regarded as a mitigating circumstance per se.
Therefore, any reduction of the fine imposed on the successor company solely on
the ground that the infringement was committed by its predecessor can be
contrary to the concept of economic continuity under EU law. The Commission
furthermore stressed that the aim of the fine consists of both punishment and
prevention and that these two functions cannot be separated. The effectiveness
of a fine imposed for breach of the competition rules would be reduced if this
dual function is disconnected by focusing only on the punitive function
(specific deterrence) of the fine. 408.
The Slovak Supreme Court rendered its judgment on 26 October 2010 annulling the
decision of the Regional Court and confirming the decision of the Slovak NCA which
held that the economic successor was to be held liable. In its judgment the
Supreme Court largely took over the arguments presented by the Commission. 409.
In a case concerning the
tax deductibility of Commission competition fines, the
Commission also decided to follow up its first written observations in 2007
before the Amsterdam Court of Appeals with new written observations before the
Dutch Supreme Court. The Dutch Supreme Court is dealing in last instance with
the appeal against the judgment of the Amsterdam Court of Appeals which had
decided that the Commission's fines are not deductable from taxes, in line with
the essence of the Commission's first written observations. Other matters before national courts 410.
In one case, the Commission appeared as a
defendant in proceedings where an undertaking seeks declaratory relief from the
High Court of England and Wales that it is not liable for an infringement as
the economic successor of the undertaking that originally participated in the
infringement[368].
The proceedings have been brought as a reaction to requests for information to
the undertaking for the purpose of investigating its possible liability as an
economic successor of an addressee of the Commission's decision in the Fittings
case[369],
it apparently being the intention of the applicant undertaking to pre-empt the
outcome of the Commission's investigation by seeking a ruling from the Court of
Justice on the issue of whether it can be liable as an economic successor,
before the outcome of the Commission's investigation. Although it is clear that
a ruling by a national court cannot bind the Commission in taking a decision
applying the competition rules, the Commission has appeared in the case in
order to assist the national court in relation to the jurisdictional questions
raised by the proceedings. 2.3. Financing the training of national judges in EU competition
law 411.
Continuous availability of training programmes
for national judges in EU competition law contributes to the effective and
coherent application of those rules. In 2010, 14 grant agreements were
concluded for training of judges' programmes in various Member States. IV –
International activities 1. Multilateral
cooperation 1.1. International
Competition Network (ICN) 412.
The Commission continued to play a leading role
in the ICN. More specifically, DG Competition is a member of the Steering
Group, the co-chair of the Cartels Working Group and an active member of the
other Working Groups on unilateral conduct, merger, agency effectiveness and
advocacy. The 2010 ICN Annual Conference took place in Istanbul (Turkey) from
26 to 29 April 2010. DG Competition has also been closely involved in the
ICN Steering Group's so-called "Second Decade Project" reflecting on
the ICN's future and making sure that it can remain as successful as it has
been over the past ten years. 413.
The Cartels Working Group continued its work on
the Anti-Cartel Enforcement Manual, in particular on digital evidence gathering
and case initiation. The 2010 ICN Cartels workshop was held in Yokohama (Japan)
from 5 to 7 October 2010. 414.
The Unilateral Conduct Working Group presented a
report on refusal to deal at the conference. It also started preparations for a
work book on unilateral conduct (abuse of dominance) issues and organised
webinars on remedies and the pharmaceutical sector. On 2-3 December 2010, DG
Competition hosted the ICN "Workshop on Unilateral Conduct" in
Brussels. 162 participants from 50 different countries participated, most of
them senior case handlers and policy officers responsible for conducting
investigations and developing policy. 415.
The Merger Working Group presented Recommended
Practices on market definition and failing firms at the ICN Annual Conference.
The Agency Effectiveness Working Group continued its work on the Competition
Agency Practice Manual and organized a workshop for heads of agencies in London
on 12-13 July 2010 where issues of organisational culture, people and
knowledge management, and leadership and succession were discussed in more depth.
The Advocacy Working Group for its part continued its work on the Competition
Advocacy Toolkit. 1.2. OECD 416.
The Commission contributed actively to the work
of the OECD Competition Committee and participated in each of the three
sessions held in 2010. It submitted contributions to most roundtables on
competition policy, including on procedural fairness, standard setting, credit
rating agencies, exit strategies, exchange of information between competitors,
emission trading schemes, horizontal agreements in the environmental sector,
green growth and competition and sports[370].
The Vice-President for Competition made a speech on state aid issues during the
February 2010 session of the OECD Global Forum on Competition[371]. 1.3. UNCTAD 417.
The Commission participated to the Sixth Review
Conference of the United Nations Conference on Trade and Development. It
submitted contributions to most roundtable discussions, such as on the role of
competition policy in promoting economic development and on the sanctions and
remedies available under EU competition law. 2. Bilateral
cooperation 418.
The Commission cooperates with numerous
competition authorities on a bilateral basis, in particular with the
authorities of the EU major trading partners. The EU has already entered into
dedicated cooperation agreements in competition matters with the United States,
Canada, Japan and South Korea. 2.1. Agreements
with the USA, Canada, Japan, South Korea and Switzerland 419.
As in previous years, cooperation with the US
was intensive. Based on two dedicated competition cooperation agreements[372], contacts between DG
Competition and the Antitrust Division of the US Department of Justice (DoJ)
and the US Federal Trade Commission (FTC) were frequent. These contacts ranged
from cooperation in individual cases to more general matters related to
competition policy. The Vice-President for Competition met his US counterparts,
Chairman Jon Leibowitz of the FTC and Christine Varney, the Assistant Attorney
General, at several occasions. The annual bilateral
EU/US meeting in which the heads of the three agencies participated took place
on 12 July 2010 in Washington. Numerous other meetings and exchanges took
place to coordinate enforcement activities on investigations into cartels,
abuse of dominance cases, merger cases or on the application of the competition
rules in particular sectors, such as pharmaceuticals. 420.
In case-related contacts, case teams regularly
updated each other on the state of investigations within the limits of the
above-mentioned agreements. A number of important merger cases investigated in
2010 affected both the EU and US markets. Such investigations required good
coordination with the DoJ and the FTC, such as in the Cisco / Tandberg case[373] where the Commission cooperated
closely with the DoJ in finding a suitable remedy (see Section II.C.2.2.2.,
point 259) and the Novartis / Alcon case[374]
where the Commission cooperated closely with the FTC (see Section II.D.2.1.2.,
point 292). The 2002 EU-US Best Practices on cooperation in reviewing mergers
proved to be a useful framework for cooperation on these cases. The Commission
also collaborated closely with the US Department of Transportation in
identifying suitable remedies in the Oneworld case[375] (see Section II.E.2.1.1.,
points 309 to 312). 421.
Cooperation with the Canadian Competition Bureau
(CCB) is based on the EU/Canada Competition Cooperation Agreement which was
signed in 1999[376].
Contacts between the Commission and the Bureau have been frequent and fruitful.
Case-related contact concerned mainly cartels, including the coordination of
investigative measures and merger, including the discussion of possible
remedies. 422.
Cooperation with the Japan Fair Trade Commission
(JFTC) is based on the 2003 Cooperation Agreement[377]. In addition to contacts on
individual cases, the Commission and the JFTC continued their ongoing dialogue
on general competition issues of common concern. 423.
Cooperation with the Korea Fair Trade Commission
(KFTC) is based on the bilateral Cooperation Agreement which entered into force
on 1 July 2009[378].
The agreement contains provisions on enforcement cooperation, notification,
consultation and exchange of non-confidential information. The 7th
EU-Korea bilateral meeting on competition policy, to which the Director-General
of DG Competition participated, took place on 14 September 2010. 424.
In December 2010, the Council gave a mandate to
the Commission to negotiate an agreement on cooperation in competition matters
with the Swiss Confederation. This agreement should be based on the agreements
concluded so far with the United States, Canada, Japan and Korea. It is also
intended that this agreement would include provisions on the exchange of
confidential information (so called "second generation" agreement). 2.2. Cooperation
with other countries and regions 425.
Early 2010, the EU concluded negotiations for
Free Trade Agreements (FTAs) with the Andean Countries (Colombia and Peru) as
well as with Central America. In both cases, the FTAs contain a competition
chapter which includes a commitment to establish or maintain comprehensive
competition legislation and effective authority as well as provisions on State
enterprises and enterprises with special rights. In addition, both FTAs include
provisions on subsidies in the transparency chapter: notification rules for
subsidies to goods in line with existing WTO obligations and, for the first
time, a provision allowing for information to be exchanged upon request on
subsidies to services. 426.
Cooperation with China
remained a priority in 2010 with several contacts between DG Competition and
the Chinese administration. In addition to discussions concerning the
anti-monopoly law and the implementing legislation which is being elaborated,
issues relating to concrete cases were discussed during high-level visits in
Beijing and Brussels respectively. The Commission approved a follow-up
programme to the EU-China Trade Programme (EU-China Trade Project 2004-2009).
The new EUCTP II programme (2010-2015) will provide the necessary funding for
the continuation of cooperation activities between DG Competition and the
Chinese competition authorities in the years ahead. DG Competition is
furthermore actively negotiating a competition chapter to be part of the 1985
upgrade agreement/Partnership and Cooperation Agreement. 427.
After India's appointment of seven Commissioners
for the Competition Commission of India (CCI) and the notification of the
operative parts of the 2002 Competition Act in 2009, close technical
cooperation between DG Competition and the CCI continued in 2010. To assist the
CCI when it will start enforcing the Competition Act in the fields of restrictive
agreements, abuse of dominance and merger control, DG Competition organised a
five-day course in cartel enforcement in Brussels in May-June 2010 and a
four-day workshop for CCI staff in New Delhi in July 2010. 428.
DG Competition played an active role in the
ongoing negotiations on Free Trade Agreements (FTA) and other bilateral
agreements with a large number of individual third countries or third country
groupings, such as India, Ukraine, Singapore, Malaysia, Mercosur, Canada and
five groupings of former ACP countries (four in Africa and one in the Pacific).
DG Competition's main objective in these negotiations is to ensure that
anti-competitive practices (including State aid) do not erode the trade and
other economic benefits sought through those agreements. The Foreign Affairs
Council authorised on 16 September 2010 the signature of the EU-Korea Free
Trade Agreement which is a key step towards its provisional application by 1 July
2011. It is the first time that an FTA contains a prohibition on certain types
of subsidies. 3. Enlargement
and Neighbourhood Policy 429.
In the context of enlargement, candidate
countries must fulfil a number of requirements in the field of competition
policy as a condition for joining the EU. Candidate countries must adopt
national legislation compatible with the EU acquis. They must also put
in place the necessary administrative capacity and demonstrate a credible
enforcement record. The Commission provides technical assistance and support to
help the candidate countries fulfil these requirements in the field of
competition policy and enforcement and is continuously monitoring the extent to
which the candidate countries are prepared for accession. 430.
During 2010, significant progress was made by both
Croatia and Turkey. In June 2010, the Council decided to open the accession
negotiations on the competition chapter with Croatia after it concluded that
this candidate country fulfilled all the opening benchmarks. The Turkish Parliament
adopted a State aid law in October 2010, which is one of the key opening
benchmarks of the competition chapter. Further progress on the other opening
benchmarks (all related to State aid control) is needed before the Commission
would be able to recommend the opening of the competition chapter with Turkey. 431.
In November 2010, the Commission submitted to
the Council its opinions on Albania's and Montenegro's respective capabilities
to assume the responsibilities of EU membership. For competition policy, the
Commission's opinions for both countries were cautiously positive, noting that
all legal and administrative structures were in place but concluding that
Albania as well as Montenegro would have to undertake additional efforts in the
medium term to align further with the EU acquis. After the Council
decided to refer Serbia's application for EU membership to the Council in
October 2010, the Commission started preparing its opinion by sending a
questionnaire to the Serbian government, including a comprehensive set of
questions on Serbian competition policy. In addition, the Commission assisted other
Western Balkan countries in further aligning their competition rules with EU
law. This included, among others, help in reviewing draft laws on competition
and State aid and advice on setting up the necessary institutions to enforce
these rules. The Commission continued the preliminary discussions on Iceland's
EU membership prospects and completed the screening exercise on the competition
chapter in December 2010. 432.
In the framework of the European Neighbourhood
Policy (ENP), the Commission monitored the implementation of the
competition-related priorities in the bilateral action plans agreed between the
EU and ENP countries, which set out an agenda of political and economic reforms
in the short- and medium-term. It also organised a certain number of seminars
financed by the Technical Assistance and Information Exchange programme on
competition-related issues for these countries. V – Dialogue
with Consumer organisations and other stakeholders 1. Dialogue
with consumer organisations 433.
The DG Competition's Consumer Liaison Unit's
goals are to improve dialogue with consumers and consumer organisations, to
consult them on policy initiatives, to reflect consumer interests more clearly
in case handling, to help consumers better understand EU competition policy and
its outcomes and to become a point of contact with the Commission for consumers
regarding competition issues. Consumers and their representatives are indeed
able to bring helpful information to the Commission about potential market
failure. 1.1 The
European Consumer Consultative Group (ECCG) 434.
The ECCG[379]
competition subgroup consists of one representative per Member States' national
consumer organisations and one representative from BEUC, the European consumer
association. It constitutes a discussion forum of competition policy issues
from the consumer viewpoint and meets biannually in Brussels. 435.
In 2010, the ECCG competition subgroup proved to
be a very useful tool for the Commission in its effort to inform consumers, to
receive valuable feedback from them on cases and legislative projects and to
establish contacts with the consumers throughout the EU in order to facilitate
a more effective enforcement of competition policy. This year the ECCG subgroup
of competition addressed important issues such as vertical restrains and
remedies. On the basis of a questionnaire prepared by DG Competition, the
Subgroup also adopted a formal opinion[380],
endorsed by the plenary ECCG, on private enforcement in the EU, describing the
legal situation in each Member State and the existing obstacles to a genuine
mechanism of collective damages action for breach of antitrust rules. 1.2. Training
of European consumers' representatives – the TRACE programme 436.
At DG Competition's initiative, a three-day
course on competition policy took place between the 18 and 20 October 2010
in the framework of the "Training for Consumer Empowerment"
initiative[381].
The course, designed by DG Competition, provided an opportunity to present
Commission decisions and policy actions in the field of competition from a
consumer point of view, to promote competition culture amongst consumer
organisations and to establish links between DG Competition and consumer
organisations. The course covered a broad area of topics on competition policy
including the explanation of its different branches, the consumer orientation
of competition policy, the decision making and the complaint procedure,
vertical restraints, private damages actions and sector inquiries. 21
participants from 18 countries took part in the training course, the majority
of which with experience of competition policy issues, in particular with handling
or preparing consumer complaints. 1.3. Interactive
consumer corner on Competition website and point of contact with consumers 437.
A special consumer corner on DG Competition website
has been further developed, available in every official language since mid-2010[382]. The website intends to
present in a simple language the role of competition policy and the main
competition cases. 2. Dialogue
with stakeholders 438.
In 2010, DG Competition conducted a
comprehensive stakeholder survey on perceptions about competition policy and
the perceived quality of actions by DG Competition[383]. The survey was carried out
in two parts by two independent market research organisations among
professional stakeholders and citizens in all EU Member States. 439.
According to the results of the quantitative
survey[384]
EU citizens largely shared the objectives and values of competition policy.
From DG Competition's present priority sectors, citizens identified energy with
44%, the pharmaceutical products with 25% and telecommunication with 21% as
those main sectors where they perceive competition problems. The major indication
for the lack of competition was that prices were felt to be too high. The
survey revealed interesting differences across the Member States in the level
of existing knowledge and general interest towards competition policy and
across socio-economic groups. This information as well as feedback from
citizens about what competition policy topics they prefer to be further
informed, will allow DG Competition together with the EU Member States'
national competition authorities a better targeted communication policy. 440.
In the qualitative study among professional
stakeholders[385],
feedback was asked on the perceived quality of DG Competition's actions in the
following fields: (i) the soundness of the legal and economic analysis, (ii)
the integrity and transparency in interrelations with stakeholders, (iii) the
economic effectiveness and (iv) external communication. The qualitative study
highlighted significant praise for the effectiveness of DG Competition's work
and the integrity of its staff. The study also provided constructive criticism
together with suggestions for improvement[386].
DG Competition will use the results of this survey as an input into its
antitrust best practices discussions, as well as a basis for internal
discussions and for follow-up consultations with stakeholders on improving
cooperation. VI –
Inter-institutional cooperation 441.
Following the European Parliament elections in
2009, and the start of the new Commission mandate in 2010, the new Framework
Agreement between the Commission and the European Parliament was adopted in
October 2010. The other inter-institutional agreements remained unchanged[387]. 442.
Following the hearings of the Commissioners
elect in January 2010, Vice-President Almunia took up his duties as
Commissioner for Competition in February. 1. Cooperation
with the European Parliament 443.
In 2010, the Parliament adopted Resolutions on
the Report on Competition Policy 2008, on the Motor Vehicle Block Exemption
Regulation, on Horizontal Agreements, and on the Council decision for State aid
for the closure of uncompetitive coal mines[388].
There was also a Plenary debate on the Commission's fining policy in October. 444.
The Parliament adopted its Resolution on the
Report on Competition Policy 2009 in January 2011. This marks the first year of
the new timing for adoption of both the Commission's Report (in June) and the
Parliament's Resolution (the following January). This new timing should
facilitate inter-institutional discussion, by giving the Commission time to
reflect on the Parliament's report of the previous year when drafting the next
Annual Competition Report. 445.
In addition to the regular dialogue between the
Commissioner and the Economic and Monetary Affairs Committee (ECON) in June and
November 2010, Vice-President Almunia took part in ECON Open coordinators
meetings on vertical agreements (March), on horizontal agreements and on
Inability to pay (July). The Vice-President also announced the prolongation of
the temporary State aid rules adopted in response to the financial and economic
crisis to Members of the ECON committee at a Hearing on that subject in
October. 446.
Vice President Almunia attended the Financial,
Economic and Social Crisis Committee Open Coordinators meeting in April 2010
where he clarified the role of DG Competition in tackling the crisis. He spoke
to the Public Services Intergroup on SGEI in June. 447.
At the beginning of 2010, the Director-General
of DG Competition, and senior officials, participated in a cartels workshop in
the Parliament (11 January). Senior DG Competition officials also participated
in debates and seminars organised in Parliament on subjects including Services
of General Economic Interest (SGEI), temporary State aid adopted in response to
the crisis, cartels and collective redress. DG Competition also participated in
meetings of other Parliamentary committees: the Petitions committee, Internal
Market and Consumer Affairs, Industry, Transport, Regional Policy and Legal
Affairs. Informal bilateral meetings were held with a number of Members of the European
Parliament (MEPs) on a range of subjects throughout the year, including on
damages actions, motor vehicle BER, financial crisis, SGEI, exit strategy,
vertical and horizontal agreements. 448.
