Opinion of the Economic and Social Committee on: - the 'Proposal for a Council Regulation (EC) amending Regulation No 19/65/EEC on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices', and - the 'Proposal for a Council Regulation (EC) amending Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty'
Date: 1998-02-24
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU Member State, competition policy, economic policy, single market

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1.4.
In any case, the legislation is unlikely to do much to achieve its declared aim of reducing tax evasion. Where
a Member State imposed a withholding tax, it would receive this tax into its exchequer; on the other hand, if it opted
to inform the Member State where the taxpayer was domiciled, the tax would be collected by that Member State. In
these circumstances, all Member States will naturally elect to impose a withholding tax and none will choose the
option to inform. The “co-existence” is, therefore, a myth.

1.4.1.
The result of this is that the minimum tax of 20 % will also be the maximum tax, since Member States in
which the taxpayers are resident will continue to be ignorant of the existence of the transactions, which will
consequently escape the higher rates of tax which would, in most cases, have been levied if the information method
had been used.’

Reason

Self-explanatory

Result of the vote

Against: 72; for: 40; abstentions: 7.

Opinion of the Economic and Social Committee on:

— the ‘Proposal for a Council Regulation (EC) amending Regulation No 19/65/EEC on the
application of Article 85(3) of the Treaty to certain categories of agreements and concerted
practices’, and

— the ‘Proposal for a Council Regulation (EC) amending Regulation No 17: First Regulation

implementing Articles 85 and 86 of the Treaty’

(1999/C 116/06)

On 4 November 1998 the Council decided to consult the Economic and Social Committee, under Article
198 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 11 February 1999. The rapporteur was Mr
Regaldo.

At its 361st plenary session (meeting of 24 February 1999), the Economic and Social Committee adopted
the following opinion by 118 votes for with two abstentions.

1.

Introduction

The Commission has issued its Communication(1) on
1.1.
the application of the Community competition rules to vertical
restraints in response to the 227 written submissions received
during the consultation exercise on the Green Paper(2). Its
primary objective is to shape a new Community vertical
restraints policy in order to remedy the shortcomings of the
current one.

1.2.
For its part, the Committee takes the view that firstly,
an effective policy is needed as vertical restraints are a key

(1) OJ C 365, 26.11.1998, p. 3.
(2) OJ C 296, 29.9.1997.

component of EU competition policy and play a significant role
in promoting business competitiveness, market integration,
economic and social cohesion and consumer welfare.

1.3.
Vertical agreements such as agreements and concerted
practices entered into by firms, each operating at a different
stage of the economic process, in respect of the supply and/or
purchase of goods or the marketing of services (otherwise
known as vertical restraints) have in time shown a pro-
competitive tendency. However, the current rules on vertical
restraint need to be updated in line with the ongoing change
in production processes and the evolution and multiplication
of different types of distribution point.

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1.4.
The proposed new rules constitute a far-reaching
reform of current policy based on formal statutory criteria and
specific sectoral rules.

The main features of the new policy, which is to be

1.5.
based on the analysis of its economic impact, are as follows:

— a single block exemption regulation for all vertical
restraints in respect of finished products,
intermediate
products and services, apart from a few hardcore restric-
tions not subject to the block exemption (list of ‘black
clauses’);

— one or two market-share thresholds are proposed, in order
to link block exemptions to companies’ market power;

— a ‘safe harbour’ is to be created which should distinguish
the agreements that are deemed to be legal
(below
the threshold) from those which may require individual
examination (above the threshold);

— the rules will be fleshed out by a set of guidelines detailing
the political line to be followed above the market power
thresholds and providing for withdrawal of the block
exemption below the thresholds, as well as providing
companies with clearer criteria and guidelines for calculat-
ing market shares;

— the new policy envisages increased decentralization, to
enable Community competition rules to be enforced by
national competition courts and authorities;

— a limit on the duration of the exempted agreements, to be

differentiated by type of agreement;

— a transitional period — to be determined — for the
adaptation of agreements already in existence when the
new rules come into force.

1.6.
To bring the new policy into effect, the Commission
proposes a detailed set of measures on which the Committee
has been invited to express its opinion:

— a draft amendment of Article 4(2) of Council Regulation
No 17(2), the first regulation implementing Articles 85 and
86 of the Treaty, allowing the Commission to exempt
retroactively the vertical agreements when notification
takes place at a later date.

