Judgments nº T-370/09 of The General Court, June 29, 2012

• Resolution Date: June 29, 2012
• Issuing Organization: The General Court
• Decision Number: T-370/09

12/07/2012 17:10:29.232T037020095ENL_Arr_Mess_Fr.xmlTRA-DT-FR-ARRET-T-0370-2009-201206153-01_00.xmlARRRDLitige0DEFEDITION PROVISOIRE1Texte pour publication0publique20Document10C:\TEMP\canevas\Litige.xml6/5/201200-§CONVERSION§frup@TRA-DOC-EN-ARRET-T-0370-2009-201206153-06_90Doc2XML SUIVI2 TRAD Prod 2003C:\Program Files\Doc2XML\XML\Serveur_SUIVI2_TRAD.xmlO:\Flux\Suivi_II\conversion\doc2xml_trad\In\UNCLASSIFIEDNormalIRECFalseFalse()Doc2XML_2003_PC_TRAD SV2_PUBC:\Program Files\Doc2XML\XML\PR_Doc2XML_2003_SV2_PUB.xmlP:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_pub\In\JUDGMENT OF THE GENERAL COURT (Fifth Chamber) 29 June 2012 (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines)In Case T‑370/09,GDF Suez SA, established in Paris (France), represented by J.‑P. Gunther and C. Breuvart, lawyers,applicant,vEuropean Commission, represented by V. Di Bucci, A. Bouquet and R. Sauer, acting as Agents,defendant,APPLICATION for partial annulment of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF) and, in the alternative, annulment or reduction in the amount of the fine imposed on the applicant,THE GENERAL COURT (Fifth Chamber),composed of S. Papasavvas (Rapporteur), President, V. Vadapalas and K. O’Higgins, Judges,Registrar: C. Kristensen, Administrator,having regard to the written procedure and further to the hearing on 21 September 2011,gives the followingJudgmentLegal context1. European Union law1Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas (OJ 1998 L 204, p. 1) (‘the first gas directive’) established common rules for the transmission, distribution, supply and storage of natural gas. It laid down the rules relating to the organisation and functioning of the natural gas sector, including liquefied natural gas (LNG), access to the market, the operation of systems, and the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas. 2The first gas directive required Member States to gradually open the market for the supply of natural gas to large consumers to competition and to give third parties access to the existing transmission system. 3Under Article 29(1) and Article 30 of the first gas directive, Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with the directive no later than 10 August 2000. 4The first gas directive was repealed and replaced, as of 1 July 2004, by Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30 (OJ 2003 L 176, p. 57). 2. National lawsFrench law5Article 1 of Law No 46‑628 of 8 April 1946 on the nationalisation of electricity and gas (JORF of 9 April 1946, p. 2651) (‘the 1946 Law’) provided, before its repeal by Regulation 2011‑504 of 9 May 2011 codifying the legislative part of the Energy Code (JORF of 10 May 2011, p. 7954): ‘As from the enactment of this Law, …(2)the production, transport, distribution, import and export of combustible gas shall be nationalised. …’6Before amendment by Law No 2004‑803 of 9 August 2004 on the public electricity and gas service and on electricity and gas undertakings (JORF of 11 August 2004, p. 14256), the first paragraph of Article 3 of the 1946 Law stated: ‘The management of the nationalised gas undertakings shall be entrusted to a public undertaking of an industrial and commercial nature called Gaz de France (GDF), Service National.’ 7Until the entry into force of Law No 2003‑8 of 3 January 2003 on the gas and electricity markets and on the public energy service (JORF of 4 January 2003, p. 265) (‘the 2003 Law’), the 1946 Law conferred a monopoly on imports and exports of gas on Gaz de France. 8The 2003 Law, which sought to transpose the first gas directive, opened the French gas market to competition. Inter alia, that law gave eligible customers access to natural gas networks and to the supply of natural gas and abolished the monopoly on imports and exports of gas. 9Gaz de France was turned into a public limited company by Law 2004‑803.German law10The Energiewirtschaftsgesetz (Law on the energy industry) (‘the 1935 EnWG’) of 13 December 1935 (RGBl. I, p. 1451) provided for a State system for the authorisation and monitoring of the activities of German gas companies. 11Under Paragraph 103 of the Gesetz gegen Wettbewerbsbeschränkungen (Law against restrictions on competition) (‘the GWB’) of 27 July 1957 (BGBl. I, p. 1081), certain agreements between energy distribution companies as well as between those companies and local authorities were exempt from the prohibition of concluding agreements which restrict competition. That exemption covered, in particular, agreements known as demarcation agreements, by which undertakings agreed not to supply electricity or gas in each other’s territories, and agreements known as exclusive concession agreements, by which a local authority granted an exclusive concession to a company, allowing it to use public terrain to construct and operate electricity and gas distribution networks. In order to be valid, those agreements had to be notified to the competent competition authority, which had the power to prohibit them if it took the view that they constituted a misuse of the legal exemption. 