Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty (Text with EEA relevance)
Date: 2002-06-26
Institutions: European Commission
Subjects: ECSC Treaty, EU law, European treaties, State aid, coal industry, competition law, iron and steel industry, merger control

26.6.2002

EN

Official Journal of the European Communities

C 152/5

Communication from the Commission concerning certain aspects of the treatment of competition
cases resulting from the expiry of the ECSC Treaty

(2002/C 152/03)

(Text with EEA relevance)

1. INTRODUCTION

1. By virtue of its Article 97, the Treaty establishing the
European Coal and Steel Community (ECSC Treaty)
expires on 23 July 2002 (1). This means in principle that
as from 24 July 2002 the sectors previously covered by
the ECSC Treaty and the procedural
rules and other
secondary legislation derived from the ECSC Treaty will
be subject to the rules of the EC Treaty as well as the
procedural rules and other secondary legislation derived
from the EC Treaty (2).

2. The purposes of this Communication are

— in its section 2, to summarise for economic operators
and Member States, in so far as they are concerned by
the ECSC Treaty and its related secondary legislation,
important changes with regard to the
the most
applicable
law arising
substantive and procedural
from the transition to the EC regime,

— in its section 3,

to explain how the Commission
intends to deal with specific issues raised by the tran-
sition from the ECSC regime to the EC regime in the
areas of antitrust (3), merger control (4) and State aid
control.

3. The principles that underlie the competition rules of the
two Treaties are similar. Articles 81 and 82 of the EC
Treaty are clearly inspired by the corresponding Articles
65 and 66(7) of the ECSC Treaty. Furthermore, practices
under the two Treaties have been converging for many
years.
In its Twentieth Report on Competition Policy
(1990) (5), the Commission announced that the time had
come to align the enforcement of ECSC competition rules
as much as possible with the practice under the EC Treaty.
it published a notice (6) dealing with the
In 1998,
alignment of procedures for processing mergers under
the ECSC and EC Treaties.
the
changes, both substantial and procedural, arising from
the expiry of the ECSC Treaty are likely to be limited in
scope. The objective of this Communication is to facilitate
the changeover by setting out how certain situations will
be dealt with in the transition from the ECSC to the EC
regime. This Communication is made without prejudice to

In practical

terms,

the interpretation of the ECSC rules and EC rules by the
Court of First Instance and the European Court of Justice.

2. THE MOST IMPORTANT CHANGES DUE TO THE EXPIRY

OF THE ECSC TREATY

2.1. Antitrust

2.1.1. Jurisdiction

4. Under the ECSC regime, as the Commission had exclusive
jurisdiction,
the national competition authorities and
national courts could not apply either Articles 65 and
66 ECSC Treaty (7) or their national competition rules to
deal with coal and steel cases.

5. With the transition to the EC regime, the national auth-
orities and courts responsible for competition will become
competent (8) to apply the European competition rules in
the coal and steel sectors as the relevant provisions of the
EC Treaty have direct effect, with the exception of Article
81(3), for which the Commission retains at present sole
competence (9). Thus, under
the EC
regime, the Commission and the national authorities and
courts will have parallel powers to apply Community
competition law (10).

the principles of

6. It should also be noted that, unlike Articles 65 and 66(7)
ECSC Treaty, which did not include any conditions relating
to effect on trade, Articles 81 and 82 EC Treaty apply only
if trade between Member States is affected. Thus, where
agreements or practices restricting competition, or an
trade
abuse of a dominant position, do not affect
between Member States, the national competition auth-
orities and the national courts will, from 24 July 2002,
be authorised to apply their national competition rules in
the field of coal and steel (11).

7. The national competition authorities and the national
courts, which had no powers to apply competition law
under the ECSC regime, will now be able to apply either
national law and Community law or, where trade between
Member States is not affected, only the relevant national
law.

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2.1.2. Substantive antitrust rules

8. As regards the question of an appreciable restriction of
the
competition under Article 81(1) of
Commission would first point out
the policy
concerning agreements of minor importance in terms of
market
therefore
(agreements
covered by Article 81(1) (13)) will apply in full
to the
coal and steel sectors as from 24 July 2002.

the EC Treaty,

that are not

share (12)

that

9. Under the ECSC regime, joint ventures have generally been
regarded as being covered by the provisions on concen-
trations (Article 66(1) to (6) of the ECSC Treaty) (14). Joint
ventures notified after 23 July 2002 that do not have the
characteristics of a ‘full-function’ joint venture within the
meaning of Regulation (EEC) No 4064/89 (15) will be
regarded as agreements within the meaning of Article 81
EC Treaty (16). Agreements concluded by such under-
takings will therefore be covered by the relevant provisions
of Regulation No 17 (17).

10. The system requiring price lists and conditions of sale to
be notified to the Commission and made public will be
abolished (18). Effectively, the undertakings concerned will
no longer be required systematically to communicate such
data to the Commission before making use of it (19).

2.1.3. Procedural rules relating to antitrust

11. The Commission has for many years (20) endeavoured to
apply the same principles, inter alia at procedural level, to
practices under the ECSC Treaty and to those under the EC
Treaty: thus important procedural features such as access
to the file, hearings or the closing of a case with a comfort
letter were introduced into ECSC practice on the basis of
EC practice. The transition to the EC regime will enhance
the transparency of these practices.

factors will be

introduced into the

12. As regards agreements restricting competition, two inno-
sectors
vative
concerned: the requirement, where parties apply to the
Commission for negative clearance or exemption,
that
the agreements be notified on form A/B (21) will be
officially introduced (22). In addition, prior consultation of
an Advisory Committee will be required before the
adoption of any Commission decision mentioned in
Article 10 of Regulation No 17.

13. Undertakings

are

also informed that

the provisions
implementing the ban on abuse of a dominant position
are more straightforward under the EC regime than under
the ECSC regime. Indeed, under the Article 82 EC Treaty
procedure, the Commission can immediately adopt directly
applicable decisions, whereas under Article 66(7) ECSC
it must first send the undertaking concerned an
Treaty,
ECSC recommendation and only then can it
take a
decision in consultation with the Member State concerned.

2.2. Merger control

2.2.1. Jurisdiction

the EC Merger Regulation (23) gives
jurisdiction

14. As far as jurisdiction is concerned, the ECSC Treaty gives
the Commission exclusive jurisdiction over all concen-
trations involving coal and steel undertakings. On the
the
other hand,
Commission
concentrations
involving undertakings whose turnover exceeds certain
thresholds. Therefore,
some operations which would
have required prior authorisation from the Commission
under ECSC rules, but do not meet the thresholds under
the EC Merger Regulation, will after the expiry of the ECSC
Treaty fall outside the Commission's jurisdiction and fall to
be examined by the national authorities in so far as
national merger rules exist.

only

over

2.2.2. Substantive law relating to concentrations

15. In relation to substance, the tests under Article 66(2) ECSC
Treaty (24) and under Article 2 EC Merger Regulation (25)
though not expressed in the same language, are similar.

2.2.3. Procedural law relating to concentrations

16. The procedures for the treatment of concentrations have
been aligned to a large extent since March 1998 when the
Commission started to apply the provisions of its Notice
concerning
for processing
mergers under the ECSC and EC Treaties (26).

alignment of procedures

17. However,

the timing of notifications under the ECSC
regime and the EC regime is different. The ECSC rules
allow notification at any time, while the proposed concen-
tration cannot, however, be legally completed without the
prior authorisation of the Commission. The EC Merger
Regulation requires parties to notify within one week of
the ‘triggering event’, i.e. the moment when the operation
becomes irrevocable. The Commission must then adopt its
decision(s) within the time limits prescribed by the EC
Merger Regulation, otherwise the proposed operation is
automatically authorised.

2.3. Control of State aid to the steel industry

2.3.1. Substantive rules relating to steel aid

18. As for the notion of State aid, Article 4(c) ECSC Treaty
does not require the affectation of trade between Member
States for a measure to be considered State aid, contrary to
Article 87 EC Treaty. In practice, this difference will be,
however, of very limited importance given the intense
trade between Member States in steel products.

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19. Under the EC rules, the criteria for assessment of compati-
bility of State aid with the common market will be in
summary the following:

as compared with the provisions established in Article 6
of the Steel Aid Code (39).