The Commission also cooperated closely with both
the European Ombudsman and MEPs by replying to Parliamentary Questions and
Petitions. In 2010, the Commission responded to 552 written questions, 50 oral
questions and 40 petitions involving matters of competition policy. Of these
the Commissioner in charge of Competition directly responded to 200 written
questions, 20 oral questions and 11 petitions, as chef de file. 2. Cooperation
with the Council 449.
The Commission cooperated closely with the Council
by informing it of important policy initiatives in the field of
competition, in particular on the temporary State aid measures in the context
of the financial and economic crisis. The Commission also made contributions regarding
competition policy in respect of conclusions adopted in the ECOFIN and European
Councils (exit strategies for the financial sector) and the Competitiveness
Council (innovation, industrial policy). 450.
An important file in 2010 was the Council decision
on State aid for the closure of uncompetitive coal mines. The Commission made a
proposal on 20 July 2010. On 8 December 2010, the Commission
discussed the state of play in light of the extensive debate in both Parliament
and Council, and gave Vice-President Almunia a mandate to present a revised
position to the Council with a view to reaching an agreement. The Council
adopted its decision on 10 December 2010. 3. Cooperation
with the European Economic and Social Committee 451.
The Commission informed the European Economic
and Social Committee (EESC) about major policy initiatives, and
participated in study group and section meetings. The EESC adopted an opinion
on the Report on Competition Policy 2008[389]
in July 2010 and contributed to the debates on State aid to coal, and the Motor
Vehicle Block Exemption Regulation by adopting opinions on these matters. [1] Communication on the application of State aid rules
to measures taken in relation to financial institutions in the context of the
current global financial crisis (OJ C 270, 25.10.2008, p. 8)
("Banking Communication"), Communication on the recapitalisation of
financial institutions in the current financial crisis: limitation of aid to
the minimum necessary and safeguards against undue distortions of competition
(OJ C 10, 15.1.2009, p. 2) ("Recapitalisation
Communication"); Communication from the Commission on the treatment of
impaired assets in the Community banking sector (OJ C 72, 26.3.2009, p. 1)
("Impaired Assets Communication"); Communication on the return to
viability and the assessment of restructuring measures in the financial sector
in the current crisis under the State aid rule (OJ C 195, 19.8.2009, p. 9)
("Restructuring Communication") [2] The application of state aid
rules to government guarantee schemes covering bank debt to be issued after 30 June
2010, DG Competition Staff Working Document, 20.4.2010 [3] Austria, Denmark, Germany, Greece, Ireland, Latvia,
the Netherlands, Poland, Portugal, Slovenia, Spain and Sweden. In addition,
Lithuania's guarantee scheme, which was approved after 1 July 2010, was subject
to the revised conditions. [4] Cyprus, Finland, France, Hungary, Italy, Slovakia and
the United Kingdom [5] Austria, Greece, Hungary, Lithuania, Poland and
Portugal; the schemes adopted in Denmark, Germany, France, Finland, Italy,
Slovakia, Spain, Sweden and the United Kingdom expired. [6] Member States that did not grant aid to financial
institutions are: Bulgaria, the Czech Republic, Estonia, Malta and Romania. [7] State aid scoreboard – Autumn 2010 Update
(COM(2010)701) [8] Temporary framework for State aid measures to support
access to finance in the current financial and economic crisis (consolidated
version) (OJ C 83, 7.4.2009, p. 1) [9] Temporary Union framework for State aid measures to
support access to finance in the current financial and economic crisis
(OJ C 6, 11.1.2011, p. 5) [10] Europe 2020: A strategy for smart, sustainable and
inclusive growth (COM(2010)2020 final) [11] The application of State aid
rules to government guarantee schemes covering bank debt to be issued after 30 June
2010, DG Competition Staff Working Document, 20.4.2010 [12] Communication on the application, after 1 January
2011, of State aid rules to support measures in favour of banks in the context
of the financial crisis (OJ C 329, 7.12.2010, p. 7) [13] The Economic Adjustment Programme for Greece, European
Economy, Occasional Papers 61, May 2010 [14] Case N260/2010 Third prolongation of Greek bank
support scheme (OJ C 238, 3.9.2010, p. 3) [15] Case N328/2010 Recapitalisation of credit
institutions in Greece under the Financial Stability Fund (FSF) (OJ C 316,
20.11.2010, p. 7) [16] MEMO/10/624 [17] 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) [18] Commission notice – Guidelines on Vertical Restraints (OJ C 130,
19.5.2010, p. 1-46) [19] Council Regulation (EC) No 1215/1999 of 10 June
1999 amending Regulation No 19/65/EEC on the application of Article 81(3) of
the Treaty to certain categories of agreements and concerted practices (OJ L 148,
15.6.1999, p. 1-4) [20] Commission Regulation (EU) 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) and Commission Regulation (EU) 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) [21] Guidelines on the applicability of Article 101 of the
Treaty on the Functioning of the European Union to horizontal cooperation
agreements (OJ C 11, 14.1.2011, p. 1) (Horizontal Guidelines) [22] An Integrated Industrial Policy for the Globalisation
Era: Putting Competitiveness and Sustainability at Centre State (COM(2010) 614) [23] Commission Regulation (EU) No 267/2010 of 24 March
2010 on the application of Article 101(3) of the Treaty to certain categories
of agreements, decisions and concerted practices in the insurance sector (OJ L 83,
30.3.2010, p. 1) [24] Commission Regulation (EU) No 461/2010 of 27 May
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) [25] Commission notice – Supplementary guidelines on
vertical restraints in agreements for the sale and repair of motor vehicles and
for the distribution of spare parts for motor vehicles (OJ C 138,
28.5.2010, p. 16-27) [26] White Paper on Damages actions for breach of the EC
antitrust rules (COM(2008) 165 final) [27] SEC(2010)1192 [28] Commission Work Programme 2011 (COM(2010) 623 final):
Annex I, strategic initiative 25 [29] Available at: http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf
[30] Available at: http://ec.europa.eu/competition/antitrust/actionsdamages/economist_workshop.html
[31] Commission Work Programme 2011 (COM(2010) 623 final):
Annex II, initiatives under consideration [32] Cases COMP/38511 DRAMs, COMP/39092 Bathroom
fittings & fixtures, COMP/38344 Pre-stressing steel, COMP/38866 Animal
Feed Phosphates, COMP/36212 Carbonless paper (re-adoption for
Bolloré), COMP/39258 Airfreight and COMP/39309 LCD [33] Guidelines on the method of setting fines imposed
pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210,
1.9.2006, p. 2-5) [34] Case COMP/39258 Airfreight. See IP/10/1487,
9.11.2010. [35] Commission Notice on immunity from fines and reduction
of fines in cartel cases (OJ C 298, 8.12.2006, p. 17-22) [36] Case COMP/38589 Heat stabilisers (OJ C 307,
12.11.2010, p. 9-12) [37] Case C-550/07 P Akzo Nobel Chemicals Ltd and Akcros
Chemicals Ltd v European Commission [2010] ECR [38] Case COMP/38511 DRAMs. See IP/10/586 and
MEMO/10/201, 19.5.2010. [39] Case COMP/38866 Animal Feed Phosphates. See
IP/10/985, 20.7.2010. [40] Case COMP/39092 Bathroom fittings & fixtures.
See IP/10/790, 23.6.2010. [41] Case COMP/39596 BA/AA/IB. See IP/10/936 and
MEMO/10/330, 14.7.2010. [42] Case COMP/39398 Visa MIF. See IP/10/1684,
8.12.2010. [43] In those where the domestic MIF rates apply in the
absence of other MIFs or are set directly by Visa Europe. [44] Case COMP/34579 MasterCard. See IP/09/515, 1.4.2009. [45] Case COMP/39510 ONP. See IP/10/1683, 8.12.2010. [46] 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, p. 1-25) [47] See IP/10/1175, 25.9.2010. [48] Cases COMP/39511 IBM Corporation, COMP/39790 TurboHercules/IBM
and COMP/39692 IBM Maintenance Services. See IP/10/1006, 26.7.2010. [49] Cases COMP/39740 Foundem/Google, COMP/39775 Ejustice/Google
and COMP/39768 Ciao/Google. See IP/10/1624, 30.11.2010. [50] Case T-155/06 Tomra Systems and Others v
European Commission [2010] ECR [51] Case C-280/08 P Deutsche Telekom AG v
Commission of the European Communities [2010] ECR [52] Case T-271/03 Deutsche Telekom v Commission [2008]
ECR II-477 [53] Cases T-11/05, T-18/05, T-19/05, T-20/05, T-21/05 and
T-25/05 Wieland-Werke AG and Others, IMI plc and Others, Boliden
AB and Others, Outokumpu Oyj and Others, Chalkor AE, KME
Germany AG and Others v Commission [54] Case COMP/38069 PO/Copper plumbing tubes
(OJ L 192, 13.7.2006, p. 21-29) [55] Case C-550/07 P Akzo Nobel Chemicals Ltd and Akcros
Chemicals Ltd v European Commission [2010] ECR [56] Case 155/79 AM&S Europe v Commission [1982]
ECR 1575 [57] Case
T-321/05 AstraZeneca AB, AstraZeneca plc v European Commission [2010]
ECR [58] Case
T-427/08 Confédération européenne des associations d’horlogers-réparateurs
(CEAHR) v European Commission [2010] ECR [59] C-441/07
P European Commission v Alrosa Company Ltd [2010] ECR [60] Case
COMP/M.5529 Oracle / Sun Microsystems (OJ C 91, 9.4.2010,
p. 7) [61] Case
COMP/M.5675 Syngenta / Monsanto's sunflower seed business. See IP/10/1515, 17.11.2010. [62] Case COMP/M.5658 Unilever / Sara Lee Bodycare.
