8. 3. 91 Official Journal of the European Communities No C 60/19 
ventions. This requirement could be deleted. A deletion 
would be all the more logical if a positive auditors 
report was accepted as a condition of non application 
of Article 2 as proposed in point 10 above. In case of 
Treaty contraventions the attestation should simply not 
be given. 
Done at Brussels, 18 December 1990. 
The Chairman 
of the Economic and Social Committee 
Frangois STAEDELIN 
Opinion on the 19th report on competition policy 
(91/C 60/07) 
On 23 July 1990 the Commission decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on the 19th 
report on competition policy. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 5 December 1990. The 
Rapporteur was Mr Bagliano. 
At its 282nd plenary session (meeting of 19 December 1990), the Economic and Social 
Committee adopted the following Opinion with no dissenting votes and three abstentions. 
1. General introduction 
1.1. A goal achieved at last 
The 19th report on competition policy opens by high­
lighting the successful conclusion—at the very end of 
the year—of work on merger controls. 
The ad hoc Regulation was approved on 21 December 
1989 and entered into force on 21 September. 
The Committee shares the Commission's satisfaction 
at this, although it remains concerned about possible 
problems of interpretation and implementation. whether real possibilities have been afforded prospec­
tive bidders irrespective of their national origin. 
Article 8, C) 
The Committee does not see why auditors should be 
given the task to propose remedies for Treaty contra-
1.2. The Commission and the ESC 
It is right and proper to be pleased with the results 
achieved over the year under review. It is, however, 
equally helpful to examine the quality of these results, 
and to consider how complete they are, how easy to 
implement, and what reactions they have aroused or 
are likely to arouse. 
Regular criticism (and self-criticism) can only be heal­
thy, particularly if it is offered in a spirit of cooperation 
and of participation in the pursuit of the Commission's 
annual goals for completion of the internal market. 
It is in this spirit that the Committee approaches its 
tasks. The present Opinion will thus offer assessments, 
No C 60/20 Official Journal of the European Communities 8. 3. 91 
reiterate a few criticisms, put forward new recommen­
dations, and provide the Commission with support and 
a stimulus, as regards guidelines for competition policy. 
The Committee notes the Commission's assurance that 
when formulating policy, it will take account of the 
suggestions made in the ESC Opinion on the 18th 
report. The Committee trusts that the Commission will 
respect this commitment. 
1.3. The overall competition balance 
EC competition rules have now been extended to furth­
er sectors of the economy, including transport, telecom­
munications, broadcasting and energy. 
It is worth highlighting the concept of 'overall compe­
tition balance' which the Commission sees as an essen-
tiall yardstick for assessing concrete cases. 
The Committee has always stressed the need to adopt 
a wide outlook, embracing not only the Community 
and international markets but also the links between 
the various Community policies, in order to build up a 
coherent and realistic, overall geographic and political 
picture. 
1.4. What is the position of national competition laws? 
Although the competition rules of the Treaty are 
directly applicable in national legislation, the dividing 
line between EC competition policy and national poli­
cies is becoming increasingly blurred. While national 
legislation is becoming more aligned with Community 
legislation (a number of modifications have been made 
to national laws, and the new Italian law in large 
measure reflects the spirit and letter of the Treaty), 
there is still a grey area of legal uncertainty which needs 
clarification. 
The Committee asks the Commission to consider and 
clarify this area, for example by means of ad hoc 
communications which provide guidance not just for 
companies, but also—more important—for the 
national courts. 
The Community and national levels are not separated 
by rigid, uncrossable boundaries; they are flexible 
elements of a competition policy which, by means of 
the principle of subsidiarity, can and must retain its 
original spirit, pursue the objectives of the Treaty, and 
be applied consistently throughout the Community. 2. Specific problems 
2.1. Distributive trades 
These are a delicate, complex part of the economic 
production chain, and the Commission has always paid 
them considerable attention. 
The many block exemption regulations bear witness to 
this attention, which is also made necessary by the 
wealth of agreements in this area. There is now a 
consolidated body of Community legislation and case 
law on the subject. 
These block exemptions—like all exemptions covered 
by Article 85(3) of the Treaty—are made for a specified 
period, and it is legitimate that the sectors concerned 
should be able to rely, during this specific period, 
on the legal framework laid down in the exemption 
Regulation itself. 
However, the Commission seems unhappy with the 
situation and appears to be reviewing it, although the 
reasons for the Commission's unhappiness, and the 
possible alternatives, are not yet clear. 
2.2. Controls for mergers and other forms of amalga­
mation 
The revised 'basic' Regulation was published in the 
Official Journal of 21 September 1990 (*), with correc­
tions of inaccuracies in the various language versions 
(some of these corrections do make the Regulation 
much easier to understand and interpret). 
