Opinion of the Economic and Social Committee on the 'XXVth report on competition policy (1995)` () (97/C 75/06)

On 16 April 1996, the Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community on the 'XXVth report on competition policy (1995)`.

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 4 December 1996. The rapporteur was Mr Bagliano.

At its 341st Plenary Session (meeting of 19 December 1996), the Economic and Social Committee adopted the following opinion by 106 votes to two with one abstention.

I. XXVth REPORT ON COMPETITION POLICY (1995)

1. The 1995 report on competition policy

1.1. Partly at the suggestion of the Committee, the Commission has this year divided its consideration of competition policy into two parts:

- a brief report (some 100 pages) outlining the main developments, decisions and legislative provisions in the competition field;

- a separate report on the application of competition rules in 1995, containing detailed information and covering the individual Member States.

1.2. The smaller number of pages and improved structure and lay-out of the report have improved its transparency. Competition is an important topic with both political and technical/legal implications. Legislative considerations and developments can thus be distinguished from administrative implementation (Commission decisions) and case law (judgements of the Court of First Instance and the Court of Justice). However, it must not be forgotten that they are closely connected - competition policy forms a unitary whole.

1.3. The Committee welcomes the new approach as being more explanatory and instructive. Interested parties - both legal experts and economic operators in general - will find the report better tailored to their requirements and easier to read. The references to legislation and case law are easier to locate, and are well summarized and discussed.

However, it is desirable that, as part of the growing moves to 'promote` competition law (see II, 11), more space be devoted to the chapters on the application of national and EU competition rules in the Member States.

1.4. The second part of the report is important not only because it contains valuable details of decisions, judgements and rules, but also because it devotes the requisite space to the Commission's responses to various points made in the ESC Opinion and the European Parliament resolution on the 1994 report (). This point-by-point response dates back to the 20th report in the case of the Parliament and the 22nd in the case of the Committee. It is a useful contribution to open dialogue and cooperation between EU institutions as regards the annual consideration of EU competition policy.

1.5. The Committee attaches great importance to these detailed comments on its Opinions, and always welcomes the opportunity - both in its specialized Sections and at its Plenary Sessions - for wide-ranging, open discussions of competition policy in the light of the annual report. However, the increasing pace of developments leads the Committee to ask the Commission to consider making these discussions more frequent.

Competition policy is closely related to a number of other Community policies and to many other complex issues, and developments take place increasingly rapidly. More frequent consultations would thus be amply justified.

1.6. The Committee is not seeking preference over the other institutions (). It would merely like to extend and strengthen its special contribution to the socio-economic aspects of competition policy, with due respect for the priority role of the European Parliament in the democratic monitoring of Commission activity. Openness and transparency are vital for constructive dialogue both with the Parliament and with the Committee, not only to ensure a democratic consensus (Point 21 of the report) but also to check that the Commission's competition policy is truly effective 'on the ground` - in other words, that it is in keeping with the economic and social situation.

In its replies to the Committee's last opinion (), the Commission rightly notes that each draft notice or legislative text provides an 'appropriate occasion` for consultation and discussion. However, the Committee would still reiterate its desire to be involved at an earlier stage. It realizes the increased responsibilities which this would bring, but considers that these would reflect its ambitious and growing commitments.

2. Competition policy in the EU - the Commission's replies to the Opinion on the 24th report - cooperation with national authorities

2.1. An effective competition policy is vital for the attainment of a properly integrated single market, without internal borders, that enjoys a growing degree of economic and social cohesion. This point is no longer disputed, but more vigorous, consistent and timely action is needed at all levels to put it into practice. The procedures for drawing up and adopting the legislative proposals currently in the pipeline need to be speeded up. The Green and White Papers have pointed the way for future planning and are useful instruments for analysing, verifying and guiding decisions. However, the time has come to follow-up this extremely useful work with a proposal for concrete action. The three reports of the Competitiveness Advisory Group have strongly underscored the pressing need to speed up the completion of the single market.

2.2. Competition policy is not simply a matter of enforcing rules to ensure healthy market competition. It is also a vital tool for boosting competitiveness. This point too is widely endorsed, but is not yet reflected in appropriate decisions.

While recognizing that many initiatives have been taken, the Committee stresses that the way to maximize efficiency is to carry through a sufficient number of convergent legislative proposals, either simultaneously or in parallel. Here too the Competitiveness Advisory Group has called on the EU's political leaders to redouble their efforts to overcome the obstacles which still hamper the attainment of a real single market. The Committee endorses this call with a view to a more attentive and flexible competition policy that intervenes promptly and is in harmony with the other measures necessary for the completion and proper operation of the single market.

2.3. For many years now, competition policy rules have carried out the vital role assigned them by the Treaty in an increasingly effective and transparent manner. The Commission, Court of Justice and Court of First Instance all regularly scrutinize agreements between companies (notably as regards pricing and market share), mergers, State aid, cartels, the regulated and monopoly sectors, with a view to approving, outlawing or modifying them. The higher number of cases handled in 1995 should be viewed as a sign that the Community regulatory system is becoming clearer and more visible, rather than indicating that the number of infractions is growing - the low number of findings of infringement supports this interpretation.

The Committee is aware of the growing complexity of economic phenomena and of individual business initiatives. This has led the Commission to examine a larger number of cases whose legitimacy even the interested parties find it difficult to assess. Legal certainty is an important aid to proper competition policy, and the Commission's decisions, with their often extensive supporting justification, help to entrench this certainty.

Despite certain criticisms which it offers in the spirit of cooperation and encouragement that has marked its work since its very first Opinion of 30 April 1981, the Committee welcomes the increasing commitment and activity which the Commission showed in 1995.

2.4. In its replies to the comments made in the ESC Opinion on the 24th report, the Commission confirms that competition policy 'cannot be implemented as an objective without reference to its legal, economic, political and social context` if it is truly to be one of the two 'major tools` (together with the single market) () provided for by the Treaty of Rome to achieve the Community's fundamental objectives. More particularly:

- the Committee notes the explicit assurance that Article 85(3) makes it possible to consider agreements between cooperatives 'with the necessary flexibility` ();

- the Commission acknowledges that information exchange agreements () are a difficult area. The Committee is well aware that the 7th report on competition policy set out certain general principles, but communication technologies have advanced dramatically since 1977. 'Real time` information is now a key requirement of businesses and, for many of them, is intrinsic to productivity and efficiency and hence to competitive growth. The Committee agrees that such agreements can be assessed on the basis either of their intentions or their effects, but trusts that in either event the result will be constructive. The economic doctrine of an oligopolistic market, which the Commission cites in its reply, has also altered the approach to these problems;

- the Committee applauds the Commission's intention to extend the scope of the block exemption regulations so as to allow pro-competitive agreements between SMEs (), and welcomes its commitment to look favourably on cooperation in general.

2.5. As the Committee mentioned in its Opinion on the 24th report (Point 3.3), competition policy is essential for competitiveness and must link up with other Community policies, especially those on trade and industry, employment, social cohesion, competitiveness, inflation and consumer protection.

At many points in its replies to the Committee opinion, the Commission confirms its concern for the links between competition policy and other socio-economic sectors (the paragraph entitled 'Competition and environment` is a case in point). The Commission also emphasizes that competition policy is a vital tool of industrial policy (). Competition policy does not merely mean applying rules; it is a policy in the highest and fullest sense of the term.

2.6. Nevertheless, EU competition policy requires effective, ongoing review.

Here the Committee would again ask the Commission to reconsider vertical cooperation with the necessary flexibility, as such cooperation should not necessarily be prohibited under Article 85. The Green Paper will provide an opportunity for a useful (and if possible, early) debate and for clear decisions tailored to today's needs.

Again with a view to speed and clarity, the same comments apply to procedural law, which essentially dates back to the early 1960s. The rights of the defendant, access to files and the length of procedures (although progress has been made in this latter regard) all need to be improved. Neither the new mandate recently given to the Hearing Officer nor the 'ultimate safeguard of the right of appeal to the European courts` (Point 51 of the 25th report) will satisfy businesses and the public, who rightly demand both openness and speed. In the interests of competitiveness, too, the costs of disputes can and must be reduced.

2.7. An effective EU competition policy increasingly calls for cooperation from national authorities. The demarcation criteria must be clear and precise, as the Commission intends with its attempt to increase the decentralized application of Articles 85(1) and 86, with due respect for the provisions of the Treaty. Every effort must be made to avoid conflicts of authority and of interests. The only interest should be the common goal of fair competition at all levels, both national and EU. And - in cases which do not de iure fall to the Commission - authority should lie with the body best placed to assess and decide.

If further steps were also made to harmonize national legislation, the risk of 'diversified` interpretations or implementation (a concern voiced in Point 8.1 of the ESC Opinion on the 24th report) could be considerably reduced. In particular, Member States which have not yet done so should enact legislation enabling their competition authorities to implement Articles 85(1) and 86 of the Treaty (see II - preliminary draft notice on cooperation between national competition authorities and the Commission).

3. Monopolies - Trans-European networks - Transport - Telecommunications - Environment - Liberal professions

3.1. Monopolies

Liberalization of traditional monopolies is now a priority of competition policy if the objective is a real single market. Liberalization will boost competitiveness and encourage innovation; but this will require a competition policy which removes legal obstacles and opens up market access, and which promptly condemns any abuses of dominant positions and anti-competition agreements. At the same time, public service requirements must be preserved.

Liberalization must not mean abandoning the EU's goals of social cohesion. The Commission acknowledges the Committee's concern about social problems, and confirms that for this reason it has always worked towards 'gradual liberalization` ().

Replying to the Committee's last opinion, the Commission explains that 'guaranteeing a universal service of a high standard is at the heart of (its) liberalization policy`, and adds that 'this may also be provided in a competitive environment, by public or private operators` (). However, a universal service must still be guaranteed in those sectors where market forces are insufficient and where the public's right of access is jeopardized.

3.2. Trans-European networks

The development of trans-European networks is enshrined in the Treaty. It is not possible to create a properly integrated single market without upgrading communication networks (transport, telecommunications, energy) at EU level; these are vital for employment, competitiveness and cohesion within the EU, as the Commission notes in the introduction to its annual report to the Council and the European Parliament. The Committee again stresses the major impact which the individual projects will have on competitiveness. However, it is first necessary to devise institutional procedures that will prevent any delays in the many projects for improving trans-European transport infrastructure, whilst still ensuring that decisions are properly thought out. The Committee welcomes the Commission's drive to establish common rules for the internal energy market, but points out that a proper balance still has to be struck here. The Commission is undoubtedly right to reiterate the Ciampi report's statement that 'the failure to liberalize the energy sector is having a very detrimental effect on the competitiveness of the European economy` (Point 117 of the 25th report). However, liberalization must be underpinned by a precise regulatory framework that strikes an optimum balance between competition rules and the fulfilment of public service obligations (), and special attention must be devoted to the important issue of supply dependability.

3.3. Shipping

The block exemption for liner shipping consortia, adopted in 1995 pursuant to Article 85(3), recognizes that such agreements can be designed both to improve productivity and quality of service. However, it is clear that this must always be backed by sufficient competition. The block exemption regulation (4056/86) has always been a controversial instrument as regards liner conferences. The Committee would like to see a realistic assessment of its effects.

3.4. Air transport

The Commission is undoubtedly right to adopt a case-by-case approach in this sector. The restructuring of European airspace is to be encouraged as a way of reducing costs and improving quality of service, but effective competition must still be safeguarded, as well as access for potential operators. Slot allocation procedures, in particular, must be carefully monitored. Turning to goods transport, the Committee considers that it was realistic of the Commission to abolish the block exemption enjoyed by air companies, as this kept prices significantly above market levels.

3.5. Telecommunications

The application of competition rules will certainly help to keep the telecommunications sector dynamic; this is a growth sector which already offers practical opportunities for economic initiatives. The Committee awaits the Green Papers which the Commission is scheduled to issue this year, and trusts that the considerations made therein will be timely and practical.