See IP/10/1514, 17.11.2010. [63] Cases COMP/M.5747 British Airways / Iberia
(OJ C 241, 8.9.2010, p. 2) and COMP/M.5889 United Airlines / Continental
Airlines (OJ C 225, 20.8.2010, p. 2) [64] Case COMP/M.5650 T-Mobile / Orange
(OJ C 108, 28.4.2010, p. 4) [65] Case COMP/M.5727 Microsoft / Yahoo! Search Business.
See IP/10/167, 18.5.2010. [66] Cases COMP/M.5865 Teva / Ratiopharm
(OJ C 7, 12.1.2011, p. 5) and COMP/M.5661
Abbott / Solvay Pharmaceuticals (OJ C 89, 7.4.2010, p. 1) [67] Case T-342/07 Ryanair v Commission
[2010] ECR [68] See also cases T-282/06 Sun Chemical Group and Others
v Commission [2007] ECR II-2149 and T-151/05 NVV and
Others v Commission [2009] ECR II-1219 [69] Guidelines on the assessment of horizontal mergers
under the Council Regulation on the control of concentrations between
undertakings (OJ C 31, 5.2.2004, p. 5-18) [70] 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, p. 1-22) [71] Commission notice on remedies acceptable under Council
Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004
(OJ C 267, 22.10.2008, p. 1-27) [72] Case T-411/07 Aer Lingus v Commission
[2010] ECR [73] Commission Regulation (EC) No 800/2008 of 6 August
2008 declaring certain categories of aid compatible with the common market in
application of Article 87 and 88 of the Treaty (General Block Exemption
Regulation) (OJ L 214, 9.8.2008, p. 3) [74] State aid scoreboard – Autumn 2010 Update (COM(2010)
701) [75] Code of Best Practice for the conduct of State aid
control procedures (OJ C 136, 16.6.2009, p. 13-20) [76] Notice from the Commission on a simplified procedure
for treatment of certain types of State aid (OJ C 136, 16.6.2009,
p. 3-12) [77] Guidelines on national regional aid 2007-2013
(OJ C 54, 4.3.2006, p. 13-44) [78] Statistical effects regions are regions (at NUTS II-level)
which had a GDP per capita of more than 75% of the EU25 average, but less than
75% of the EU15 average at the moment of entry into force of the RAG 2007. [79] Article 107(3)(a) TFEU provides that aid to promote
economic development of areas where the standard of living is abnormally low or
where there is serious underemployment may be considered compatible with the
internal market. The conditions for an area to be eligible for aid under Article
107(3)(a) or Article 107(3)(c) (see footnote below) during the period 2007-2013
are defined in the RAG 2007. [80] Article 107(3)(c) provides that aid to facilitate the
development of certain economic areas may be considered compatible with the
internal market. Only small parts of national territories of Member States may
normally qualify for aid under Article 107(3)(c), and benefit of lower aid
intensities than Article 107(3)(a) regions. [81] Review of the State aid status and the aid ceiling of
the statistical effect regions in the following National regional State aid
maps for the period 1.1.2011- 31.12.2013 (OJ C 222, 17.8.2010,
p. 2-3). [82] Cases N641/2009 Solibro GmbH
(OJ C 269, 5.10.2010, p. 2), N221/2009 Wacker Chemie AG
(OJ C 312, 17.11.2010, p. 5) and N237/2010 Sovello3 [83] Case N285/2009 Silicio Solar (OJ C 311,
16.11.2010, p. 1) [84] Cases N261/2009 Liebherr MCCtec Rostock GmbH and
N27/2010 Fiat Powertrain Technologies in Verrone (OJ C 333,
10.12.2010, p. 2-3) [85] Cases C34/2008 Deutsche Solar AG (OJ L 7,
11.1.2010, p. 40-47), C27/2008 Sovello AG (formerly EverQ) SME bonus
(OJ L 167, 1.7.2010, p. 21-38) and C8/2009 Fri-el Acerra
s.r.l [86] Community guidelines on State aid for environmental protection
(OJ C 82, 1.4.2008, p. 1) [87] Case C33/2010 (ex N700/2009) Aid to non-ferrous
metals producers for CO2 costs of electricity [88] Case C32/2010 (ex N520/2009) Environmental Project
for Delimara Power Station [89] Cases N135/2000 Aid for the Remediation of a
Contaminated Site in Linz (OJ C 312, 17.11.2010, p. 5-6) and
N197/2010 Individual Aid for the Remediation of the Contaminated Site in
Unterkärnten (OJ C 265, 30.9.2010, p. 1) [90] See the Communication on an "Innovation
Union" (COM(2010) 546 final) [91] Community framework for State aid for research and development
and innovation (OJ C 323, 30.12.2006, p. 1-26) [92] Community guidelines on State aid to promote risk
capital investments in small and medium-sized enterprises (OJ C 194,
18.8.2006, p. 2) [93] Joint European Support for Sustainable Investment in
City Areas (JESSICA) is a policy initiative of the Commission developed with
the European Investment Bank and in collaboration with the Council of Europe
Development Bank, with the objective of supporting sustainable urban
development using financial engineering instruments in the context of EU
Cohesion Policy for 2007-2013. [94] Cases C12/2010 Deferral and rescheduling of
liabilities of Ruse Industry (OJ C 187, 10.7.2010, p. 7),
C4/2010 Intervention du FMEA en faveur de Trêves (OJ C 132,
22.5.2010. p. 12), C8/2010 Restructuring aid to Varvaressos,
C13/2010 Alleged aid to ELAN (OJ C 223, 18.8.2010, p. 8)
and C27/2010 Potential aid to United Textiles (OJ C 357,
30.12.2010, p. 18) [95] Case C40/2008 Restructuring aid to PZL Hydral SA (OJ L 298,
16.11.2010, p. 51) [96] Case C40/2007 Privatisation Mittal Steel Roman [97] Case C8/2010 Restructuring aid to Varvaressos [98] Case
C4/2010 Intervention du FMEA en faveur de Trêves (OJ C 132,
22.5.2010. p. 12) [99] Community guidelines on State aid for railway
undertakings (OJ C 184, 22.7.2008, p. 13) [100] Community guidelines on financing of airports and
start-up aid to airlines departing from regional airports (OJ C 312,
9.12.2005, p. 1) [101] Community guidelines on State aid to maritime transport
(OJ C 13, 17.1.2004, p. 3) [102] Regulation (EC) No 1370/2007 of the European Parliament
and the Council of 23 October 2007 on public passenger services by rail
and road repealing Council regulations (EEC) No 1191/69 and No 1107/70
(OJ L 315, 3.12.2007). [103] Community guidelines for the
application of State aid rules in relation to rapid deployment of broadband
networks (OJ C 235, 30.9.2009, p. 7-25) [104] A Digital Agenda for Europe (COM(2010) 245 final/2) [105] Council decision of 10 December 2010 on State aid
to facilitate the closure of uncompetitive coal mines (OJ L 336,
21.12.2010, p. 24-29) [106] Council Regulation (EC) No 1407/2002 of 23 July
2002 on State aid to the coal industry (OJ L 205,
2.8.2002, p. 1-8) [107] Case N592/2009 Aid for German hard coal in 2010
(OJ C 94, 14.4.2010, p. 7) [108] Case N653/2009 Investment aid for hard coal mining
sector [109] Community guidelines for State aid in the agriculture
and forestry sector 2007-2013 (OJ C 319, 27.12.2006, p. 1). [110] In particular, the Commission explained the manner in
which it intends to apply Article 106(2) TFEU within the Community framework
for State aid in the form of public service compensation (OJ C 297,
29.11.2005, p. 4-7) and the Commission decision of 28 November 2005
on the application of Article 86(2) EC to State aid in the form of public
service compensation granted to certain undertakings entrusted with the
operation of services of general economic interest (OJ L 312,
29.11.2005, p. 67-73). [111] Cases E2/2005 and N642/2009 Existing and special
project aid to housing corporations (Dutch Social housing) (OJ C 31, 9.2. 2010, p. 6) [112] Cases T-201/10 IVBN v Commission
(OJ C 179, 3.7.2010, p. 49), T-202/10 Stichting Woonlinie and
others v Commission (OJ C 179, 3.7.2010, p. 50),
T-203/10 Stichting Woonpunt and Others v Commission
(OJ C 179, 3.7.2010, p. 51) and T-206/10 Vesteda v
Commission (OJ C 179, 3.7.2010, p. 53). A further case, T-151/10
BNG v Commission (OJ C 148, 5.6.2010, p. 43), has
been withdrawn from the register of the General Court following the
Commission's amending decision of 30 August 2010. [113] 2009 Study on the enforcement of State aid law at
national level available at: http://ec.europa.eu/competition/state_aid/studies_reports/enforcement_study_2009.pdf [114] Under EU State aid law, Member States are required to
inform (“ex ante notification”) the Commission of any plan to grant or alter
State aid and they are not allowed to put such aid into effect before it has
been authorised by the Commission (“stand-still obligation”). [115] Commission notice on the enforcement of State aid law by
national courts (OJ C 85, 9.4.2009, p. 1) [116] Available at: http://ec.europa.eu/competition/publications/state_aid/national_courts_booklet_en.pdf
[117] Facts and figures on State aid in the EU Member States (SEC(2010)
1462) [118] Actions under Article 108(2) TFEU are aimed at
condemning a Member State for non-implementation of a State aid recovery decision. [119] Actions under Article 260(2) TFEU are infringement
actions aimed at condemning a Member State for non-implementation of a Court judgment,
and may include the payment of fines (periodic penalties and/or lump sums). [120] Notice from the Commission – Towards an effective
implementation of Commission decisions ordering Member States to recover
