Duits energiebedrijf komt met voorstellen voor Commissie om dominante positie te reguleren (en)
The European Commission has invited comments from interested parties on the commitments offered by E.ON to meet concerns that it may have infringed EC Treaty rules on the abuse of dominant market positions (Article 82 - see MEMO/08/132). The Commission's concerns relate to German electricity markets, and in particular the withholding of available generation capacity, deterring third parties from investing in new generation capacity and certain practices as regards the operation of the transmission system. A summary of the commitments proposed by E.ON has been published in the EU Official Journal (2008/C 146/9) and the full non-confidential version of the commitments is available on the Europa website. Interested parties can submit comments within one month from the date of publication. If the result of the market test is positive, the Commission would adopt a decision under Article 9 of Regulation 1/2003, making the commitments legally binding on E.ON.
The Commission is investigating two cases concerning E.ON's alleged behaviour on respectively the German wholesale electricity market and the German balancing electricity markets (balancing energy is last-minute energy necessary to maintain the frequency of the current in the grid).
According to its preliminary assessment of the first case, the Commission has concerns that E.ON may have abused its dominant position on the German electricity wholesale market by withholding available capacity, i.e. deliberately not offering for sale the production of certain power stations which was available and economically rational, with a view to raising electricity prices to the detriment of consumers. The Commission also has concerns that E.ON may have abused its dominant position on the same market by deterring third parties from undertaking new investment in electricity generation.
After a preliminary assessment of the second case, the Commission has concerns that E.ON may have abused its dominant position as a transmission system operator on the market for secondary balancing energy in the E.ON network area by favouring its own production affiliate, passing increased costs on to final consumers, and by preventing power producers from other Member States from selling balancing energy into the E.ON balancing markets.
Following detailed discussions, E.ON has proposed commitments to address the Commission's concerns in both cases. In particular, E.ON offered to divest generation capacity in Germany from different types of technology and fuels, i.e. run-off-river, lignite, hard coal, gas, pump storage and nuclear, to remedy the Commission's concerns on the wholesale electricity market. In addition, E.ON proposed to divest its transmission system business consisting of its Extra-High-Voltage (380/220 kV) line network and the system operations currently run by E.ON Netz to meet the Commission's concerns on the electricity balancing markets. The High-Voltage (110 kV) line network which is also currently operated by E.ON Netz would remain with E.ON under this commitment proposal.
By publishing this market test notice the Commission invites interested parties to present their comments on the commitments offered by E.ON within one month of the publication in the Official Journal.
If the market test indicates that interested parties consider the commitments to be a satisfactory solution to increase competition on the German electricity markets, the Commission would adopt a so-called commitments decision under Article 9 of Regulation 1/2003.
Such an Article 9 decision finds that there are no longer grounds for action by the Commission, without concluding whether or not there has been or still is an infringement. However, if commitments given in the context of such a decision are not complied with, the Commission may impose on the company in question a fine of up to 10% of total worldwide turnover without having to reach a final decision as to whether the antitrust rules have been infringed.
A summary of the proposed commitments has been published in the EU's Official Journal on 12 June 2008 (2008 C146/09). The full non-confidential version of the commitments is available at: