Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87 (Regulation implementing Articles 81 and 82 of the Treaty)"
Date: 2001-03-29
Institutions: European Economic and Social Committee
Subjects: application of EU law, competition law, economic concentration, merger control

29.5.2001

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Official Journal of the European Communities

C 155/73

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation on the
implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and
amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC)
No 3975/87 (“Regulation implementing Articles 81 and 82 of the Treaty”)’

(2001/C 155/14)

On 17 October 2000, the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

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 14 March 2001. The rapporteur was
Mr Bagliano.

At its 380th plenary session (meeting of 29 March 2001), the Economic and Social Committee adopted
the following opinion with 83 votes in favour and one abstention.

1.

Introduction

In April 1999, the Commission published a White
1.1.
Paper on the ‘Modernisation of
the rules implementing
Articles 81 and 82 of the EC Treaty’ (1), setting out the reasons
for a radical reform. It went on to initiate a broad debate, in
which all the interested parties — companies, associations,
jurists, economists,
lawyers, members of the judiciary and
national governments — were offered an opportunity to
express their views, both positive and negative, to make
proposals, and to look further into the issues at stake.

1.2. Brief summary

restrictive

[prohibited

agreements

The reform does away with the compulsory notifi-
1.2.1.
cation
under
of
Article 81(1)], which was necessary (under paragraph 3 of the
same Article) in order to secure exemption from the prohi-
bition (paragraph 1). At present, this procedure is managed
by the Commission, which has exclusive power to grant
exemptions (the current system is therefore known as the
‘exemption system’). The Commission is thus giving up its
exclusive power to grant exemptions [under Article 81(3)], in
order to give more time and resources to the most serious
problems, namely large monopolies and international cartels.

1.2.2.
The Commission will be decentralising the whole
Article 81 system (i.e. including paragraph 3, with no compul-
sory notification) to the national competition authorities and
courts, which may intervene only ex-post, in the event of a
dispute.

1.2.3.
It will be up to companies to interpret Article 81
(including paragraph 3) in order to assess the legitimacy of
their agreements.

1.2.4.

The Commission:

— will retain a guiding and monitoring role, not least
through its notices, regulations, and decisions on specific
cases, and

— will have responsibility for coordinating the national
competition authorities, with the understanding that all
parties (authorities and courts) will have to cooperate.

1.3. The Committee opinion on the White Paper

1.3.1.
The Economic and Social Committee was consulted
by the Commission, under Article 262 of the Treaty estab-
lishing the European Community, and adopted an opinion
almost unanimously (only two abstentions) (2) on 8 December
1999. The Committee opinion defined the White Paper reform
of the system for applying Articles 81 and 82 as ‘courageous
and ground-breaking’.

1.3.2.
However, while stating that the reform was ‘both
justified and valid’, the Committee also stressed the ‘difficulties
and dangers’ that only a ‘programme of preliminary and
accompanying measures’ could overcome. The opinion defined
these measures as essential and necessary.

1.3.3.
The opinion was welcomed for its essentially positive
and constructive approach, and the ideas and suggestions it
raised were referred to in numerous fora.

(1) COM(1999) 101 final — OJ C 132, 12.5.1999.

(2) OJ C 51, 23.2.2000, p. 55.

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1.3.4.

The Committee’s main concerns were:

— legal certainty (paragraph 2.3.6 contains a number of

important practical suggestions and proposals),

— does not provide for the additional measures that are
made necessary by the rules stipulated in the proposal
itself (for instance, notices on the burden of proof and on
the law applicable).

— the right to a defence (2.3.5.7),

— uniformity of interpretation (2.3.5.10),

— the precedence of Community law (1.5.5),

— preservation of the unity and coherence of the system

(2.3.5),

— insufficient measures

to prevent

forum shopping

(2.3.2.8),

— and the need to involve the national authorities and

courts in the debate (2.3.2 and 2.3.3).

2. Comments

The Regulation proposed by the Commission is a first
2.1.
step in the right direction as regards implementing the reform.
The Committee obviously supports the Commission in this
bold and innovative undertaking.