— Regional

investment

be
aid will
forbidden (27). This
the
prohibition
granting of regional aid supplements to small and
medium-sized enterprises (SMEs).

continue
also

to
covers

— Rescue and restructuring aid will continue to be

forbidden (28).

— Under the ECSC rules, environment aid was permitted
in accordance with the Community guidelines on State
aid for environmental protection adopted in 1994 (29)
and with the annex to the Steel Aid Code (30). From 24
July 2002, the Community guidelines on State aid for
environmental protection adopted in 2000 will
apply (31). The most
these
guidelines in comparison with the guidelines applicable
industry before the expiry of the ECSC
to the steel
Treaty is
conforming with
standards will no longer be allowed (except for aid to
SMEs in limited conditions).

important difference of

that aid granted for

— Research and development aid will continue to be
permitted in line with the Community framework for
State aid for research and development (32).

— Aid in connection with closures will continue to be

permitted (33).

— Aid for small and medium-sized enterprises at aid rates
of up to 15 % and 7,5 % respectively will be permitted
in line with Commission Regulation (EC) No
70/2001 (34) (except for large individual aid grants as
defined in Article 6 of
that Regulation which will
continue to be forbidden).

— De-minimis

aid will be permitted in line with

Commission Regulation (EC) No 69/2001 (35).

21. As for notification requirements, unless otherwise estab-
lished, aid granted to the steel
industry under schemes
authorised by the Commission will no longer be subject
to the prior notification requirement established in the
Steel Aid Code. The same applies to aid block-exempted
by virtue of Commission Regulations (EC) No 70/2001 (40)
and (EC) No 68/2001 (41).

2.4. Control of State aid to the coal industry

2.4.1. Substantive rules relating to steel aid

22. Until the expiry of the ECSC Treaty, State aid to the coal
industry will be assessed on the basis of the rules as laid
down in Decision 3632/93/ECSC (42).

23. On 25 July 2001, the Commission adopted a proposal for
a Council Regulation on State aid for the coal
industry
after the expiry of the ECSC Treaty (43). The proposal is
based on Articles 87(3)(e) and 89 EC Treaty. It has to be
adopted by the Council, after an opinion from the
European Parliament (44).
It would apply from 24 July
2002. The draft Regulation stipulates that aid covering
costs for the year 2002 will, on the basis of a reasoned
request by the Member State, continue to be subject to the
rules
in Decision No
3632/93/ECSC.

principles

down

and

laid

2.4.2. Procedural rules relating to coal aid

24. According to the proposal adopted by the Commission on
25 July 2001, in addition to the provisions of Article 88
EC Treaty and Council Regulation (EC) No 659/1999, State
aid to the coal industry would be subject to special rules of
notification, appraisal and authorisation as laid down in
the State aid regime proposed by the Commission.

— Training aid will be permitted in line with Commission

ECSC REGIME TO THE EC REGIME

3. SPECIFIC ISSUES RAISED BY THE TRANSITION FROM THE

Regulation (EC) No 68/2001 (36).

— Employment aid will be permitted in line with the

guidelines on aid to employment (37).

25. When assessing the impact of the expiry of the ECSC
Treaty on cases which would so far have been covered
by the ECSC rules,
three situations have to be distin-
guished:

2.3.2. Procedural rules relating to steel aid

20. Council Regulation (EC) No 659/1999 (38) will apply as
from 24 July 2002. This will not entail major changes

— First, cases, which have been completed in all factual
and legal respects on or before 23 July 2002, will be
subject
to the ECSC rules only and are therefore
unproblematic.

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— Second, cases, in which all the relevant events occur
after 23 July 2002, will be subject to the EC rules only
and are therefore unproblematic, too.

— Third, cases, which from a factual or legal point of
view started before the expiry of
the ECSC Treaty
and which in some way or other continue after the
expiry, may raise issues specifically caused by the
expiry of
the ECSC Treaty. The remaining part of
this Communication sets out how the Commission
intends to deal with such cases.