The Committee issued its Opinion on the subject on 
2 June 1988 (2). Here it would confirm its generally 
favourable assessment, subject to a few reservations 
which can only be cleared up by practical experience 
of implementation. Such experience may also suggest 
that certain points of the Regulation should be 
amended. 
More particularly, precisely because the threshold at 
which a merger takes on a 'Community dimension' is 
high (at least during the first few years of implemen­
tation), the criteria and parameters must now fit into 
a broad geographical and temporal perspective. Any 
definition of 'relevant market' will have to take account 
of not only current but more importantly future poten­
tial competition, and not just in the Community but 
more especially at international level. 
The completion of the internal market means that the 
geographical market is now at least the common mar­
ket, and for many sectors is worldwide. 
C1) OJ No L 257, 21. 9.1990, p. 14. 
(2) OJ No C 208, 8. 8. 1988, p. 11. 
8. 3. 91 Official Journal of the European Communities No C 60/21 
2.3. Services 
Competition rules are being extended to cover a number 
of service industries (the two best known examples 
being telecommunications and air transport). Ad hoc 
regulations take account of the special features of the 
service sector. 
However, as in the case of mergers, the application of 
Community rules is not enough. Action must be taken 
to deal with national regulations which impede effective 
competition in certain sectors such as postal services, 
commercial monopolies and services carried out under 
state licence. 
2.4. Public aids 
The Committee has on several occasions insisted that 
public aid—where authorized—must always be trans­
parent and degressive. 
Although this must be the guiding principle and the 
final goal, some aid may, under precise conditions, still 
be compatible with the continuing process of Com­
munity integration. Exceptional circumstances and dif­
ficulties in particular sectors, regions or Member States 
have always been carefully considered by the Com­
mission. 
Aid which is incompatible with the Treaty is in any 
case clearly defined, not least by sectoral framework 
rules and by the large body of case law. 
Now more than ever, completion of the internal market 
brings a need for a dynamic competition policy, in 
parallel with a more robust industrial policy which 
makes allowances for the Herculean efforts which Com­
munity industry must make to adjust. The impact which 
third country competition is already exerting in the 
Community (and in certain Member States in particu­
lar) is an important consideration in the restructuring 
of supply in the internal market. 
Small and medium-sized firms in particular face serious 
risks and need to make significant investment if they 
are to find a new competitive niche in the run-up to 
1993. 
There have now been two white papers on State aids. 
This fact in itself shows how difficult it is to gain an 
accurate picture of the situation on the Member States. 
An accurate picture in a sine qua non for a proper 
intervention policy—one which does not simply inhibit, 
but also authorizes. We should therefore support the 
flexible and in a certain sense self-critical attitude 
adopted by the Commission in updating and amending 
these white papers, which also refer to competition 
policy initatives. However, the exceptional circumstances faced by some 
sectors mean that a forward-looking, realistic evalu­
ation is needed; while rigorously respecting the rules of 
the Treaty, this evaluation must take account of the 
fact that in many sectors, third-country competitors 
enjoy State support in various guises. 
The Committee shares the Commission's concern to 
apply the same rules to nationalized industries as to 
private industry, although the rules must be carefully 
designed to avoid any risk of discrimination between 
these two categories. 
2.5. Prices — Comparisons between Member States 
— National price control legislation 
2.5.1. The Committee has already drawn the Com­
mission's attention to the fact that many comparable 
products still vary in price—sometimes considerably— 
within the Community. 
The continuing nature of this phenomenon suggests 
that the problem is a complex one and that there is still 
a long and difficult path to negotiate before we achieve 
a real single market. The fact of the matter is that a 
large number of factors play a direct or indirect role in 
price formation. 
The Committee and the European Parliament have 
often stressed the importance and tricky nature of stud­
ies of pricing in the various markets. They have urged 
the Commission not to overlook the structural, sectoral 
and general differences which persist in the Member 
States. 
Comparison of the prices charged, in each Member 
State for an identical product is a useful analytical 
instrument but perhaps not a adequate way to assess 
competitition between Member States. Price variation 
is certainly indicative of a situation which is bound 
inter alia to distort competition. But although this is 
the most obvious aspect for the consumer, many other 
factors also come into play, such as the diversity of 
tax systems, of technical standards, of administrative 
systems and of the rules governing distribution systems. 
Comparison of Member States' prices in any given 
sector is a vital way of gleaning information and carry­
ing out checks, but it must be accompanied by careful 
study of the continuing structral and socio-economic 
differences between national markets. 
No C 60/22 Official Journal of the European Communities 8. 3. 91 
Further harmonization and approximation is therefore 
needed in order to achieve the greater uniformity which 
is a minimum prerequisite for accurate comparisons 
and conclusions. 
