CQMVIISSION OF THE EUROPEAN COMMUNITIES 
SECC91) 407 final Brussels, 15 March 1991 
COMMUNICATION FROM THE COMMISSION 
TO THE COUNCIL AND TO THE EUROPEAN PARLIAMENT 
COMMUNICATION FROM THE COMMISSION 
TO THE COUNCIL AND TO THE EUROPEAN PARLIAMENT 
Subject: FUTURE OF THE ECSC TREATY 
Reasons for current reflections on the future of the ECSC 
Treaty 
The ECSC Treaty expires in the year 2002, as provided for In 
Article 97. Although It still has twelve years to run, it 
is not too early to discuss its future, for the following 
reasons : 
completion of the single market and moves towards 
economic and monetary union place the continuation of 
sectoral policies, Including those for the coal and 
steel Industries, in a new context based on 
considerations of overall economic policy. It should 
be borne in mind that the objectives and measures 
contained in the ECSC Treaty were formulated at the 
beginning of the 1950s, in other words against an 
entirely different background. 
The steel and coal Industries are highly capital 
Intensive sectors. Any change therefore requires 
adequate preparation. 
Moreover, questions have been raised both at political 
level (European Parliament and Court of Auditors) and 
by certain representatives of the steel Industry about 
the future of the Treaty, particularly the future of 
the Instruments and financial role of the ECSC (levies, 
reserves and ECSC loans) and of certain steel policy 
measures (forward programmes, general objectives, 
pr i c i ng po I Icy , etc . ) . 
2 
Possible political options 
The future of the ECSC Treaty can be approached according to 
numerous different scenarios which can, however, be grouped 
Into the three basic options following: 
1. Maintaining special rules for the coal and steel 
industries after 2002, by extending the ECSC Treaty, as 
it stands or with amendments. 
2. Early termination of the ECSC treaty before 2002 and 
using the prov I s I ons and measures In the EEC Treaty to 
cover the coal and steel industries. 
3. Expiry of the ECSC Treaty In 2002, with the 
understanding that by that time, the Commission will 
examine which of the provisions of the ECSC Treaty 
could be incorporated in the EEC Treaty. 
A number of variants could be added to this option. 
Whilst these would assume the expiry of the ECSC Treaty 
as such as scheduled, they would offer at the same time 
the possibility of repealing or modifying, before 
scheduled, some of Its obsolete provisions and/or 
Incorporating Into the EEC Treaty others deemed useful 
or necessary for the whole range of economic activity. 
Comparative analysis of the main provisions of the 
ECSC Treaty and of the EEC Treaty 
* The Commission's services have studied in detail the main 
chapters of the ECSC Treaty, In order to assess the 
different above-mentioned options. The analysis has 
attempted to answer the following four questions. 
(a) What Is the current assessment of the objectives and 
measures provided for in the ECSC Treaty? 
(b) Could the EEC Treaty be used to achieve the policy 
measures provided for in the ECSC Treaty? 
(c) Would It be worth Incorporating certain specific 
provisions of the ECSC Treaty Into the EEC Treaty? 
(d) Is It necessary to revise the Implementation and/or 
Interpretation of the ECSC Treaty for a transitional 
period from now until its expiry date? 
*The main results of the analysis can be summarized as 
foilows. 
1. The aim of the Ievy (Article 49) is twofold. First, it 
Is designed to finance certain priority measures In the 
sector (non-repayable redeployment aid, promoting 
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research, industrial redevelopment of areas in decline, 
etc.). Second, it is Intended to form the basis for 
independent ECSC financial activities as provided for 
In the Treaty, without the need to call on public 
funds. The levy, which is the sole example of a 
genuine Community tax, entails direct and Indirect 
advantages arising out of the financial activities made 
possible by the use of the resulting funds, which 
relate to the market and to public intervention. 
Within the margin authorized by the Treaty, the 
Commission has exclusive powers to fix the amount of 
the levy. Theoretically, It would be possible to 
reduce the levy to zero, but this would mean a 
corresponding reduction In the capacity of the ECSC to 
generate profits. Nonetheless, the very fact that the 
Commission possesses this power of taxation provides 
Important guarantees. In practice, the amount of the 
levy should continue to be fixed, between now and the 
year 2002, on the basis of actual requirements, and 
with an eye to the other ECSC resources ava liable. 
2. After the year 2002, It would be desirable, where 
budgets and finance are concerned, to retain the 
foI low Ing features of the ECSC system for all economic 
sectors: 
Articles 54 and 56: If necessary, Incréased 
financial capacity in terms of loans and Interest-
rate subsidies in order to enable the Commission to 
mobilize funds for regional and sectoral 
activities. 
This matter could be examined beforehand in the 
context of the work on economic and monetary union. 
In SEC(90) 1659 final on economic and monetary 
union, the Commission points to the need to adjust 
the Communty lending Instruments to meet the 
requirements of economic union, while examining the 
the role of the EIB. 
Article 55: direct management, as it already 
exists, of major technical and social research 
programmes. 
Article 56: Joint ' respons IbI I Ity as regards social 
assistance, reflected In the current redeployment 
agreements and in continued scope for sectoral 
ass I stance in this field. 
3. Current ECSC reserves are essential to ensure that the 
ECSC is in a position between now and 2002 to mobilize 
capital at the most advantageous rates and thus 
continue to play Its role In the Commun Ity<1 ).The 
(1) See information report on ECSC reserves 
(SEC(86) 1532 final). 
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on ! y alternative is for all ECSC loans to be so «β;· βο, 
retroactively if necessary, by the EEC budget. After 
2002, the question of guaranteeing structura' loan'; 
granted by the Commission would have to be reexaminad. 
4. The guidelines on production (forward programmes and 
genera! objectives) and capacity (Articles 46 and 5«n 
have lost much of the Impact that they had when the 
common market in coal and steel was first set up. The 
articles referred to may be so Interpreted that t he. 
Commission may decide on the content and frequency of 
these guidelines. It would seem that implementation of 
binding Interventionist measures (Article 58) will have 
to be ruled out because of the improvement In the 
competitiveness of undertakings and the results, 
partially negative, of the production quota system. 
5. The price rules - particularly price transparency and 
non-discrimination - proved Impracticable from the 
beginning. Moreover, these rules apparently conflict 
with the rules on pricing In other sectors laid down by 
the EEC Treaty. In the light of the unforeseen 
difficulties encountered In practice In the application 
of Article 60 of the ECSC Treaty and the profound 
changes In the economic and technical conditions which 
directly affect the common market for coal and steel, 
the Commission might In the future envisage adapting 
the rules concerning prices and the exercise of the 
Commission's powers in this area. Proposais for 
suitable modifications, which could be based In part on 
Article 86 of the EEC Treaty should be studied. These 
proposals would also cover the rules for transport 
tariffs. 
6. The ECSC competition rules cover agreements 
(Article 65) and concentrations (Article 66). In the 
interest of coherence and given the existence of two 
distinct treaties, the Commission could consider 
aligning, as far as possible, the treatment of ECSC and 
EEC products. 
The application of Article 65 of the ECSC Treaty on 
agreements between undertakings could draw on the 
practices developed under Article 85 of the EEC Treaty, 
In respect of both the material law and the procedural 
rules. This would not, however, exclude certain 
particularities of Article 65 ECSC, notably the 
possibility It offers to authorise specialisation 
agreement, joint buying or selling agreements or 
strictly analogous agreements. On the other hand in 
contrast to Article 85 EEC, an effect on trade between 
member states 1$ not a precondition for the application 
of Article 66 ECSC. 
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In cases where at least one of the undertakings 
concerned Is an ECSC undertaking In the sense of 
Article 80 ECSC concentrations are dealt with under 
Article 66 ECSC and General Decisions concerning its 
application. Since 21 September 1990 when Regulation 
4064/89/EEC on the control of concentrations came into 
operation the Commission, as far as is possible, 
applies the competition rules of the two Treaties in a 
similar way, particularly when the transaction Involves 
both EEC and ECSC products. This harmonisation can 
also be achieved by an Improvement In the procedures 
for notifying ECSC concentrations and by the Commission 
taking Its decision on the concentration In question 
more rap i d I y . 
