24. 12. 84 Official Journal of the European Communities No C 343/5 
enable all the prepared appropriate emergency mea­
sures to become operative. The side effects may not 
manifest themselves immediately. The physiological 
emergence of genetic effects will be delayed for a 
generation. 
4. Additional remarks 
The Committee would make the following com­
ments : 
4.1. It agrees that the management and disposal of 
radioactive waste concerns all the Member States 
even if one or more are not operating nuclear fission 
plants. clay and granite are suitable for wastes of differing 
radio-activity — they are complementary. Doubtless 
the Commission's proposal for the transportation of 
radioactive materials will cover the safety measures 
necessary for the removal of radioactive waste to the 
most appropriate definitive storage depots within 
the Community. The necessary harmonization of 
legal and economic instruments between Member 
States will need to be brought about. 
4.4. Whilst most Member States are active in the 
interim safe storage of waste, it is not wise to have a 
policy which involves waiting for at least 50 (per­
haps up to 100) years before the means of storage of 
high-level and long-life radioactive waste is decided 
upon. 
4.2. It believes that, notwithstanding the current 
understanding of the resolution of the problem in 
terms of physics, greater priority should be given to 
the separation of waste by remote handling tech­
niques, to enable the process of transmuting high-
active long-life waste into short-life elements to 
advance more rapidly. 
4.3. It believes that a more flexible approach by 
Member States toward the definitive stage of the 
storage of radioactive waste should be encouraged. 
Not all Member States have the geological structure 
available for the most effective final storage. Salt, 4.5. It is recognized that the problem of the defini­
tive storage of radioactive waste is relatively new. It 
may become necessary to solve new problems. 
Owing to the extreme longevity of certain radioac­
tive waste, the amount to be stored will continually 
increase. The Committee is therefore pleased that 
there is active cooperation between all those coun­
tries, within and outside the European Community, 
who are involved or concerned in nuclear fission. 
Complete international cooperation will be required 
to reinforce the protection of man and the environ­
ment from the potential effects of the storage of 
radioactive waste. 
Done at Brussels, 25 October 1984. 
The Chairman 
of the Economic and Social Committee 
Gerd MUHR 
Opinion on the 13th report on competition policy of the Commission of the European 
Communities 
(84/C 343/03) 
On 11 April 1984 the Commission of the European Communities decided to consult 
the Economic and Social Committee on the abovementioned report. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for 
preparing the Committee's work on the subject, adopted its opinion on 3 October 
1984, in the light of the report by Mr Bagliano. 
At its 220th plenary session (meeting of 25 October 1984), the Economic and Social 
Committee adopted the following opinion nem. con., with five abstentions. 
No C 343/6 Official Journal of the European Communities 24. 12. 84 
1. Competition policy: the approach 
Since its first own-initiative opinion of 30 April 
1981, the Committee has laid special emphasis on 
the concept of a competition 'policy'. The Com­
mittee is pleased to note that this concept is now 
receiving serious general recognition, not least from 
the Commission, which entitles Part 1 of its report 
'General competition policy'. 
An exclusively legalistic approach will do nothing 
to solve the Community's current competition prob­
lems. What is needed is a coherent, timely combina­
tion of all general policies. A competition 'policy' 
must also be dynamic and forward-looking, and 
must take account of circumstances. These princi­
ples cannot be stated too often. 
To be fully consistent with these concepts — which 
hold the key to solving the problem — we must con­
sider all aspects relevant to implementation of the 
Treaty's provisions bearing in mind the various 
interdependent factors and all the crucial features of 
the current recession (unemployment, inflation, the 
Community's handicap in some advanced technolo­
gies and sectors, high cost of money, adverse 
pressures resulting from the increased competitive­
ness of some newly industrializing countries). 
Following the same subject order as the 13th report, 
the Committee therefore concentrates here on eval­
uating those problems which it feels are currently 
most open and acute, and offering some concrete 
suggestions. 
2. Competition and the recession: new markets 
On the major and much-discussed topic of competi­
tion and the recession, the Committee feels that one 
of the most important aims of Community policies 
should be to pinpoint new outlets (i.e. new markets) 
for Community products. This would undoubtedly 
have a favourable effect on employment. 