2.5.2. As a rule, prices must be determined by the 
market, i.e. by the free play of economic forces. Compe­
tition policy must ensure that this is achieved with 
respect for the roles of all the socio-economic partners, 
for consumer interests and for legislation protecting the 
environment (to cite the most topical and significant 
examples). 
Accordingly, neither companies nor national authorities 
must play an undue part in price formation or price 
levels. Their task is to administer the few remaining 
exceptions, which in any case are governed by national 
control/monitoring systems. 
As full market integration has not yet been achieved, 
national laws still have a role to play in controls de­
signed to avoid abuses and, in certain cases, to ensure 
a degree of price stability. 
The levers of short-term economic policy are still to a 
large extent in national hands, despite the growing 
interest in inter-bank cooperation and coordination, 
particularly between central banks. 
While the Commission has direct instruments of investi­
gation it has no direct powers of intervention in the 
implementation of competition rules. Although Articles 
85 and 86 refer to businesses rather than Member States, 
use could be made of Article 3 (f) and the second 
paragraph of Article 5(1). Furthermore, the Com­
mission can find broader (but equally clear and precise) 
legitimation in the first indent of Article 155, which 
states that the Commission shall 'ensure that the pro­
visions of theis Treaty and the measures taken by the 
institutions pursuant thereto are applied'. 
A list of each Member State' laws and regulations with 
the potential to affect competition could however be 
drawn up, as the first step towards more effective 
monitoring. 
i1) Article 3(f) states that the activities of the Community 
include: 'the institution of a system ensuring that competition 
in the common market is not distorted'. Article 5 (second 
paragraph) states that the Member States 'shall abstain from 
any measure which could jeopardize the attaiment of the 
objectives of this Treaty ». 2.6. Dumping 
The Committee feels that a responsible and attentive 
policy on trade and competition must pay special atten­
tion to the problem of dumping. 
The Commission has sufficient experience, particularly 
in those sectors where improper export pricing is a 
regular occurrence. 
Trade barriers are disappearing almost everywhere and 
duties and quotas are being reduced, though admittedly 
at differing speeds. The only form of defence is thus to 
ascertain whether dumping is taking place, and to take 
defensive action. 
The Comission has shown its readiness to act, and to 
complete the necessary procedures calmly and dis­
passionately. 
This strategy of responsible vigilance is the Com­
mission's correct interpretation of the concept of a 
competition policy designed to boost and protect the 
internal market whilst respecting the rules of the Gen­
eral Agreement on Tariffs and Trade (GATT) (despite 
the absence within GATT of the 'social clause' which 
has been called for by many parties). 
2.7. Procedure 
The merger control Regulation contains some import­
ant innovations concerning time limits, arrangements 
for the participation of the parties concerned, and coop­
eration from national administrations. 
2.7.1. The time limits are very short, particularly 
when compared with those normally required to reach 
a Commission decision. 
The Regulation very realistically acknowledges that in 
the case of prior notification, a faster procedure is 
needed. The Committee trusts that this laudable inten­
tion will be respected fairly, and that 'incomplete infor­
mation' will not be used as an expedient for extending 
the deadlines. 
2.7.2. The preliminary informal meetings proposed 
in the Regulation are an interesting innovation. They 
should help the Commission to respect the one-month 
deadline, or at all events to make the procedure as rapid 
as possible. 
This approach is to be supported, not least because it 
will help to offset the complex nature of the CO form, 
8. 3. 91 Official Journal of the European Communities No C 60/23 
the compilation of which will in practice be simplified 
by experience and the goodwill of all parties. 
2.7.3. The heightened role of national authorities, 
and the requirement that they should cooperate effec­
tively with the Commission, is also noteworthy. 
The Court of Justice has on several occasions confirmed 
the Commission's power to carry out its duties within 
Member States and with the Member States' cooper­
ation, in cases where a matter apparently of exclusively 
national interest in fact has possible implications for 
intra-EC trade. 
The primacy of Community law over national provision 
is no longer in question, but it is worth stressing that 
this also affects relations between national authorities 
and the Commission. 
2.7.4. For the implementation of Articles 85 and 86 
of the Treaty, the Commission has quasi-legal powers 
under Regulation 17 (first Regulation implementing 
Articles 85 and 86 of the Treaty, OJ No 13 of 21 
February 1962). Article 19 of this Regulation gives the 
parties the opportunity of being heard on the matters 
to which the Commission has taken objection, under 
conditions designed to guarantee the rights of the 
defendant and ensure that the Commission is able to 
take an independent, impartial decision. 
However, before taking a decision, the Commission has 
in some cases issued press communiques stating its 
objections vis-a-vis particular undertakings. 
The Committee would ask the Commission to recon­
sider this practice. It might be felt that in publishing 
these objections, the Commission could prejudice the 
final decision. Moreover, the Commission could find 
itself in a delicate position if the final decision fails to 
uphold objection which have already been released to 
the press. 
