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3.7.

2003 EN Official Journal of the European Union C 155 E/9

Being so, the Commission considers that it is not appropriate in the particular case raised by the
Honourable Member, which does not fall under Union law, to voice an opinion on the compatibility of an
action taken by Austria with the provisions of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, or any other international legal instrument to which Austria is party.
As the Honourable Member is aware, the European Court of Human Rights is the competent institution to
deal with alleged violations of the European Convention.

(2003/C 155 E/009) WRITTEN QUESTION E-2303/02


by Erik Meijer (GUE/NGL) to the Commission

(25 July 2002)

Subject: Giant merger between the two largest energy undertakings in Germany carried out with a view to
conquering more easily the energy market in other EU Member States

1. Is the Commission aware that, in Germany, Ruhrgas AG distributes 58 % of all natural gas in the
country, through its ownership of a pipeline network and imports, and that Eon AG supplies almost one-
third of the country’s electricity, with the result that they hold a seriously dominant position in the two
major sectors of the German energy market?

2. Has the Commission been informed that a further concentration of control of German energy
supplies, with Ruhrgas AG being taken over by Eon AG, was rejected in spring by the German equivalent
of the Monopolies and Mergers Commission (Kartellamt) but that it may now go ahead because that
decision was declared invalid by means of a Decree published on 5 July 2002 by Dr Alfred Tacke, State
Secretary for Economic Affairs, on behalf of the German Government?

3. Can the Commission confirm that, in May, the German Monopolies Commission also found the
merger inadmissible unless a number of shares in other undertakings, such as VNG in Leipzig, were sold, a
sale which the German Government is now requiring of the undertakings to be merged?

4. Is this approval of the merger, despite fears of a misuse of power and domestic price increases,
largely based on efforts by the German Government to create a strong German concern which, thanks to
the EU’s liberalisation of the market, may acquire a significant market share in other EU Member States?

5. Does the Commission take the view that this Decree might set a precedent? Might it act as an
incentive for the creation of more of these giant mergers at national level?

6. Does this procedure fit in with the Commission’s policy on mergers and the possible creation of
monopolies? Does this merger decision provide the Commission with an opportunity to intervene, partly
on the grounds of the cross-border impact on other Member States? Will the Commission seize that
opportunity?

Answer given by Mr Monti on behalf of the Commission

(24 September 2002)

1. The Commission is aware of the findings of the prohibition decisions adopted by the German Federal
Cartel Office in January and February 2002.

2. The Commission has been informed that on 5 July 2002 the German Federal Minister of Economics
and Technology granted ministerial approval for the E.ON/Ruhrgas merger based on § 42 of the German
Cartel Law. The decision was adopted by Dr Alfred Tacke, State Secretary for Economic Affairs. It overrules
the said prohibition decisions and a negative recommendation by the German Monopoly Commission.
C 155 E/10 Official Journal of the European Union EN 3.7.2003

3. The German Monopoly Commission, by weighing up the severe restrictions on competition with the
public interest arguments put forward by E.ON, reached the conclusion that ministerial approval should
not be granted. In the context of its opinion, the German Monopoly Commission also discussed possible
remedies such as unbundling and a divestiture of Thüga AG, a subsidiary of E.ON, which holds stakes in
130 local and regional utility companies.

4. The Commission is not in a position to comment on the underlying reasons for the ministerial
approval.

5. The ministerial approval was granted for a specific merger case. Future mergers in the energy sector
have to judged on the basis of the merits of each case.

6. The procedure in this case was based on German Cartel Law and carried out by the German
authorities in the framework of their own policy. The Commission has no indication that this case had
(has) Community dimension within the meaning of the European Merger Regulation (1) and that it had
thus jurisdiction to deal with it.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between
undertakings  OJ L 395, 30.12.1989 (whole text republished in OJ L 257, 21.9.1990).

(2003/C 155 E/010) WRITTEN QUESTION E-2315/02


by Ole Krarup (GUE/NGL) to the Council

(26 July 2002)

Subject: Legal basis of the framework decision on combating racism

Could the Council please state its view of the legal basis selected for the proposal for a framework decision
on combating racism and xenophobia (1), in particular in the light of Article 31(e), because this provision
does not mention ‘racism and xenophobia’ as a subject for legislation pursuant to that article.

Article 31(e) relates solely to ‘organised crime, terrorism and illicit drug trafficking’. Has the Council’s Legal
Service given an opinion on this issue? Please attach any such opinions to your answer.

(1) COM(2001) 664  OJ C 75 E, 26.3.2002, p. 269.

Reply

(4 March 2003)

The Council informs the Honourable Member of the European Parliament that the framework decision on
combating racism and xenophobia, for which the Commission proposes Article 31(e) TEU as the legal
basis, is still being discussed within the Council.

(2003/C 155 E/011) WRITTEN QUESTION E-2317/02


by Ole Krarup (GUE/NGL) to the Council

(26 July 2002)

Subject: Framework decisions and freedom of choice

In the light of current proposals for ‘framework decisions’  in particular the proposal for a framework
decision on the European arrest warrant (1), and the proposal for a framework decision on combatting
racism and xenophobia (2), I would be glad if the Council could explain how it understands the detailed
conditions for the use of ‘framework decisions’.