2.2.
It should however be stated at the outset that although
the Commission’s proposal contains the basic principles
underpinning the reform,
it does not provide a complete
legislative framework and no proper and effective global
assessment can therefore be made. Certain major elements of
the reform are missing. The text of the articles and the
Explanatory Memorandum contain numerous references to
future Commission documents (regulations, notices, guidelines
etc.) on key aspects, but without providing sufficient indication
of content, criteria, limits or time-scales.

2.3.
As regards the Committee’s concerns (see 1.3.4 above),
the proposal does not take into account certain basic obser-
vations made by the Committee, in particular regarding legal
certainty (points 2.3.6.3 to 2.3.6.8 of the 1999 opinion) and
the need to preserve the unity of the Community competition
system (see the 13 subparagraphs in point 2.3.5 of the 1999
opinion).

2.5.
The Committee nevertheless welcomes the Com-
mission’s work to date following the wide-ranging debate on
the White Paper, and in particular welcomes this initial
legislative initiative.

Article 1 states the principle of the direct applicability
2.6.
of Articles 81 and 82 — ‘no prior decision to that effect being
required’ — and as such defines the reform, i.e. the transition
from the notification and authorisation system to the directly
applicable exception system.

2.6.1.
Article 3 — Relationship between Articles 81 and 82
and national competition laws — is clear and remarkably bold
in its concision and brevity, and it should remove one of the
main causes for concern.

In its opinion of December 1999 (1), the Committee
2.6.2.
highlighted the importance of this issue, which ‘cannot fall
solely to the discretion of the [national] courts and authorities
responsible’ (point 2.3.5.12). Article 83 of the Treaty of Rome
— in other words, from the EU’s inception — explicitly
includes among the ‘appropriate regulations or directives to
give effect to the principles set out in Articles 81 and 82’
[Article 83(1)] those designed ‘to determine the relationship
between national laws’ and Community law [Article 83(2)(e)].

2.6.3.
The Committee agrees that mandatory application of
Community law (provided for under Article 3) — when the
facts or practices ‘may affect trade between Member States’ —
is the most appropriate response to concerns about
the
renationalisation of competition rules. Once the regulation
enters into force, however, the importance of this rule will
require the immediate adoption of an interpretive notice to
clarify when trade is affected.

2.4. Moreover, the proposal

2.7.
Under Article 2, the burden of proof is shared between
the prosecution [infringement of Article 81(1)] and the defence
[fulfilment of the conditions set out in Article 81(3)].

— neither contains nor makes provision for any of the
accompanying measures that the Committee believes to
be an essential preliminary step (see point 3 — Con-
clusions of the 1999 opinion);

(1) OJ C 51, 23.2.2000, p. 55.

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2.7.1.
However, to enable this principle to be applied, the
Commission must provide further guidelines regarding the
real content of Article 81(1) and (3), because, as the Com-
mission itself accepts in the White Paper (points 56 and
57) there have been various interpretations (by both the
Commission and the Court of Justice) of the relationship
between Article 81(1) and Article 81(3).

Memorandum that precedes the text of the regulation is quite
clear: ‘Structural remedies can be necessary in order to bring
an infringement effectively to an end. This may in particular
be the case with regard to cooperation agreements and abuses
of a dominant position, where divestiture of certain assets may
be necessary’.

2.8. Commission powers

In some detail (albeit quite inadequate), Article 4(2)
2.8.1.
(Chapter II — powers) grants the Commission the specific
power to determine, by regulation, the ‘types of agreements,
decisions of associations of undertakings and concerted prac-
tices ... which must be registered’. The types of agreement, the
‘procedures for such registration and the penalties applicable’
are also to be determined by a specific regulation (see also
Article 34(a) of the regulation).

2.8.1.1.
This compulsory registration certainly constitutes
a novel element, and at first sight would appear to be in
contradiction with the ending of notification (which is crucial
to the reform). Since the idea of the reform is to reduce,
remove and simplify red tape, the potential administrative cost
and burden should not be underestimated. It will obviously be
necessary to avoid overlaps in those cases where Member
States already have registers.

