Schikking tussen Europese Commissie en Duitse gasgigant BEB (Shell/Esso) voor toegang pijplijnen (en)

The European Commission's competition department has closed its probe into the alleged anti-competitive behaviour by BEB, a German joint venture of ExxonMobil and Shell. The investigation focused on BEB's refusal to grant Norwegian gas producer Marathon access to its Northern German pipeline network. In return for the closure BEB offered to further improve its access regime for gas pipelines and storage facilities, which will facilitate third parties to use BEB's network. BEB undertook in particular to abandon the transport system currently applied across Germany (including the area covered by BEB's network) and to replace it by a new user-friendly system for its network (so called entry/exit system). Commenting on the settlement, Competition Commissioner Mario Monti said: "The settlement of the Marathon case with BEB means a significant step forward for the German gas market, which currently is lagging behind in the liberalisation process. I welcome that BEB is willing to introduce an entry/exit system for its network, which better reflects physical gas flows and costs incurred when transporting gas. I can only encourage other German companies to follow BEB's example. In the medium term I would also hope that Germany develops into one large entry/exit zone covering all networks be they supra-regional, regional or local. The settlement shows that the Commission is fully committed to foster the liberalisation process by chasing anti-competitive behaviour".

BEB's current system is based on capacity reservations for each pipeline section in accordance with the "contractual path", even if the gas does not physically flow through these pipelines. The new system will allow users to book the capacity at the points where they intend to inject gas (entry points) and separately at the points where they envisage to off-take gas (exit points). It is expected that the so called entry/exit model will facilitate domestic as well as cross border transports for third parties as it does already in other Member States. The closure of the case for BEB follows similar settlements with the German gas company Thyssengas a subsidiary of the electricity company RWE - and Dutch gas company Gasunie, one of the largest European gas companies, in which ExxonMobil, Shell and the Dutch state hold stakes. The investigation regarding the two other European gas companies, which had rejected Marathon's access request, will be continued. (for details about other recently concluded competition cases in the energy sector see memo attached).

The origins of the case date back to the nineties, when the Norwegian subsidiary of US oil and gas producer Marathon requested - at various occasions - access to the pipelines of five continental European gas companies. In the past the Commission services reached a settlement of the case with the Dutch company Gasunie (see IP/03/547 of 16 April 2003) and the German company Thyssengas (see IP/01/1641 of 23 November 2001). The remaining two companies concerned by the case are large German and French operators.

Refusals to grant access to gas pipelines are not only incompatible with the European gas directives of 1998 and 2003, which provide for a so-called Third Party Access (TPA) regime, i.e. a regime allowing gas suppliers and shippers to use the gas pipelines owned by the other operators. Refusals to grant access can be also, and have been in the present case, tackled as a potential abuse of a dominant position or a restrictive concerted practice (in the latter case when the refusal is carried out jointly).

In the case at question the Commission services and BEB reached a settlement of the dispute. The commitments offered by BEB focus on five points: a) transparency, b) balancing, c) booking procedures, d) congestion management; e) entry-exit system. As to these points BEB offered:

• In order to improve the transparency of its network BEB will publish and update regularly on its Internet site - in absolute figures - the available transport capacity at all entry and all major exit points of its transmission network. The same applies to its storage facilities. This will make it easier for shippers to obtain information about available transmission and storage capacity.

• As regards balancing, BEB will assist shippers having a flexible supply source to avoid getting into a situation of imbalances (introduction of a free of charge "on line balancing", which will ensure that input and output of gas in the BEB system will remain in balance at all times). At the same time BEB will introduce a bulletin board which will allow shippers to get into contact with each other in order to optimise their transport and storage requirements. Finally, BEB will allow companies to use its storage facilities even if the technical minimum flow requirements are not fulfilled. The only condition is that at the same time other shippers (individually or jointly) fulfil the minimum flow requirements (so called back pack principle).

• BEB also undertakes to improve its handling of access requests by introducing - as of July 2005 - online screen-based booking procedures, which will lead to the elimination of the, at times lengthy, response times. Online bookings are particularly relevant for short term trading. In the meantime BEB will shorten its maximum response time for replying to access request.

• As regards congestion management, BEB commits to introduce a "use it or lose it" principle for capacity reservations of its own gas trading branch. This commitment means that third parties are entitled to use, upon request, unused transport capacity originally booked by BEB' trading branch. BEB will also facilitate the creation of a secondary market by allowing customers to sell or sublease capacity booked from BEB.

• Last but not least, BEB offers to introduce a so-called entry/exit regime. According to such a regimeshippers book capacity at the relevant entry and exit points separately. The fees to be paid for the transport (entry charges and exit charges) do no longer relate to a hypothetical "contractual path", i.e. the distance between the entry and exit points, which is currently applied in Germany. BEB is however entitled to take existing competition into account. The current German system in many instances neither reflects the physical flow of gas nor the cost that this entails. The entry/exit system removes this concern and is therefore considered superior. It also facilitates booking procedures as it no longer requires a capacity reservation for each pipeline section "used for the fulfilment of the transport contracts". A very important aspect of the commitment is also that BEB is open to discuss with adjacent pipeline system operators possible cooperation to extend the entry/exit system to larger territories.

Most of the commitments will enter into force immediately, however for certain additional IT preparation is required. The commitments will remain in place until January 2007. An independent auditor, who will report regularly to the Commission services, will monitor compliance. For further details references is made to BEB's internet site where the non-confidential version of the commitment text will be published.

The Commission services are of the view that BEB's commitments will lead to a significant improvement of BEB's Third Party Access regime most prominently the entry/exit model, which is discussed in Germany since more the two years. It was therefore decided to close the Marathon case for BEB in return for the commitments taking effect. The investigation for the remaining operators will continue.