On the basis of the new powers conferred by the
the

1.7.
Council under the two above-mentioned regulations,
Commission will be able to commence work on adopting:

— the new draft regulation applicable to all vertical restraints
in all distribution sectors, except motor vehicles and
other vertical relations covered by other regulations and
communications, in accordance with the general lines of
the communication;

— a series of guidelines to accompany the regulation, specify-
ing the policy conducted by the Commission above
and beyond the thresholds set and copper-fastening the
possibility of withdrawing the block exemption.

1.8.
One consequence of the new regulation will be the
demise of the present block exemption regulations concerning
exclusive distribution [Regulation 1983/83(3)]; exclusive pur-
chasing [Regulation 1984/83(4)]; and franchising [Regulation
4087/88(5)].

1.9.
After the consultation period, the new regulation and
guidelines should be adopted by the Commission and enter
into force by the end of the year 2000.

2. General comments

2.1.
The Commission Communication emphasizes that
analysis of the different options set out in the green paper has
revealed their shortcomings in terms of resolving the problems
caused by the present arrangements: rigid, overly formalistic
rules, neglect of market power and excessively narrow block
exemptions.

— a communication outlining the new policy on the appli-
cation of Community competition rules on vertical
restraints;

2.2.
The proposal, in the communication, aims at moving
current policy towards a new, less formalistic approach which
takes account of the economic impact of the agreements under
consideration and strives to simplify supervision procedures.

— a draft amendment of Council Regulation No 19/65 EEC(1)
to implement decentralization and to extend the powers
vested in the Commission for applying Article 85(3) of the
Treaty to certain categories of agreements and concerted
practices;

(1) OJ 36, 6.3.1965.

(2) OJ 13, 21.2.1962, amended by Regulation No 59, OJ 52,
10.7.1962, by Regulation No 118/63/EEC, OJ 162, 7.11.1963
and by Regulation (EEC) No 2822/71, OJ L 285, 29.12.1971.
(3) OJ L 173, 30.6.1983, p. 1, as last amended by Regulation (EC)

No 1582/97, OJ L 214, 6.8.1997, p. 27.

(4) OJ L 173, 30.6.1983, p. 5, as last amended by Regulation (EC)

No 1582/97, OJ L 214, 6.8.1997, p. 27.

(5) OJ L 359, 28.12.1988, p. 46.

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This should lead to a break with previous practice and is, in
principle, to be welcomed as it ties in with the approach
advocated by the Committee in its earlier opinion on the
Green Paper on vertical restraints(1).

In that opinion, the Committee recommended moving
2.3.
away from the current rigidity and analysing vertical cooper-
ation with the requisite flexibility, enabling the block exemp-
tion system to accommodate new forms of distribution geared
to changing market conditions and, at the same time, to give
companies the legal certainty they need in future agreements.
It also stressed the importance of market structure for evaluat-
ing the effects of vertical restraints and acknowledged the role
of arbitration as a precondition for proper competition and
market integration: a role which must be guaranteed at the
level of both consumers and middlemen.

2.4.
As outlined, the new policy not only takes these
takes up other highly
recommendations on board, but
important suggestions. These include the need to look at
similar economic situations with comparable horizontal or
vertical market effects in the same way, even if their legal
structures differ in certain respects, and to consider how the
required substantial new departure in Community policy on
vertical restraints ‘should be integrated into the process of
updating and modernizing the current legal and regulatory
framework, rather than abandoning it’. Lastly, the Committee
called for revamping of the economic and legal theories which
underlay the earlier interpretation of Article 85, particularly in
the area of block exemption regulations.

2.5.
The Committee now notes that the Commission aims
to amend the current broad interpretation of Article 85 (which
prohibits most vertical agreements containing exclusivity
clauses or other restrictions on economic operators’ freedom
of action). It intends to base its document on the concept of
market power accompanied firstly by an extension of the
scope of block exemptions and, secondly, by simplification of
the notification procedure for agreements. In this regard, it is
worth recalling that the Court of Justice has consistently ruled
that vertical agreements — particularly exclusive-distribution
agreements — are not automatically subject to Article 85(1).

3. Specific comments

3.1.
Exemption for distribution agreements: a wider block
exemption will give parties to selective distribution agree-
ments, exclusive purchasing agreements and franchising agree-
ments welcome flexibility to conclude contractual arrange-

(1) OJ C 296, 29.9.1997.

ments which suit their commercial needs and reduce the need
to fit such agreements into the straitjacket of the individual
block exemptions. The Committee welcomes the fact that the
new block exemption will apply to a wider range of activities
by the distributor, including the supply or purchase, or both,
of goods for resale or processing, as well as the marketing of
services and intermediate goods, in addition to finished goods
for resale only. It particularly welcomes the fact that goods or
products may be ‘processed’ as opposed to the old, more
restricted test of ‘for resale only’.

