# C_2007168EN.01002201.xml

| 20.7.2007 | EN | Official Journal of the European Union | C 168/22 |
| --- | --- | --- | --- |

20.7.2007

EN

Official Journal of the European Union

C 168/22

---

Opinion of the European Economic and Social Committee on the Report from the Commission: Report on Competition Policy 2005

SEC(2006) 761 final

(2007/C 168/04)

On 15 June 2006 the European Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the Report from the Commission: Report on Competition Policy 2005.

Report from the Commission: Report on Competition Policy 2005

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 27 March 2007. The rapporteur was Mr Garai.

At its 435th plenary session, held on 25 and 26 April 2007 (meeting of 26 April), the European Economic and Social Committee adopted the following opinion by 115 votes to 40 with 12 abstentions.

1.   Conclusions and recommendations

| 1.1 | It was not possible for this opinion to cover all DG COMP's activities (1). Only a limited number of selected cases could be discussed briefly, and judicial rulings on antitrust, merger and State aid cases were not dealt with at all, since this would have required a separate, in-depth study of detailed market conduct and how it is viewed by the authorities. However, the Report makes it clear that DG Competition's approach to handling cases is characterised by perseverance in carrying out procedures and a concern to find suitable and practicable solutions to the problems which are encountered. If something could be criticised, then perhaps some selected subjects might be mentioned where the importance of the sector from the point of view of fulfilling the requirements of international competitiveness outlined by the Lisbon agenda and accompanying documents did not warrant the attention paid to it by the Commission. For the EESC, one example is the ‘2005 Report on Professional Services — Scope for more reform’ follow-up paper and the staff working document entitled ‘Progress by Member States in reviewing and eliminating unjustified restrictions to Competition in the area of Professional Services’. In the Committee's view, the Lisbon agenda's call for liberalisation of services mainly applies to services of international relevance (infrastructure, telecommunications, transport, etc.), and is much less concerned with the ‘liberal’ professions (including architects, lawyers, doctors, engineers, accountants and pharmacists); most of the latter are small-scale entrepreneurs of mainly local importance, and in keeping with the subsidiarity principle they fall within Member State competences (see the Cipolla-Macrino case, Joined Cases C-94/04 and C-202/04) (2). It cannot be denied that certain restrictions are necessary to ensure that practitioners meet society's expectations of high professional standards, experience and trustworthiness. The Committee welcomes in-depth studies of the relevant markets for the various liberal professions in the Member States; these studies assess the extent and seriousness of existing restrictions. At the same time it must be emphasised that not only the economic effects of proposed liberalisation on competition patterns should be analysed, but also their probable repercussions on the fabric of society. This does not preclude NCA antitrust procedures, mainly directed against the efforts of professional associations to fix prices. |
| --- | --- |

1.1

It was not possible for this opinion to cover all DG COMP's activities (1). Only a limited number of selected cases could be discussed briefly, and judicial rulings on antitrust, merger and State aid cases were not dealt with at all, since this would have required a separate, in-depth study of detailed market conduct and how it is viewed by the authorities. However, the Report makes it clear that DG Competition's approach to handling cases is characterised by perseverance in carrying out procedures and a concern to find suitable and practicable solutions to the problems which are encountered. If something could be criticised, then perhaps some selected subjects might be mentioned where the importance of the sector from the point of view of fulfilling the requirements of international competitiveness outlined by the Lisbon agenda and accompanying documents did not warrant the attention paid to it by the Commission. For the EESC, one example is the ‘2005 Report on Professional Services — Scope for more reform’ follow-up paper and the staff working document entitled ‘Progress by Member States in reviewing and eliminating unjustified restrictions to Competition in the area of Professional Services’. In the Committee's view, the Lisbon agenda's call for liberalisation of services mainly applies to services of international relevance (infrastructure, telecommunications, transport, etc.), and is much less concerned with the ‘liberal’ professions (including architects, lawyers, doctors, engineers, accountants and pharmacists); most of the latter are small-scale entrepreneurs of mainly local importance, and in keeping with the subsidiarity principle they fall within Member State competences (see the Cipolla-Macrino case, Joined Cases C-94/04 and C-202/04) (2). It cannot be denied that certain restrictions are necessary to ensure that practitioners meet society's expectations of high professional standards, experience and trustworthiness. The Committee welcomes in-depth studies of the relevant markets for the various liberal professions in the Member States; these studies assess the extent and seriousness of existing restrictions. At the same time it must be emphasised that not only the economic effects of proposed liberalisation on competition patterns should be analysed, but also their probable repercussions on the fabric of society. This does not preclude NCA antitrust procedures, mainly directed against the efforts of professional associations to fix prices.

1

2

| 1.2 | The EESC has been advised to place greater reliance on the vast professional expertise and experience of the civil society associations and organisations represented in the Committee in monitoring the activity of DG COMP; it has even been suggested that the Committee could occasionally carry out investigations with a view to initiating antitrust and State aid cases. The Commission's DG Competition could assist in this by supplying regular information on its policy-making objectives and even case-handling activity, within the constraints of confidentiality. |
| --- | --- |

1.2

The EESC has been advised to place greater reliance on the vast professional expertise and experience of the civil society associations and organisations represented in the Committee in monitoring the activity of DG COMP; it has even been suggested that the Committee could occasionally carry out investigations with a view to initiating antitrust and State aid cases. The Commission's DG Competition could assist in this by supplying regular information on its policy-making objectives and even case-handling activity, within the constraints of confidentiality.

| 1.3 | Regular meetings between EESC representatives and DG Competition's Consumer Liaison Officer should be introduced. Exchanging information could promote ongoing dialogue with consumer protection organisations. Whenever DG COMP summarises the findings of sector inquiries (3) into energy (gas and electricity) and financial services (retail banking and business insurance), they should be made available to EESC representatives (preferably in a working group) for study and comment. |
| --- | --- |

1.3

Regular meetings between EESC representatives and DG Competition's Consumer Liaison Officer should be introduced. Exchanging information could promote ongoing dialogue with consumer protection organisations. Whenever DG COMP summarises the findings of sector inquiries (3) into energy (gas and electricity) and financial services (retail banking and business insurance), they should be made available to EESC representatives (preferably in a working group) for study and comment.