Competition within the Community is undeniably 
both a problem and a goal, and must be safe­
guarded; but we cannot safeguard healthy competi­
tion within the Community without striving to 
increase our ability to compete effectively with the 
rest of the world. This can be done be securing new outlets for Com­
munity products, by being bolder and more active in 
our external and trade relations. 
Taking a more general view of the problems and 
relations between the Community and the other 
main trade areas, the Committee feels it should 
stress the advantages of a less short-term outlook. 
This would make it possible to seize the opportuni­
ties arising from the definite signs of economic 
recovery in the United States, and in some parts of 
Europe. The Community's potential resources for 
research and training must receive concentrated 
priority attention from all of us. 
3. Competition, taxation and company law 
The Committee would like to take this opportunity 
to highlight the major effect on competition of tax 
disparities between the Member States. 
The solution to this is not just to step up work on 
harmonization, but also to try to state principles and 
build instruments, with a Community basis where 
possible. 
The Community's past work on company law can 
be of help here. The Committee repeats its hope that 
the Statutes for the European Company come into 
being as soon as possible. It also stresses the case 
for finally adopting the draft Regulation creating 
the European Cooperation Grouping. 
4. The Community and the international organiza­
tions 
Major problems — ranging from international 
investment to restrictive practices, from anti-dump­
ing to export cartels, and from public contracts to 
new opportunities for international cooperation — 
are being discussed with the OECD, UNCTAD and 
the UN. 
Precisely because the Community presence at these 
major international talks is so delicate and so cru­
cial, the Committee hopes that the Commission will 
provide more extensive information on them, and 
will hold preparatory conferences. 
24. 12. 84 Official Journal of the European Communities No C 343/7 
The United Nations Conference on the interna­
tional code for the transfer of technologies also 
deserves the greatest attention from the Community 
bodies, with assistance from the economic and 
social groups. 
5. The 13th report and the ESC: taking stock 
The 13th report is rightly dedicated to the European 
Parliament, at the end of its term of office. The 
Commission lists in detail all the recommendations 
made over the last few years by the Parliament, indi­
cating whether or not they were accepted, and speci­
fying the reasons for its decisions. This is a sound 
method. 
The Committee feels that it would be useful to have 
a similar stock-taking of the action taken by the 
Commission on the recommendations of earlier 
ESC opinions. The Committee would draw the 
Commission's attention to the following points: 
(a) Implementation of Community competition law 
by national legislations. 
The Committee welcomes the Commission 
guidelines. At the same time, however, it 
stresses the absolute need to ensure that the 
direct application of Articles 85 and 86 of the 
Treaty by national courts does not lead to non-
harmonized (if not actually divergent) applica­
tion legislation, and of the way it is influenced 
ferent Member States. 
The Committee also recommends more careful 
evaluation and monitoring of national competi­
tion legislation, and of the way it is influenced 
by the interpretation and implementation of 
Community rules. 
(b) The Committee invites the Commission to be 
particularly cautious when considering mea­
sures to extend the rights of private individuals 
to sue for damages, although it appreciates their 
dissuasive effect; the results must be critically 
assessed. The main task must be to improve 
contract provisions, without encouraging exces­
sive litigation at national level. 'Legal certainty' 
must however be a priority conditions and goal. (c) The Commission survey of pricing policies in 
banking and insurance meets the Committee's 
recommendation (see Part 4 of the report). 
(d) The Committee cannot accept the Commis­
sion's view (point 52 of the report) that the 
amended proposal on merger control takes 
account of its opinion on the subject. On the 
contrary, the additions and changes proposed in 
the opinion have been ignored. 
(e) Right from the report's introduction, the Com­
mission highlights the importance of the 'posi­
tive' rather than the repressive side of competi­
tion policy. The Committee therefore notes with 
regret that there is no mention of its request that 
more guidelines be issued, and more communi­
cations on specific topics (and not just on 
block-exemption regulations), in order to give 
companies information. One area which could 
usefully be made the subject of a communica­
tion is that of joint ventures (points 53 to 55). 
The Committee agrees that joint ventures can 
do much to improve the competitiveness of 
Community industry and to foster technological 
progress, and that there is thus an urgent need 
to offer companies suitable legal frameworks 
and instruments. 
(f) The Committee welcomes the specific confirma­
tion that it will be consulted on the preliminary 
drafts of block-exemption regulations. 
(g) The Committee recognizes that the Commission 
proposals on research and development agree­
ments and patent licensing are ample proof that 
the Commission has been very receptive to the 
suggestions made by the social and trade group­
ings. 
