27.4.2017   

EN

Official Journal of the European Union

C 133/1

27.4.2017   

EN

Official Journal of the European Union

C 133/2

27.4.2017   

EN

Official Journal of the European Union

C 133/3

1.

Is the time spent on a journey ordered by the employer, to and/or from a place of attendance other than the employee’s fixed or habitual place of attendance, when such travel takes place outside normal working hours, to be considered working time within the meaning of Article 2 of Directive 2003/88/EC?

2.

Insofar as travel as described in Question I is not by itself sufficient to be classified as working time, what is the legal test and the relevant elements to be considered in the assessment of whether the time spent on travel should nonetheless be deemed to constitute working time? As part of this question, an opinion is requested on whether an intensity assessment should be made of the amount of work performed while travelling.

3.

Does it have any bearing on the assessments under Questions I and II how often the employer specifies a place of attendance other than the fixed or habitual one?

27.4.2017   

EN

Official Journal of the European Union

C 133/4

1.

Article 61 EEA must be interpreted as meaning that a mechanism, provided for by national regulation, according to which an undertaking is granted NOK 0,50 per litre for a quantity limited up to 100 million litres for the distribution of certain products, some of which fall within the scope of the EEA Agreement, constitutes a State aid measure, provided that the referring court, having regard to all the facts before it and the guidance provided by the Court, finds that there is an intervention by the State or through State resources, that the intervention is liable to affect trade between EEA States, that it confers a selective advantage on the beneficiary and that it distorts or threatens to distort competition. Such a finding by the referring court would render the scheme subject to the notification requirement laid down in Article 1(3) of Part I of Protocol 3 to the Agreement between the EFTA States on a Surveillance Authority and a Court of Justice.

2.

In the event that a State aid scheme is inseparably linked to certain products not exclusively outside the scope of the EEA Agreement, the measure as a whole must be notified to the EFTA Surveillance Authority.

3.

A national court will not have cause to assess a State aid scheme in light of the freedom of establishment in Article 31 EEA, unless it can be assessed separately in law from the State aid measure.

27.4.2017   

EN

Official Journal of the European Union

C 133/5

1.

For an agreement to be regarded as a restriction of competition by object within the meaning of Article 53(1) EEA, it must reveal a sufficient degree of harm to competition. It does not suffice that it is simply capable, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition.

2.

In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. When determining that context, it is also necessary to take into consideration the nature of the services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Court from taking that factor into account.

3.

An agreement reveals a sufficient degree of harm to competition that it may be considered a restriction of competition by object only if its harmful nature is easily identifiable. That assessment cannot go as far as a full examination of its actual or potential effects. Nor can it amount to carrying out an assessment of the pro- and anticompetitive effects and thus to applying a rule of reason.

4.

In order to determine whether the submission of joint bids through a joint management company reveals a sufficient degree of harm that it may be considered a restriction of competition by object, regard must be had to the substance of the cooperation, its objectives and the economic and legal context of which it forms part. The parties’ intention may also be taken into account, although this is not a necessary factor.

5.

Since the submission of joint bids involves price-fixing, which is expressly prohibited by Article 53(1) EEA, consideration of the economic and legal context may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object. However, such an assessment needs to take into account, albeit in an abridged manner, whether the parties to an agreement are actual or potential competitors and whether the joint setting of the price offered to the contracting authority constitutes an ancillary restraint.

6.

While the disclosure of the joint nature of the bids to the contracting authority may be an indication that the parties did not intend to infringe the prohibition on agreements between undertakings, that, in itself, is not a prerequisite for determining whether an agreement may be considered a restriction of competition by object.

27.4.2017   

EN

Official Journal of the European Union

C 133/6

1.

The definition in Article 2(a) of Directive 2002/21/EC of the term ‘electronic communications network’ must be interpreted as encompassing a system allowing for the conveyance of signals written as an SMS message on a user’s end device, connected through a web browser, via the internet, to the PHP script software on a telecommunications undertaking’s web domain, which receives the signals, processes them and conveys them in turn to an SMS server in the undertaking’s communications system, which then conveys them over a network to the recipient telephone number.

2.

The definition in Article 2(c) of Directive 2002/21/EC of the term ‘electronic communications service’ encompasses a service that consists of the conveyance of signals which takes place on a communications network, as described in the first question, irrespective of whether a fee is collected for such a service, provided that the service is normally provided for remuneration.

3.

The definition in Article 2(d) of Directive 2002/21/EC of the term ‘public communications network’ must be interpreted as covering a network as described in the first question, used to provide services as described in the second question, irrespective of whether those services are made available only to the subscribers of the particular undertaking, provided that the network is used wholly or mainly for the provision of such publicly available services.

27.4.2017   

EN

Official Journal of the European Union

C 133/7

1.

On 20 April 2017, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which General Electric Company (‘GE’, USA) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control over Baker Hughes Incorporated (‘BHI’, USA) by way of purchase of shares.

2.

The business activities of the undertakings concerned are:

—   for GE: broad and diversified range of activities, including GE’s oil and gas manufacturing and technology solutions spanning across subsea & drilling, rotating equipment, imaging and sensing;

—   for BHI: provision of oilfield services on a global scale to oil and gas exploration and production companies with a focus on the drilling and evaluation of wells as well as on the completion and production of wells.

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference M.8297 — GE/Baker Hughes, to the following address:

27.4.2017   

EN

Official Journal of the European Union

C 133/8

1.

On 21 April 2017, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Safran Landing Systems SAS of France, and China Eastern Airlines Co. Ltd of China acquire within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control over a newly created company constituting a joint venture by way of a purchase of shares.

2.

The business activities of the undertakings concerned are:

—   for Safran Landing Systems SAS: the manufacturing of aircraft landing gear and braking systems; Safran Landing Systems SAS belongs to Safran SA of France.

—   for China Eastern Airlines Co. Ltd: the provision of air transport services on international, domestic and regional routes; China Eastern Airlines Co. Ltd belongs to Chinese state-owned enterprise China Eastern Air Holding.

—   for the joint venture: the provision of single-aisle commercial aircraft landing gear maintenance, repair and overhaul services in China.

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in this Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.8411 — Safran Group/China Eastern Air Holding, to the following address: