WRITTEN QUESTION E-0160/96 by Marianne Thyssen (PPE) to the Commission (1 February 1996)

Subject: Opening of the exemption contained in Article 85(1) of the Treaty to SMEs

In accordance with the rules of competition law, Regulation No. 4087/88 ((OJ C 359, 28.12.1988, p. 46. )) exempts franchising systems from the restrictions pursuant to Article 85(1) of the Treaty on European Union even when such systems restrict competition. This regulation is applicable to businesses which cooperate through a franchising system. However, if individual SMEs decide to cooperate commercially, for example in the form of a purchasing organization, regulation No 4087/88 does not apply. Individual SMEs which join together in such organizations, in order to be able to withstand the pressure of competition are as it were discriminated against compared with businesses which are part of a franchising system.

When it assesses a cooperation agreement in the light of the rules on competition, should not the Commission be guided by the economic reality, i.e. a market where competition is generally between groups, rather than the legal structure of these groups and their members?

Does the Commission also intend

1. to respond to the Council resolution of 10 October 1994 ((OJ C 294, 22.10.1994, p. 6. )) in which the Council calls on the Member States and the Commission to examine 'to what extent the legal provisions of the Member States and of the Community could place a specific extra burden on SMEs, by... examining the possibilities for cooperation between SMEs (for example, cooperation in networks for joint purchases and sales) in the framework of Community competition law'?

2. to suggest, in the green paper on vertical agreements which it intends to publish, a solution to this problem?

Answer given by Mr Van Miert on behalf of the Commission (12 March 1996)

1. The Commission shares the Honourable Member's view that the various forms of business cooperation between small and medium-sized enterprises (SMEs), such as joint purchasing networks, should be encouraged. Such forms of cooperation allow SMEs to regroup, either with one another or with a logistic structure, so as to compete with other forms of business.

Following the Council resolution of 10 October 1994 ((OJ C 294, 22.10.1994. )), the Commission has accordingly continued to give thought to the scope for adjusting the competition rules so as to encourage business cooperation between SMEs.

The current basic provisions (Article 85 of the EC Treaty together with the Commission's decision-making practice) already go a long way towards achieving this objective, since they allow the Commission to take account of the structure of the relevant markets. Nevertheless, such provisions should be supplemented by a number of general measures.

The Commission is currently reviewing its notice on agreements of minor importance ((OJ C 231, 12.9.1986. )), which are not caught by the ban on restrictive agreements, so as to make it more favourable to SMEs. As regards operations above the appreciability threshold, the Commission is examining the scope for extending the block exemption arrangements to include the various forms of horizontal cooperation between SMEs.

2. The Commission will publish the green paper on vertical restrictions in 1996 with the aim of generating broad discussion of the treatment of such agreements. It is still too early to say what the precise contents of the green paper will be, notably as regards the various forms of business cooperation between SMEs. At all events, the Commission will give careful thought to the way in which SMEs are treated under the competition rules.