unlawful and incompatible State aid (OJ C 272, 15.11.2007, p. 4-17). [121] These figures do not include State aid granted to the
agricultural, fishery and transport sectors. [122] At the time of the decision, the Commission cannot
always identify the aid amount to be recovered: in such cases, Commission
decisions include information enabling the Member State to determine the aid
amount. [123] Joined cases T-415/05, T-416/05 and T-423/05 Hellenic
Republic, Olympic Airways and Olympic Airlines v European Commission
[2010] ECR [124] Case T-163/05 Bundesverband deutscher Banken eV v
Commission [2010] ECR [125] Case C-399/08 Commission v Deutsche Post [2010]
ECR [126] Case C-280/00 Altmark Trans GmbH and Regierungspräsidium
Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt
beim Bundesverwaltungsgericht [2003] ECR I-7747 [127] Case T-177/07 Mediaset SpA v Commission [2010] ECR [128] Case C-480/09P ACEAElectrabel [2010] ECR [129] Joined cases T-425/04, T-444/04,
T-450/04, T- 456/04 France and others v Commission [2010] ECR [130] Cases C-399/10 P Bouygues SA and
Bouygues Télécom SA v Commission and C-401/10 P Commission v France and others [131] Case T-231/06 and T-237/06 The Netherlands and
Nederlandse Omroep Stichting v Commission.[2010] ECR [132] Case T-359/04 British
Aggregates and Others v Commission [2010] ECR [133] Case T-396/08 Freistaat Sachsen and Land
Sachsen-Anhalt v Commission [2010] ECR; the judgment was appealed. [134] Cases T-568/08 and T-573/08 Métropole télévision (M6)
and Télévision française 1 SA v Commission [2010] ECR [135] Case C-464/09 P Holland Malt BV v European
Commission, Kingdom of the Netherlands [2010] ECR [136] Case T-369/06 Holland Malt v Commission [2009]
ECR II-3313 [137] Community guidelines for State aid in the agriculture
and forestry sector 2007-2013 (OJ C 319, 27.12.2006, p. 1) [138] Case
C-1/09 CELF and Ministère de la Culture et de la Communication
v Société internationale de diffusion et d'édition (SIDE) [2010] ECR [139] Case C-210/09 Scott SA, Kimberly Clark SAS, formerly
Kimberly Clark SNC v Ville d’Orléans [2010] ECR [140] Cases C-304/09 Commission/Italy and C-507/08 Commission/Slovakia [141] Communication on the application of State aid rules to
measures taken in relation to financial institutions in the context of the
current global financial crisis (OJ C 270, 25.10.2008, p. 8)
("Banking Communication"), Communication on the recapitalisation of
financial institutions in the current financial crisis: limitation of aid to
the minimum necessary and safeguards against undue distortions of competition
(OJ C 10, 15.1.2009, p. 2) ("Recapitalisation
Communication"); Communication from the Commission on the treatment of
impaired assets in the Community banking sector (OJ C 72, 26.3.2009, p. 1)
("Impaired Assets Communication"); Communication on the return to
viability and the assessment of restructuring measures in the financial sector
in the current crisis under the State aid rule (OJ C 195, 19.8.2009, p. 9)
("Restructuring Communication") [142] Available at: http://ec.europa.eu/internal_market/finances/docs/roadmap/finanial_reform_en.pdf
[143] Directive 2004/39/EC of the European Parliament and of
the Council of 21 April 2004 on markets in financial instruments amending
Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the
European Parliament and of the Council and repealing Council Directive
93/22/EEC (OJ L 145, 30.4.2004, p. 1-44) [144] Regulation 1060/2009 of the European Parliament and of
the Council of 16 September 2009 on credit rating agencies (OJ L 302,
17.11.2009, p. 1) [145] Case COMP/39398 Visa MIF. See IP/10/1684,
8.12.2010. [146] Case COMP/34579 MasterCard. See IP/09/515 and
MEMO/09/143, 1.4.2009. [147] Proposal for a Regulation of the European Parliament and
of the Council establishing technical requirements for credit transfers and
direct debits in euros and amending Regulation (EC) No 924/2009 (COM(2010) 775
final, 2010/373 COD) [148] Cases COMP/39592 European Fund and Asset Management
Association (EFAMA) and others v Standard and Poor's and COMP/39654 Reuters
Instrument Codes [149] Clearing refers to a number of activities from the time
a commitment is made for a financial transaction (the trading) until the obligations
related to the transaction are discharged. Clearing may involve a variety of
different activities depending on the financial instrument in question (such as
trade verification and matching, legal confirmation, position and payment netting,
collateral management). Settlement refers to the final transfer of the
ownership of the securities from seller to buyer and the final transfer of the
funds from buyer to seller. In more recent years, a new type of clearing called
Central Counterparty (CCP) clearing has become more prominent. In CCP clearing,
an entity, the CCP, puts itself between the parties to the contracts traded in
one or more financial markets, becoming the buyer to every seller and the
seller to every buyer. [150] Available at: http://ec.europa.eu/internal_market/financial-markets/docs/code/code_en.pdf
[151] Proposal for a Regulation of the European Parliament and
of the Council on OTC derivatives, central counterparties and trade
repositories (COM(2010) 484/5, 2010/0250 COD) [152] See case T-301/04 Clearstream Banking AG and
Clearstream International SA v Commission [2009] ECR II-3155. [153] Commission Regulation (EC) No 358/2003 of 27 February
2003 on the application of Article 81(3) of the Treaty to certain categories of
agreements, decisions and concerted practices in the insurance sector (O J L
53, 28.2.2003, p. 8) [154] Available at: http://ec.europa.eu/competition/sectors/financial_services/insurance.html#review
[155] Commission Regulation (EU) No 267/2010 of 24 March
2010 on the application of Article 101(3) of the Treaty on the Functioning of
the European Union to certain categories of agreements, decisions and concerted
practices in the insurance sector (OJ L 83, 30.3.2010, p. 1-7) [156] Cases COMP/M.5948 Santander / Rainbow
(OJ C 320, 25.11.2010, p. 1) and COMP/M.5960 Crédit Agricole
/ Cassa di Risparmio della Spezia / Agences Intesa Sanpaolo [157] Case COMP/M.5580 Blackrock / Barclays Global
Investors UK Holdings (OJ C 259, 29.10.2009, p. 2) [158] Cases COMP/M.5728 Credit Agricole / Société Générale
Asset Management (OJ C 107, 27.4.2010, p. 1) and COMP/M.5726 Deutsche
Bank / Sal. Oppenheim (OJ C 48, 26.2.2010, p. 2) [159] Case N422/2009 RBS restructuring plan (OJ C 119,
7.5.2010, p. 1) [160] Case COMP/ M.5948 Santander / Rainbow (OJ C 320,
25.11.2010, p. 1) [161] Case COMP/M.5968 Advent / Bain Capital / RBS Worldpay [162] Case COMP/ M.5844 JP Morgan / RBS Sempra (OJ C 225,
20.8.2010) [163] Communication on the return to viability and the
assessment of restructuring measures in the financial sector in the current
crisis under the State aid rule (OJ C 195, 19.8.2009, p. 9) (the
"Restructuring Communication") [164] Case N569/2008 Investment in the capital of AEGON
N.V. (OJ C 9, 14.1.2009, p. 3) [165] Case N372/2009 Viability plan for AEGON (OJ C 290,
27.10.2010, p. 1) [166] Case N149/2009 Recapitalisation of Bank of Ireland (OJ C 234,
29.9.2009, p. 4) [167] Case N725/2009 Irish asset relief – NAMA (OJ C 94,
14.4.2010, p. 10-11) [168] Cases N349/2009 Eligible Liability Guarantee Scheme –
Ireland (OJ C 72, 20.3.2010, p. 6), N198/2010 Prolongation
of the Eligible Liabilities Guarantee Scheme – Ireland (OJ C 191,
15.7.2010, p. 1) and N254/2010 Extension of the ELG scheme until
December 2010 – Ireland (OJ C 238, 3.9.2010, p. 2-3) [169] Case N546/2009 Restructuring of Bank of Ireland.
See IP/10/954, 15.7.2010. [170] Case C9/2010 Restructuring of Dexia (OJ L 274,
19.10.2010, p. 54-102) [171] The EUR 0.8 billion difference has been subscribed
by historical shareholders of the bank, which are considered independent from
the Member States concerned. [172] Case C26/2009 Restructuring aid for Parex. See
IP/10/1127, 15.9.2010. [173] Case C32/2009 Restructuring of Sparkasse Köln/Bonn.
See IP/10/1192, 20.9.2010. [174] Case C33/2009 Restructuring of BPP [175] 2008 Commission estimates [176] Europe 2020: A strategy for smart, sustainable and
inclusive growth (COM(2010) 2020 final) [177] See the Commission's Communications on "A resource-efficient
Europe" (COM(2011) 21 final) and on "Energy 2020: A strategy for
competitive, sustainable and secure energy" (COM(2010) 639 final) [178] 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, p. 1-25) [179] Case COMP/39386 Long term electricity contracts in
France (OJ C 133, 22.5.2010, p. 5-6) [180] Case COMP/39351 Swedish Interconnectors (OJ C 142,
1.6.2010, p. 28-29) [181] Case COMP/39317 E.ON Gas Foreclosure. See
IP/10/494 and MEMO/10/164, 4.5.2010. [182] See also case COMP/39316 Gaz de France Foreclosure
(OJ C 57, 9.3.2010, p. 13-14) [183] Case COMP/39315 ENI. See IP/10/1197, 29.9.2010. [184] Case COMP/39796 Suez environnement - breach of seal.