It would hope for further guidance upon the width
3.1.1.
of these activities to be given either in the recitals in the
preamble or the new proposed Guidelines to the Block
Exemption. Finally, the Committee welcomes the inclusion of
vertical agreements of associations of SME retailers within the
block exemption, since that meets the point raised by the
Committee in its opinion.

The Committee, moreover, points out that, as
3.1.1.1.
regards market dynamics, such forms of cooperation should
not be restricted to SMEs alone. The exemption should also
apply to agreements whose parties exceed the Commission’s
precise definition of SME but are, nevertheless, equivalent to
SME in terms of real market power.

3.1.2.
The Committee also points out that the definition of
vertical agreements does not cover (nor does it appear intended
to cover)(2) agency agreements in respect of goods and
services. The Committee hopes the Commission will take the
opportunity to clarify its position in relation to agents who are
not integrated into the principal’s business(3).

3.2.
The proposed new policy envisages using market
shares as a criterion for determining whether block exemptions
apply, with the laudable aim of giving firms which do not
possess market power the opportunity of securing legal
certainty below the defined market share threshold. The
Committee notes that the introduction of thresholds is also
warranted in terms of the need to prevent companies which
do possess market power benefiting from exemptions, with
the concomitant risk that their market power will have an
adverse impact on competitiveness and jeopardize consumer
interests.

3.2.1.

The Committee wishes, however, to point out that:

— high market share is not synonymous with high market
power. The Commission should publish in its Guidelines
the factors, such as the possibility of
foreclosing the
market, to be taken as evidence that a high market share
reflects real market power;

(2) See the Green Paper on vertical restraints, p.

ii, Executive

Summary.

(3) According to the case law of

the European Court and the
Commission, if the agent is integrated into the principal’s business,
Article 85(1) does not apply at all.

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— the Commission retains the reserve power of withdrawing

the benefit of the block exemption;

— the Commission can also enforce Article 86 in the case of
individual or joint market domination. The Committee
made the same comment concerning Option III in the
green paper, referring specifically to the approved system
of block exemptions for technology transfer(1).

The Committee notes that

3.6.
the new arrangements,
based on a single set of rules for block exemptions, effectively
terminate the present sectoral regulations, namely in beer and
petrol, excluding cars: however, this does not necessarily
mean that the specific circumstances justifying their original
adoption have ceased to exist. The guidelines should reflect
these specific factors in implementing the new single regulation
and, if necessary, allow the specific regulations to continue.

Generally speaking, the Committee accepts the need
3.3.
for a market share cap as a condition for a wider block
exemption, in the distribution context. It would remind the
Commission, however, that the introduction of a market share
test in the distribution block exemption will require careful
treatment in the sense that sufficient guidance must be given
on its calculation to ensure that the parties will make use of
the block exemption. The Committee therefore welcomes the
guidance given on Section IV — Point 5 and suggests that:

3.7.
The Committee acknowledges the Commission’s will-
ingness to strike a balance between (a) an approach based on
analysing market effects and (b) a reasonable level of legal
certainty. To this end, the Commission notice on defining
relevant markets(2), used as the basic reference for the forth-
coming general exemption regulation, should be accompanied
by guidelines going into greater detail and clarity on the
indications previously supplied for calculating market shares
and the arrangements in the event of
thresholds being
exceeded.

a)

the Commission gives guidance in its proposed Guidelines;
and

b) offers a ‘quick look facility’ to parties in difficulty.

The Committee is also unclear about the basis on
3.4.
which the choice of thresholds was actually made. In practice,
there would be a 10 % threshold for ‘de minimis’ agreements;
a second of up to 20 %; a third between 20 and 40 %; and a
fourth above 40 %.

3.4.1.
The Commission finally proposes choosing between
a single 25-35 % threshold and a dual 20 % or 40 % threshold
system. A 25-35 % market share threshold certainly offers
advantages, in terms of simplicity and clarity, compared with
the dual-threshold system, which would undoubtedly be
complicated and could lead back to a formalistic approach. It
could also have the opposite effect to that intended, on legal
certainty for companies: the number of notifications could rise
rather than fall.

3.4.2.
30 % of market share.

The Committee recommends a single threshold of

3.8.
The Committee takes note of the advantages of using
market share thresholds: below the threshold, vertical restraints
are presumed to be free of any significant overall negative
effect on competition and are therefore compatible with
Article 85(1), with the exception of hardcore restrictions (such
as imposed sales prices and resale restrictions defined under
the black-clause approach). Legal certainty is thus granted to
these kinds of agreement.

3.9.
However, the Committee notes the disadvantages for
SMEs in the distribution sector which may flow from this
presumption of compatibility.
If a distribution network
depends on a vendor whose market share is below the
threshold which will ultimately be set, the corresponding
distribution contracts — which do not contain hardcore
restrictions — will not be monitored at all.
In order to
avoid this situation — which could weaken the position of
distribution SMEs and, quite apart from questions of fairness,
could lead to the Commission receiving numerous complaints
— the Committee calls upon the Commission to ensure that
clauses are inserted which, in such cases, would restrict the
powers of vendors vis-à-vis distribution SMEs or, at least,
would provide the latter with effective safeguards.

3.5.
The inadequate indication of precise, easily applicable
criteria for calculating market shares and defining relevant
markets, in terms of both products and services and geographi-
cally, could give rise to legal uncertainty, with the risk of
further burdening rather than simplifying procedures, as
mooted by the Commission in the new policy.

3.10.
The Committee welcomes both the assurance that
there will be no presumption of illegality above the market-
share cap, and the introduction of Guidelines to cover the
three issues (negative clearance, exemption or prohibition) of
the scope of Article 85(1), the Commission’s policy under
Article 85(3), and its policy in relation to its withdrawal
powers. The Committee would have at least liked to see a draft
of such guidelines before drawing up the present opinion.

(1) OJ C 102, 24.4.1995.

(2) OJ C 312, 14.10.1997, p. 15.

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3.10.1.
The Commission did, however, confirm that it will
take upon itself the burden of proving that an agreement is in
breach of Article 85(1). Nevertheless, the Committee considers
that should an agreement be declared invalid, though not by
virtue of having exceeded the market share cap, the declaration
of invalidity should take immediate rather than retroactive
effect. This has not been clearly stated in the amendments to
current rules proposed by the Commission.

on a given market, insofar as they are not sure of achieving
any form whatsoever of market — or customer — exclusivity
as a quid pro quo. It seems clear that the Commission still
intends to continue allowing undertakings to permit restraints
on active sales on a exclusive distributors’ territory; however,
the Committee also wants the Commission to be able to
permit an agreement between a supplier and a distributor
under which the distributor will only engage in active sales
vis-à-vis more specific customers determined by the supplier.

3.11.
The Committee welcomes the removal of the whitelist
from the block exemption and would expect to see guidance on
acceptable clauses in the proposed Guidelines. The Committee
notes that by establishing a list of hardcore restrictions
(blacklist) automatically falling outside the general exemption,
the Commission’s new policy heralds a new approach which
is to be welcomed, since it overturns the present restrictive
approach allowing block exemptions in respect of specific
clauses. The Committee is pleased to note that by acceding to
its request, the Commission recognizes that clauses involving
maximum and recommended resale prices are, under certain
conditions, compatible with competition rules. National pro-
visions, which at present have been accepted by the Com-
mission, should therefore remain valid under the future regime.

The Committee is nevertheless concerned at

3.12.
the
number of clauses in the blacklist and the difficulty in
interpreting and implementing them. In practice, this might
not simplify matters for companies when defining agreements,
thereby encouraging them to resort to notification in order to
ensure legal certainty. Section V, point 3 of the Communi-
cation(1),
for example, which prohibits the imposition of
restrictions on distributors with regard to sales outside their
contractual territory, gives great cause for concern since it
substantially modifies the previous interpretation of territorial
exclusivity. It would therefore require considerable clarification
for the purposes of implementation. Similarly, the Commission
needs to shed further light on the legality of ‘tying clauses’ in
conjunction with ‘no-compete’ clauses.

3.12.1.
Furthermore, doubts arise regarding the Com-
mission’s interpretation of exclusive distribution agreements
which also provide for exclusive purchasing and which its
in market integration terms,
document considers harmful
although they have thus far been exempted (see the Grundig-
Consten judgement, 1966)(2).

3.12.2.
The ESC agrees that the existing ban on passive sales
under exclusive distribution agreements must be maintained. It
is, however, important to recognize the importance of permit-
ting restraints in active sales. Obviously undertakings do not
wish to assume the difficult task of introducing a new product

(1) OJ C 365, 26.11.1998, p. 3.
(2) Judgment of 13.7.1966, ECJ Reports 1966, p. 429.

3.13.
The Committee notes that the duration has been left
undefined: limited duration, varying in accordance with the
type of agreement, is envisaged. This seems to imply jettisoning
the current rules , which allow for a five-year period renewable
to ten, seen by companies as necessary in order to plan
investments properly. Given that the Commission and, in the
future, possibly the national authorities may have the power
to withdraw exemptions if difficulties arise, any limit on the
duration of agreements must reflect the length of time required
for a return on investment, specifically in the beer and retail
petrol sectors.

3.13.1.
The Committee does not know how the Com-
mission plans to react in the event of innovative vertical
agreements or in cases where suppliers own the premises.
Again, the document refers to future guidelines.

The Committee notes that as proposed in the amend-
3.14.
ment to Article 1 of Regulation 19/65/EEC, the new provision
is to apply to ‘categories of agreements between two or more
undertakings, each operating at a different stage of
the
economic process’. Given market dynamics and the complexity
and integration of certain production and processing processes,
the Committee wonders whether it would not be better to
delete the reference to stages of the economic process and
focus instead on the economic purpose of the agreement for
which exemption is sought.

3.15.
As regards flanking measures, the Committee also
welcomes the revision of Article 4(2) to allow retroactive
exemption of non-notified agreements above the market share
cap. It agrees that such a reform could help to reduce the
pressure of individual notifications, although the Committee
would like to remind the Commission that this does not
preclude the possibility that parties above the threshold may
nevertheless wish to notify immediately after the agreement is
made, in order to avoid subsequent opportunistic disputes.

3.15.1.
The Committee therefore remains concerned that
the applications for individual notification above the market
share threshold will be submitted to the Commission with no
assurance of a decision within a reasonable time, nor any
certainty of a result other than a comfort letter. As it mentioned

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in its opinion, it would like to see a procedural mechanism
which has some time limits built in, such as a non-opposition
procedure. Another possible model could be the time limits
built into the merger control regulation(1). The Committee
looks forward to such a change as part of the more general
reform of procedures by the Commission.

3.15.2.
The Commission should also prepare itself pro-
cedurally for notification by parties which are in dispute about
entitlement to exemption. Such cases have previously been
in the absence of retrospective
dealt with by the courts,
exemption.

3.16. With regard to the main flanking measure involving
devolution to national authorities of application of Com-
munity competition rules, the Committee notes that the new
policy empowers national authorities to withdraw the benefit
of block exemption in their territory, and to bring Article
85(1) to bear above the market-share cap. The Committee
would emphasize that the new approach is a major departure
from the current one, which gives the Commission sole
responsibility for full application of Article 85(3).

3.16.1.
Although the Committee basically backs Com-
mission efforts to decentralize the implementation of compe-
tition policy, it would at the same time point to the risks
inherent in such an approach for the uniformity and consist-
ency of EU competition policy. For companies, re-assigning
powers to national authorities might be detrimental if differ-
ences in official and legal practice in the Member States were
to jeopardize uniform application of the law within the single
market and impair procedural efficiency. The Commission
should lay down clear procedural rules to prevent legislative
fragmentation as a result of different approaches to industrial
or competition policy in the various Member States. Moreover,
the Commission must be authorized to initiate proceedings
against national authorities in respect of monitoring com-
pliance with legal and technical specifications. Arrangements
must also be made for cross-border investigations since, unlike
the Commission, national cartel authorities have no powers in
this regard. The ‘one-stop-shop’ principle in Europe should
always be the top priority, even in the event of decentralized
application. That said, increasingly delegating smaller agree-
ments involving primarily parties located in one Member State
to the competition authorities of that state will help lighten
the Commission’s workload, and enable it to concentrate
its efforts upon those agreements with a Community-wide
significance.

economic effects of such agreements, assuming that such
agreements are not part of a wider network of agreements and
there is no danger of foreclosure of the relevant market. It
thinks that the reasoning of the ECJ in ‘Delimitis v. Henninger
Brau’(1991)(2) suggests that the Court takes a relaxed view of
hardcore restraints in the case of small agreements with weak
economic effects under Article 85(1), and considers that the
Commission should rethink its position under Article 85(3).

3.18.
The Committee welcomes as a step in the right
direction the Commission’s willingness to treat as acceptable
the ‘non-hardcore vertical restraints’ below a 20 % threshold,
should the two threshold system of market share caps be
adopted. This shows that the Commission is applying econ-
omic thinking to the application of the block exemption at the
lower end of the market share spectrum.

3.19.
The Committee would recommend that if a single
threshold market share cap is adopted, such a principle should
be retained by the Commission, if necessary in the Guidelines.

3.20.
The Committee also suggests that the Commission,
consistent with its new, more economic approach to vertical
agreements, should take the further step of re-examining its
use of a blacklist of all hard core restraints in the case of all
small vertical agreements, including those under the 10 %
threshold in the Notice of Agreements of Minor Importance.

3.21.
The Committee welcomes the Commission’s pre-
paredness to make use of the withdrawal mechanism as
suggested in the Communication. There must be a careful
balance between the safeguards built into the block exemption
and the reserve power of the withdrawal procedure.

3.22.
its earlier opinion on vertical restraints(3).

The Committee reiterates its endorsement, voiced in

4. Final comments

The Committee notes that the guidelines, a key com-
4.1.
ponent of the new policy, should have been submitted by the
Commission in conjunction with the new single regulation,
prior to any amendment of Regulations (EEC) 19/65 and
17/62.

3.17.
The Committee also welcomes the Commission’s
willingness to take into account the economic context of
vertical distribution agreements. It therefore questions whether
allhardcore restraints, including those below a low market
share threshold, have to be blacklisted in view of the weak

4.2. With the exception of the points made in the above
general and specific comments, particularly with regard to the
use of the market share criterion, the Committee endorses the
introduction of
the new regulation with a single 30 %
threshold.

(1) OJ L 257/90, p. 13.

(2) I ECR — 935 (1991).
(3) OJ C 296, 29.9.1997.

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4.3.
This would facilitate the widespread use of the regu-
lation, leaving the Commission to focus exclusively on those
cases in which market power is liable to jeopardize compliance
with the rules of competition.

4.4. With regard to the blacklist clauses, the Committee is
greatly concerned about the clause contained in Section V,
point 3 of the Communication, which, as mentioned in point
3.11 above, substantially modifies the previous interpretation
of territorial exclusivity.

4.5.
As mentioned in point 3.12, the Committee stresses
the need for the Commission to bear in mind, when defining
the duration of the agreements, the length of time required for
a return on investment.

Brussels, 24 February 1999.

In the light of

these comments,

4.6.
the Committee
endorses the Commission’s initiative, and calls upon it to take
account of the views expressed in the present opinion in
relation to the definition of the guidelines and the single block
exemption regulation, on which the Committee will be
consulted.

4.7.
The Committee will then have the opportunity to
monitor how the Commission intends to regulate vertical
agreements within a clearly defined legal framework, which
must be hallmarked by its straightforwardness, transparency,
legal certainty and support for SMEs if the expected benefits
are to be fully passed on to consumers.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

Opinion of the Economic and Social Committee on the ‘Commission White Paper “Fair Payment
for Infrastructure Use: A phased approach to a common transport infrastructure charging
framework in the EU”’

(1999/C 116/07)

On 31 July 1998 the Council decided to consult the Economic and Social Committee, under Article 198
of the Treaty establishing the European Community, on the White Paper entitled ‘Fair Payment for
Infrastructure Use: A phased approach to a common transport infrastructure charging framework in the
EU’.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 9 February 1999. The rapporteur
was Mr Kielman.

At its 361st plenary session (meeting of 24 February 1999) the Economic and Social Committee adopted
the following opinion by 117 votes to 0, with 2 abstentions.

1.

Introduction

1.1.
The present White Paper is a follow-up to the 1993
White Paper on the future development of the common
transport policy(1) and the 1995 Green Paper entitled ‘Towards
fair and efficient pricing in transport’(2). In the White Paper
the Commission suggests that a harmonized Community
approach, based on the ‘user pays’ principle, be adopted to
transport charges and maintains that this will enhance both
the efficiency and the sustainability of the transport system.

1.1.1.
The great diversity of current infrastructure charging
systems across modes of transport and Member States under-
mines this efficiency and sustainability.

1.1.2.
The variety of problems thrown up by the diversity
of approaches to infrastructure charging cannot be adequately
treated in isolation from each other.

(1) OJ C 352, 30.12.1993, p. 11.
(2) OJ C 56, 24.2.1997, p. 31.

1.2.
The Commission therefore thinks that a gradual and
progressive harmonization of charging systems, based on the
‘user pays’ principle, is necessary throughout the European
Union for all important commercial transport activities.