2.8.1.2.
The Commission considers such registration to be
‘expedient, in order to improve transparency’ (10th recital),
although it ‘shall confer no entitlement on the (...) undertak-
ings’. With no knowledge of the future regulation, a provision
introducing an obligation (with penalties for non-compliance)
without any corresponding right seems on the face of it
unacceptable. Admittedly, Article 4(2) does begin with the
words ‘The Commission may’, but even if this is strictly
speaking only a potential provision, a Council regulation
couched in such terms would nevertheless hand the Com-
mission almost unlimited powers (including penalties). With
no knowledge of the implementing provisions that the Com-
mission will adopt in order to exercise this power,
it is
impossible and would be irresponsible to attempt a conclusive
assessment.

2.8.2.
The powers attributed to the Commission also
include that of imposing ‘any obligations necessary, including
remedies of a structural nature’ [Article 7(1)], in order to bring
an identified infringement to an end.

2.8.2.1.
Although the relevant recital (11) adds nothing in
this respect, the commentary on this article in the Explanatory

2.8.2.2.
The White Paper made no reference to such a
remedy. If it is designed to address existing situations, it seems
completely incompatible with the machinery and the spirit of
both existing Community competition law and the planned
reform, and would introduce a new policy instrument without
sufficient preliminary debate or the necessary clarifications
from the Commission.

2.8.2.3.
In this respect, the Committee would stress that
structural remedies are by their very nature extremely costly
— both economically and socially — difficult to implement,
and often of uncertain and limited success regarding competi-
tiveness and overall economic efficiency. The experience
acquired by the Commission and economic and social oper-
ators in the application of the merger control rules has clearly
demonstrated that proper preventive procedures are the best
means of solving structural competition problems. For these
reasons, the White Paper (point 79) stated that it would be
‘desirable to maintain the prior authorisation requirement for
partial-function production joint ventures’. In its opinion of
December 1999 (points 2.3.6.3 to 2.6.3.7), the Committee
hoped that the prior authorisation system would be extended
to other cases as well.

The Regulation makes no provisions on this matter. The
Commission makes just one reference — and then only to
partial-function production joint ventures — in the last
sentence of the Explanatory Memorandum’s brief first section,
postponing the issue to be dealt with ‘in the context of
forthcoming reflections on the revision of that regulation’ (on
mergers).

2.8.2.4.
Experience in implementing Community compe-
tition rules over the last forty years has shown that — aside
from the application of the merger Regulation — a number of
extremely important
initiatives have been judged by the
interested parties to be unfeasible in the absence of formal or
informal authorisation from the Commission. In point 2.3.6.9
of its 1999 opinion, the Committee stated that ‘in any event,
it must be made clear and a guarantee given that the abolition
of the prior notification system shall not in any way prevent
— but rather should encourage — prior dialogue between the
companies, the Commission and the national authorities,
should the companies so wish. Obviously, this dialogue will
not replace the ’decision’ or offer legal certainty, but it could

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provide an indispensable, preliminary,
informal and non-
binding indication for important cases, and as such could
become a routine means of operating in mutual trust and
openness’. The Commission itself, when commenting on
Article 4 (Powers of the Commission) admits that ‘in the new
system (...) undertakings must, as a general rule, assess for
themselves whether their behaviour complies with the law’.
(fourth paragraph of comments on Article 4).

2.8.2.5. Whilst the ‘general rule’ will obviously remain so,
the concept of the ‘reasoned opinion’, appears to give proper
recognition to company rights, although it is only mentioned
in the Explanatory Memorandum (at the end of section II) in
the following terms:

‘Finally, the Commission will remain open to discuss
specific cases with the undertakings where appropriate. In
particular, it will provide guidance regarding agreements,
decisions or concerted practices that raise an unresolved,
genuinely new question of interpretation. To that effect,
the Commission will publish a notice in which it will set
out the conditions under which it may issue reasoned
opinions. Any such system of opinions must not, however,
lead to companies being entitled to obtain an opinion, as
this would reintroduce a kind of notification system.’