12The Gesetz zur Neuregelung des Energiewirtschaftsrechts (Law on the reform of energy industry law) of 24 April 1998 (BGBl. 1998 I, p. 730) abolished, with immediate effect, the exemption applicable to demarcation and exclusive concession agreements laid down in Paragraph 103 of the GWB. That law also replaced the 1935 EnWG by the Gesetz über die Elektrizitäts- und Gasversorgung — Energiewirtschaftsgesetz (Law on electricity and gas supply — Law on the energy industry) (‘the 1998 EnWG’). 13The Erstes Gesetz zur Änderung des Gesetzes zur Neuregelung des Energiewirtschaftsrechts (First Law amending the Law on the reform of energy industry law) of 20 May 2003 (BGBl. 2003 I, p. 685) amended the 1998 EnWG for the purpose of implementing the first gas directive. Background to the dispute1. The undertakings in question14The applicant, GDF Suez SA, derives from the merger between Gaz de France and Suez SA on 22 July 2008. It is a French undertaking which is present across the entire energy chain, in electricity and in natural gas, upstream to downstream. It is the incumbent operator and the leading natural gas supplier in France. It is also one of the leading natural gas suppliers in Europe. 15E.ON AG is a German undertaking which produces, transports, distributes and supplies energy, mainly natural gas and electricity. 16E.ON Ruhrgas AG, which derives from the merger between E.ON and Ruhrgas AG and has been wholly owned by E.ON since 31 January 2003, is the largest natural gas supplier in Germany and one of the main players on the European market. By a decision of 18 September 2002 authorising that merger, the German authorities required E.ON Ruhrgas to implement a gas release programme (‘the GRP’) relating to a total quantity of 200 TWh. That quantity was to be released at six annual auctions, each involving a quantity of 33.33 TWh, with the first deliveries starting on 1 October 2003.2. The MEGAL agreement17By an agreement of 18 July 1975 (‘the MEGAL agreement’), Gaz de France and Ruhrgas decided to construct and operate the MEGAL gas pipeline together. The MEGAL gas pipeline, which has been fully operational since 1 January 1980, is one of the main gas pipelines for importing gas into Germany and France. It crosses southern Germany and links, across a distance of 461 km, the German‑Czech border to the Franco-German border between Waidhaus (Germany) and Medelsheim (Germany). 18The inlet and outlet points for the gas bought by Gaz de France and Ruhrgas were defined in Appendix 2 to the MEGAL agreement. A certain number of outlet points from the MEGAL gas pipeline were established in respect of Ruhrgas and additional outlet points could be added if required. As regards Gaz de France, it was stated that the outlet point from the gas pipeline for all the quantities of gas to be transported for that company was to be a point on the border between Germany and France near Habkirchen (Germany), unless the parties to the MEGAL agreement agreed otherwise. 19Under the MEGAL agreement, Gaz de France and Ruhrgas set up the joint undertaking MEGAL GmbH Mittel-Europäische Gasleitungsgesellschaft, now MEGAL Mittel-Europäische Gasleitungsgesellschaft mbH & Co. KG (‘MEGAL’), which was to be responsible for the construction and operation of the MEGAL gas pipeline and the transport of gas by that pipeline. The ownership of the gas pipeline was also conferred on MEGAL. 20Pursuant to the MEGAL agreement, Gaz de France and Ruhrgas also set up the joint undertaking MEGAL Finance Co. Ltd (‘MEGAL Finco’), which was responsible for securing and managing the capital necessary for the construction of the MEGAL gas pipeline. 21On 18 July 1975, Ruhrgas and Gaz de France also signed 13 letters (‘the side letters’) which served to explain certain technical, financial and operational aspects of the management of the MEGAL gas pipeline. Those letters include the letter known as ‘Direktion I’ and the letter known as ‘Direktion G’. 22The Direktion G letter reads as follows: ‘…The Carrying Capacities Contracted or to be Contracted by Gaz de France for the transportation of gas shall concern gas which has been or will be purchased by Gaz de France and will be delivered to [MEGAL] and/or [MEGAL Finco] for transit for Gaz de France to and destined for consumption in France. The...