30.9.2003 Official Journal of the European Union L 24851 COMMISSION DECISION of 17 December 2002 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2822-EnBWENI/GVS) (notified under document number C(2002) 5080) (Only the English text is authentic) (Text with EEA relevance) (2003/668[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to the Agreement on the European Economic Area, and in particular Article 57(2)(a) thereof, Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (!), as last amended by Regulation (EC) No 1310/ 97 (3, and in particular Articles 8(2) and 22(3) thereof, Having regard to the Commission's decision of 16 September 2002 to initiate proceedings in this case, Having regard to the opinion of the Advisory Committee on Concentrations (?), Having regard to the final report of the hearing officer in this case (%), Whereas: (1)  On 14 August 2002, the Commission received a notifi- cation of a proposed concentration pursuant to Article 4 of Regulation (EEC) No 4064/89 (the Merger Regula- tion’) by which the undertakings Energie Baden-Wiirt- temberg AG (EnBW’), Germany, and ENI SpA (ENT), Italy, acquire joint control of the German undertaking Gasversorgung Siiddeutschland GmbH (‘GVS') by way of purchase of shares. (2)  After examination of the notification, the Commission has concluded that the notified operation falls within the scope of the Merger Regulation and raises serious doubts as to its compatibility with the common market. There- fore, on 16 September 2002, the Commission decided to initiate proceedings in accordance with Article 6(1)(c) of the Merger Regulation and Article 57 of the EEA Agreement. (3)  The Advisory Committee discussed the draft of this Deci- sion on 6 December 2002. () O] L 395, 30.12.1989, p. 1; corrected version in O] L 257, 21.9.1990, p. 13. () OJ L 180, 9.7.1997, p. 1. () OJ C 233, 30.9.2003. () OJ C 233, 30.9.2003. I. THE PARTIES AND THE OPERATION (4)  EnBW is active in the fields of electricity as well as gas generation, transmission, distribution, supply and trading and district heating supply. Other business activities comprise telecommunications and waste recycling. Prior to the liberalisation of the German electricity market, EnBW's business activities were focused on Southwest Germany (mainly the State of Baden-Wirttemberg). After the liberalisation, however, EnBW extended some of its electricity activities nationwide (for example, ‘Yello’ electricity to mainly household customers). As far as gas is concerned, EnBW distributes gas through subsidiaries at local level to final customers as well as secondary distributors. (5)  EnBW is jointly controlled by Electricité de France (EDF) and Zweckverband Oberschwibische Elektrizitits- werke (OEW’) (°). EDF is a wholly State-owned company, which is active in all fields of supply and transport of electricity in France. EDF is the operator of the national grid, but is not active in the sectors of gas generation or supply. EDF indirectly holds 34,5 % of the shares of EnBW. OEW is an association of nine public districts in Southwest Germany. Its main purpose is to hold shares in companies active in the energy sectors. Through its wholly owned subsidiary OEW Beteiligungsgesellschaft mbH, OEW holds 34,5 % of the shares in EnBW. (6)  ENI is active in the exploration and production of oil and natural gas worldwide. ENI is a gas producer in Italy, the North Sea, Egypt, Nigeria, Kazakhstan and Libya. Furthermore, ENI purchases gas volumes from Sona- trach, Gasunie, Gazprom|Gazexport, Nigeria LNG and some Norwegian gas producers. ENI is also active in the supply, transmission, storage, distribution and trade of natural gas. ENI holds shares in companies with trans- portation capacities which are active in the operation of the transnational pipelines for transmission of natural gas in Germany, Austria, Switzerland, Tunisia, and sea pipelines in the Mediterranean from Tunisia to Italy, in the Black Sea from Russia to Turkey and in the North Sea from the United Kingdom to Belgium. () Commission Decision 2002/164/EC in Case COMP/M.1853 — EDF| EnBW (O] L 59, 28.2.2002, p. 1).