The Commission's annual report for 1995 notes that telecommunications networks are the backbone of the future information society. If - as generally agreed - this is true, competition policy must refine its monitoring instruments and consider any initiative in this sector flexibly, safeguarding both progress and the general interest. Looking ahead to full liberalization, the Committee again stresses the importance of the universal service, including its funding.

3.6. Environment

The Commission is planning a number of initiatives for the environment and sustainable development. The Committee agrees that enhancement of the environment should be included among the grounds for exemptions under Article 85(3). Voluntary agreements concluded between industry and public authorities with a view to environment protection should be viewed favourably when applying competition rules. New markets may arise in this sector which, in the context of a highly targeted environment policy, will offer new growth and employment potential in a fair and effective competition system.

3.7. Liberal professions

The Commission is also right to intervene in this sector. Certain practices and association agreements, and some types of cooperation, may form obstacles to trade and distort competition.

4. Merger control

4.1. The review of Regulation 4064/89 has now reached the more concrete planning stage, following the discussion of the Green Paper. The Committee confirms its preference for a lowering of thresholds, along the lines set out in detail in its Opinion on the Green Paper (). However, it has not ruled out alternative solutions based on the presence of multiple notifications. For instance, a 'Community dimension` could be deemed to exist when a merger has to be notified in two or more Member States, even if it does not reach the current thresholds. The role of the national authorities must also be considered in such cases; these authorities could be given responsibility when turnover is below a specified threshold.

4.2. Alongside the problem of thresholds, the revision of Regulation 4064/89 also tackles the question of full-function 'cooperative` joint ventures. Here the Committee urges the Commission to proceed with the utmost clarity, so as to avoid both damaging uncertainty and discrimination; an appropriate solution is also needed for 'structural` joint ventures.

The Committee has adopted a separate Opinion on the Commission proposals ().

5. State aid

5.1. Whilst agreeing that there is a contradiction between competition and state (or public) aid, the Commission explains () in its replies to the Committee opinion that the Treaty of Rome establishes a 'moderate neo-liberal system` in which Member States play the role expected in a mixed economy. However, national aid policy must be closely monitored, and the Commission must step up its efforts to improve transparency and protect third party rights.

5.2. The Committee takes the view that state aid can distort competition. Here it underlines the important and topical nature of the close link between competition policy and economic and social cohesion policy. It asks the Commission to give this matter specific consideration in its next report on state aid.

5.3. The aim must be to reduce aid, revise the rules, and improve clarity. However, more forceful action is also needed regarding procedures. The Commission should adopt a Regulation formalizing third party rights, and not only because it is often third parties who uncover illicit practices and abuse.

5.4. Information, too, should be improved. The opening/closure of procedures is reported in the Official Journal, as is the list of aid for which the Commission has decided to raise no objection. However, a public register of all cases would be extremely useful.

6. Independent European agency

6.1. Competition policy covers four main fields: agreements, abuse of a dominant position, mergers and state aid. When considering the case for an independent European agency, it must first be decided whether its duties should only concern mergers, or should extend to Articles 85 and 86 or even Article 90ff. Even if - as seems likely - the agency's duties were limited to mergers, the Committee still opposes the idea. It has voiced its opposition in the past, and will here give more detailed reasons for it.

6.2. The competition rules enshrined in the Treaty of Rome are an instrument for attaining the EU's objectives [Articles 2 and 3(g)]. These rules thus have an intrinsically political slant. The Treaty provisions form a single, consistent body and have been in operation for many years, notably as regards competition policy. The Court of Justice and the Court of First Instance round off the institutional machinery. And the provisions have worked successfully (although there is obviously room for improvement, and improvements are being made), but it would be difficult to transfer them to other levels external - if not extraneous - to the objectives of the EU.

6.3. Any attempt to separate the 'technical` appraisal from the 'political` appraisal would run counter to the main aim of the Treaty, which is the creation of a single market. The Commission has the task of ensuring that this market operates properly by conducting a competition policy which is justified precisely within the framework of all the other Community policies. Coordination of Community policies is vital in order to ensure that the Treaty achieves its aims. Alongside its monitoring powers and its power to apply sanctions, the Commission thus also has the power to authorize exemptions.