26. With regard to procedural law, the basic principle for all
three areas (antitrust, merger control, State aid control) is
that the rules applicable are those in force at the time of
taking the procedural step in question (45). This means that
as from 24 July 2002 on, the Commission will exclusively
apply the EC procedural rules in all pending and new
cases. Unless otherwise stated in this Communication,
procedural
the ECSC rules
before expiry of the ECSC Treaty will after the expiry be
taken to have fulfilled the requirements of the equivalent
procedural step under the EC rules.

steps validly taken under

3.1. Antitrust

3.1.1. The position which restrictive agreements/concerted practices
exempted by the Commission on the basis of Article 65(2)
ECSC Treaty before or on 23 July 2002 will have after 23
July 2002

27. From 24 July 2002, all the EC competition rules will apply
to those agreements or practices which have previously
letter
been authorised or
adopted under the ECSC rules. Authorisations granted
under the ECSC regime will also cease to be valid upon
expiry of the ECSC Treaty.

the subject of a comfort

28. It will

therefore be for the undertakings concerned to
review the legality of
their agreements or practices in
the light of Articles 81 and 82 EC Treaty. The Commission
draws attention to the many block exemptions and
guidelines applicable in this area. In addition, in view of
the similarity of Articles 65(2) ECSC Treaty and 81(3) EC
Treaty and the
convergence policy applied by the
Commission when examining ECSC cases over the years,
the Commission informs undertakings that it does not
intend, after 23 July 2002, to initiate proceedings under
Article 81 EC Treaty in respect of agreements previously
authorised under the ECSC regime and that, under the
circumstances, it does not intend to impose any financial
penalty on undertakings which are party to such
agreements. This presupposes that, where Commission
approval was subject to conditions or obligations, these
continue to be complied with by the parties concerned.

legal

In that case,

developments,

such practices

29. The Commission reserves the right, however, under the EC
rules,
the future
to initiate proceedings in respect of
implementation of the practices and agreements referred
to in the preceding paragraph if, owing to substantial
and
factual or
agreements are clearly not eligible for exemption under
Article 81(3) EC Treaty.
the Commission
would respect
the legitimate expectation of the under-
takings concerned and would intervene only in the
following cases: where there has been a change in any
of the facts which were basic to the making of the auth-
orising decision; where the parties commit a breach of any
condition or obligation attached to the decision; where the
decision is based on incorrect information or was induced
by deceit; where the parties abuse the authorisation
pursuant to Article 65(2) of the ECSC Treaty granted to
them by the decision.

3.1.2. Notification cases

in which the Commission started its
procedure before expiry of the ECSC Treaty and in which
this procedure is still pending after 23 July 2002

30. As regards notifications made under the ECSC regime that
are still being examined at the time of the transition, the
Commission will apply Article 65(2) of the ECSC Treaty as
regards the period before the date of expiry of that Treaty
and Article 81(3) of the EC Treaty as regards the period
thereafter.
the law
In any event, as regards procedure,
applicable after the expiry of the ECSC Treaty will be
the EC law.

3.1.3. Application of Articles 65 ECSC Treaty and 81 EC Treaty to

other types of agreements

31. If

the Commission, when applying the Community
competition rules to agreements, identifies an infringement
in a field covered by the ECSC Treaty, the substantive law
applicable will be,
irrespective of when such application
takes place, the law in force at the time when the facts
constituting the infringement occurred. In any event, as
regards procedure, the law applicable after the expiry of
the ECSC Treaty will be the EC law (46).

3.2. Merger control

3.2.1. Clearance decisions with conditions/obligations adopted by the
Commission under the ECSC Treaty before expiry of
that
Treaty, compliance with these conditions/obligations to be
monitored after 23 July 2002

32. Where a concentration has been cleared under the ECSC
Treaty subject
to conditions and/or obligations, which
continue after 23 July 2002, and these conditions and/or
obligations are not satisfactorily fulfilled after 23 July
2002, the Commission will take action under the appro-
priate provisions of the EC Merger Regulation (47).

