In February 2010, the European Commission announced that it had
received proposed commitments from Italian gas supplier ENI, and
members of the airline alliance, oneworld.
During the last 18 months, the Commission has closed investigations
against several companies through commitments, including Microsoft,
GDF Suez, RWE and E.ON, among others.
As previously noted in the article on the Microsoft case
in our November
2009 newsletter, the Commission increasingly seeks to close
cases under investigation by means of binding commitments offered
by the investigated companies, pursuant to Article 9 of EU
Regulation 1/2003. This Article provides that the company may offer
commitments to remedy competition concerns identified by the
Commission; if accepted, the case can be closed without the
adoption of an infringement decision and the imposition of fines
(fines may, however, be imposed for violation of the commitments).
The ENI case concerns access to gas transport
infrastructure. The Commission's concern is that ENI may be
"hoarding" and "deliberately underinvesting in"
pipeline capacity, to the detriment of third parties requiring such
capacity. The Commission appears to consider that such behaviour
would constitute an abuse of a dominant position on the part of
ENI, contrary to Article 102 of the Treaty on the Functioning of
the European Union (TFEU).
In order to resolve the Commission's concerns, ENI has offered a
structural commitment in the form of a divestiture of its shares in
the relevant pipelines. The Commission considers that such a
solution is necessary to ensure independent management of the
pipelines, rather than this being influenced by ENI's position on
downstream Italian gas markets, and will favour market entry.
The Commission's conclusions are in line with its 2007 energy
sector inquiry, where it concluded, among other things, that
vertically integrated network operators favoured their own
affiliates and underinvested in the infrastructure as investment
decisions were not taken in the interest of network/infrastructure
operations, but on the basis of the interests of the integrated
company. They are also reminiscent of the commitments made to the
Commission last year by RWE and GDF Suez seeking improvements in
competitors' access to gas transport capacity.
The oneworld case relates to an "airline alliance"
arrangement among American Airlines, British Airways and Iberia.
Pursuant to the agreement, the parties would agree jointly to
manage schedules, capacity and pricing, as well as share revenues,
in relation to certain transatlantic routes. The Commission opened
proceedings against the alliance in April 2009. After the
Commission formally notified the parties of its objections, the
parties offered commitments to address these concerns. The
Commission has not yet publicly disclosed any details of the
commitments, which are currently being market tested.
Interestingly, until now, Article 9 commitments have mainly been
used to address alleged abuses of a dominant position; the oneworld case is an illustration of its application also
in the context of the prohibition of anti-competitive agreements
under Article 101 TFEU.
Please click on the links below for the other articles in
the March 2010 competition newsletter
Contacts
Nigel Parr
T: +44 (0)20 7859 1763
E: nigel.parr@ashurst.com
Neil Cuninghame
T: +44 (0)20 7859 1147
E: neil.cuninghame@ashurst.com
Mats Johnsson
T: +46 (0)8 407 24 68
E: mats.johnsson@ashurst.com
This newsletter is not intended to be a comprehensive review of
all developments in the law and practice, or to cover all aspects
of those referred to. Readers should take legal advice before
applying the information contained in this publication to specific
issues or transactions.