6.4. It would be difficult, and illogical, to separate the 'content` of competition law from the 'powers` of the body responsible for enforcing it; it would also be difficult and illogical to separate authority for one part of competition rules (mergers, or mergers and agreements) from others (agreements and aid, or aid alone). The idea of an independent authority (independent of whom?) also raises a number of questions as regards preconditions (composition, control) and operating problems (do appeals go to the Court of Justice or the Commission?).

6.5. The safeguarding of free competition within the EU is a complex matter, and the competition policy which the Commission administers as part of a wider strategy remains an irreplaceable instrument which cannot be delegated.

7. International relations

7.1. Relations with countries that have applied for EU membership

The Committee welcomes the Commission's efforts to apply the pre-accession strategy for central and eastern European countries (CEEC), laid down by the Cannes European Council in June 1995, in the competition policy sector.

However, the Committee considers that the Commission should extend this undertaking not only to the first group of CEEC which have signed Europe agreements but also to the other CEEC which have since applied for EU membership (Latvia, Lithuania, Estonia and, more recently, Slovenia).

7.2. Here the Committee would stress the importance of training programmes, technical assistance in legislative matters, cooperation with national competition authorities, and information schemes for businesses. The Committee trusts that the resources available for these measures are commensurate with the view of the White Paper on the preparation of the CEEC for integration into the single market, that 'in competition policy ... the requirement is not confined to the adoption of laws and structure building. There has to be a continued effort to enforce the policy, to make it widely known and accepted and to create the expectation that it will be applied. Only then does the market realise its full potential.`

7.3. The Committee also points out that pursuit of the pre-accession strategy for competition policy must not divert attention from the need to implement, on schedule, the competition rules laid down in the Europe Agreements already in force between the EU and individual CEEC; these rules are essentially those of the Treaty of Rome. Here the Committee would highlight the urgent need to adopt the implementing rules on State aid. The virtually complete opening of the EU market to CEEC imports makes postponement impossible, both to avoid any adverse impact on the 'transition economies` and to prevent distortions of competition in the single market, inter alia by non-European investors who are setting up in the CEEC.

7.4. The Committee therefore considers it a matter of priority that the CEEC guarantee transparency in public aid forthwith by publishing annually the overall sums allocated to State aid and the names of beneficiary companies. Lastly, the Committee trusts that national authorities will be set up as soon as possible to monitor State aid (as suggested in the White Paper), to apply the rules laid down in the Europe Agreements.

7.5. The Commission () endorses the Committee's comment about the need for competition policy relations with the CEEC to respect certain social parameters, and echoes its concern that the relocation of industry and the increasing pace of industrial restructuring may have adverse socio-economic effects, not least as regards employment. The Europe Agreements include provision for an analysis of the effects of aid, and this will be extremely useful here.

7.6. Relations with multilateral international organizations

The Committee has always supported the Commission's work with international organizations, and has particularly encouraged concrete moves to promote gradual convergence of competition rules at world level. The OECD, UNCTAD and the WTO are the right partners for this, and the WTO in particular can play a vital role in gradually securing closer cooperation between the relevant authorities.

7.7. All activity today, whether it is conducted by individuals, institutions, States or associations, is marked by growing openness, and such openness is much needed. In parallel with this, there is a growing recognition of the many problems which individuals, Institutions, States and associations face in the run-up to the 21st century, in the wake of the liberalization and globalization which are giving competition policy a new and international dimension.

7.8. Account must be taken of the conclusions of the WTO meeting in Singapore in December 1996, with a view to a realistic, incremental approach.

8. Globalization, competition, growth

8.1. The EU's level of commitment is strong. But it cannot hope to meet the challenges of globalization (economic and otherwise), competition with other regions and defence of the European social system unless its institutions maintain a high profile. The EU's institutional future will also crucially affect its economic and social future. To demand compliance with competition rules at world level requires authority and credibility.

8.2. An additional commitment is needed, along with added imagination and courage. Promoting competition means fostering competitiveness and innovation, and thus extending the supply of goods and services. This means not only new products and new services but also new professions and specializations, and hence new job opportunities. An enlightened, forward looking competition policy must create favourable conditions for the emergence of new professions and new specializations.

