2004/33/EC: Commission Decision of 27 August 2003 relating to a proceeding pursuant to Article 82 of the EC Treaty of (COMP/37.685 GVG/FS) (notifed under document number C(2003) 3057)

• Coming into Force: 16 January 2004
• End of Effective Date: 31 December 9999
• ELI: http://data.europa.eu/eli/dec/2004/33(1)/oj
• Published date: 16 January 2004
• Date: 27 August 2003
• Official Gazette Publication: Journal officiel de l’Union européenne, L 11, 16 janvier 2004,Diario Oficial de la Unión Europea, L 11, 16 de enero de 2004

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2004/33/EC: Commission Decision of 27 August 2003 relating to a proceeding pursuant to Article 82 of the EC Treaty of (COMP/37.685 GVG/FS) (notifed under document number C(2003) 3057)

Official Journal L 011 , 16/01/2004 P. 0017 - 0040

Commission Decision

of 27 August 2003

relating to a proceeding pursuant to Article 82 of the EC Treaty of (COMP/37.685 GVG/FS)

(notifed under document number C(2003) 3057)

(Only the Italian text is authentic)

(2004/33/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by Regulation (EC) No 1216/1999(2), and in particular Articles 3 and 15(2) thereof,

Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway(3),

Having regard to the complaint lodged on 25 October 1999 by the limited company Georg Verkehrsorganisation GmbH, acting under Article 10 of Regulation (EEC) No 1017/68, alleging that Article 82 of the EC Treaty had been infringed,

Having regard to the Commission decision of 21 June 2001 to initiate proceedings in this case,

Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission pursuant to Article 19(1) of Regulation No 17 and Article 26 of Regulation (EEC) No 1017/68, read in conjunction with Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearings of parties in certain proceedings under Articles 85 and 86 of the EC Treaty(4),

Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions and the Advisory Committee on Restrictive Practices and Monopolies in the Transport Industry,

Having regard to the final report of the hearing officer in this case(5),

Whereas:

A. INTRODUCTION

(1) This case was initiated by a complaint from the German railway undertaking Georg Verkehrsorganisation GmbH (hereinafter "GVG") against Ferrovie dello Stato SpA (hereinafter "FS"), the Italian national railway carrier. GVG complained that since 1995 FS had been refusing to provide access to the Italian infrastructure, to enter into negotiations for the formation of an international grouping and to provide traction. This prevented GVG from providing an international rail passenger service from various points in Germany via Basle to Milan.

(2) The Commission has come to the conclusion that by denying GVG access to the services in question, which are necessary for carrying out its business, FS has abused its dominant position within the meaning of Article 82 of the EC Treaty and Article 8 of Regulation (EEC) No 1017/68. Following the initiation of the Commission's investigation, FS has given undertakings to the Commission that the abuse will be terminated and will not be repeated.

B. THE PARTIES

(3) GVG is a German railway undertaking which has been operating international rail passenger services on the basis of a national authorisation since March 1992. On 31 March 1995 it obtained from the Transport Ministry of the Land of Hessen a licence compatible with Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings(6) to operate passenger rail transport services. In 2000 GVG formed an international grouping with the Swedish State railways providing services between Malmö and Prague and Malmö and Berlin. In 2001 it operated more than 200 trains per year in the international passenger long-distance market from Germany to other European countries (Austria, France, Sweden, and eastern Europe).

(4) FS is the major Italian railway operator and a State-owned enterprise. During the 1990s, FS went through a restructuring process. On 22 December 1992, the company was established as the public limited company "Ferrovie dello Stato - Società di Trasporti e Servizi per Azioni" (FS SpA) under the supervision of the Ministry of the Treasury. On 4 March 1996, FS established separate business units for the network, rolling stock and traction, passengers and other activities. On 27 July 1998, these business units were transformed into free-standing divisions: the infrastructure division (FS Infrastruttura), the division for passenger transport (FS Passeggeri) and the division for freight transport (FS Cargo).

(5) On 13 July 2001, FS accomplished a restructuring process creating FS Holding SpA FS Holding controls two companies:

(6) Rete Ferroviaria Italiana SpA (RFI), which operates the network infrastructure on the basis of a 60-year management contract granted by the Transport Minister on 31 October 2000 (Decree No 138T); and

(7) Trenitalia SpA (Trenitalia), which carries on transport business on the basis of a licence to provide rail services granted by the Transport Minister on 23 May 2000 in accordance with Presidential Decrees No 277 of 8 July 1998 and No 146 of 16 March 1999.

C. THE SERVICE CONCERNED BY THE DECISION

1. AN INTERNATIONAL RAIL PASSENGER TRANSPORT SERVICE BETWEEN GERMANY AND MILAN

(8) GVG wants to provide an international passenger service from Germany to Milan and back. Its intention is to feed passengers originating in different cities in Germany, i.e. Karlsruhe, Koblenz and Mannheim, into Basle. It then proposes a non-stop ("Sprinter") rail link that would operate twice a day from Basle to Milan via Domodossola. Some of these passengers would continue their journey from Milan. Similarly, the train from Milan to Basle would take local passengers as well as beyond passengers (fed into Milan by existing FS trains). GVG wishes to cater in particular for business customers by offering a Basle-Milan connection which is up to one hour faster than existing links. Unlike GVG's non-stop service, the former operate with up to 14 stops between Basle and Milan. GVG also envisages providing additional services on the train.

(9) The attractiveness of such a service depends considerably on the time schedule. Arrival and departure times in Basle have to be well connected with Deutsche Bahn AG (hereinafter "DB") Intercity trains which would provide feeder services for beyond traffic. Similar interconnection has to be ensured for beyond traffic in Milan. Moreover, the trains should depart with a sufficient time difference. The train paths envisaged by GVG would allow its trains to depart with a time difference of about two hours. In addition, in order to ensure the shortest possible travelling time, there has to be a good connection at Domodossola. The train paths requested by GVG in 1998 can be taken by way of illustration(7). They would allow for the services as set out in the table below and a seven/eight-minute stop in Basle Bad to catch the Intercity to/from Germany(8):

>TABLE>

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(10) FS and the Swiss railway undertaking Schweizer Bundesbahn (hereinafter "SBB") provide a cooperative rail passenger transport service from Basle to Milan. They operate seven trains daily via Chiasso(9) and three trains a day via Domodossola(10). Apart from that, the Italian-Swiss undertaking Cisalpino, in which FS holds 50 % (the other half being shared between SBB and the Swiss BLS Lötschbergbahn (hereinafter "BLS")) operates one daily service via Domodossola(11). These services are not provided on the basis of a public service obligation or under a public service contract(12).

2. REQUIREMENTS FOR THE SERVICE

2.1. LICENCE

(11) In order to provide a cross-border rail transport service, a railway undertaking first needs a licence. The conditions for granting licences to railway undertakings in the European Union have been harmonised by Directive 95/18/EC, which was transposed in Italy by Decree No 146/1999 with a two-year delay on 23 July 1999.

2.2. INTERNATIONAL GROUPING

(12) At the present stage in EU rail liberalisation, the only way a railway undertaking from one Member State can obtain access to the rail passenger transport market of another Member State for the provision of international passenger transport services is by entering into an "international grouping". An international grouping is defined by Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways(13) as an association of at least two railway undertakings established in different Member States for the purpose of providing international transport services between Member States. According to Article 10(1) of Directive 91/440/EEC, international groupings must be granted access and transit rights in the Member States of their constituent railway undertakings as well as transit rights in other Member States. As shown in recital 128, it is the Commission's view that Article 10(1) of Directive 91/440/EEC has direct effect.

(13) Directive 91/440/EEC was implemented in Italy only after a five-year delay by Decree No 277/1998, which entered into force on 8 July 1998. However, even before the transposition of Directive 91/440/EEC, there was no legal obstacle under Italian law for FS to enter into an international grouping with a railway undertaking of another EU Member State for the purpose of providing international rail services(14).

2.3. ACCESS TO INFRASTRUCTURE

(14) The railway undertaking also needs to be provided with infrastructure capacity, i.e. a certain time slot on the tracks of the railway networks on which it wishes to provide the cross-border service. Access to the infrastructure includes a number of different services and actions that take place at different points in time. In particular the following elements are important: information regarding the availability of train paths and related prices; the handling of requests for capacity; the permission to use track capacity; train control, including signalling, regulation and the provision of information on train movement; access to refuelling...