3

| 1.4 | The EESC recognises the need to summarise its views on the impact of competition policy on the economic and social values set out in the Committee's remit. To this end, work should soon begin on issuing the a study interpreting the concepts of competition and competitiveness (including their actual content) in the spirit of the Lisbon agenda, and assessing their probable social impact in Member States. |
| --- | --- |

1.4

The EESC recognises the need to summarise its views on the impact of competition policy on the economic and social values set out in the Committee's remit. To this end, work should soon begin on issuing the a study interpreting the concepts of competition and competitiveness (including their actual content) in the spirit of the Lisbon agenda, and assessing their probable social impact in Member States.

| 1.5 | When DG COMP launched a debate on application of Article 82 TEC (abuse of a dominant position), it published a paper on exclusionary conduct, which is harmful to competitors and competition itself. This paper has been widely discussed. The Commission has promised to follow this up by looking at exploitative abuses which is an even more sensitive issue from the point of view of consumers and (SME) suppliers of companies with a dominant position. The Committee is of the opinion that the Commission should now draft a discussion paper on exploitative conduct within the meaning of Article 82 TEC; this paper could serve as a basis for discussions, and, once sufficient shared characteristics have been identified for both types of abusive conduct (exclusionary and exploitative), unified guidelines should be established incorporating conclusions on interpretation of the rules on abuse of a dominant position. |
| --- | --- |

1.5

When DG COMP launched a debate on application of Article 82 TEC (abuse of a dominant position), it published a paper on exclusionary conduct, which is harmful to competitors and competition itself. This paper has been widely discussed. The Commission has promised to follow this up by looking at exploitative abuses which is an even more sensitive issue from the point of view of consumers and (SME) suppliers of companies with a dominant position. The Committee is of the opinion that the Commission should now draft a discussion paper on exploitative conduct within the meaning of Article 82 TEC; this paper could serve as a basis for discussions, and, once sufficient shared characteristics have been identified for both types of abusive conduct (exclusionary and exploitative), unified guidelines should be established incorporating conclusions on interpretation of the rules on abuse of a dominant position.

2.   Introduction

| 2.1 | The free market does not always lead to the best result possible. Distortions of competition hit employees and consumers as well as businesses and the economy in general. Competition law is a tool for governments to set and enforce fair market conduct by means of substantive and procedural rules of administrative law. |
| --- | --- |

2.1

The free market does not always lead to the best result possible. Distortions of competition hit employees and consumers as well as businesses and the economy in general. Competition law is a tool for governments to set and enforce fair market conduct by means of substantive and procedural rules of administrative law.

| 2.2 | When expressing the opinion of the EESC on the Report, it is worth mentioning that modern market-oriented democratic States possess two main sets of tools for influencing the economy:






  — | Industrial policy, which involves influencing market players by means of tax breaks, subsidies and other forms of support, and which amounts to direct intervention in the economy. |
| --- | --- | --- |

2.2

When expressing the opinion of the EESC on the Report, it is worth mentioning that modern market-oriented democratic States possess two main sets of tools for influencing the economy:

—

Industrial policy, which involves influencing market players by means of tax breaks, subsidies and other forms of support, and which amounts to direct intervention in the economy.

Industrial policy

| — | Competition policy in the narrower sense, which not only defines which types of practices are considered undesirable, but in order to ensure a level playing field for competition also offers access to legal proceedings, including enforcement, which entails sanctions. |
| --- | --- |

—

Competition policy in the narrower sense, which not only defines which types of practices are considered undesirable, but in order to ensure a level playing field for competition also offers access to legal proceedings, including enforcement, which entails sanctions.

Competition policy in the narrower sense

| 2.2.1 | DG Competition is in a position to employ both policies: the application of Articles 81, 82 and 86 (4) of the EC Treaty represents the typical activities of a competition authority. |
| --- | --- |

2.2.1

DG Competition is in a position to employ both policies: the application of Articles 81, 82 and 86 (4) of the EC Treaty represents the typical activities of a competition authority.

4

| 2.3 | Another important consideration is that it is widely accepted that fair, undistorted and viable competition between market players is probably the best guarantee for consumers that the quality and choice of goods will come up to their expectations. Nevertheless, it should not be forgotten that many other circumstances influence so-called consumer benefit: the general state of society, favourable or disadvantageous material and moral/spiritual factors, etc. The European Economic and Social Committee (henceforth referred to as the EESC or the Committee) would like to put the Report by DG Competition in a general context, and to discuss it from the perspective of the Committee's values as set out in its remit. |
| --- | --- |

2.3

Another important consideration is that it is widely accepted that fair, undistorted and viable competition between market players is probably the best guarantee for consumers that the quality and choice of goods will come up to their expectations. Nevertheless, it should not be forgotten that many other circumstances influence so-called consumer benefit: the general state of society, favourable or disadvantageous material and moral/spiritual factors, etc. The European Economic and Social Committee (henceforth referred to as the EESC or the Committee) would like to put the Report by DG Competition in a general context, and to discuss it from the perspective of the Committee's values as set out in its remit.

3.   Application of Articles 81 and 82 TEC

| 3.1 | When the EU Commission exercises law enforcement powers under the antitrust provisions (on anti-competitive behaviour) of Articles 81 and 82 of the Treaty of Rome, these are directed towards undertakings (5) in Member States; the Commission's actions can therefore be compared to the exercise of a quasi-judicial competence, in that it judges the market conduct of companies ex post, according to the provisions of competition law. This activity, which has been the task of the Commission's Directorate-General for Competition (DG COMP) since the early 60s, is reflected in the Commission's decisions, which, together with the judgements of the Court of First Instance and the European Court of Justice (on appeals), has developed a legal system of authoritative precedents over a period of forty-five years. The case-law accumulated in this way by judging different market situations is one of the most valuable achievements of the acquis communautaire. |
| --- | --- |

3.1

When the EU Commission exercises law enforcement powers under the antitrust provisions (on anti-competitive behaviour) of Articles 81 and 82 of the Treaty of Rome, these are directed towards undertakings (5) in Member States; the Commission's actions can therefore be compared to the exercise of a quasi-judicial competence, in that it judges the market conduct of companies ex post, according to the provisions of competition law. This activity, which has been the task of the Commission's Directorate-General for Competition (DG COMP) since the early 60s, is reflected in the Commission's decisions, which, together with the judgements of the Court of First Instance and the European Court of Justice (on appeals), has developed a legal system of authoritative precedents over a period of forty-five years. The case-law accumulated in this way by judging different market situations is one of the most valuable achievements of the acquis communautaire.

5

ex post

acquis communautaire

| 3.2 | The 2005 Report makes it clear that DG COMP is well aware of all the important aspects of economic competition within and outside the EU and of its role in ensuring the legal protection thereof. This is all the more so because EU substantive case-law can also be applied by national competition authorities and courts; therefore, these rules are continuously shaping EU and national legal practices.
  With regard to 2005, the EESC would like to comment on the following initiatives, proposals and measures: |
| --- | --- |

3.2

The 2005 Report makes it clear that DG COMP is well aware of all the important aspects of economic competition within and outside the EU and of its role in ensuring the legal protection thereof. This is all the more so because EU substantive case-law can also be applied by national competition authorities and courts; therefore, these rules are continuously shaping EU and national legal practices.

With regard to 2005, the EESC would like to comment on the following initiatives, proposals and measures:

| 3.2.1 | Rules for access to European Commission files in antitrust and merger cases: This is always a delicate question in procedures and the relevant details are continuously being fine-tuned by the Commission. The Commission considers it important to ensure that businesses interested in antitrust or merger procedures have access to files in both paper and electronic versions. The new rules replace an earlier text adopted in 1997. |
| --- | --- |

3.2.1

Rules for access to European Commission files in antitrust and merger cases: This is always a delicate question in procedures and the relevant details are continuously being fine-tuned by the Commission. The Commission considers it important to ensure that businesses interested in antitrust or merger procedures have access to files in both paper and electronic versions. The new rules replace an earlier text adopted in 1997.