2.8. Community legislation and national legislation 
The recent Regulation on merger controls will provide 
a valuable tool for assessing the link between EC law 
and national laws. 
The existence of a Regulation specifically dealing with 
merger controls must not lead the Commission to limit 
its vigilance to Community-dimension mergers. A high level of concentration is already apparent in a 
number of sectors. Nor is vigilance—outside Regulation 
(EEC) No 4064/89—exercised solely by repressing abus­
es of dominant positions (Article 86). 
The Commission must thus identify and keep tabs on 
the actual competition conditions in particular sectors. 
Mergers in some of these sectors will never have the 
'Community dimension' specified by Article 1 of Regu­
lation (EEC) No 4064/89 simply because of the way 
these sectors are structured. 
In any case, all mergers which do not have a Community 
dimension should come under national legislation 
(although this may not in practice always be the case). 
Some instances may even be covered by the national 
legislation of several Member States simultaneously. 
Differences and conflicts—and therefore problems— 
cannot be ruled out in such cases, and the Commission 
would not be justified in acting as a 'super partes' 
judge on its own initiative. The powers and instruments 
conferred on it by Regulation (EEC) No 4064/89 are 
subject to a number of conditions and limitations. 
However, the Committee would reiterate (see point 2.5) 
that Treaty Articles 3(f) and 155 contain powers and 
instruments which enable the Commission to take 
firmer and more effective action when and where 
necessary. 
Hence the clear need for staunch cooperation between 
Member States, and for closer cooperation between the 
Commission and the national governments. 
2.9. Studies and research 
Earlier ESC Opinions have dwelt on the studies and 
research which the Commission has entrusted to outside 
experts. A summary of their findings appears in the last 
chapter of the annual report. 
On each occasion, the Commission specifies that 
responsibility for 'the data and views set out therein' 
rests with the universities and independent consultants 
who carried out the study. As the studies are published 
separately, the Committee would prefer to see the Com­
mission set out its own thoughts and conclusions in the 
report, and bear the same degree of responsibility for 
them as for the report as a whole. 
Publications dealing with competition rules should be 
more widely circulated at all levels, particularly to the 
small and medium-sized firms of the newer Member 
No C 60/24 Official Journal of the European Communities 8. 3. 91 
States. In addition to the work already done or under 
way, a study or guide to technology transfer contracts 
would be particularly helpful not just to the newer 
Member States but also to firms in the developing 
countries. 
2.10. The resources of DG IV 
As the merger control Regulation is an ad hoc instru­
ment, the Commission has chosen to set up a 'merger 
taskforce', bringing together manpower resources alre­
ady available and Member State nationals with special 
experience. 
It is difficult to judge the accuracy of the forecast for 
the workload which the Regulation will generate for 
the task force. Fifty notifications could be an under or 
an over-estimate. Reinforcement of Directorates B, C 
and D might also have allowed greater internal flexi­
bility and, more important, made use of the sectoral 
experience of each department. 
The Committee has no doubts about the need to bolster 
the aggregate resources of DG IV. It has always stressed 
this point, being aware of the workload and responsi­
bilities faced by this DG. 
3. International relations 
3.1. The Commission's international activities 
More vigorous cooperation with the United Nations 
and the Organization for Economic Co-operation and 
Development (OECD) must be underpinned by increas­
ing Community solidarity. 
In GATT too—as ESC Opinions on the GATT nego­
tiations have made clear—the Commission must hold 
firm, in order to ensure fair competition between the 
international economic powers. 
Done at Brussels, 19 December 1990. 3.2. The EC and the European Free Trade Association 
(EFTA) 
The Committee has already given a full account of its 
views on EC-EFTA relations and their future develop­
ment (!). The problems stem partly form the differing 
institutional structures of the two areas, and it is thus 
pointless to pursue forms of integration which are 
impossible in the short term at least. 
However, competition policy is an exception to this 
rule: the trading situation calls for respect of common 
rules, and the safeguarding of a few minimum standards 
of fairness. 
3.3. EC-US and EC-Japan cooperation 
Contact with third countries' antitrust authorities is 
always useful and indeed necessary. 
The recent Regulation on merger controls should not 
alter communication channels with the US and Japan, 
the two main non-EC areas. 
The matter is best dealt with by informal bilateral 
contacts and information swapping. Formal agreements 
are unnecessary and their drafting would pose legal 
problems. 
Formal commitments have manifold and complex 
implications (we need only cite the question of extra­
territoriality, or the principle of reciprocity which is 
often invoked improperly or solely as a bargaining 
chip). 
Although the final goal may seem distant, work should 
continue on the internationalization of antitrust rules, 
and harmonization (even partial and gradual) of the 
rules of international trade. 
0) OJ No C 182, 23. 7. 1990, p. 33. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN