Final report of the Hearing Officer in COMP/39.401 — E.ON/GDF (1)

2009/C 248/04

The draft Decision in this case gives rise to the following observations:

The Statement of Objections and Access to File

On 9 June 2008, the Commission adopted a Statement of Objections (SO), addressed to Gaz de France SA (‘GDF’), E.ON AG (‘E.ON AG’) and E.ON Ruhrgas AG (‘E.ON Ruhrgas’) (together, ‘E.ON’).

The SO was received by GDF and by E.ON on 10 June 2008. Both addressees of the SO were originally granted a deadline of 6 weeks to provide their written comments on the SO from the date of receipt of the Commission's file in the form of a DVD. Upon their reasoned requests, I granted E.ON an extension to 29 August 2008 and GDF an extension until 8 September 2008.

Two letters of facts dated 27 March 2009 were subsequently sent to GDF and E.ON. Both parties requested an extension to the deadline to reply to these letters of facts, which was granted by the Directorate General for Competition. Both parties replied in time.

The parties did not address any issues concerning access to file to me beyond remarks on the organization of the file itself and the available language versions.

The Oral Hearing

All parties to the proceedings exercised their right to be heard in an Oral Hearing, which took place on 14 October 2008. On request by GDF, their presentation on the economic strategy in Germany was held in camera. A non-confidential version of the in camera session was subsequently provided by GDF to E.ON.

The draft Decision

The draft Decision narrows down the scope of the allegation made in the SO in concluding that GDF and E.ON engaged in a single and continuous infringement relating to the supply of gas transported over the MEGAL pipeline into Germany and France, and not concerning all sales of gas in these markets. The written agreement considered to represent the basis of the infringement (the 1975 side letters) was entered into exclusively in the context of the construction and operation of the MEGAL pipeline. The two other aspects of the infringement set out in the SO (namely the high level meetings held between 1999-2006, and the parties’ non-aggression strategies) have been assessed in the draft Decision with a view to considering whether the parties, many years later, considered themselves still bound by the 1975 side letters, thereby constituting a single infringement based on the illegality of the side letters in 1975. The parties have been granted the opportunity inter alia to express their views on this structure of the allegation.

Fines are imposed for a period from April 1998 to September 2005 as regards Germany and from August 2000 to September 2005 as regards France.

In my view, the draft Decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.

In the light of the above, I consider that the right to be heard of all parties has been respected in the present case.

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