4.4.2018

Official Journal of the European Union

C 118/20

Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40461 — DE-DK Interconnector

(2018/C 118/07)

1. Introduction

(1)

According to Article 9 of the Council Regulation (EC) No 1/2003 (1), the Commission may decide – in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment – to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

2. Summary of the Case

(2)

On 19 March 2018 the Commission adopted a Preliminary Assessment pursuant to Article 9(1) of Regulation (EC) No 1/2003 concerning alleged infringement of Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 54 of the EEA Agreement by TenneT TSO GmbH (‘TenneT’).

(3)

The Commission’s preliminary assessment is that TenneT holds a dominant position in the market for electricity transmission within its control area. The Commission preliminarily concludes that TenneT may have abused its dominant position on this market in breach of Article 102 TFEU and Article 54 of the EEA Agreement by discriminating between network users according to their place of residence which results in a partitioning of the internal market.

(4)

The Commission preliminarily concludes that TenneT gives priority access to its network to domestic electricity production in particular during the hours when the domestic wind-based electricity production is high by limiting access of electricity coming via the interconnector with West Denmark (DK1) (‘the DE-DK1 interconnector’). This has been implemented by a very significant limitation of the available electricity transmission capacity of the DE-DK1 interconnector. The Commission’s preliminarily concludes that TenneT’s practice has the potential to raise barriers to the free flow of electricity within the internal market.

3. The Main Content of the Offered Commitments

(5)

TenneT does not agree with the Commission’s preliminary assessment. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns. The key elements of the commitments can be summarised as follows:

(a)

TenneT will make available to the market the maximum capacity on the DE-DK1 interconnector complying with safety standards of secure network operation. In any event TenneT will offer a minimum guaranteed hourly capacity of 1 300 MW on the DE-DK1 interconnector. The level of 1 300 MW will be reached following an implementation phase of up to six months by increasing the level of capacity currently available by monthly steps of 120 MW starting from the first day of the second month following the notification of the Commission’s decision pursuant to Article 9 of Regulation (EC) No 1/2003. In order to optimise available capacities TenneT will use countertrading and re-dispatch.

(b)

TenneT would only be able to reduce the capacity offered below the minimum guaranteed level in two narrowly defined exceptional circumstances, namely either the outage of specific critical grid elements, as listed in an annex to the commitments, or an emergency situation caused by (i) insufficient countertrading or re-dispatch capacity or (ii) a request for assistance by other network operator(s) to maintain security of supply.

(c)

Under both categories of exceptional circumstances when the capacity offered may be below the minimum guaranteed hourly capacity, the limitation shall not exceed what is strictly necessary for TenneT to ensure security of supply. Furthermore in case of outage of a critical grid element TenneT will in any event offer a capacity of at least 500 MW.

(d)	The duration of the commitments will start on the date of notification of the Commission’s decision pursuant to Article 9 of Regulation (EC) No 1/2003 and will remain in force for 9 years. TenneT will also appoint a trustee that will monitor its compliance with the commitments.

(6)

These commitments should address the Commission’s concerns by ensuring that the maximum capacity of the DE-DK1 interconnector will be offered to the market taking into account legitimate reasons of security of supply. The minimum guaranteed hourly capacity of 1 300 MW will act as an additional safeguard constituting a significant improvement compared to the current situation. The costs incurred by TenneT in providing the minimum guaranteed hourly capacity will not be subject of a cost cap.

(7)

The commitments are published in full in English on the website of the Directorate-General for Competition at: http://ec.europa.eu/comm/competition/index_en.html

4. Invitation to make Comments

(8)

Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above and published on the internet, on the website of the Directorate-General for Competition. If there are substantial changes to the commitments a new market test will be launched.

(9)

In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. In this context, the Commission asks interested parties to comment in particular on the level of the minimum guaranteed hourly capacity and the exceptions to the obligation for TenneT to offer it.

(10)

Answers and comments should preferably be reasoned and should set out the relevant facts. Third parties are also invited to make comments on all other aspects of the commitments. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.

(11)

These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’.

(12)

Observations can be sent to the Commission under reference number AT.40461 — DE-DK Interconnector either by email (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address:

European Commission

Directorate-General for Competition,

Antitrust Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

(1) 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). With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.