Rules for access to European Commission files in antitrust and merger cases

| 3.2.2 | A request to potential complainants to supply information to help effective enforcement of competition rules: Interestingly enough, this request was published in the Report under review. It highlights the difficulties associated with the monitoring of markets by competition authorities, and calls on civil society organisations and professional associations to play an active role in initiating and conducting investigations (e.g. gathering evidence) into major competition law infringements. |
| --- | --- |

3.2.2

A request to potential complainants to supply information to help effective enforcement of competition rules: Interestingly enough, this request was published in the Report under review. It highlights the difficulties associated with the monitoring of markets by competition authorities, and calls on civil society organisations and professional associations to play an active role in initiating and conducting investigations (e.g. gathering evidence) into major competition law infringements.

A request to potential complainants to supply information to help effective enforcement of competition rules

| 3.2.3 | Discussion paper on the application of Article 82 TEC (abuse of dominant position): DG COMP's aim was to generate specialist debate on the exclusionary anti-competitive conduct of companies that have sufficient market power to influence the behaviour of their competitors to gain unilateral advantages over them. More than 100 contributions were made to the discussion paper (which serves as a basis for future guidelines). The majority of these stress the need for an economic analysis of the relevant market and players. The truth of these observations cannot be denied. However, many of the contributions emphasise that it is important to acknowledge the principle of not hindering efficient companies in their execution of market strategies. Hence, this currently fashionable theory, instead of strictly condemning unfair market conduct, advocates greater indulgence (‘rule of reason’) for effective, though aggressive business strategies. However, according to European case-law (6) such ideas are inconsistent with the intolerance of unfair market conduct aimed at eliminating unwelcome competitors, which is the most widespread approach at European level (7). There can be no doubt that defining the borderlines which key market players must not cross is a fundamental dilemma for competition policies. Given the EESC's role in defending the interests of civil society (SMEs (8), workers, consumers, etc.) it keenly awaits the outcome of this debate. |
| --- | --- |

3.2.3

Discussion paper on the application of Article 82 TEC (abuse of dominant position): DG COMP's aim was to generate specialist debate on the exclusionary anti-competitive conduct of companies that have sufficient market power to influence the behaviour of their competitors to gain unilateral advantages over them. More than 100 contributions were made to the discussion paper (which serves as a basis for future guidelines). The majority of these stress the need for an economic analysis of the relevant market and players. The truth of these observations cannot be denied. However, many of the contributions emphasise that it is important to acknowledge the principle of not hindering efficient companies in their execution of market strategies. Hence, this currently fashionable theory, instead of strictly condemning unfair market conduct, advocates greater indulgence (‘rule of reason’) for effective, though aggressive business strategies. However, according to European case-law (6) such ideas are inconsistent with the intolerance of unfair market conduct aimed at eliminating unwelcome competitors, which is the most widespread approach at European level (7). There can be no doubt that defining the borderlines which key market players must not cross is a fundamental dilemma for competition policies. Given the EESC's role in defending the interests of civil society (SMEs (8), workers, consumers, etc.) it keenly awaits the outcome of this debate.

Discussion paper on the application of Article 82 TEC (abuse of dominant position)

6

7

8

| 3.2.4 | The Impact Assessment Guidelines provide for screening of all legislative and policy initiatives included in the European Commission's Annual Work Programme from the point of view of probable positive or negative impacts on competition: The aim is ‘to avoid unnecessary or disproportionate restrictions of competition’, right from the EU legislative phase. Efforts to gauge probable impacts on markets (which ones?) are proof of how deeply engrained the notion of ‘vigorous’ or ‘perfect’ (i.e. fair and undistorted) competition has become in the Commission's approach. The EESC is of the opinion that ‘competition’ should be perceived in a much broader sense and that, especially in the case of consumers, workers and small and medium enterprises, long-term interests could diverge considerably from the immediate interests of ensuring conditions which are conducive to ‘perfect’ competition (9). |
| --- | --- |

3.2.4

The Impact Assessment Guidelines provide for screening of all legislative and policy initiatives included in the European Commission's Annual Work Programme from the point of view of probable positive or negative impacts on competition: The aim is ‘to avoid unnecessary or disproportionate restrictions of competition’, right from the EU legislative phase. Efforts to gauge probable impacts on markets (which ones?) are proof of how deeply engrained the notion of ‘vigorous’ or ‘perfect’ (i.e. fair and undistorted) competition has become in the Commission's approach. The EESC is of the opinion that ‘competition’ should be perceived in a much broader sense and that, especially in the case of consumers, workers and small and medium enterprises, long-term interests could diverge considerably from the immediate interests of ensuring conditions which are conducive to ‘perfect’ competition (9).

The Impact Assessment Guidelines

9

| 3.2.5 | Green Paper on damages actions for breach of the EC antitrust rules: The EESC's recent opinion of 26 October 2006 on the Green Paper was positive about the Commission's efforts in this field. The Commission's publication of the Green Paper on damages actions for breach of the EC antitrust rules has opened up a broad and welcome debate on the need to make it easier for those injured by anticompetitive practices to recover damages. In its opinion of 26 October 2006 (INT/306), the EESC states, inter alia, that the aim is to ensure the effective protection of everyone concerned by the European Single Market. Given the free movement of goods, there must be a degree of uniformity in all countries in terms of contractual rights and obligations. Where cross-border transactions are concerned, efforts should be made to achieve a certain degree of harmonisation between various systems of national law. |
| --- | --- |

3.2.5

Green Paper on damages actions for breach of the EC antitrust rules: The EESC's recent opinion of 26 October 2006 on the Green Paper was positive about the Commission's efforts in this field. The Commission's publication of the Green Paper on damages actions for breach of the EC antitrust rules has opened up a broad and welcome debate on the need to make it easier for those injured by anticompetitive practices to recover damages. In its opinion of 26 October 2006 (INT/306), the EESC states, inter alia, that the aim is to ensure the effective protection of everyone concerned by the European Single Market. Given the free movement of goods, there must be a degree of uniformity in all countries in terms of contractual rights and obligations. Where cross-border transactions are concerned, efforts should be made to achieve a certain degree of harmonisation between various systems of national law.

Green Paper on damages actions for breach of the EC antitrust rules

| 3.2.5.1 | Secondly, account must be taken of the existence of both European and national competition authorities (NCAs), whose task it is to determine what prohibited practices are, and to establish the economic sanctions that could be imposed on companies in breach of the rules. |
| --- | --- |

3.2.5.1

Secondly, account must be taken of the existence of both European and national competition authorities (NCAs), whose task it is to determine what prohibited practices are, and to establish the economic sanctions that could be imposed on companies in breach of the rules.

| 3.2.6 | Launching sector inquiries into the recently liberalised gas and electricity sectors: These examinations will certainly help to clarify what is really happening in these very important and wide-ranging sectors — sectors in which liberalisation has long been perceived as a panacea. It is high time to subject local, nationwide and even broader markets to unbiased scrutiny in order to shed light on numerous monopolistic situations which are detrimental to consumers, workers and businesses. |
| --- | --- |

3.2.6

Launching sector inquiries into the recently liberalised gas and electricity sectors: These examinations will certainly help to clarify what is really happening in these very important and wide-ranging sectors — sectors in which liberalisation has long been perceived as a panacea. It is high time to subject local, nationwide and even broader markets to unbiased scrutiny in order to shed light on numerous monopolistic situations which are detrimental to consumers, workers and businesses.

Launching sector inquiries into the recently liberalised gas and electricity sectors

| 3.2.7 | Electronic communication: There is growing dissatisfaction with the increasingly integrated European electronic communications markets. Mobile network operators' wholesale rates for international roaming services are too high. For this reason, DG COMP has initiated investigations by submitting statements of objections to the operating companies. The provisional conclusion of the investigation was that two out of the three leading German companies were abusing their dominant position by charging ‘unfair and excessive prices’. |
| --- | --- |

3.2.7

Electronic communication: There is growing dissatisfaction with the increasingly integrated European electronic communications markets. Mobile network operators' wholesale rates for international roaming services are too high. For this reason, DG COMP has initiated investigations by submitting statements of objections to the operating companies. The provisional conclusion of the investigation was that two out of the three leading German companies were abusing their dominant position by charging ‘unfair and excessive prices’.

Electronic communication

| 3.2.7.1 | The EESC would take this opportunity to state frankly that interpretation of Article 82 TEC (10) has progressively been infiltrated by ‘excessive pricing’, both as a concept and expression, whereas the actual wording of the Treaty only refers to ‘imposing unfair prices’, i.e. unjust or unjustified prices. The reason why the European Commission has so far refused to investigate and take action against exploitative price-raising market conduct by dominant companies is its reluctance to define ‘right’ and ‘wrong’ prices (11) (especially with regard to services provided in different countries). However, the demand for international services (roaming) from mobile phone operators is intensifying, and customers are becoming increasingly cost-sensitive in their attitudes. They rightly feel that even slight price-increases might be ‘unfair’, without actually being ‘excessive’. The EESC eagerly awaits the findings and decisions of the Commission in this and other similar cases. |
| --- | --- |

3.2.7.1

The EESC would take this opportunity to state frankly that interpretation of Article 82 TEC (10) has progressively been infiltrated by ‘excessive pricing’, both as a concept and expression, whereas the actual wording of the Treaty only refers to ‘imposing unfair prices’, i.e. unjust or unjustified prices. The reason why the European Commission has so far refused to investigate and take action against exploitative price-raising market conduct by dominant companies is its reluctance to define ‘right’ and ‘wrong’ prices (11) (especially with regard to services provided in different countries). However, the demand for international services (roaming) from mobile phone operators is intensifying, and customers are becoming increasingly cost-sensitive in their attitudes. They rightly feel that even slight price-increases might be ‘unfair’, without actually being ‘excessive’. The EESC eagerly awaits the findings and decisions of the Commission in this and other similar cases.

10

11

| 3.2.8 | Decision fining the AstraZeneca company for misuse of the regulatory system: The Commission adopted a new approach to interpreting Article 82 (EC) when it fined AstraZeneca AB and AstraZeneca Plc (AZ) EUR 60 million for infringements of Article 82 TEC (and Article 54 of the European Economic Area Treaty). The abuse committed by the merged companies was that they — in order to maintain intellectual property rights protection enabling them to maintain high product prices on many markets — initiated official procedures based on a Council regulation and thus obtained a supplementary protection certificate relating to the patent of their anti-ulcer product Losec. The abuse involved supplying misleading information to the relevant decision-making authorities and bodies, resulting in extension of the patent. Consequently, the validity of the Losec patent could not be deemed to have expired. As a result, Losec did not become a generic product, and smaller companies capable of marketing this anti-ulcer product were prevented from manufacturing it at a much lower price than the AstraZeneca companies. Thus, the effect of delaying the patent's expiration indirectly harmed consumers. |
| --- | --- |

3.2.8

Decision fining the AstraZeneca company for misuse of the regulatory system: The Commission adopted a new approach to interpreting Article 82 (EC) when it fined AstraZeneca AB and AstraZeneca Plc (AZ) EUR 60 million for infringements of Article 82 TEC (and Article 54 of the European Economic Area Treaty). The abuse committed by the merged companies was that they — in order to maintain intellectual property rights protection enabling them to maintain high product prices on many markets — initiated official procedures based on a Council regulation and thus obtained a supplementary protection certificate relating to the patent of their anti-ulcer product Losec. The abuse involved supplying misleading information to the relevant decision-making authorities and bodies, resulting in extension of the patent. Consequently, the validity of the Losec patent could not be deemed to have expired. As a result, Losec did not become a generic product, and smaller companies capable of marketing this anti-ulcer product were prevented from manufacturing it at a much lower price than the AstraZeneca companies. Thus, the effect of delaying the patent's expiration indirectly harmed consumers.

Decision fining the AstraZeneca company for misuse of the regulatory system:

| 3.2.8.1 | The novelty of this antitrust procedure was that in its decision the Commission ruled that even if remedies under the patent extension procedure were open to competitors, this did not exclude the application of Article 82 (EC). The AstraZeneca companies were in a dominant position in the relevant European (and other) markets and the abuse had been committed through fraudulently initiated procedures. |
| --- | --- |

3.2.8.1

The novelty of this antitrust procedure was that in its decision the Commission ruled that even if remedies under the patent extension procedure were open to competitors, this did not exclude the application of Article 82 (EC). The AstraZeneca companies were in a dominant position in the relevant European (and other) markets and the abuse had been committed through fraudulently initiated procedures.

| 3.2.8.2 | The EESC would take this opportunity to point out that this type of market conduct would fit much better into the category of ‘unfair marketing practices’ (12), which as yet do not fall within the remit of DG Competition. On this particular occasion the abuse was pushed through from a dominant position, but there are many other instances of companies acting in a similar way, irrespective of their market power, without being punished. If we are thinking in terms of integrated European markets, we also need to put in place better protection for consumers and competitors, which are often SMEs. The Commission's decision in the AstraZeneca case heralds likely progress in this direction. |
| --- | --- |

3.2.8.2

The EESC would take this opportunity to point out that this type of market conduct would fit much better into the category of ‘unfair marketing practices’ (12), which as yet do not fall within the remit of DG Competition. On this particular occasion the abuse was pushed through from a dominant position, but there are many other instances of companies acting in a similar way, irrespective of their market power, without being punished. If we are thinking in terms of integrated European markets, we also need to put in place better protection for consumers and competitors, which are often SMEs. The Commission's decision in the AstraZeneca case heralds likely progress in this direction.

12

| 3.2.9 | Decision concerning the monitoring trustee in the former Microsoft case: This well-known case had significant repercussions and lessons for American companies, who realised that the European legal system acts as watchdog even vis-à-vis powerful non-EU market players. The latest decision shows how flexible the European Commission is in searching for and devising mutually acceptable solutions enabling companies in breach of Community law to re-align themselves within normal competitive conditions. In fact, nomination of the trustee (13) to monitor the IT giant's endeavours to comply with the remedies prescribed by the Decision is a tool borrowed from merger control practice and reflects the good intentions of DG COMP in terms of cooperation on settling disputes. |
| --- | --- |

3.2.9

Decision concerning the monitoring trustee in the former Microsoft case: This well-known case had significant repercussions and lessons for American companies, who realised that the European legal system acts as watchdog even vis-à-vis powerful non-EU market players. The latest decision shows how flexible the European Commission is in searching for and devising mutually acceptable solutions enabling companies in breach of Community law to re-align themselves within normal competitive conditions. In fact, nomination of the trustee (13) to monitor the IT giant's endeavours to comply with the remedies prescribed by the Decision is a tool borrowed from merger control practice and reflects the good intentions of DG COMP in terms of cooperation on settling disputes.

Decision concerning the monitoring trustee in the former Microsoft case

13

| 3.2.10 | Launching sector inquiries in financial services: The Committee endorses the inquiries which have been initiated in the field of payment cards and retail banking services (current accounts and SME financing tools), as well as investigation into a particular case involving business insurance (see point 3.2.10.2). |
| --- | --- |

3.2.10

Launching sector inquiries in financial services: The Committee endorses the inquiries which have been initiated in the field of payment cards and retail banking services (current accounts and SME financing tools), as well as investigation into a particular case involving business insurance (see point 3.2.10.2).

Launching sector inquiries in financial services

| 3.2.10.1 | With regard to the above-mentioned banking services, competition seems to be impaired by barriers to entry, lack of real choice and, presumably, existing dominant positions. |
| --- | --- |

3.2.10.1

With regard to the above-mentioned banking services, competition seems to be impaired by barriers to entry, lack of real choice and, presumably, existing dominant positions.

| 3.2.10.2 | With regard to business insurance, the sector investigation ‘will examine in particular the extent of cooperation among insurers and insurance associations in areas such as the setting of standard policy conditions (14). While in many cases such cooperation may create efficiencies, possibly distortive forms of cooperation may limit the potential for the demand side to negotiate terms of coverage and may also restrict competition and innovation in the market’. |
| --- | --- |

3.2.10.2

With regard to business insurance, the sector investigation ‘will examine in particular the extent of cooperation among insurers and insurance associations in areas such as the setting of standard policy conditions (14). While in many cases such cooperation may create efficiencies, possibly distortive forms of cooperation may limit the potential for the demand side to negotiate terms of coverage and may also restrict competition and innovation in the market’.

14

| 3.2.11 | Commission proposal on public service requirements and contracts in passenger transport by road, rail and inland waterway: The revised proposal on public service requirements and contracts in passenger transport may promote the involvement of SMEs active in these fields, thereby placing them in a better position to participate in local transport. |
| --- | --- |

3.2.11

Commission proposal on public service requirements and contracts in passenger transport by road, rail and inland waterway: The revised proposal on public service requirements and contracts in passenger transport may promote the involvement of SMEs active in these fields, thereby placing them in a better position to participate in local transport.

Commission proposal on public service requirements and contracts in passenger transport by road, rail and inland waterway

| 3.2.12 | Setting up of the Cartels Directorate specialised in the fight against hard-core cartels: the EESC wholeheartedly supports the progress made in the professional handling of cartel cases. |
| --- | --- |

3.2.12

Setting up of the Cartels Directorate specialised in the fight against hard-core cartels: the EESC wholeheartedly supports the progress made in the professional handling of cartel cases.

Setting up of the Cartels Directorate specialised in the fight against hard-core cartels

| 3.2.13 | Since 1 May 2004, Regulations 1/2003 and 773/2004 on antitrust procedures have introduced a new system for identifying the possible anticompetitive intentions and effects of agreements to be concluded by market players. Notifications to obtain a preliminary position of the competition authority on the possible anti-competitive nature of planned joint venture and (horizontal and vertical) cooperation agreements may no longer be submitted either to the European Commission or to the Member States competition authorities. This means that instead of an individual exemption, in the form of a ‘comfort letter’ or ‘negative clearance’ as issued by DG COMP before 1 May 2004, it is up to the companies themselves to carefully scrutinise all aspects of the planned agreement to establish compliance with any (or all) of the conditions set out in Article 81(3) TEC (15) for beneficial effects on the relevant markets. One of these conditions is that if such an agreement (usually a joint venture agreement) is concluded in a certain market and is advantageous to the participants, the benefits must be shared with consumers. |
| --- | --- |

3.2.13

Since 1 May 2004, Regulations 1/2003 and 773/2004 on antitrust procedures have introduced a new system for identifying the possible anticompetitive intentions and effects of agreements to be concluded by market players. Notifications to obtain a preliminary position of the competition authority on the possible anti-competitive nature of planned joint venture and (horizontal and vertical) cooperation agreements may no longer be submitted either to the European Commission or to the Member States competition authorities. This means that instead of an individual exemption, in the form of a ‘comfort letter’ or ‘negative clearance’ as issued by DG COMP before 1 May 2004, it is up to the companies themselves to carefully scrutinise all aspects of the planned agreement to establish compliance with any (or all) of the conditions set out in Article 81(3) TEC (15) for beneficial effects on the relevant markets. One of these conditions is that if such an agreement (usually a joint venture agreement) is concluded in a certain market and is advantageous to the participants, the benefits must be shared with consumers.

15

| 3.2.13.1 | The EESC would emphasise that failure to fulfil the condition set out in the final sentence of the previous paragraph should be grounds for considering a given conduct as anticompetitive. When evaluating agreements which are in breach of Article 81(1), the Commission should qualify any evidence proving that the conduct was intended to disadvantage consumers as an aggravating circumstance. |
| --- | --- |

3.2.13.1

The EESC would emphasise that failure to fulfil the condition set out in the final sentence of the previous paragraph should be grounds for considering a given conduct as anticompetitive. When evaluating agreements which are in breach of Article 81(1), the Commission should qualify any evidence proving that the conduct was intended to disadvantage consumers as an aggravating circumstance.

