Final report of the Hearing Officer (1)

Case COMP/39.315 — ENI

2010/C 352/09

Background

This case concerns the conduct of ENI Spa (‘ENI’) on the gas transportation market to Italy and on the gas supply markets in Italy. According to the Commission’s preliminary conclusions, ENI may have abused its dominant position under Article 102 TFEU through a complex strategy amounting to a refusal to grant access to the gas transport infrastructure leading into Italy, namely the TAG, TENP and Transitgas pipelines, jointly controlled with third companies. This strategy may have been implemented by way of refusing to grant competitors access to capacity available on the transport network (capacity hoarding), granting access in an impractical manner (capacity degradation) and strategically limiting investment (strategic underinvestment) in ENI's international transmission pipelines.

Procedure

The Commission opened the investigation in this case ex officio. Following an inspection and further investigative steps, the Commission initiated proceedings in 2007. A Statement of Objections (‘SO’) was adopted on 6 March 2009 and subsequently notified to ENI.

Following the notification of the SO, ENI was given access to the file in the form of DVDs. ENI then raised a number of procedural issues concerning access to the file. Notably, ENI complained about the treatment of confidential information in the file, claiming that excessive redactions of documents or uninformative summaries made it impossible to fully understand their content. As a consequence, ENI made between April and September 2009 numerous and repeated requests for additional access to documents, particularly documents originating from the abovementioned jointly controlled transportation companies. While some of these requests were accepted, the majority of them were rejected. Nevertheless, in order to provide ENI with fuller access to the redacted information originating from the jointly controlled companies, a data room procedure was organised with the companies that consented to it.

Closely related to ENI's requests for additional access to the file were its recurrent demands for the extension of the time limit to reply to the SO, which I granted, inter alia, to organise the data room procedure and to address all ENI's requests to disclose redacted information.

Three days before the Oral Hearing, I admitted, upon request, one company active in the gas transportation business as interested third party.

The Oral Hearing took place on 27 November 2009. The only third party admitted to the proceedings did not attend.

The commitments and the draft decision

In its reply to the SO and at the Oral Hearing ENI contested that the alleged practices raised competition concerns. Nonetheless, following the Oral Hearing ENI entered into discussions with the Commission services on possible commitments to address the concerns expressed in the SO. On 4 February 2010, ENI submitted commitments to the Commission in response to such concerns. In the commitments, ENI offered to divest its shareholdings in the companies related to the TAG, TENP and Transitgas pipelines to a suitable purchaser that is independent of and unconnected to ENI and does not raise prima facie competition concerns. With respect to TAG, the commitments foresee the divestiture to a public entity controlled by the Italian Government first.

On 5 March 2010, the Commission published a notice in the Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003 (2), summarising the concerns and the commitments and inviting interested third parties to submit observations within one month of this publication. A total of 14 responses were received, namely from shippers, some vertically integrated transportation companies and two regulators.

The Commission informed ENI of the result of the market test. On 10 May 2010, ENI sent some clarifications in response to the observations of third parties. Following further exchanges with the Commission, ENI submitted a modified version of the commitments on 8 July 2010.

In view of the modified commitments the Commission has now come to the conclusion that the proceedings should be brought to an end by way of a decision pursuant to Article 9 of Regulation (EC) No 1/2003.

ENI has declared to the Commission that it has received sufficient access to the information it considered necessary to propose commitments in order to meet the competition concerns expressed by the Commission.

No additional queries or submissions have been made to the Hearing Officer in connection with the present case by the party or any third parties.

In the light of the above, I consider that the right to be heard has been respected in this 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).

(2)  In the following all Articles referred relate to Regulation (EC) No 1/2003.