See MEMO/10/134, 16.4.2010. [185] Case COMP/39793 J&T and others. See IP/10/627,
28.5.2010. [186] Case C24/2009 (ex N446/2008) Second amendment of the
Green Electricity Act 2008 (OJ C 217, 11.9.2009, p. 12) [187] Case C33/2010 (ex N700/2009) Aid to non-ferrous
metals producers for CO2 costs of electricity [188] Community guidelines on State aid for environmental
protection (OJ C 82, 1.4.2008, p. 1) [189] The first detailed assessment decisions under Chapter 5
of the Environmental Aid Guidelines were taken in 2010; as of 1.11.2010, seven
such decisions have been adopted (see cases N295/2008, N190/2009, N450/2009,
N451/2009, N135/2010, N197/2010, N381/2010 mentioned further below). [190] Case N450/2009 Top Gas Recycling (TGR) Project - Aid
to Arcelor Mittal Eisenhüttenstadt GmbH (OJ C 94, 14.4.2010, p. 9) [191] Case N650/2009 Aid for the realisation of a biomass
(wood) fueled thermo boiler [192] Case N295/2008 Investment aid to Mellach power plant (OJ C 154,
12.6.2010, p. 1) [193] Case N381/2010 CCS project in Rotterdam harbour area [194] Regulation (EC) No 663/2009 of the European Parliament
and of the Council of 13 July 2009 establishing a programme to aid
economic recovery by granting Community financial assistance to projects in the
field of energy (OJ L 200, 31.7.2009, p. 31) [195] Case N190/2009 CO2 Catch-up pilot project
at Nuon Buggenum plant (OJ C 238, 3.9.2010, p. 1) [196] Case N135/2000 Aid for the Remediation of a
Contaminated Site in Linz (OJ C 312, 17.11.2010, p. 5-6) [197] Case N197/2010 Individual Aid for the Remediation of
the Contaminated Site in Unterkärnten (OJ C 265, 30.9.2010,
p. 1) [198] Case N178/2010 Preferential dispatch of indigenous
coal plants (OJ C 312, 17.11.2010, p. 6) [199] Directive 2003/54/EC of the European Parliament and of the
Council of 26 June 2003 concerning common rules for the internal market in
electricity and repealing Directive 96/92/EC (OJ L 176, 15.7.2003, p. 37)
[200] Community framework for State aid in the form of public
service compensation (OJ C 297, 29.11.2005, p. 4) [201] Case N675/2009 Tender for Aid for New Electricity
Generation Capacity (OJ C 213, 6.8.2010, p. 1) [202] Case N718/2009 Development of marginal offshore gas
fields (OJ C 270, 6.10.2010, p. 1) [203] Case N660/2009 Aid to PGNiG for underground gas
storage in Poland (OJ C 213, 6.8.2010, p. 10) [204] Case N419/2009 Investments in electricity
transmission and interconnector infrastructure (OJ C 57,
9.3.2010, p. 4) [205] Case C32/2010 (ex N520/2009) Environmental Project
for Delimara Power Station [206] Case NN24/2010 Decree-law 3/10 on interruptibility (OJ C 205,
29.7.2010, p. 2) [207] Case N691/2009 Hungarian stranded cost compensation
scheme (OJ C 213, 6.8.2010, p. 2) [208] Europe 2020: A strategy for smart, sustainable and
inclusive growth (COM(2010) 2020 final) [209] A Digital Agenda for Europe (COM(2010) 245 final/2) [210] Market Reviews under the EU Regulatory Framework –
Further steps towards the consolidation of the internal market for electronic
communications (COM(2010) 271 final) [211] Directive 2002/21/EC of the European Parliament and of
the Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services (Framework Directive) (OJ L 108,
24.4.2002, p. 33), Directive 2002/19/EC of the European Parliament and of
the Council of 7 March 2002 on access to, and interconnection of,
electronic communications networks and associated facilities (Access Directive)
(OJ L 108, 24.4.2002, p. 7), Directive 2002/20/EC of the
European Parliament and of the Council of 7 March 2002 on the
authorisation of electronic communications networks and services (Authorisation
Directive) (OJ L 108, 24.4.2002, p. 21), Directive 2002/22/EC of
the European Parliament and of the Council of 7 March 2002 on universal
service and users' rights relating to electronic communications networks and
services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51),
Directive 2002/58/EC of the European Parliament and of the Council of 12 July
2002 concerning the processing of personal data and the protection of privacy
in the electronic communications sector (Directive on privacy and electronic
communications) (OJ L 201, 31.7.2002, p. 37). [212] Cases COMP/39511 IBM Corporation, COMP/39790 TurboHercules/IBM
and COMP/39692 IBM Maintenance Services. See IP/10/1006, 26.7.2010. [213] Cases COMP/39740 Foundem/Google, COMP/39775, Ejustice/Google
and COMP/39768 Ciao/Google. See IP/10/1624, 30.11.2010. [214] Datamonitor 2010 [215] 2009 Report on Competition Policy, point 315 [216] The term media convergence relates to the consumer's
ability to receive multiple services on a single device. [217] Accelerating the transition from analogue to digital
broadcasting (COM(2005) 204 final) [218] Case T‑177/07 Mediaset SpA v Commission
[2010] ECR [219] Case COMP/39525 Telekomunikacja Polska. See
IP/10/213, 1.3.2010. [220] Case COMP/M.5650 T-Mobile / Orange
(OJ C 108, 28.4.2010, p. 4) [221] The Radio Access Network is one of the main
infrastructure elements of a mobile network. [222] Community guidelines for the application of State aid
rules in relation to rapid deployment of broadband networks (OJ C 235,
30.9.2009, p. 7) [223] Case N196/2010 Establishment of a Sustainable
Infrastructure Permitting Estonia-wide Broadband Internet Connection (EstWin
project). See IP/10/975, 20.7.2010. [224] Available at: http://ec.europa.eu/competition/consultations/2010_horizontals/consultation_summary.pdf
[225] Guidelines on the applicability of Article 101 of the
Treaty on the Functioning of the European Union to horizontal cooperation
agreements (OJ C 11, 14.1.2011, p. 1) [226] Cases COMP/39511 IBM Corporation and COMP/39790 TurboHercules/IBM
on the one hand and COMP/39692 IBM Maintenance Services on the other
hand. See IP/10/1006, 26.7.2010. [227] See IP/10/1175, 25.9.2010. [228] Cases COMP/39740 Foundem/Google, COMP/39775 Ejustice/Google
and COMP/39768 Ciao/Google. See IP/10/1624, 30.11.2010. [229] Case COMP/39530 Microsoft (tying) (OJ C 36,
13.2.2010, p. 7) [230] Case COMP/M.5529 Oracle / Sun Microsystems (OJ C 91,
9.4.2010, p. 7) [231] Case COMP/M.5727 Microsoft / Yahoo! Search Business.
See IP/10/167, 18.5.2010. [232] Case COMP/M.5669 Cisco / Tandberg. See IP/10/377,
29.3.2010. [233] Commission Directive 2002/77/EC of 16 September
2002 on competition in the markets for electronic communications networks and
services (OJ L 249, 17.9.2002, p. 21-26) [234] Cases COMP/39659 ASOBAL v handball federations
and COMP/39669 Group Club Handball v handball federations [235] Case COMP/M.5881 ProSiebenSat.1 / RTL interactive / JV.