4.   Merger control

| 4.1 | An important task for the Commission is to examine the foreseeable market structures and dominance arising from mergers by companies intending to concentrate development, manufacturing and marketing capacities in order to enhance their position and power on the market. Not only company mergers but even joint ventures between enterprises can be regarded as concentrations if executive powers are concentrated in a single unified management structure and if the various participants act as a single market player in the relevant market. The benefits of concentrations include increased efficiency, accelerated product development, lower costs and management-level synergies. However, from the competition policy perspective concentrations can be disadvantageous, given that aggregation of market powers often gives rise to dominance, which in turn is associated with a high risk of abuse. Sometimes mergers can have a negative impact. Several studies have shown that they do not always enhance efficiency or growth; in the long run, a company's profits and value may even suffer as a result. Mergers can also lead to substantial job losses. Hence, when evaluating mergers, it is also important to take employment and social policy aspects (e.g. jobs) into account. The best means of assessing whether the effects of a planned concentration might distort competition is to check various aspects of the relevant merger against the conditions set out in Article 81(3) TEC (see footnote 12). If the market structure and market power of the companies involved in the merger complies with the conditions set out in this article, then the concentration is considered as acceptable. This is an important link between merger control (which is essentially an industrial policy tool) and antitrust rules, which help authorities to apply competition policy in the stricter sense of the term. |
| --- | --- |

4.1

An important task for the Commission is to examine the foreseeable market structures and dominance arising from mergers by companies intending to concentrate development, manufacturing and marketing capacities in order to enhance their position and power on the market. Not only company mergers but even joint ventures between enterprises can be regarded as concentrations if executive powers are concentrated in a single unified management structure and if the various participants act as a single market player in the relevant market. The benefits of concentrations include increased efficiency, accelerated product development, lower costs and management-level synergies. However, from the competition policy perspective concentrations can be disadvantageous, given that aggregation of market powers often gives rise to dominance, which in turn is associated with a high risk of abuse. Sometimes mergers can have a negative impact. Several studies have shown that they do not always enhance efficiency or growth; in the long run, a company's profits and value may even suffer as a result. Mergers can also lead to substantial job losses. Hence, when evaluating mergers, it is also important to take employment and social policy aspects (e.g. jobs) into account. The best means of assessing whether the effects of a planned concentration might distort competition is to check various aspects of the relevant merger against the conditions set out in Article 81(3) TEC (see footnote 12). If the market structure and market power of the companies involved in the merger complies with the conditions set out in this article, then the concentration is considered as acceptable. This is an important link between merger control (which is essentially an industrial policy tool) and antitrust rules, which help authorities to apply competition policy in the stricter sense of the term.

| 4.1.1 | Companies in excess of certain thresholds for annual EU and/or global turnover must notify the European Commission of their serious intention to bring about joint market power (concentrations), whereupon DG Competition initiates Phase I and occasionally Phase II procedures. The obligation to notify the Commission is not conditional on market strength; what the Commission considers is whether the relevant concentration would significantly reduce competition, for example by creating or strengthening a dominant position. |
| --- | --- |

4.1.1

Companies in excess of certain thresholds for annual EU and/or global turnover must notify the European Commission of their serious intention to bring about joint market power (concentrations), whereupon DG Competition initiates Phase I and occasionally Phase II procedures. The obligation to notify the Commission is not conditional on market strength; what the Commission considers is whether the relevant concentration would significantly reduce competition, for example by creating or strengthening a dominant position.

| 4.2 | One of the main objectives (or expected outcomes) of merger control is to promote the international competitiveness of European manufacturers and distributors (16). The inherent problem associated with EU practice is that companies achieve such a strong market position by means of mergers that they may be tempted to restrict competition in the common market. The Commission has made noticeable efforts to offset that risk by imposing various conditions for clearance (i.e. ‘remedies’) prescribing divestitures, the sale of intellectual property rights, discontinuation of distribution in certain countries, etc. Be that as it may, after a study of the impressive statistics on mergers one may conclude that they do not give any indications as to whether:






  — | all or most concentrations which actually take place and are in excess of the threshold figures have been notified by companies; |
| --- | --- | --- |

4.2

One of the main objectives (or expected outcomes) of merger control is to promote the international competitiveness of European manufacturers and distributors (16). The inherent problem associated with EU practice is that companies achieve such a strong market position by means of mergers that they may be tempted to restrict competition in the common market. The Commission has made noticeable efforts to offset that risk by imposing various conditions for clearance (i.e. ‘remedies’) prescribing divestitures, the sale of intellectual property rights, discontinuation of distribution in certain countries, etc. Be that as it may, after a study of the impressive statistics on mergers one may conclude that they do not give any indications as to whether:

16

—

all or most concentrations which actually take place and are in excess of the threshold figures have been notified by companies;

| — | DG Competition is able to prove whether companies which carried out approved concentrations over the last few years have abused their enhanced market power or not. |
| --- | --- |

—

DG Competition is able to prove whether companies which carried out approved concentrations over the last few years have abused their enhanced market power or not.

| 4.3 | In October 2005, DG Competition published a Merger Remedies Study detailing the commitments imposed on companies and prerequisites for clearance in order to lessen presumed anticompetitive effects, together with detailed ex post evaluations of those commitments. In over 40 percent of the approved cases, serious unresolved issues (incomplete transfer of divested businesses, incorrect carve-out of assets, etc.) have emerged. This can be taken as a reminder of the need to assess any potential anti-competitive behaviour infringing Article 82 (EC) in the light of the interested parties' increased market power arising from cleared mergers. |
| --- | --- |

4.3

In October 2005, DG Competition published a Merger Remedies Study detailing the commitments imposed on companies and prerequisites for clearance in order to lessen presumed anticompetitive effects, together with detailed ex post evaluations of those commitments. In over 40 percent of the approved cases, serious unresolved issues (incomplete transfer of divested businesses, incorrect carve-out of assets, etc.) have emerged. This can be taken as a reminder of the need to assess any potential anti-competitive behaviour infringing Article 82 (EC) in the light of the interested parties' increased market power arising from cleared mergers.

ex post

5.   State aid

| 5.1 | One of the main tasks of DG Competition is monitoring the activity of Member States: which businesses receive financial support, and on what basis? Since the European Union aims to ensure a ‘level playing field’ for all companies active in the common market, the notion ‘State aid’ has been carefully defined and consistently interpreted in relation to government industrial policies. Scrutiny extends not only to direct financial interventions, but also to tax breaks, as well as to any other kind of advantage granted to businesses on a selective basis; these may be deemed unacceptable by the European Commission if they distort competition. |
| --- | --- |

5.1

One of the main tasks of DG Competition is monitoring the activity of Member States: which businesses receive financial support, and on what basis? Since the European Union aims to ensure a ‘level playing field’ for all companies active in the common market, the notion ‘State aid’ has been carefully defined and consistently interpreted in relation to government industrial policies. Scrutiny extends not only to direct financial interventions, but also to tax breaks, as well as to any other kind of advantage granted to businesses on a selective basis; these may be deemed unacceptable by the European Commission if they distort competition.

| 5.2 | In 2005, DG Competition attempted to reach a better understanding of the objectives of State aid in Member States and the rules which apply to its allocation. The aim of this initiative was to contribute to the success of the Lisbon agenda by using aid to enhance the competitiveness of the EU economy as a whole. With a view to improving coordination among stakeholders (i.e. State bodies, enterprises and their associations) and directing public funds to sectors where they could be used efficiently, it launched a State Aid Action Plan (17). The guiding principles of the Plan do not break with existing practice but aim to help shape better practices which Member States can adapt to. Some remarks: |
| --- | --- |