However, the provisions of the ECSC Treaty governing 
competition between undertakings differ from the 
corresponding provisions of the EEC Treaty on one basic 
point, In that they apply exclusively. In other words, 
when It comes to dealing with restrictive practices and 
concentrations as referred to in the ECSC Treaty, only 
the provisions of that Treaty apply, to the exclusion 
of the provisions of national law. Under the terms of 
the EEC Treaty, on the other hand, undertakings are 
subject to the cumulative application of Community and 
nat ionaI law. 
7. Contro I of State aids is more restrictive In the 
ECSC Treaty than in the EEC Treaty, In that the former 
spells out the derogations which are permitted. 
Article 4(c) of the ECSC Treaty prohibits State aids In 
principle. Nevertheless, Article 95 has been used on 
several occasions to grant derogations from this 
express ban, relating to coal*1) and steel*2). These 
codes broadly reflect the rules applicable to the 
sectors covered by Articles 92 and 93 of the 
EEC Treaty. Moreover, It Is clear that the EEC Treaty 
contains no equivalent to the abovement I oned 
Article 4(c). 
A further binding legal framework is provided by the 
bilateral consensus on steel concluded with the United 
States, which covers both ECSC and certain EEC steel 
products (0J L 368, 18.12.1989), and applies until 
31 March 1992. 
Discussions have started between the main steel 
producing countries, most of which have signed bl-
(1) Commission Decision 2064/86/ECSC of 30 June 1986 (0J L 177, 
1.7.1986), applicable until 31 December 1993. 
(2) Commission Decision 322/89/ECSC of 1 February 1989 (0J L 38, 
10.2.1989), applicable until 31 December 1991. 
6 
lateral agreements with the USA, to study the 
possIbi I 11 y of reach Ing a mult I — I a t e r a I agreement to 
replace and continue the existing b I -1 ateraI 
agreements . 
8. As regards social measures, the ECSC has acquired 
Invaluable experience which has proved its worth on 
numerous occasions in the coal and steel sectors. The 
sharing of responsibility for financing these measures 
between undertakings and the Member States, in the form 
of the levy, also represents a form of solidarity 
between the public and private sectors which Is unique 
i η the Commun Ity context , a I though not unknown at 
nat Iona I level . I t means that the cost of financing 
these measures i s shared on an equitable basis between 
the var I ous beneficiar i es which, f rom an econom1 c 
ν i ewpoInt, represent the ent ire sector and the entire 
economy. 11 a I so helps ensure that the measures are 
applied with an eye to ef f i c Iency and economy . -
These features could be usefu I as soc i a I flanking 
measures for the Commun 11 y ' s sec t o r a I pol i c i es and 
possibly also for the policies to strengthen economic 
and social cohesion. However, this approach would 
require amendments to the EEC Treaty. 
9. The rules on comme r c I a I poI Icy contained i η the 
ECSC Treaty do not allow a genu I ne common pol Icy. At 
the time, competence for this area was vested in the 
Member States. 11 Is true that I η practI ce at tempts 
have been made to assimilate steel and coal commercial 
pol Icy to genera I commerc i a I pol Icy, necessitating two 
different procedures. As a result, common rules are 
needed, which means that the rules in the Treaty of 
Rome have to be applied to ECSC products in order to do 
away with the cumbersome intergovernmental procedure 
which applies to ECSC products. 
10. As regards i nst i tut 1 ona I aspects , the ECSC Treaty gives 
the Comm i ss I on much greater ru i e-mak Ing powers than the 
Treaty of Rome, toget her with full executive powers. 
In the EEC Treaty, on the other hand, the institutional 
rules are conf I ned Ι η the most part to establ Ishlng the 
guiding principles according to which Commmun 11 y act Ion 
mus t be taken, w11 hout laying down specific rules, 
which can on I y be enacted by the Counc i I on a proposa I 
from the Comm i ss i on. Applying the i nst i tut IonaI rules 
i η the EEC Τ reaty to future Commun 11 y act ion I η the 
coa I and steel sectors shouI d not pose any major 
probi ems, and wou I d even, I η some cases, be more 
coherent with the principle of subsidiarity. At the 
same time, it wou I d mean reli nqu i sh i ng a significant 
part of the Community's Inst I tut IonaI st ructure. I η 
part icular , i t wou i d mean a significant weaken i ng of 
the power s to penal i ze Member States and undertakings 
which fall to f u I f I I their obi igat ions. 
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As regards Member States which fail to fulfil their 
obligations, the Commission has the power to 
suspend payment of the sums for which it would 
normally be liable In respect of the Member State 
in question. This power goes well beyond the 
system under Article 169 of the EEC Treaty, and 
consideration has already been given to 
incorporating it into the EEC Treaty. 
Where undertakings which fail to fulfil their 
obligations are concerned, several provisions of 
the ECSC Treaty authorize the Commission to Impose 
fines on undertakings which violate the decisions 
It takes pursuant to the Treaty. In addition, 
Article 91 of the Treaty states that if an 
undertaking does not pay a sum due to the 
Commission, the latter shall be entltlled to 
suspend payment of sums due to that undertaking, up 
to the amount of the outstanding payment. 
Finally, from a legal standpoint, the ECSC Treaty in some 
respects provides for a greater level of Community activity 
than the EEC Treaty. it created a legislative and 
administrative Community whose principal institution, the 
High Authority, enjoyed wide-ranging management powers In 
the sectors concerned. However, even in the areas governed 
by the EEC Treaty, there is a trend towards a gradual 
Increase in the Commission's administrative management 
tasks. 
In view of this trend, a fundamental question arises as to 
whether the Commission, given the arguments In favour of 
maintaining the Community's institutional structures, should 
relinquish the management powers conferred on It under 
primary legislation. 
i V. Assessment of the various options 
This assessment results from the examination of the legal 
and political consequences of the different options. 
1. * Option 1 - maintaining rules specific to coal and steel 
after 2002 - may have a number of advantages, Including: 
continued recognition of the special nature of the two 
Industries and the special relationships their 
representatives enjoy with the Commission; 
more favourable social provisions for workers than in 
the sectors covered by the EEC Treaty; 
in the case of the steel Industry, stricter rules on 
State aid and the possibility of direct Commission 
Intervention in the event of a serious economic crisis; 
8 
In addition to these arguments put forward by the 
representatives of the two industries, the Commission has 
greater powers under the ECSC Treaty, as has been recalled 
In point 111.10 above, and enjoys financial autonomy in 
respect of borrowing and lending which It does not have 
directly under the EEC Treaty. 
*0n the other hand, there are some arguments against 
Option 1 . 
The coal and steel industries are no longer special 
cases In the way that they were in the post-war years. 
Other sectors of the economy are similar in many 
respects and operate on an equally large scale In the 
Community, particularly seen in the context of the 
single market and the work in progress to achieve 
economic and monetary union. 
The comparative study of the ECSC and EEC Treaties 
summarized in point Ml above shows that most of the 
provisions and measures deriving from the ECSC Treaty 
can be carried out on the basis of the EEC Treaty, In 
particular by Invoking Article 235, the equivalent of 
Article 95 of the ECSC Treaty, which has already been 
used for derogations from its excessively stringent 
provisions, e.g. those on State aids. However, using 
the EEC Treaty as a legal base presupposes unanimity 
within the Council, and cou i d prove a drawback for the 
pursuit of certain policies, such as providing the 
Community with autonomous financial powers. 
This option would require politically complex 
procedures necessitating Council unanimity and 
ratification by the twelve Parliaments (see Article 96 
of the ECSC Treaty and Article 236 of the EEC Treaty). 
* Early termination of the ECSC Treaty - Option 2 - has a 
number of advantages. 
It would put an end to the special treatment still 
being requested by representatives of the two 
Industries, for which there is no longer any 
Justification. Coal and steel are no longer key 
industries, nor are they now the only Industries 
susceptible to cyclical change. As a result, there will 
no longer be any grounds for making special 
arrangements for these industries once the single 
market has been completed. 
It would be a way of no longer having to apply some of 
the obsolete provisions of the ECSC Treaty, 
particularly those on the organization of production 
(Article 58) and pricing policy (Article 60). 
* 9 
It wou I d make I t possible to speed up app I I cat i on of 
the common commerc i a I pol Icy provi ded for I η the EEC 
Treaty. 