See IP/10/1174, 24.9.2010. [236] Case COMP/M.5932 News Corp / BSkyB. See
IP/10/1767, 21.12.2010. [237] Case E5/2005 Yearly financing of Dutch public
broadcasters (OJ C 74, 24.3.2010, p. 4) [238] Cases C27/2009 Subvention pluriannuelle pour France
Télévisions and C38/2009 New tax-based funding system for public
broadcasting in Spain (OJ L 1, 4.1.2011, p. 9-19) [239] Cases N631/2009 Fonds zur Förderung des privaten
Rundfunks and N632/2009 Fonds zur Förderung des nichtkommerziellen
Rundfunks [240] Data exclude medicines, government investment on
education, health prevention and other therapeutical appliances. All figures in
this section are estimates based on data from the OECD
2008 Health database. [241] Recent initiatives include: the Italian NCA ongoing
inquiry in hospital markets, Dutch NCA report on health insurance (2007) and
ongoing inquiry on hospital service prices, Irish NCA inquiry on dentists
(2007), health insurance (2007) and physician services (2008) and the Swedish
NCA report on consumer welfare in health (2008). [242] Case C-62/2009 Association of
the British Pharmaceutical Industry v Medicines and Healthcare Products
Regulatory Agency [2010] ECR [243] Article 94(1) of Directive 2001/83 of the European
Parliament and of the Council of 6 November 2001 on the Community code
relating to medicinal product for human use (OJ L 311, 28.11.2004, p. 67-128) [244] Cases C-118/85 Commission v Italy [1987]
ECR 2599, C-35/96 Commission v Italy [1998] ECR I-3851 and C-180/98
to C-184/98, Pavlov [2000] ECR I-6451 [245] Proposal for a directive of the European Parliament and
of the Council on the application of patient's rights in cross-border
healthcare, (COM(2008) 414 final, 2008/0142 (COD)) [246] Case C-309/99,
Wouters v Commission [2002] ECR I-1577 [247] Executive Summary of the Pharmaceutical Sector Inquiry,
8.7.2009 [248] Council Directive 89/105/EEC of 21 December 1988
relating to the transparency of measures regulating the prices of medicinal
products for human use and their inclusion in the scope of national health
insurance systems (OJ L 40, 11.2.1989, p. 8-11) [249] Proposal for a Council decision authorising enhanced
cooperation in the area of the creation of unitary patent protection
(COM(2010)790 final, 2010/0384 NLE) [250] Available at: http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry
[251] Case COMP/39612 Servier (perindopril) [252] IP/10/1009, 26.7.2010 [253] Case COMP/39226 Lundbeck [254] Case T-321/05 AstraZeneca v
Commission [2010] ECR [255] Available at: http://www.oft.gov.uk/news-and-updates/press/today?prid=749499
[256] Case COMP/M.5661 Abbott / Solvay Pharmaceuticals (OJ C 89,
7.4.2010, p. 1) [257] Case COMP/M.5865 Teva / Ratiopharm
(OJ C 7, 12.1.2011, p. 5) [258] Case COMP/M.5778 Novartis / Alcon. See
IP/10/1042, 9.8.2010. [259] Case COMP/39510 ONP. See IP/10/1683, 8.12.2010. [260] T-23/09, CNOP v Commission, 26/10/2010
[2010] ECR [261] Case COMP/M.5805 3i / Vedici Groupe (OJ C 171,
30.6.2010, p. 1) [262] Case C-280/00 Altmark Trans GmbH and
Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH,
and Oberbundesanwalt beim Bundesverwaltungsgericht [2003] ECR I-7747 [263] Community framework for State aid in the form of public
service compensation (OJ C 297, 29.11.2005, p. 4-7) [264] Commission decision of 28 November 2005 on the application
of Article 86(2) EC to State aid in the form of public service compensation
granted to certain undertakings entrusted with the operation of services of
general economic interest (OJ L 312, 29.11.2005, p. 67-73) [265] Case T-289/03 BUPA and Others v Commission
[2008] ECR II-81 [266] Commission Directive 2006/111/EC on the transparency of
financial relations between Member States and public undertakings as well as on
financial transparency within certain undertakings (Codified version)
(OJ L 318, 17.11.2006, p. 17-25) [267] Case NN54/2009 Association bruxelloise des
institutions des soins de santé privées asbl (ABISSP) v Belgique (OJ C 74,
24.3.2010, p. 1) [268] Case
T-137/10 Coordination bruxelloise d'Institutions sociales et de santé (CBI) v
European Commission (OJ C 148, 5.6.2010, p. 38) [269] Case N214/2010 Introduction of a risk equalisation
system in the Dutch health insurance (OJ C 333, 10.12.2010,
p. 3-4) [270] Figures for 2007, Transport Statistical Pocket Book 2010 [271] 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, p. 1-22) [272] Council Regulation (EEC) No 95/93 of 18 January
1993 on common rules for the allocation of slots at Community airports
(OJ L 14, 22.1.1993, p. 1) [273] Communication from the Commission concerning the
development of a Single European Railway Area (COM(2010) 474 final) [274] Case COMP/39596 BA/AA/IB. See IP/10/936 and
MEMO/10/330, 14.7.2010. [275] 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, p. 1-25) [276] Transatlantic Airline Alliances: Competitive Issues and
Regulatory Approaches, A report by the European Commission and the United
States Department of Transportation, 16 November 2010: http://ec.europa.eu/competition/sectors/transport/reports/joint_alliance_report.pdf
[277] Case COMP/M.5747 British Airways / Iberia
(OJ C 241, 8.9.2010, p. 1) [278] Case COMP/M.5889 United Airlines / Continental
Airlines (OJ C 225, 20.8.2010, p. 1) [279] Case COMP/M.5830 Olympic Air / Aegean Airlines,
(OJ C 174, 1.7.2010, p. 16) [280] Case COMP/M.5867 Thomas Cook Group Plc / Öger Tours
GmbH. (OJ C 222, 17.8.2010, p. 5) [281] This information note was presented by Vice-president
Kallas in association with Vice-president Almunia and Commissioner Rehn and was
endorsed by the Commission on 27 April 2010. [282] MEMO/10/161 [283] Article 107(2)(b) TFEU states that "shall be
compatible with the internal market (…) aid to make good the damage caused by
natural disasters or exceptional circumstances". [284] Case NN65/2009 City of Derry airport (OJ C 144,
3.6.2010, p. 27) [285] Cases N397/2009 Kiinteistö Oy Cargo Apron Vaasa (OJ C 29,
5.2.2010) and N286/2010 Public financing for the infrastructure investments
and expansion at Oulu Airport [286] Case N41/2010 Development of Airport Infrastructure
of Airport "Riga" (OJ C 143, 2.6.2010, p. 23-24) [287] Case N63/2010 State guarantee for the construction of
Murcia Airport (OJ C 217, 11.8.2010, p. 1) [288] Case C12/2008 Agreement between Bratislava Airport
and Ryanair. See IP/10/56, 27.1.2010. [289] Community guidelines on financing of airports and
start-up aid to airlines departing from regional airports (OJ C 312, 9.12.2005,
p. 1) [290] Case
N709/2009 Aide à la compagnie Eastern Airways pour le démarrage de nouvelles
liaisons aériennes au départ de l'aéroport de Dijon-Longvic (OJ C 125,
13.5.2010, p. 1) [291] Case
N114/2010 Aide au démarrage en faveur de programmes importants qui
améliorent la promotion et le développement de l'aéroport d'Anvers (OJ C 250,
17.9.2010, p. 1) [292] Case C6/2010 State aid implications of a loan
provided by Osinek a.s. See IP/10/179, 24.2.2010. [293] Case C38/2010 Malév Hungarian Airlines. See
IP/10/1753, 21.12.2010. [294] Case C14/2010 Aide présumée octroyée à la société SEA
Handling S.p.A. See IP/10/787, 23.6.2010. [295] Cases C20/2010 (ex N536/2008 and NN32/2010) Italy –
Calabria Region - SO.G.A.S. - Società per la gestione dell'aeroporto dello
Stretto (OJ C 92, 28.10.2010, p. 30) [296] Case N504/2010 Air Malta plc. See IP/10/1509,
15.11.2010. [297] Proposal for a Directive of the
European Parliament and of the Council establishing a single European railway
area (COM(2010) 475 final, COD 2010/253) [298] Case COMP/M.5579 TLP / Financière Ermewa (OJ C 60,
11.3.2010, p. 1) [299] Case COMP/M.5655 SNCF / LCR / Eurostar (OJ C 272,
8.10.2010, p. 2) [300] Case COMP/M.5877 Geodis / Giraud (OJ C 213,
6.8.2010, p. 6) [301] Case COMP/M.5855 Deutsche Bahn / Arriva plc (OJ C 276,
13.10.2010, p. 1) [302] Case COMP/M.5741 CDC / Veolia Environment / Transdev
/ Veolia Transport (OJ C 266, 1.10.2010, p. 2) [303] Regulation (EC) No 1370/2007 of the European Parliament
and the Council of 23 October 2007 on public passenger services by rail
and road repealing Council regulations (EEC) No 1191/69 and No 1107/70
(OJ L 315, 3.12.2007, p. 1-13) [304] Case C41/2008 Public service contracts between the
Danish Government and Dankse Statbaner. See IP/10/178, 24.2.2010. [305] Case
N726/2009 Aide à la restructuration des activités "fret" de la SA
de droit public SNCB. See IP/10/615, 26.5.2010. [306] Community guidelines on State aid for railway
undertakings (OJ C 184, 22.7.2008, p. 13) [307] Community guidelines on State aid for restructuring
(OJ C 244, 1.10.2004, p. 2) [308] Case N402/2010 Rescue aid for the Bulgarian State
railways EAD (BDZ). See IP/10/1733, 16.12.2010. [309] 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
(OJ L 256, 29.9.2009, p. 31) [310] Council Regulation (EC) No 1419/2006 of 25 September
2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the
application of Articles 85 and 86 of the Treaty to maritime transport, and
amending Regulation (EC) No 1/2003 as regards the extension of its scope to
include cabotage and international tramp services (OJ L 269,
28.9.2006, p. 1) [311] Case COMP/39699 Baltic Max Feeder. See IP/10/374,
26.3.2010. [312] Case COMP/M.5756 DFDS / Norfolk (OJ C 241,
8.9.2010, p. 1) [313] Communication from the Commission providing guidance on
State aid complementary to Community funding for the launching of the motorways
of the sea (OJ C 317, 12.12.2008, p. 10) [314] Cases
N573/2009 and N647/2009 Aide à la mise en œuvre et à l'exploitation de
l'autoroute de la mer entre le port de Nantes-Saint-Nazaire (France) et le port
de Gijón (Espagne) opérée par GLD Atlantique (OJ C 74, 24.3.2010, p. 5).
