FINAL REPORT OF THE HEARING OFFICER IN CASE COMP/M.3440 — EDP/ENI/GDP

(pursuant to Article 15 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2005/C 288/02)

(Text with EEA relevance)

On 9 July 2004, the Commission received notification, pursuant to Article 3(1)(b) of Council Regulation (EEC) No 4064/89, of a proposed merger under which the undertakings EDP and ENI would acquire joint control of the undertaking GDP.

At the end of the first stage of the procedure, the Commission concluded that the transaction raised serious doubts as to its compatibility with the common market. On 12 August 2004, therefore, the Commission initiated proceedings in accordance with Article 6(1)(c) of the Merger Regulation.

On 12 October 2004, the Commission sent the parties a statement of objections in which it concluded, on a provisional basis, that the proposed transaction was incompatible with the common market since it would (i) reinforce EDP's dominant position on the Portuguese electricity wholesale and retail markets and on the market for the supply of ancillary services and (ii) reinforce GDP's dominant position on the Portuguese markets for the supply of gas to combined-cycle plants, large industrial customers and local distribution companies and on the market for the supply of gas to small customers (industrial, commercial and individual).

The parties were given access to the file by means of a CD-Rom which was sent with the statement of objections. They replied to the statement of objections on 27 October 2004. The parties waived the right to a formal hearing.

On 28 October 2004, the parties offered commitments designed to meet the competition concerns identified by the Commission in its statement of objections. The proposed commitments were the subject of a market test, whose result was communicated to the parties. The commitments were deemed to be quite insufficient by the Commission. On 17 November 2004, the parties submitted new commitments involving only slight changes to those initially submitted.

On 19 November 2004, the Commission sent the Members of the Advisory Committee on Concentrations a draft Decision pursuant to Article 8(3) of the Merger Regulation declaring the proposed merger, as amended by the proposed commitments, incompatible with the common market.

The case does not call for any particular comments as regards the right to be heard.