"There I s, however, an I mpor tant obstacI e to this option as 
it is not a t a I I certain that it wou I d be possible to obtain 
unan I mous acceptance by the Counc i I and rat i f i cat ion by the 
twelve Parli aments, which, accord Ing to Art i c I e 96 of the 
ECSC Treaty, would be requI red to Imp Iement this option, if 
it were rejected by the representat I ves of the 
socIo-econom i c categories concerned. 
3. * Ε χ ρ Ir y of the ECSC Τ reaty in 2002 as scheduI ed - Opt i on 3 -
has the following advantages · 
From an economI c point of view, this opt Ion wou I d 
reaffirm the legal framework for the coal and steel 
I ndust rles untI I 2002, while at the same tI me al I owIng 
a sufficiently long transitional period to prepare for 
Inclusion I η the EEC Treaty after 2002. 
It should be borne in mind that there will be a 
widespread need for Industrial redevelopment in the 
coal-mining areas in the years ahead, as the 
application of the RECHAR programme shows, and given 
the ρ Ianned c Iosure of numerous coa I mines. Moreover , 
it wou I d be premature to state at this stage that the 
prob I ems of a I I the steel-producIng reg I ons have been 
overcome once and for all. I η addition, account will 
have to be taken of the probi ems of the coa I and steel 
Indust ry in the new German Länder . These factors are 
further argument s for ma Inta i η i ng the budgetary and 
financial i nstruments specific to the ECSC to cover 
social and reg IonaI act Ion up to 2002, bearing In mind 
that necessary act ion after that date wou I d be covered 
by EEC Treaty I nst ruments and approprlate financial 
means wI I I have to be provi ded . 
Th I s transitional per I od wou I d a I so enable the 
CommI ss i on gradua I I y to mod I fy i nterpretat ion and 
implementation of the provisi ons of the ECSC Treaty, 
and, where necessary, of certain provisi ons of the EEC 
Treaty with a view to ine lud ing the t wo sectors I η the 
EEC Treaty after 2002. These gradua I changes have 
already begun I η several areas, e.g. the content of the 
forward programmes for steel , steel commerc I a I po I Icy 
and rules on State a Ids in the two sectors. 
* It would be desirable for a number of var i ants to be added 
to opt I on 3 : 
a. the replacement of cer ta I η obsolete provisi ons of the 
ECSC Treaty by those Ι η the EEC Treaty cover I ng the 
same fields. This applies in part I cu I ar to the price 
rules (Art I c I e 60) and t he prov i s I ons relating to 
commercial po I i cy (Articles 71-75) I η the ECSC Treaty ; 
1 o 
b. the incorporation into the EEC Treaty, between now and 
2002, of certain provisions of the ECSC Treaty deemed 
useful or necessary for the whole range of economic 
activity; 
c. In line with the considerations set out in Its 
communication on Economic and Monetary Union (SEC(90) 
1659 final), the Commission will carry out a parallel 
study on the evolution of the Community's financial 
Instruments from the point of view of meeting the needs 
of Economic and Monetary Union. This Increased 
financial role is necessary in view of reinforcing 
economic convergence, Including economic and social 
cohesion, and, In general terms, the balanced evolution 
of european Integration. 
As each of these variants implies a revision of the Treaty, 
the application of the parliamentary ratification procedure 
In the 12 Member States would of course be necessary. 
V . Cone I us I on 
In view of the foregoing, the Commission has decided to: 
1. Adopt, as Its political position, the general option which 
provides for the ECSC Treaty to expire as scheduled in 2002, 
taking advantage of the flexibility which that Treaty 
provides in order to modify its application, as far as 
possible, to the two industries so that they are gradually 
taken over by the EEC Treaty in 2002; 
2. between now and 2002, add, when appropriate, to this option 
the Incorporation into the EEC Treaty of certain provisions 
of the ECSC Treaty, including the maintenance of such 
financial instruments and social provisions as may be deemed 
useful or necessary; 
3. In case of the ECSC Treaty being amended before the period 
preceding Its expiry, and independently of points 1 and 2 
above, to rescind the provisions relative to the price rules 
(Article 60) and to commercial policy (Articles 71-75), on 
the understanding that these subjects will then be covered 
automatically by the EEC Treaty; 
4. In parallel, to rapidly complete the study of the evolution 
of the Community's financial instruments from the point of 
view of contributing to the setting up of Economic and 
Monetary Union.