More attention should be paid to the special job-creation potential offered by the key sectors of the environment, leisure and culture. Competition policy can mesh with employment policy if, with due respect for the rules, it facilitates cooperation schemes in these sectors which are set to become important in the future but which already offer plenty of rapid growth potential today.

8.3. Hence the real problem is not how to squeeze potential from existing activities, but how to create new ones. The environmental and cultural economy, and the industries and services linked to it, might in themselves suffice to brighten the employment picture, even in the short term. There is an urgent need for serious, selective, carefully designed vocational training that is tied to clear, specific new job descriptions.

8.4. An open competition framework that is receptive to change is the best guarantee that the resources produced by the market economy can be invested in social and public assets, creating jobs and raising social standards. For example, an appropriate policy of corporate and personal tax incentives, combined with optimum use of potential supplementary sources of funding (such as the EU Structural Funds) could generate a flow of additional resources for cultural activities and assets.

8.5. However, the principal challenge rests with the business world, which must develop new capacities, new organizational patterns and new management systems. Suffice it to mention the large number of businesses involved in cultural productions, services and conservation - a sector with significant room for growth and consolidation. There is also scope for strategic partnerships with large companies and research institutes, in the vast field of technological spin-off from cultural activities and the use of new technologies in such activities.

II. PRELIMINARY DRAFT COMMISSION NOTICE ON COOPERATION BETWEEN NATIONAL COMPETITION AUTHORITIES AND THE COMMISSION IN HANDLING CASES FALLING WITHIN THE SCOPE OF ARTICLES 85 OR 86 OF THE EC TREATY ()

1. Since the Commission has invited observations on this subject, the Committee has decided to speed up its response by combining its opinion on this notice with that on the 25th report on competition policy.

2. When discussing decentralization of the implementation of competition law in its opinion on the 24th competition report, the Committee warned of the danger of 'diversified implementation` and 'conflicts of interest` with national authorities. In the 25th report the Commission replied to point 8 of that Opinion, stating that 'to avert the dangers mentioned by the Committee, the method of dividing cases between the Commission and the national authorities will be of paramount importance. If the Member States simply deal with breaches of the rules which have an effect on a single national market (as provided for in our preliminary draft), the risks of "diversified application" and conflicts between the Community and Member States should be overcome`.

3. In this regard it should be recognized that the Commission has for many years sought in its policy to apply Articles 85 and 86 of the Treaty in a less centralized manner, in order to make competition policy more effective and easier for the general public to understand. It took a first step in this direction when it published a notice on cooperation between national courts and the Commission in applying Articles 85 and 86 ().

4. The present notice on cooperation between national competition authorities is the second stage in the process. It aims to enhance the role of the national authorities and to organize close and constant cooperation with the Commission, whilst observing the subsidiarity principle and the principle of acting at the level closest to the citizen.

5. Before setting out the guidelines on case allocation between the Commission and the national authorities, the notice stresses that 'checks should wherever possible be carried out by a single authority ..., although cases could still, where appropriate, be handled on a joint, coordinated basis by two authorities`, adding that 'control by a single authority offers advantages for businesses`. (I-4.)

While the Committee agrees on the principle of control by a single authority, it realizes that 'joint checks` could create some problems (who would decide on the determination of a dominant position?), partly because of the lack of harmonized procedures.

6. The Commission 'intends to encourage the competition authorities of all Member States to engage in this cooperation`, but notes that 'the national legislation of several Member States does not currently provide competition authorities with the procedural means of applying Articles 85(1) and 86.` (I-5.)

This matter is sufficiently important to be mentioned in the concluding remarks, where 'the Commission calls upon those Member States which have not already done so to adopt legislation enabling their competition authority to implement Articles 85 (1) and 86 of the Treaty effectively` (V-1.)

This is the only conclusive and explicit request that the Commission makes, apart from the reference in the introduction (I-3., 3rd paragraph) to inducing firms to 'approach national competition authorities more frequently, with a view to ensuring that Articles 85(1) and 86 are applied more effectively`.

