Summary of RAS Decision 14006 of 12 October 2020 Relating to a Proceeding Under Article 102 TFEU and Article 2 of Greek Law 3959/2011

Summary of RAS Decision 14006 of 12 October 2020 relating to a proceeding under Article 102 TFEU and Article 2 of Greek Law 3959/2011 I. INTRODUCTION 1. This case relates to competition concerns due to potential abuses of dominant position on the Greek markets for: (a) rail freight transport services, which may be further divided into the submarkets for i) block train freight transport services and ii) single-wagon train freight transport services1, and (b) rail rolling stock maintenance services. 2. The Decision makes legally binding the commitments offered by the Greek railway operator TRAINOSE SA, pursuant to Article 25 para. 6 of Greek Law 3959/20112 and Article 32 para. 7 of Greek Law 3891/20103 in a proceeding under Article 102 TFEU and Article 2 of Greek Law 3959/20114. II. THE PARTIES 3. TRAINOSE SA is the main railway operator in Greece, providing both freight and passenger rail transport services. Formerly a State-owned undertaking enjoying a legal monopoly, as of 2017 TRAINOSE SA is subsidiary of the Ferrovie dello Stato Italiane (FSI) Group, which is one of the largest railway companies in Europe. 4. The Hellenic Company for Rolling Stock Maintenance SA, known as “EESSTY” in Greek and “ROSCO” in English (hereinafter: “ROSCO”), was a Greek publicly owned company providing rolling stock maintenance services. In 2019, ROSCO was acquired and subsequently absorbed by TRAINOSE SA, and thus it has now ceased to exist as a separate legal entity. ROSCO (now TRAINOSE SA) is the only rail rolling stock maintenance provider in Greece. 5. Rail Cargo Logistics Goldair SA (hereinafter: “RCLG SA” or “the complainant”) is a railway undertaking which is active on the -recently liberalized- Greek market for the provision of rail freight transport services. RCLG SA carried out its first itinerary in June 2018, and, since then, it has been the only active competitor of TRAINOSE SA in the Greek market for rail freight transport services. 51% of RCLG SA’s share capital is owned by GOLDAIR CARGO SA, a major Greek freight forwarding and storage operator, while the remaining 49% of the share capital is owned by Rail Cargo Logistics-Austria GmBH (also known as “RCLA”), a major Austrian 1 Block trains are entire trains running from a single point of origin to a single point of destination. Single-wagon trains are assembled in a marshalling yard in the region of origin, transported to a marshalling yard in the region of destination and disassembled into single-wagon loads for transport to their final destination. 2 Law 3959/2011 sets the Greek legal framework for competition law. Under Article 25 para. 6, if the Competition Authority suspects (during an investigation carried out either ex officio or after a complaint) that a violation of Greek or EU competition law has occurred, it may, by decision, accept commitments offered by the undertakings concerned to put an end to the alleged violation, and make those commitments binding on the undertakings. 3 Law 3891/2010 refers, inter alia, to the competences, organization and functioning of RAS. According to Art. 32 para. 7, when there are strong indications that an infringement of the railway legislation poses a threat to the public interest, RAS may impose interim measures or accept remedial measures proposed by the undertaking concerned. 4 Article 2 of Law 3959/2011 is the counterpart of Article 102 TFEU in Greek law, establishing that any abuse, by one or more undertakings, of a dominant position within the Greek market (or part of it) shall be prohibited. freight forwarding and storage operator and a company of the Rail Cargo Group, which is a member of the Austrian Federal Railways (also known as ÖΒΒ). III. PROCEDURE 6. On 20 December 2019, RCLG SA submitted a written complaint to the Regulatory Authority for Railways (hereinafter: “RAS” or “the Authority”) concerning the following alleged unlawful practices: (a) refusal, on the part of TRAINOSE SA, to conclude an agreement with RCLG SA for the handover-takeover of trains at the Marshalling Station of Thessaloniki5 (first limb of the complaint) and (b) discriminatory and excessive pricing, on the part of ROSCO, as to the supplied services of rail rolling stock maintenance, to the detriment of RCLG SA and to the benefit of its competitor, TRAINOSE SA (second limb of the complaint). 7. On 7 January 2020, the Authority opened a formal investigation procedure, whereby both TRAINOSE SA (also representing ROSCO) and RCLG SA, as well as third parties, were invited to submit their observations and relevant evidence. On 10 July 2020, the Authority decided to summon the two parties, namely TRAINOSE SA (also representing ROSCO) and RCLG SA, to an oral hearing for the investigation of the complaint at issue. At the beginning of the hearing, on 1 September 2020, TRAINOSE SA stated its intention to offer commitments in order to meet the competition concerns expressed to it by the Authority. Accordingly, the hearing was adjourned, and a deadline was given to TRAINOSE SA for the submission of a commitments proposal. 8. On 1 October 2020, TRAINOSE SA submitted a commitments proposal, on which RCLG SA was subsequently invited to submit its observations. Following this, an oral hearing was scheduled for the examination of the proposed commitments, which took place on 12 October 2020. During the hearing, the Authority expressed some concerns in connection with certain terms of the proposed commitments and invited TRAINOSE SA to provide clarifications and amend its commitments proposal in this respect. Accordingly, TRAINOSE SA provided clarifications and submitted an updated, final version of its commitments proposal to the Authority. On that same date, following the conclusion of the hearing, the Authority examined, in plenary session, the final version of the proposed commitments. IV. SUSPECTED INFRINGEMENTS A. Tying 9. As far as the first limb of the complaint is concerned, namely the alleged refusal, on the part of TRAINOSE SA, to conclude an agreement with RCLG SA for the handover-takeover of trains at the Marshalling Station of Thessaloniki, RAS takes the preliminary view that this practice may possibly amount to unlawful tying, in violation of Article 2 of Greek Law 3959/2011 and Article 2 TFEU. 5 A marshalling station is a railway station where single freight wagons are organized into trains. 10. According to the Authority’s preliminary assessment, TRAINOSE SA holds a dominant (quasi- monopolistic) position on the Greek market for the provision of rail freight transport services, which may be further divided into the submarkets for i) block train freight transport services and ii) single-wagon train freight transport services. Contrary to the provision of block train services (i.e. simple point-to-point connections of entire trains), which can be more easily provided by new entrants, RAS considers that the provision of single-wagon train services requires a more complex organizational structure, a larger rail network, a sufficient scale of operations and, more generally, different production capabilities; thus, in a newly liberalized rail freight transport market, such as the Greek one, only incumbent rail operators (i.e. former national monopolists) like TRAINOSE SA seem to be in a position to run a comprehensive (i.e. nationwide) single-wagon train freight transport system. 11. According to the factual background of the case, TRAINOSE SA, in the course of its activity as a rail freight transport service provider, has undertaken the rail import of goods from several countries of Northern and Central Europe into Greece via the Republic of North Macedonia. In this context, TRAINOSE SA takes over the transportation of full (block) trains at the border station of Gevgelija (in the Republic of North Macedonia)6 and transfers those trains to the Marshalling Station of Thessaloniki. At this marshalling station, the transferred block trains are disassembled into single freight wagons. These single freight wagons are then assembled anew into scheduled trains of TRAINOSE SA, and they are further transferred to their final destinations via the national rail network. Following the transfer of these freight wagons to their final destinations, TRAINOSE SA assembles the wagons again into scheduled trains and transports them, via the national rail network, back to the Marshalling Station of Thessaloniki, where it re-assembles them into a full (block) train. Subsequently, TRAINOSE SA transports this block train from the Marshalling Station of Thessaloniki to the border station of Gevgelija, where it hands it over to the foreign railway undertaking. 12. The complainant sought to undertake the said rail import of goods into the Greek territory (which has been thus far provided only by TRAINOSE SA), by carrying out itself the block train route from the border station of Gevgelija to the Marshalling Station of Thessaloniki (and vice versa). To this end, the complainant attempted to reach an agreement with TRAINOSE SA for the handover-takeover of the trains concerned at the Marshalling Station of Thessaloniki, so that the further transportation of the single wagons concerned from that station to their final destinations (and vice versa), via the national rail network, be carried out by TRAINOSE SA, through the assembly of those single wagons into TRAINOSE SA’s scheduled trains. 13. In the Authority’s preliminary view, TRAINOSE SA’s refusal to conclude an agreement with the complainant for the handover-takeover of trains at the Thessaloniki Marshalling Station and the

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