The end of point 3 (last indent) of the Impact Assessment
Form is possibly more precise inasmuch as it makes reference
to ‘rare cases’ that ‘raise new or unresolved questions’. The
Commission must at all events be ready to give an opinion not
only in rare cases, but also in the event of major investments
and major or irreversible structural changes.

2.8.3.1.
On the subject of Article 10, the legal certainty
offered to companies would be significantly greater if the
Commission were to decide that Article 81 can be inapplicable
not only for reasons of public interest but also when this is in
the legitimate interest of the companies concerned, particularly
in the event of major investments or structural changes.

2.8.3.2.
The Commission may deploy the wide-ranging
practical powers provided by Article 7 ‘acting on a complaint
or on its own initiative’ [Article 7(1) and Article 10(1)], and
may adopt interim measures ‘in cases of urgency’ [Article 8(1)].
Further hypotheses should be added, along the lines proposed
in point 2.8.3.1.

2.8.4.
In its opinion on the White Paper, the Committee
approved the guiding and monitoring role which the Com-
mission should also retain in a decentralised system, with a
view to ensuring the uniform application of Community
competition law and providing companies with legal certainty.
The Committee therefore believes that further clarification is
needed to give a clearer understanding of the powers of the
Commission.

2.8.5.
For both the adoption of decisions (Chapter III) and
the conduct of investigations (Chapter V), the proposal accords
the Commission more wide-ranging and stronger powers than
at present, stating that:

‘The detection of infringements of the competition rules is
in order to protect
growing ever more difficult, and,
competition effectively, the Commission’s powers of inves-
tigation need to be supplemented’ (21st recital).

In particular, this concerns:

2.8.3.
Chapter III assigns a number of other powers to the
Commission which, by means of decisions, thus retains a
highly effective practical role:

— the conduct of inquiries into sectors of the economy

(Article 17);

— in bringing infringements to an end [Article 7(1)];

— in ordering interim measures [Article 8(1)];

— requests for information (Article 18);

— the taking of statements (Article 19);

— the conduct of inspections (Article 20).

— in cases where undertakings offer commitments ‘such as
to meet the Commission’s objections’, the Commission
may make such commitments binding [Article 9(1)];

Here too, the Committee thinks that the Regulation should
clearly spell out the limits of these powers.

— where appropriate, the Commission may reopen proceed-

ings by means of a decision [Article 9(3)];

— in establishing whether Article 81 (and Article 82) is
inapplicable to a particular agreement (Article 10).

taken due note of

The Committee has

2.8.5.1.
the
29th recital, which states that ‘In accordance with the principles
of subsidiarity and proportionality as set out in Article 5 of
the Treaty, this Regulation confines itself to the minimum
required in order to achieve its objective, which is to allow the
Community competition rules to be applied effectively, and

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does not go beyond what is necessary for that purpose.’
However, the Committee is firmly convinced that this principle
should be binding not only in theory. For this reason, it calls
on the Commission to give it practical application in the many
executive acts it is to adopt when implementing this radical
reform regulation.

2.10.1.1.
Article 11(1) provides for ‘close cooperation’ with
the competition authorities of the Member States so as to
establish a network that will form the essential infrastructure
for exchanging information and providing assistance. This
principle of a network, of
information and consultation
mechanisms, of transferring files and even cases, is certainly a
move in the right direction, but it should be complemented by
the principle of protecting the rights of those affected by the
new, decentralised system (businesses and consumers).

2.9. Block exemptions

In its opinion of December 1999 the Committee ‘accepts the
role given by the White Paper to interpretative notices and
block exemption regulations’ (2.3.4.1), which the Commission
reserved the right to adopt ‘in order to enable it to adapt and
clarify the legislative framework’ (9th recital), also in the new
decentralised system. These Community regulations create ‘safe
harbours for defined categories of agreements’ [Explanatory
Memorandum, first paragraph of 2.C.2(b)].