See IP/10/55, 27.1.2010. [315] Case N714/2009 Extension of the tonnage tax scheme to
cable layers, pipeline layers, research vessels and crane vessels (OJ C 158, 18.6.2010, p. 2) [316] Case C22/2007 (ex N43/07) Danish Tonnage Tax - Cable
Laying Vessels (OJ L 119, 14.5.2009, p. 23) [317] Community guidelines on State aid to maritime transport
(OJ C 13, 17.1.2004, p. 3) [318] Case N37/2010 Cyprus Tonnage Tax Scheme (OJ C 144,
3.6.2010, p. 28). See IP/10/352, 24.3.2010. [319] Case N358/2010 Reduced rates of social contributions
for seafarers [320] Case
N309/2010 Aide au sauvetage en faveur de SeaFrance [321] Case N418/2010 Aid for rescuing Tirrenia di
Navigazione S.p.A. in A.S [322] Economic statistics in this section on the postal sector
are from: "The evolution of the European postal market since 1997",
Final Report, ITA Consulting GmbH and WIK Consult GmbH, August 2009 and from
the Report from the Commission to the Council and the European Parliament on
the application of the Postal Directive (SEC(2008) 3076). [323] Directive 2008/6/EC of the European Parliament and of
the Council of 20 February 2008 amending Directive 97/67/EC with regard to
the full accomplishment of the internal market of Community postal services
(OJ L 52, 27.2.2008, p. 3). In particular, Article 3(1) states
that "Member States shall ensure that users enjoy the right to a universal
service involving the permanent provision of a postal service of specified
quality at all points in their territory at affordable prices for all users". [324] Czech Republic, Greece, Cyprus, Latvia, Lithuania,
Luxembourg, Hungary, Malta, Poland, Romania and Slovakia [325] Case COMP/M.6023 Österreichische Post / Schweizerische
Post / JV (OJ C 357, 30.12.2010, p. 16) [326] Community framework for State aid in the form of public
service compensation (OJ C 297, 29.11.2005, p. 4-7) [327] Case C36/2007 Complaint against the German State for
unlawful State aid to Deutsche Post (OJ C 245, 19.10.2007,
p. 21) [328] Case C-399/08 P European Commission v Deutsche Post
AG, Bundesverband Internationaler Express- und Kurierdienste eV, UPS Europe SA,
Federal Republic of Germany [2010] ECR [329] Case T-266/02 Deutsche Post AG v Commission,
[2008] ECR II-01233 (OJ C 209, 15.8.2008, p. 39) [330] Cases T-570/08 Deutsche Post v Commission
and T-571/08 Germany v Commission (OJ C 234, 28.8.2010,
p. 35-36) appealed by Germany and Deutsche Post in cases C-463/10 P and
C-475/10 P. [331] Case
C20/2009 (ex N763/2002) Mesures en faveur de La Poste (OJ C 176,
29.7.2009, p. 17) [332] Case
T-388/03, Deutsche Post and DHL International v Commission,
[2009] ECR II-199 [333] Case
C56/2007 Garantie d'Etat illimitée - La Poste (France) (OJ L 274,
19.10.2010, p. 1) [334] Loi
n° 2010-123 du 9 février 2010 relative à l'entreprise publique La Poste et
aux activités postales [335] Case C21/2005 Compensation to Poczta Polska for
carrying out universal postal services. See IP/09/1931, 15.12.2009. [336] Data on the importance of the automotive sector in the
European economy are from: "Product Market Review 2009: micro-economic
consequences of the crisis and implications for recovery", European
Economy 11, 2009. [337] http://www.acea.be/index.php/files/acea_economic_report_first_quarter_2010
[338] Chapter 11 enables a firm to be sold off as a working
concern after reorganisation, rather than having its assets sold piecemeal. It is
therefore considered to be more economically efficient, and to bring greater
returns for shareholders, as well as to better protect employees. [339] 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) [340] Commission Regulation (EU) No 461/2010 of 27 May
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. 52-57) [341] Supplementary guidelines on vertical restraints in
agreements for the sale and repair of motor vehicles and for the distribution
of spare parts for motor vehicles (OJ C 138, 28.5.2010,
p. 16-27) [342] Commission Regulation (EC) No 1400/2002 of 31 July
2002 on the application of Article 81(3) of the Treaty to categories of
vertical agreements and concerted practices in the motor vehicle sector [343] Location clauses specify that a dealer must carry on his
business from a given location, and may not open other outlets elsewhere. [344] In order for an agreement to be exempted, neither the
dealer nor the vehicle manufacturer may have a market share exceeding 30%. A quantitative
selective distribution system is generally defined as a system in which the
supplier uses criteria for the selection of distributors or repairers which
directly limit their number. [345] Cases COMP/M.5784 Magna / Semikron / JV
(OJ C 254, 22.9.2010, p. 1), COMP/M.5792 Robert Bosch / Deutz
/ Eberspächer (OJ C 169, 29.6.2010, p. 1) or COMP/M.5862 Mahle
/ Behr / Behr Industry (OJ C 277, 14.10.2010, p. 1) [346] Case COMP/M.5789 Geely / Daqing / Volvo Cars
(OJ C 187, 10.7.2010, p. 3) [347] Case N541/2009 State guarantee in favour of SAAB.
See IP/10/139, 8.2.2010. [348] Case N520/2010 State guarantees in favour of Volvo
Personvagnar AB (Volvo Cars Corporation) [349] Case N80/2009 State guarantees in favour of Volvo Cars.
See IP/09/879, 5.6.2009. [350] Case C31/2009 Audi Hungaria
Motor Kft. (OJ C 64, 16.3.2010, p. 15) [351] Case N27/10 Fiat Powertrain (OJ C 333,
10.12.2010, p. 3) [352] Commission decision of 30.7.2010 (OJ C 210,
3.8.2010, p. 4) [353] A better functioning food supply chain in Europe (COM(2009)
591 final) [354] Available at: http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf
[355] Available at: http://ec.europa.eu/agriculture/markets/milk/hlg
[356] Proposal of 9 December 2010 for a Regulation of the
European Parliament and of the Council amending Council Regulation (EC) No
1234/2007 as regards contractual relations in the milk and milk products sector
(COM(2010) 728) [357] Community guidelines for State aid in the agriculture
and forestry sector 2007-2013 (OJ C 319, 27.12.2006, p. 1). [358] Case
C43/2004 Taxe
parafiscale à la promotion du vin [359] Case
T-475/10 Portugal v Commission [360] Case
C-464/09 P Holland Malt BV v European Commission [2010] ECR [361] Case
T-369/06 Holland Malt v Commission [2009] ECR 2009
p. II-3313 [362] Cases C-111/10 Commission v Council [2010]
(OJ C 113, 1.5.2010, p. 32), C-117/10 Commission v
Council [2010] (OJ C 113, 1.5.2010, p. 34), C-118/10 Commission
v Council [2010] (OJ C 113, 1.5.2010, p. 35) and
C-121/10 Commission v Council [2010] (OJ C 134,
22.5.2010, p. 24) [363] 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, p. 1-25) [364] Available at: http://ec.europa.eu/competition/ecn/brief/index.html
[365] Commission Notice on cooperation within the Network of
Competition Authorities (OJ C 101, 27.4.2004, p. 43-53) [366] Case the Competition Authority v the Beef
Industry Development Society Limited and Barry Brothers (Carrigmore) Meats
Limited, 2003 No. 7764P. [367] Guidelines on the application of Article 81(3) of the
Treaty (OJ C 101, 27.4.2004, p. 97-118) [368] Conex Banninger v European Commission [2010] EWHC 1978 (Ch) [369] Commission decision of 20 September 2006 relating
to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement
(Case COMP/38121 Fittings) [370] Available at: http://ec.europa.eu/competition/international/multilateral/oecd_submissions.html
[371] SPEECH/10/29, 18.2.2010 [372] Agreement between the European Communities and the
Government of the United States of America regarding the application of their
competition laws (OJ L 95, 27.4.1995, p. 47) and Agreement
between the European Communities and the Government of the United States of
America on the application of positive comity principles in the enforcement of
their competition laws (OJ L 173, 18.6.1998, p. 26). [373] Case COMP/M.5669 Cisco / Tandberg. See IP/10/377,
29.3.2010. [374] Case COMP/M.5778 Novartis / Alcon. See IP/10/1042,
9.8.2010. [375] Case COMP/39596 BA/AA/IB. See IP/10/936 and
MEMO/10/330, 14.7.2010. [376] Agreement between the European Communities and the
Government of Canada regarding the application of their competition laws
(OJ L 175, 10.7.1999, p. 50) [377] Agreement between the European Community and the
Government of Japan concerning cooperation on anti-competitive activities
(OJ L 183, 22.7.2003, p. 12) [378] Agreement between the European Community and the
Government of the Republic of Korea concerning cooperation on anti-competitive
activities (OJ L 202, 4.8.2009, p. 36) [379] The ECCG, which was created by the Commission's decision
2003/709/EC of 9 October 2003, constitutes a forum for general discussions
on problems relating to consumer interest and also advises and guides the Commission
when it outlines policies and activities having an effect on consumers. [380] Available at: http://ec.europa.eu/consumers/empowerment/eccg_en.htm
[381] This initiative is 100% funded by the Commission, and is
operated by BEUC under the supervision of DG Health and Consumers. It comprises
of trainings designed to build up the capabilities of European consumer
organisations. [382] The Consumer corner of DG Competition is available at: http://ec.europa.eu/competition/consumers/
[383] The results of DG COMP Stakeholder Survey were published
on 18 October 2010 at DG COMP website: http://ec.europa.eu/competition/publications/reports/surveys_en.html
[384] Flash Eurobarometer Survey "EU citizens'
perceptions about competition policy" by Gallup Hungary [385] Stakeholders were identified as companies, law firms,
economic consultants, business and consumer associations, national competition
authorities and ministries. [386] Eurobarometer Qualitative Study "DG Competition
stakeholder Study" by TNS qual+ [387] Framework Agreement of 20 October 2010 on relations
between the European Parliament and the Commission; Protocol of Cooperation
between the European Commission and the European Economic and Social Committee
of 7 November 2005; Protocol on the Cooperation Arrangements between the
European Commission and the Committee of the Regions of 17 November 2005. [388] P7_TA(2010)0050 European
Parliament resolution of 9 March 2010 on the Report on Competition Policy
2008; P7_TA(2010)0151 European Parliament resolution of 6 May 2010 on
the Motor Vehicle Block Exemption Regulation; P7_TA-PROV(2010)0447 European
Parliament resolution of 25 November 2010 on the review of the competition
horizontal cooperation rules; P7_TA-PROV(2010)0424 European Parliament
legislative resolution of 23 November 2010 on the proposal for a Council
regulation on State aid to facilitate the closure of uncompetitive coal mines [389] INT/505 Report on competition policy 2008