5.2

In 2005, DG Competition attempted to reach a better understanding of the objectives of State aid in Member States and the rules which apply to its allocation. The aim of this initiative was to contribute to the success of the Lisbon agenda by using aid to enhance the competitiveness of the EU economy as a whole. With a view to improving coordination among stakeholders (i.e. State bodies, enterprises and their associations) and directing public funds to sectors where they could be used efficiently, it launched a State Aid Action Plan (17). The guiding principles of the Plan do not break with existing practice but aim to help shape better practices which Member States can adapt to. Some remarks:

17

| 5.2.1 | The ‘good and bad’ examples outlined in the Report reflect the variety of reasons for which aid can be granted. The aim of using public money ‘effectively to the benefit of EU citizens in terms of improving economic efficiency, generating more growth and sustainable jobs, social and regional cohesion, improving services of general economic interest, sustainable development and cultural diversity’ (18) is, of course, fully endorsed by the EESC. However, taking into consideration poor conditions due to under-developed infrastructure and an unfavourable business climate for small and medium-sized enterprises, as well as other disadvantages — especially in the new Member States — the EESC cannot support the objective of distributing less State aid. |
| --- | --- |

5.2.1

The ‘good and bad’ examples outlined in the Report reflect the variety of reasons for which aid can be granted. The aim of using public money ‘effectively to the benefit of EU citizens in terms of improving economic efficiency, generating more growth and sustainable jobs, social and regional cohesion, improving services of general economic interest, sustainable development and cultural diversity’ (18) is, of course, fully endorsed by the EESC. However, taking into consideration poor conditions due to under-developed infrastructure and an unfavourable business climate for small and medium-sized enterprises, as well as other disadvantages — especially in the new Member States — the EESC cannot support the objective of distributing less State aid.

18

| 5.2.2 | It seems that creating financially favourable conditions for conventional companies in crisis by extending aid to rescue or restructure them is still an important issue in several Member States. From the point of view of employment, the EESC cannot criticise this. However, there have been several cases in which the Commission has expressed its doubts as to the viability of aid that serves to restore rescued companies to a balanced economic position. |
| --- | --- |

5.2.2

It seems that creating financially favourable conditions for conventional companies in crisis by extending aid to rescue or restructure them is still an important issue in several Member States. From the point of view of employment, the EESC cannot criticise this. However, there have been several cases in which the Commission has expressed its doubts as to the viability of aid that serves to restore rescued companies to a balanced economic position.

| 5.2.3 | According to a package of legal measures launched in July and coordinated with the State Aid Action Plan, ‘companies can receive public support to cover all costs incurred, including a reasonable profit, when carrying out public service tasks as defined and entrusted to them by public authorities’. In helping to tide companies (probably SMEs of local importance) over financial difficulties, such possibilities may be good examples of how public money can be used effectively to the benefit of EU citizens and enterprises. |
| --- | --- |

5.2.3

According to a package of legal measures launched in July and coordinated with the State Aid Action Plan, ‘companies can receive public support to cover all costs incurred, including a reasonable profit, when carrying out public service tasks as defined and entrusted to them by public authorities’. In helping to tide companies (probably SMEs of local importance) over financial difficulties, such possibilities may be good examples of how public money can be used effectively to the benefit of EU citizens and enterprises.

6.   Running of the European Competition Network (ECN)

| 6.1 | 2005 was the first full year in which the changes to antitrust procedures introduced by Council Regulation No 1/2003 became operable. What this means is that






  — | if trade between Member States is affected, EU antitrust substantive law directly applicable to enterprises (Articles 81 and 82) together with case-law is to be enforced by competition authorities and courts in the Member States; |
| --- | --- | --- |

6.1

2005 was the first full year in which the changes to antitrust procedures introduced by Council Regulation No 1/2003 became operable. What this means is that

—

if trade between Member States is affected, EU antitrust substantive law directly applicable to enterprises (Articles 81 and 82) together with case-law is to be enforced by competition authorities and courts in the Member States;

| — | at the same time, the Commission has made efforts to establish close, ongoing contacts with each national competition authority (and vice versa), while encouraging NCAs to do likewise with each other, in order to ensure that a suitable forum exists for general policy issues and that suitable tools are available to support cooperation on dealing with actual cases. |
| --- | --- |

—

at the same time, the Commission has made efforts to establish close, ongoing contacts with each national competition authority (and vice versa), while encouraging NCAs to do likewise with each other, in order to ensure that a suitable forum exists for general policy issues and that suitable tools are available to support cooperation on dealing with actual cases.

| 6.2 | The Report under review in this opinion makes it clear that national courts rarely become involved in the enforcement of EU competition law, and there is no immediate prospect of overcoming problems in this area. One of the main reasons may be that first instance jurisdiction in competition law varies from country to country. Another reason is that so far only national competition law has been available, whereas — despite the fact that legislative harmonisation has had a very significant impact on Member States' legal systems — differences between EU law and national laws remain in many Member States. For the time being, it seems that even litigant parties are reluctant to lodge cases with national courts (19). |
| --- | --- |

6.2

The Report under review in this opinion makes it clear that national courts rarely become involved in the enforcement of EU competition law, and there is no immediate prospect of overcoming problems in this area. One of the main reasons may be that first instance jurisdiction in competition law varies from country to country. Another reason is that so far only national competition law has been available, whereas — despite the fact that legislative harmonisation has had a very significant impact on Member States' legal systems — differences between EU law and national laws remain in many Member States. For the time being, it seems that even litigant parties are reluctant to lodge cases with national courts (19).

19

| 6.3 | A hidden reason is that European case-law, which is in fact one of the real sources of competition law, is not readily accessible to judges in the Member States. As far as procedural law is concerned, concise summaries of different procedural situations together with references to precedents are available, but similar handbooks for substantive law (20) have not been compiled as yet by the Commission or the European Court of Justice. The first step towards wider application of current EU antitrust articles by Member State courts should be compilation of the most important (and often cited) sample cases together with explanatory concepts and definitions in a handbook, supplemented by statements and conclusions from the judgements of the Court of First Instance and the European Court of Justice. The compilation should of course be translated into all national languages, and updated regularly. The Committee firmly believes that unless case-law collections are compiled and published in all the languages used in Member States and training in EU competition law is organised for all interested national judges, lawyers and experts, correct application of EU competition rules in Member States will not gain ground. |
| --- | --- |

6.3

A hidden reason is that European case-law, which is in fact one of the real sources of competition law, is not readily accessible to judges in the Member States. As far as procedural law is concerned, concise summaries of different procedural situations together with references to precedents are available, but similar handbooks for substantive law (20) have not been compiled as yet by the Commission or the European Court of Justice. The first step towards wider application of current EU antitrust articles by Member State courts should be compilation of the most important (and often cited) sample cases together with explanatory concepts and definitions in a handbook, supplemented by statements and conclusions from the judgements of the Court of First Instance and the European Court of Justice. The compilation should of course be translated into all national languages, and updated regularly. The Committee firmly believes that unless case-law collections are compiled and published in all the languages used in Member States and training in EU competition law is organised for all interested national judges, lawyers and experts, correct application of EU competition rules in Member States will not gain ground.

20

| 6.4 | With regard to establishing a network to communicate and cooperate with national competition authorities, the Commission (and of course, DG COMP in particular) has succeeded in placing the European Competition Network (ECN) on a firm footing within a relatively short time. The fora and working groups described in the Report are effective links in a well-established cooperation system in which NCAs very often establish direct contacts with each other (even at the level of case-handlers) without any need for Brussels to act as a go-between. It may well be asserted that integration has not been this far-reaching in any other part of the official organisation of the EU. |
| --- | --- |

6.4

With regard to establishing a network to communicate and cooperate with national competition authorities, the Commission (and of course, DG COMP in particular) has succeeded in placing the European Competition Network (ECN) on a firm footing within a relatively short time. The fora and working groups described in the Report are effective links in a well-established cooperation system in which NCAs very often establish direct contacts with each other (even at the level of case-handlers) without any need for Brussels to act as a go-between. It may well be asserted that integration has not been this far-reaching in any other part of the official organisation of the EU.

Brussels, 26 April 2007.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

---

(1)  DG COMP's international activity is worth mentioning in this context since in many fields and subjects it represents a form of ‘applied economic diplomacy’ on the part of the EU.

1

(2)  OJ C 94, 17.4.2004 and OJ C 179, 10.7.2004.

2

(3)  See page 23 paragraph 35 and page 42, paragraph 115 of the Report.

3

(4)  Article 86 (EC Treaty) is applied by the Commission to Member States and not enterprises.

4

(5)  Undertakings do not necessarily have to be present on the territory of a Member State. A major strength of European competition law is that it can apply sanctions simply on the basis of the effects of restrictive behaviour or agreements.

5

(6)  Paragraph 341 of the Judgment of the Court of First Instance (Third Chamber) of 28 February 2002 — Compagnie générale maritime and Others v Commission of the European Communities, ECR 2002 PII — 01011.

6

(7)  See the AKZO case, 31.12.1985, OJ L 374/1, paragraphs 74-79.

7

(8)  Which very often fall prey to unrestrained manœuvres by companies in a dominant position.

8

(9)  See the opinion of the Zentralverband Gewerblicher Verbundgruppen F.V. Berlin: ‘Stellungnahme zum Diskussionspapier der Kommission zur Anwendung von Art 82 EG auf Behinderungsmissbraeuche’21.3.2006.

9

(10)  See Article 82 TEC.

10

(11)  See ‘Commission Practice concerning excessive pricing in Telecommunications’, Competition Policy Newsletter, p. 36, Issue No. 2, June 1998.

11

(12)  Directive 2005/29/EC of 11 May 2005, on unfair trade practices between businesses and consumers, recital 8.

12

(13)  In full agreement with Microsoft on the choice of the person acting as trustee, whose costs are even covered by the company.

13

(14)  http://europa.eu.int/comm/competition/antitrust/others/sector_inquiries/financial_services/decision_insurance_en.pdf.

14

(15)  §81. (3) The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

15

| — | any agreement or category of agreements between undertakings; |
| --- | --- |

—

any agreement or category of agreements between undertakings;

| — | any decision or category of decisions by associations of undertakings; |
| --- | --- |

—

any decision or category of decisions by associations of undertakings;

| — | any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:






  (a) | impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; |
| --- | --- | --- |

—

any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

allowing consumers a fair share of the resulting benefit

(a)

impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

| (b) | afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. |
| --- | --- |

(b)

afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

(16)  The main objective of merger control is to ensure that concentrations do not significantly impair competition in large sections of the common market. For example, under European competition law the enhanced competitiveness of a particular company on global markets is not admissible as an argument for authorising a merger which would distort competition within the EU.

16

(17)  http://europa.eu.int/comm/competition/state_aid/others/action_plan/

17

(18)  SEC(2006) 761 final.

18

(19)  If the litigant companies are registered in several Member States and the market conduct has extended to more than one country, it might not even be clear which country's courts have jurisdiction over a case.

19

(20)  Leading lawyers' offices have already put together comparable texts, but they are of course for their own use.

20

---

APPENDIX

to the Opinion of the European Economic and Social Committee

The following amendments, which received at least a quarter of the votes cast, were rejected in the course of the debate:

Point 3.2.10.1.

Delete point.

| ‘
  3.2.10.1 | With regard to the above-mentioned banking services, competition seems to be impaired by barriers to entry, lack of real choice and, presumably, existing dominant positions.’ |
| --- | --- |

‘
  3.2.10.1

Reason given by Mr Sartorius:

The point is unclear, as it is hard to understand what barriers, real choices or dominant positions are being referred to. This could lead to confusion unless a detailed explanation is provided, without generalisations.

The European banking sector is probably one of the most competitive sectors in the European economy. This competition benefits both consumers and the sector.

If the point is referring to the obstacles to greater integration of retail banking within Europe, then the main hurdles result from the lack of harmonisation of regulations for consumer protection and tax regimes. This harmonisation should be emphasised. One important step will be the implementation of the Single Euro Payments Area (SEPA), which will bring fundamental changes to credit cards and cross-border payments.

Reason given by Mr Pater:

This paragraph should be deleted for the following reasons:

| — | the text is vague and could therefore give rise to the impression that the Committee is opposed to natural barriers to entry into the banking services market, which are meant to ensure an adequate level of protection, |
| --- | --- |

—

the text is vague and could therefore give rise to the impression that the Committee is opposed to natural barriers to entry into the banking services market, which are meant to ensure an adequate level of protection,

| — | it is unclear what the comment on the lack of real choice refers to, as the banking services market is one of the most competitive European economic sectors, |
| --- | --- |

—

it is unclear what the comment on the lack of real choice refers to, as the banking services market is one of the most competitive European economic sectors,

| — | if dominant positions actually existed in the sector (at the expense of clients), DG COMP — which the opinion praises over 20 times — would of course immediately take the necessary steps to prevent negative effects, |
| --- | --- |

—

if dominant positions actually existed in the sector (at the expense of clients), DG COMP — which the opinion praises over 20 times — would of course immediately take the necessary steps to prevent negative effects,

| — | the point digresses from the main line of reasoning in the opinion, and thus deleting it — far from introducing additional complexity — renders the whole opinion clearer and more concise. |
| --- | --- |

—

the point digresses from the main line of reasoning in the opinion, and thus deleting it — far from introducing additional complexity — renders the whole opinion clearer and more concise.

Reason given by Mr Burani:

The claim that competition in banking services is ‘impaired’ is simply not borne out by the facts, as anyone can easily check. There is no indication of what, or of what kind, these ‘barriers to entry’ are — in any case, they do not exist (if they did, they should be pointed out). Regarding ‘freedom of choice’, there are thousands of banks throughout the EU in fierce competition with each other in terms of both quality of service and prices. As for ‘dominant positions’, consumers continue to have a choice between banks of all types and sizes, ranging from multinationals to private banks and local cooperatives. If such positions existed, both the national and the European competition authorities would certainly long since have taken action: this has not happened to date. The entire point simply repeats a number of clichés about restrictions on freedom to provide services in respect of public works contracts, with no supporting evidence or instances.

Voting:

For: 66

Against: 71

Abstentions: 25

---