The Commission also states in the Explanatory
2.9.1.
Memorandum (fifth paragraph of 2.C.3):
‘In the field of
Community competition law, companies’ task of assessing
their behaviour is facilitated by block exemptions and Com-
mission notices and guidelines clarifying the application of the
rules. As a complementary element of the current reform, the
Commission commits itself to an even greater effort in this
area. Article 28 of the proposed Regulation confers on the
Commission a general power to adopt block exemption rules.
This power will ensure that it is in a position to react with
sufficient speed to new developments and changing market
conditions.’

2.9.2.
This general power gives the Commission an instru-
ment with which it can simplify procedures and improve
transparency, as well as shape and direct Community compe-
tition policy in the new, decentralised system. The Committee
supports this proposal, but stresses that this ‘general power’
should be subject to certain conditions.

2.10. Cooperation with national authorities and courts

2.10.1.
system because it concerns cooperation:

Chapter IV of the Regulation is crucial to the new

— between the Commission and the competition authorities

of the Member States, and

— between the Commission and the courts of the Member

States.

2.10.1.2.
Article 11, first paragraph) explicitly states that:

The Explanatory Memorandum (comments on

‘... the detailed rules will be laid down in an implementing
Commission regulation in accordance with Article 34
and in a notice on cooperation between competition
authorities’.

This clarification goes only some of the way towards addressing
the ESC’s comment that while these mechanisms for cooper-
ation between the Commission and the national authorities
(vertical cooperation) are to be welcomed, nothing is said
about cooperation between the national authorities themselves
(horizontal cooperation), which is just as essential and requires
clear and binding rules. Article 13 provides for a (partial)
cooperation mechanism between the national authorities (right
to suspend proceedings if the same case has been dealt with
by another authority), but this is optional. Article 11 seems to
be more binding than Article 13, and than Article 12.

2.10.1.3.
Article 11 should determine the system of
responsibilities and the assignment of cases, as provided under
Individual cases can be assigned to a national
Article 5.
authority if the restriction on competition principally affects
that particular Member State. The Commission may also
decide, on the basis of specific criteria, which national authority
should be responsible for assessing an agreement that has an
impact on competition. It is important to ensure that powers
and responsibilities are not confused within the network but
are clearly determined and understood by companies. The aim
is to create an instrument that can ensure — in combination
with other instruments and mechanisms — the uniform
application of Community competition law in a network of
competition authorities.

2.10.2.
Cooperation with national courts certainly raises
awkward questions that are in any case difficult to regulate
with binding provisions. Article 15 is virtually optional (for
both national courts and the Commission), with the exception

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of point 2, which provides an essentially ‘binding’, though not
categorical, requirement that:

‘Courts of the Member States shall send the Commission
copies of any judgements applying Article 81 or Article 82
of the Treaty within one month of the date on which the
judgement is delivered.’

2.10.2.1.
The Commission [Article 15(3)] may also ask the
national courts to transmit to it ‘any documents necessary’. In
addition, it may submit observations and have itself represent-
ed. However, nothing is said in this article about the rights of
the businesses concerned (to be informed of their rights, raise
objections, etc.).

2.10.2.2.
In cases where Community competition law
applies and a complaint has been brought before a court, the
parties should have the right to request the opinion of a
validating competition authority. The submission of obser-
vations for reasons of the public interest [Article 15(3)] is not
enough. Only the right of parties to the opinion of the
validating competition authorities will confirm the jurisdiction
of those authorities over the markets concerned and ensure
Community competition law is applied in legal proceedings.
This would significantly reduce the risk of contradictory
decisions by national courts.

2.10.3.
Cooperation between the Commission and the
competition authorities of the Member States, and cooperation
between the Commission and the national courts, was
addressed in two notices which appeared in 1996 and 1993.

2.10.3.1.
notices (1996), the Committee concluded:

In its opinion (1) on the more recent of these

‘The notice is undoubtedly well intentioned. It has been
under discussion for many years. The result, however,
seems inadequate and unconvincing, its only likely benefit
being to improve relations between the Commission and
national authorities, and it is to be hoped that the speed of
the procedure will improve rather than worsen. An efficient
and workable decentralisation would require more incisive
action, such as:

— a revision of Regulation (EEC) No 17/62; and

— harmonisation of national competition law, with the

early adoption of procedural rules’.