However, the Committee recognizes that the Commission has always done its utmost, in terms of information, transparency and promotion, to involve national courts and authorities and the firms themselves in its efforts to 'boost the effectiveness of Articles 85 and 86 of the Treaty` (I-3).

7. The notice states that the guidelines on case allocation between national authorities and the Commission are to be applied on the basis of 'mainly national effects` and the 'nature of the infringement`. However, the Commission will 'take on cases displaying particular Community interest` (II-2, 2nd paragraph), without prejudice to its exclusive power to make exemptions under Article 85(3).

In practice, therefore, decentralization of the application of Community law is limited to cases involving 'mainly national` interests, such as agreements or abuses of dominant positions that are applied only in a single Member State and have effects only within that State. However, exceptions will be made for 'cases which raise a new point of law` (II-2.3, paragraph 2). Thus the degree of decentralization is rather modest and does not significantly extend the jurisdiction of national authorities.

8. The notice draws a distinction between cases which are first dealt with by the Commission (complaints) and those which are first dealt with by a national authority (complaints and notifications).

'The Commission is entitled ... to reject a complaint when it considers that the case does not display sufficient Community interest to justify further investigation` (III-1.1) but is obliged to ask the competition authority of the appropriate Member State if it will 'agree to investigate and decide on the complaint` (III-1.3) and, with certain restrictions, place the relevant documents in its possession at the disposal of the national body.

'Close cooperation` is envisaged (IV-1, 4th paragraph) for cases that are first dealt with by a national authority, which may consult the Commission regarding any parallel proceedings that may be in progress.

9. Lastly, the notice deals with 'dilatory notification` where a firm threatened with a decision by the national authorities banning a restrictive practice notifies the Commission in the hope of obtaining an exemption. In this instance there is provision for a special procedure based upon a 'provisional opinion` from the Commission on the likelihood of an exemption being granted.

Such action would not end the uncertainty, as no time-limit is laid down for the Commission to send the national authorities and firms its 'prima facie` evaluation and there is no provision to give the firms a hearing. There is also a risk that the provisional evaluation will become definitive.

10. The notice does not seem to add anything to clarify the criteria for case allocation. Some improvements in the bureaucracy involved will however be possible.

The guidelines that the Commission has diligently applied to the precedents taken into consideration are largely drawn from judgements made by the Court of Justice and the Court of First Instance as the Commission is unable to say more or go further.

11. The notice is undoubtedly well intentioned. It has been under discussion for many years. The result, however, seems inadequate and unconvincing, its only likely benefit being to improve relations between the Commission and national authorities, and it is to be hoped that the speed of the procedure will improve rather than worsen. An efficient and workable decentralization would require more incisive action, such as:

- a revision of Regulation 17/62; and

- harmonization of national competition law, with the early adoption of procedural rules.

12. The Committee wishes to encourage the Commission's drive to promote the competition rules, and it appreciates the inherent difficulties. It would therefore like to underline the words with which the Commission itself - when discussing cooperation - summarized the problem so effectively: 'A legislative arsenal is not sufficient; there must also be the will and the means of using it.` (24th report on competition policy, Point 42). Cooperation is first and foremost a matter which the Commission and Member States must address by appropriate means and by acting fairly and openly. The Committee urges them to continue on this path.

Brussels, 19 December 1996.

The President of the Economic and Social Committee

Tom JENKINS

() OJ No C 262, 10. 9. 1996, p. 5.

() Part II - IX, B, 2.

() IX-B-2, 10 (replies).

() OJ No C 39, 12. 2. 1996.

() IX-B-2, 3.2.

() IX-B-2, 3.6.

() IX-B-2, 4.3.

() IX-B-2, 4.4.

() IX-B-2, 3.2 and 3.3.

() IX-B-2, 7.5.

() IX-B-2, 7.3.

() CES 1269/96, point 5.4.

() OJ No C 295, 7. 10. 1996, point 12.5.

() Communication regarding the review of the merger regulation (COM(96) 313 final - Opinion CES 1266/96 of 31. 10. 1996).

() IX-B-2, 6.2.

() IX-B-2, 9.1/9.3.

() OJ No C 39, 13. 2. 1993, p. 6.