(h) The Committee is pleased with the results 
achieved here, and hopes that this fruitful coop­
eration will continue, not least over the propo­
sals still being discussed. 
The draft Regulation on distribution agreements 
for motor vehicles may be mentioned here. The 
Committee issued an opinion on this in 1983. 
The Commission, however, merely notes this, 
No C 343/8 Official Journal of the European Communities 24. 12. 84 
adding nothing about the proposals contained 
in it. 
(i) The Committee also favours greater clarity in 
the wording of the legal instruments, in the 
interest of the people they are addressed to — 
firms, not experts. Greater clarity will increase 
legal certainty. 
6. Small firms 
The Committee notes that too short and general a 
chapter is devoted to this important area of competi­
tion policy, particularly in the Year of Small and 
Medium-sized Enterprises. 
The Committee notes the publication of the guide to 
competition rules which aims to make small firms 
more conversant with Community laws. However, it 
feels that the Commission cannot limit itself to 
block exemption regulations; it must also ensure 
effective, flexible implementation of competition 
rules in all areas not covered by the regulations, giv­
ing more consideration to the real needs of small 
firms. 
7. Distribution agreements 
Distribution agreements continue to occupy first 
place among the developments in Community com­
petition policy. 
The report summarizes the conclusions of an inter­
national seminar held in Strasbourg (5 and 
6 December 1983) with the French Government. 
However, inadequate information was issued both 
before and after this. If its aim was to assess the dif­
ferences between the organizational, trade and mar­
ket structures of the United States and the Com­
munity, the seminar was overdue, to say the least. 
The two Regulations replacing Regulations No 67/ 
67/EEC and the draft Regulation on motor vehicle 
distribution — in the case of the latter, at least to 
date — have not adopted the spirit of the many and 
repeated suggestions, made by the Parliament and 
the Committee, nor most of their concrete propo­
sals. The Committee fully supports the Parliament's 
repeated calls to view the distribution problem not 
merely as a legal matter, but also from the economic 
angle. It also points out the danger of going into too 
much detail, and calls for general guidelines. These 
would also help reduce the number of notifications 
still outstanding. 
The Committee has also warned of the further dan­
ger of a sectoral collection of rules. This would not 
only lack any legal basis, but would also risk 
expanding and weighing down the Community's 
bureaucracy, distracting it from its real tasks of care­
ful vigilance, flexible assessment and prompt inter­
vention when abuses occur. 
The first and proper aim in interpreting the judg­
ments of the Court of Justice, which always refer to 
specific cases and sectors, must be the avoidance of 
effective distortions in competition, against a back­
ground of increasingly severe international competi­
tion. 
8. Reduction of structural overcapacity 
The 12th report contained guidelines on joint mea­
sures to reduce overcapacity. The Commission has 
now taken steps to apply these principles to con­
crete cases of structural reorganization. 
These often involve whole sectors, and thus produce 
particularly worrying employment problems. The 
Committee is therefore pleased that the Commission 
is trying to reconcile respect for the basic principles 
of competition rules with the absolute need to take 
account of overcapacity and need for restructuring 
which it involves. 
However, it is not just a matter of realizing that 
over-capacity exists, and arranging re-employment. 
More importantly, we must also analyze its causes 
which may be cyclical or structural. The decisions to 
be made must increasingly be based on detailed 
analyses of the markets and sectors involved. 
Here too, all Community policies must be applied 
coherently, to provide much-needed help towards 
curing the causes of specific cases of structural over­
capacity. 
24. 12. 84 Official Journal of the European Communities No C 343/9 
9. Fines 
The Committee broadly approves the Commission 
guidelines on fixing the level of fines; this must not 
be an abstract mathematical exercise, but an overall 
legal-economic assessment carried out case-by-case. 
The Committee notes further that the implementa­
tion of competition law must not be reduced to a 
question of penalties (such as fines). It is first and 
foremost a matter of effective, prompt re-establish­
ment of healthy competition. Legally, this means 
that if an agreement violates the Treaty, it is null 
and void. This must be the Commission's main goal. 
Of course, where companies have acted in bad faith, 
the Commission has a perfect right and duty to 
impose fines. However, in cases where companies 
have been fully cooperative during the procedure, 
less severe criteria should be adopted — as in cases 
where there are legitimate grounds for doubt as to 
whether an agreement comes under Article 85(1). 
For example, the Committee feels that the concept 
of an 'unfavourable influence' on Member States' 
trade is being interpreted more broadly; this too 
must be borne in mind. 
The aim of the fine should be to discourage in­
fringements of competition rules; any sanctions for 
fraud or damages will be imposed elsewhere. 
The Court of Justice has in some cases altered these 
fines, sometimes by quite large amounts. However, 
this was not so much to oppose a hypothetical 
over-severe Commission guideline as the result of 
weighing up assessments made by a different 
method and at a later date. 
10. Competition rules in the banking and insurance 
sectors 
The Committee notes the Commission commitment 
to apply competition rules to the banking and insur­
ance sectors. 
The European Court of Justice decided as far back 
as 1981 that banks were subject in principle to EC 
competition law. The Commission should accord­
ingly take suitable action, where called for. After 
having laid down highly detailed conditions in res­
pect of industrial sectors such as the motor-vehicle, 
beer and petrochemical industries, the Commission 
should ensure that the EC competition rules are 
observed in the banking sector — whose activities impinge on the whole of the economy — and the 
insurance sector. 
The Committee supports the Commission in its 
affirmed intention of taking concrete measures to 
ensure that more effective competition comes into 
play in these sectors, too, throughout the Com­
munity. Adequate attention should be accorded in 
this respect to the particularities of this sector, given 
the need to protect depositors and consumers, and 
its links with economic and monetary policies. 
Increased competition would in fact make for 
greater efficiency of the system as a whole, and 
would obviously also reduce service costs. 
11. Procedure 
(a) The Committee is delighted to see that some 
procedural reforms are starting to be carried out: 
inspections, administrative letters, access to Com­
mission files, the role of the Hearing Officer in oral 
hearings. 
The Committee means to follow closely the applica­
tion of these reforms, and reserves the right to make 
a more detailed assessment in a future opinion. 
(b) The Committee feels, in order to achieve truly 
concerted development of Community competition 
policy, that more prominence should be given to the 
role of government experts on the Advisory Com­
mittee on Restrictive Practices and Dominant Posi­
tions. In the last few years, the Commission has 
increasingly accorded respect and concrete recogni­
tion to the role and function of advisory bodies 
(partly thanks to the efforts of the ESC and the 
European Parliament). This brings a greater need to 
give a fuller hearing to the Advisory Committee, set­
ting reasonable deadlines for the consultation pro­
cedure, without pressure to reach unanimous or 
majority decisions simply to achieve a formal and 
therefore illusory consensus. 
A steady improvement in consultation procedures 
would further improve the Commission's proceed-
No C 343/10 Official Journal of the European Communities 24. 12. 84 
ings too, speeding up the discussion and approval 
stages and helping to broaden consensus; this is 
increasingly necessary to reach the goals of competi­
tion policy. 
12. Aid 
The Committee reiterates the comments made in its 
own-initiative opinion of April 1981 on the refusal 
of aid, again stressing the need for renewed atten­
tion to the interpretation and implementation of 
rules and criteria. 
Given the importance of the subject, the Committee 
would like to highlight some of the problems, and 
offer its assessment of them. 
(a) Aid and the recession 
The Committee is worried by the continuing rise in 
all forms of State aid. It thus welcomes the Commis­
sion's greater attention and severity, and stresses the 
absolute need to ban aid which produces a 
'featherbedding' mentality, wasting resources on 
lame ducks and weakening entrepreneurs' will to 
compete in the markets. 
At the same time, the Committee notes that the wor­
sening of the aid problem is due not only to pressure 
exerted by companies on the Member States, but 
more to the pressure arising from the continuing 
recession. 
In the absence both of a Community industrial 
policy and of a medium-term programme, the differ­
ing national responses to the problems arising from 
the recession can produce distortions in competi­
tion. A long-term Community structural strategy is 
urgently needed. 
It is wrong to automatically condemn aid — which 
must in any case be temporary and on a decreasing 
scale, or at least linked to a specific recovery plan, 
and must help companies regain long-term competi­
tiveness. Competition policy must help to overcome 
the recession by ensuring that State intervention is guided by a realistic, flexible implementation of the 
rules of the Treaty, designed to solve the difficult 
situation faced by the Community economy. The 
Committee supports the Commission's approach to 
the problem, including its response to the distorting 
effects on competition of the 'cumulation' of aid. 
(b) Criteria and procedures 
The Committee recognizes that the Commission is 
making an effort both to set criteria for the compati­
bility of the various forms of aid, and to extend the 
aid principles used in certain sectors to new ones. 
However, the broad discretionary powers open to 
the Commission for assessing the compatibility of 
aid schemes require greater clarification. 
The Committee would repeat the recommendation 
made in its own-initiative opinion of 30 April 1981, 
that the Commission periodically draw up and pub­
lish detailed guidelines on this. 
Far from encouraging requests for aid, clarification 
of the Commission's position could make it easier 
for national measures to correspond to the aims of 
the Treaty. This would avoid (a) the notification of 
aid schemes which are unwittingly incompatible, (b) 
the often protracted phase which follows, of discus­
sion, dispute and possible legal action with Member 
State authorities, and (c) the resulting uncertainties 
and pointless waiting periods borne by entrepre­
neurs. The proposed guidelines should offer useful 
suggestions on the real meaning of basic concepts 
such as Community return, indispensability and 
accumulation, at the same time clarifying the ways 
they relate to each other. 
Procedures should also be speeded up, so that aid 
does not arrive too late, or prove useless. 
(c) Regulations 
The Committee would further point out that, unlike 
the application of competition policy to firms 
(Article 85 of the Treaty), Article 94 has never been 
used to adopt a Regulation on the application of 
Articles 92 and 93, which continues to develop 
according to changing, unpredictable case law and 
practice. 
24. 12. 84 Official Journal of the European Communities No C 343/11 
The Committee thus feels it desirable that the Com­
mission carefully consider the need for one or more 
Council Regulations to help reach the vitally neces­
sary consensus between the Member States on cor­
rect implementation of the basic concepts contained 
in Articles 92 and 93. 
These Regulations could also lighten the adminis­
trative burden on the Commission, by removing the 
obligation to notify small aid schemes (such as 
those to help small firms) and, for example, by 
introducing a standard form for notification of aid 
schemes (including the growing number adminis­
tered by local bodies, which are difficult to moni­
tor). 
(d) The concepts of innovation and restructuring 
The Committee also feels it useful to offer a few 
suggestions on the problems of innovation and re­
structuring, which the Commission has and will 
increasingly have to tackle when assessing the com­
patibility of aid schemes notified by the Member 
States. 
The Committee feels that the term 'innovation' 
should be used in the broad sense. 
The term should not be limited to cases of complete 
radical innovation involving new products or prod­
uction processes; this would limit innovation-foster­
ing measures to the advanced technology sectors, 
and risk excluding traditional, mature sectors, many 
of which use and encourage 'innovation'. 
The goal of a Community policy to encourage inno­
vation, fitting in with and respecting competition 
policy, must be to speed up the process of innova­
tion, with realistic consideration of the present sec­
toral and national situation. The Community has to 
support the innovation policies of the various Mem-
Done at Brussels, 25 October 1984. ber States, which may vary according to the differ­
ing national and sectoral situations (established sec­
tors and advanced technology sectors). 
The Committee broadly agrees with the Commission 
on the concept of defining and checking the level of 
'restructuring' which a firm must carry out in order 
to qualify for aid. 
However, it should be stressed that aid given for re­
structuring programmes to allow firms to become 
competitive in the medium term should in principle 
be assessed regardless of whether it is destined for 
traditional sectors or advanced technology sectors: 
the concept of 'level of restructuring' is obviously a 
relative one, which must be assessed according to 
the specific sector involved. 
Here too, the aim should be to ease the firm con­
cerned back into healthy, independent competitive­
ness. 
(e) Legal certainty 
The Committee notes the Commission's intention to 
provide Member States with further guidelines on 
the granting of aid, in order to improve controls, 
revealing its concern to guarantee companies greater 
legal certainty. 
Legal certainty would also be facilitated by guide­
lines on the restitution of aid granted illegally by 
Member States, to avoid hurting firms acting in 
good faith. 
Satisfactory rules have become indispensable since 
the Commission started considering some forms of 
State aid (such as participation in company capital) 
as being covered by the rules of competition. 
However, the granting of aid must never have a 
negative effect on the market. 
The Chairman 
of the Economic and Social Committee 
Gerd MUHR