(1) CES 1510/96 of 19.12.1996, point 11, OJ C 75, 10.3.1997,

p. 22.

Things are moving in the direction the Committee
2.10.4.
had hoped for, except however with respect
to aligning
national competition legislation with Community competition
legislation. In its Explanatory Memorandum [second paragraph
of 2.C.2(a)], the Commission recognises that although ‘several
national systems of competition law have been modelled on
Articles 81 and 82 ... no formal harmonisation is in place, and
differences remain both in law and practice’ and that ‘such
differences lead to different treatment of agreements and
practices that affect trade between Member States’. But it also
believes that Article 3 ‘ensures in a simple and effective way
that all transactions with a cross-border effect are subject to a
single body of law’.

The importance of procedural provisions cannot be
2.10.5.
ignored, however, and the Committee cannot support the
Commission’s position on this matter. The last paragraph of
point 3 of the Explanatory Memorandum reads:

‘Thus, the proposal does not purport to harmonise national
procedural law, except that it grants the Commission and
the national competition authorities the power to make
submissions on their own initiative.’

2.10.6.
The Committee can only reiterate its concern that
consistent application of the principles, which all parties agreed
on, will be compromised owing to the wide discrepancies in
practice between the Member States. Procedures (or, at least,
administrative procedures) should to a certain extent reflect
the unity of the principles. In this regard the Committee would
also recommend that the Commission bear in mind that
Article 83 of the Treaty also provides for directives to be used
as an instrument ‘to give effect to the principles set out in
Articles 81 and 82’. A directive is a more flexible instrument
because it generally offers the choice of different options
and allows a suitable period of time for provisions to be
implemented. It is thus an instrument which can be adopted
in order to start taking practical legislative steps — albeit only
prospective ones — to harmonise complex fields such as
procedures.

2.11. Advisory Committee

2.11.1.
Article 14 makes the Advisory Committee pivotal
to the cooperation mechanism (Chapter IV) and strengthens
its role by providing for both a written procedure and the
option of discussing cases being dealt with by the national
authorities. In its opinion on the White Paper, the Economic
and Social Committee expressed its full approval of
the
Advisory Committee’s strengthened role with a view to
‘coordinating the decisions of the Commission and the compe-
tition authorities’ (point 1.5.4.2).

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2.11.2.
However, the Committee considers that the Advis-
ory Committee’s role would still be inadequate in the regulatory
framework provided by the new Council Regulation. It hopes
that the Advisory Committee’s opinions will be publicised
more widely and promptly, and that its remit will be broadened
to include notices and guidelines and perhaps also regulations,
while avoiding procedural red tape or delays.

2.13.2.
In its 1999 opinion on the White Paper (2.3.5.11),
the Committee stressed that to give the best guarantees of
consistent decisions and evaluations and a unified system, the
instrument should be based on a Community appeal system.
The Commission’s powers of coordination (including that of
issuing opinions) and management, and the power to refer a
matter to the Court of Justice, are not sufficient to resolve
these issues.

2.12. Rights of defence

2.12.1.
Article 26(1) only partly satisfies concerns about
rights of defence. Thus ‘the Commission shall give the
undertakings or associations of undertakings which are the
subject of the proceedings the opportunity of being heard on
the matters to which the Commission has taken objection’, but
this is limited to decisions related to finding and terminating
infringements (Article 7) and interim measures (Article 8), as
well as fines (Article 22) and penalty payments (Article 23).
Article 26(2) also refers back to these articles, although it is
worded in general terms: ‘The rights of defence of the parties
concerned shall be fully respected in the proceedings.’

2.12.2.
The Committee believes that this principle — which
in essence is a guarantee of cross examination — is a general
principle and should therefore be given explicit recognition of
a general nature in the regulation.

2.13.3.
The Committee appreciates the complexity and
difficulty of this problem in relation to both Community and
national law, but it believes that, given the far-reaching nature
of this reform decentralising the application of the competition
rules, the issue must be addressed. What is needed is a
‘legislative perspective’ which, over the medium to long term,
also considers further revisions of the Treaty. In the meantime,
and partly by means of small steps, the Community legislator
must seek and find appropriate solutions which are consistent
with the spirit and purpose of the reform.

2.13.4.
Naturally, any Community appeal system would
have to have appropriate parameters and, in principle, concern
national decisions taken at
level. The body
responsible for appeals should be the Court of Justice, or the
Court of First Instance, subject to the necessary changes to
their respective remits.

the highest

2.12.3.
This guarantee should also be offered in national
proceedings associated with Community proceedings. For
instance, before proceedings are suspended or transferred from
one authority to another, undertakings must at least be heard
and they must have an opportunity to express their own views
on the suspension or transfer.

2.14.
The current authority of the Court of Justice to give a
preliminary ruling is considerable, but not sufficient. With
decentralisation, many cases which previously went before the
Court of First Instance (because the decision had been taken
by the Commission) may now only be contested before the
national authorities (as the decision will have been taken by
those authorities); it is inconceivable that problems arising,
including matters of substance, could be settled solely through
preliminary rulings.

2.13. Decentralisation, coherence of legal proceedings and appeal

procedures

2.14.1.
Article 32 of the new regulation simply proposes
review by the Court of Justice using the exact text of Article 17
of Regulation 17/62. Substantive review by the Court of Justice
thus remains limited to ‘decisions whereby the Commission
has fixed a fine or periodic penalty payment’.

Appeals pose another basic problem, because in a
2.13.1.
decentralised system without a single appeal authority it is
difficult to guarantee not only the right of defence, but also
coherent and consistent application of Community compe-
tition rules across the EU. The Commission’s powers under its
close cooperation with national authorities and courts are
definitely not great enough to reach this objective.

2.14.2.
The question of establishing a European appeal
level is unavoidable; it is in any case imperative to address the
issue of the necessary adjustments in the Court of Justice’s
remit.

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Official Journal of the European Communities

29.5.2001

3. Conclusion

The Committee wholeheartedly supports the reform of
3.1.
the system for applying competition rules. This initial legislat-
ive instrument establishes essential machinery, and the Com-
mittee appreciates the clear and bold wording used.

3.2.
However, in view of the complexity of the topic, and
also in order to match the laudable commitment shown by the

Commission, the Committee cannot hide the fact that it would
have liked further clarifications and information,
in the
form of official accompanying measures, as stated in its
December 1999 opinion.

3.3.
The Committee will follow the Commission’s future
work with keen interest, particularly as regards the important
additional measures announced. The Committee promises to
offer the Commission its usual constructive collaboration.

Brussels, 29 March 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation on the
Community patent’

(2001/C 155/15)

On 7 September 2000 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

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 14 March 2001. The rapporteur was
Mr Simpson.

At its 380th plenary session (meeting of 29 March 2001) the Economic and Social Committee adopted
the following Opinion by 77 votes to 22 and with eight abstentions:

1.

Summary and recommendations

1.1.
The Committee welcomes and supports the initiative
of the Commission in proposing a Regulation to facilitate the
establishing of a Community patent.

The Committee accepts that

1.5.
to use
the procedures of the European Patent Office to register a
Community patent is both logical and simpler than any
proposal for a parallel system.

the proposal

1.2.
The Committee endorses the proposal that the Com-
munity should become a member of the Munich Convention
as a method of introducing the Community patent.

1.6.
The Committee believes that it is a crucial feature of
the proposal for a Community patent application procedure
that it should co-exist readily with the existing arrangements
for national and European patent application procedures.

1.3.
The Committee hopes that the European Patent Organ-
isation will welcome this proposal and co-operate on its
implementation and thus provide extra encouragement of
innovation and research in the European Community.

The Committee agrees that there are strong and valid
1.4.
reasons to introduce the Community patent by way of an
appropriate Regulation.

1.7.
The Committee regards the prospect of lower cost for
a Community patent as a crucial requirement of the proposed
system. The Commission proposal offers the prospect that the
cost of a Community patent might be considerably lower than
those incurred when a European patent is registered for several
countries within the Community.