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and/or

conditions

if it proves necessary to modify after 23 July
33. Similarly,
2002
on
commitments given by undertakings in order to secure
to the
the authorisation of
take
expiry of
action as if the original authorisation decision had been
adopted under the EC Merger Regulation.

their concentrations prior

the Commission will

the ECSC Treaty,

obligations

based

using Form CO and which are complete. Furthermore, it
is clear from the EC Merger Regulation itself that its time
to run once the Commission is in
periods only start
possession of a
form
complete notification,
provided for (48).

in the

3.2.2. Concentrations notified under the ECSC Treaty and pending at

the expiry of this Treaty

3.2.4. Operations exempted from the requirement of prior author-

isation under Article 66 ECSC Treaty

34. Three principal possibilities arise in relation to concen-
trations notified under the ECSC Treaty and pending at
the expiry of this Treaty:

— Where the notified ECSC case does not meet

the
thresholds of the EC Merger Regulation, there is no
longer a case with the Commission. In this situation,
the parties must as of 24 July 2002 notify the case to
the competent national authorities, where appropriate.

its

instruction

— If the notified ECSC case meets the thresholds of the
EC Merger Regulation,
the
Commission will continue under the EC Merger Regu-
lation and it will be treated as though it had been
originally notified under that Regulation,
if the trig-
that Regulation took
gering event
place on or before 23 July 2002.
If the triggering
event occurs afterwards,
the operation should be
renotified.

in the sense of

by

letter

setting out

the expiry of

— In cases where a triggering event has occurred and a
case which meets the thresholds under the EC Merger
Regulation has entered the informal second phase
(initiated by means of a
the
Commission's concerns) at
the ECSC
Treaty, but where a statement of objections has not
yet been adopted,
the Commission will adopt a
decision under Article 6(1)(c) EC Merger Regulation
as soon as is practicably possible after the expiry of
the ECSC Treaty. The Commission will endeavour in
such cases to adhere to the timetable set out in the EC
Merger Regulation to the greatest extent possible,
counting from the date of notification. In particular,
it will endeavour to ensure that
the statement of
the appropriate time and
objections is sent out at
that the overall five-month deadline for the adoption
of a final decision is respected.

3.2.3. Form of notification

35. The approach to pending notified ECSC transactions
outlined above only applies to ECSC notifications made

36. Decision No 25/67/ECSC (49) exempts certain operations
authorisation under
from the
requirement of prior
Article 66 ECSC Treaty. However neither
the ECSC
Treaty nor Decision No 25/67/ECSC set out when the
exemption takes effect. There is no equivalent under the
ECSC rules of the ‘triggering event’ under the EC Merger
Regulation (50). When an operation, which is exempted by
Decision No 25/67/ECSC, has reached an irrevocable stage
(for instance if the sale and purchase agreements have
been finalised and signed) on or before 23 July 2002,
from the
remains
then
requirement of prior authorisation under the EC Merger
Regulation. On the other hand, if the operation has not
reached an irrevocable stage before 24 July 2002, the
operation must be notified if necessary to the Commission
under the EC Merger Regulation upon the occurrence of
the triggering event.

exempted

operation

this

3.2.5. Non-exempted ECSC transaction that has not been notified

before expiry of the ECSC Treaty

37. Where a transaction which is not exempted from the
requirement of prior authorisation under Article 66
ECSC Treaty has not been notified before expiry of that
Treaty, the parties must notify the transaction under the
EC Merger Regulation if the conditions for such notifi-
cation are satisfied. Where the transaction is not notified
in such circumstances,
imposed for
non-notification in accordance with Article 14(1)(a) of
the EC Merger Regulation as of 31 July 2002 (i.e. one
week after the EC Merger Regulation applied).

fines may be

3.2.6. Non-exempted ECSC transaction that has been implemented
and not been notified before expiry of the ECSC Treaty

38. Where a transaction, which in the sense of the preceding
point 3.2.5. is not exempted from the requirement of prior
authorisation under Article 66 ECSC Treaty and has not
been notified, has in addition been implemented before the
fines may be imposed for
expiry of the ECSC Treaty,
non-authorised implementation of
the concentration in
accordance with Article 14(2)(b) of the EC Merger Regu-
lation as of 24 July 2002, provided the transaction comes
within the scope of that Regulation (51).

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3.2.7. Joint ventures

39. The practice under the ECSC Treaty has been to treat most
joint ventures (with the exception of joint buying,
joint
selling and specialisation agreements and agreements
strictly analogous to them) as concentrations under the
provisions of Article 66. Therefore, certain operations
which are subject to the requirement of prior authorisation
under Article 66 ECSC Treaty may not be notifiable under
the EC Merger Regulation, for example if they are not full
function (52). If notifications of such joint ventures which
would not be notifiable under the EC Merger Regulation
are pending at the time of the expiry of the ECSC Treaty,
the notifications could, in appropriate cases be converted
under the provisions of Article 5 of the Implementing
Regulation (53) into notifications under Regulation No 17.

40. The expiry of the ECSC Treaty will have no effect on joint
ventures (full
function or otherwise) authorised under
Article 66(2) ECSC Treaty on or before 23 July 2002 or
benefiting from an exemption within the meaning of
paragraph 36 above.

41. After the expiry of the ECSC Treaty, Article 2(4) of the EC
Merger Regulation will be applied to concentrations in the
coal and steel sectors which fall within the scope of that
Regulation. This Article, which has no equivalent in the
ECSC rules, provides that where the creation of a full-
function joint venture constituting a concentration in the
sense of that Regulation has as its object or effect the
co-ordination of
the competitive behaviour of under-
takings that remain independent, such co-ordination shall
be appraised in accordance with the criteria of Article 81
EC Treaty (54).

3.3. Control of State aid to the steel industry

42. With regard to State aid authorised by the Commission
under the Steel Aid Code (55) or Article 95 ECSC Treaty
subject to conditions, the Commission will after 23 July
In case of
2002 continue to monitor their fulfilment.
non-compliance, Article 88 EC Treaty will be applicable.

has

and

initiated

43. Where the aid was notified before or on 31 December
2001 (56)
the
the Commission
procedure of Article 6(5) of the Steel Aid Code,
it will
endeavour to adopt a decision at the latest on 23 July
the information available to it.
2002 on the basis of
However,
this is not possible,
if
the Commission will continue the investigation under
the provisions of Regulation (EC) No 659/1999 and
adopt a final decision under Article 88(2) EC Treaty.

for objective reasons,

44. When taking decisions after 23 July 2002 in respect of
State aid put into effect on or before that date without

prior Commission approval, the Commission will proceed
in accordance with the Commission notice on the deter-
mination of the applicable rules for the assessment of
unlawful State aid (57). According to this notice,
the
the compatibility of
Commission shall always assess
unlawful State aid with the common market in accordance
with the substantive criteria set out in any instrument in
force at the time when the aid was granted.

3.4. Control of State aid to the coal industry

45. After the expiry of the ECSC Treaty, the Commission will
continue to monitor the application by the Member States
the decisions authorising State aid adopted under
of
3632/93/ECSC (58).
Decision
of
non-compliance, the case will be investigated following
the procedures as
laid down in Regulation (EC) No
659/1999.

case

No

In

46. It is expected that the majority of State aid which covers
to 23 July 2002 will be the subject of
costs prior
the ECSC
Commission decisions before the expiry of
the
there may be
Treaty. However,
in a position to adopt a decision
Commission is not
before the expiry of
the ECSC Treaty. These possible
cases, and the Commission's proposed course of action
in respect of them, are as follows.

cases where

— In accordance with Article 9(4) of Decision No
3632/93/ECSC, the Commission has to decide on the
measures notified by a Member State within three
months of receipt of notification. It may consequently
happen that aid notified less than three months before
the expiry of the ECSC Treaty (i.e. notification after 23
April 2002)
the subject of a Commission
decision before the expiry of this Treaty. This could
also be the case of a notification made earlier, if the
Commission considered that the notification was insuf-
ficient and requested further information from the
Member State or, having doubts about the compati-
bility of
the aid, decided to initiate the procedure
provided for under Article 88 ECSC Treaty.

is not

— If there has been no Commission decision when three
months from notification have passed, the expiry of
the ECSC Treaty means that the Member State does
not have the right to implement the notified measure
at the end of the three-month period referred to above,
as it would have had were Article 9(4) Decision No
in force. Indeed, any notification
3632/93/ECSC still
presented by the Member State before the expiry of
the ECSC Treaty, which has not been the subject of
to be
a formal Commission decision, will have
considered obsolete (i.e. non-existent
from a legal
point of view) after 23 July 2002.

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— The Member State would have to proceed with a new
notification under the provisions of the EC Treaty and
the possible new Council Regulation (59) which,
of
once adopted, would be applicable as from 24 July
the Member
2002. Alternatively, and more simply,
State could inform the Commission that
the initial
notification can be regarded as a newly submitted
notification. The period in which the Commission
will have to decide would start to run as of the date
If such a case arose, the
of this (new) notification.
Commission would make
to
ensure that a decision on the measure is adopted as
soon as possible.

the utmost

efforts

— The draft Council Regulation (60), currently under
discussion (61) and intended to be applicable after the
the ECSC Treaty, stipulates that Member
expiry of
States will be able to opt, for aid covering costs for

2002, for the application of the rules and of the prin-
ciples laid down in Decision No 3632/93/ECSC.

47. When taking decisions after 23 July 2002 in respect of
State aid put into effect on or before that date without
prior Commission approval, the Commission will proceed
in accordance with the specific provisions in the Council
Regulation currently under discussion (62). When assessing
aid, which does not fall under that Regulation and which
has been granted on or before that date without prior
Commission approval, the Commission will proceed in
accordance with the Commission notice on the deter-
mination of the applicable rules for the assessment of
unlawful State aid (63). According to this notice,
the
Commission shall always assess
the compatibility of
unlawful State aid with the common market in accordance
with the substantive criteria set out in any instrument in
force at the time when the aid was granted.

(1) Article 97 ECSC Treaty provides: ‘This Treaty is concluded for a period of 50 years from its entry into force.’.
(2) The question which rules are applicable to individual cases, which started before the expiry of the ECSC Treaty and are not fully completed by

23.7.2002, is tackled under section 3 below.

(3) In this Communication, the term ‘antitrust’ refers to the prohibition of restrictive agreements between undertakings, decisions by associations of
undertakings and concerted practices, as well as the prohibition of abuses of dominant positions (Articles 65 and 66(7) ECSC Treaty; Articles 81
and 82 EC Treaty).

(4) In this communication, the term ‘merger control’ refers to the control of any concentrations no matter whether they are effected by mergers
between previously independent undertakings or acquisition of control of other undertakings (see Article 66(1) ECSC Treaty and Article 3 Council
Regulation (EEC) No 4064/89 as amended by Regulation (EC) No 1310/97).

(5) European Commission, Twentieth Report on Competition Policy (1990), paragraph 122.
(6) Commission notice concerning alignment of procedures for processing mergers under the ECSC and EC Treaties (OJ C 66, 2.3.1998, p. 36).
(7) See judgment of the European Court of Justice (ECJ) of 13.4.1994, Case C-128/92, Banks, [1994] ECR I-1209 at paragraphs 17 and 18.
(8) Where national administrations are concerned, on condition that their national law allows them to apply Community law.
(9) The proposed amendment of Council Regulation No 17 (COM(2000) 582 final of 27.9.2000), currently before the Council and the European
Parliament, foresees to give the national competition authorities and the national courts the power to apply Articles 81 and 82 EC Treaty in full.
(10) The details of the cooperation between the Commission and the competent national authorities are defined in the Notice on cooperation between
the national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty (OJ C 39, 13.2.1993, p. 6) and in the Commission
notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 85 or
86 of the EC Treaty (OJ C 313, 15.10.1997, p. 3).

(11) This does not of course prevent national law from applying in parallel with Community law where the condition of effect on trade is satisfied.
(12) Commission notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty

establishing the European Community (de minimis) (OJ C 368, 22.12.2001, p. 13).

(13) Provided they do not contain any ‘hard core’ restrictions.
(14) However, in the case of undertakings whose object was a joint buying or a joint selling agreement, a specialisation agreement or agreements

analogous to specialisation agreements, Article 65(2) ECSC Treaty was applicable.

(15) Concept described in the Commission notice on the concept of full-function joint ventures under Regulation (EEC) No 4064/89 on the control of

concentrations between undertakings (OJ C 66, 2.3.1998).

(16) The sole exception will be transactions which benefited from an exemption from the requirement of prior authorisation under Article 66 of the

ECSC Treaty and which have become irrevocable before 24 July 2002; see paragraph 36 below.

(17) This will involve a modification of the timetable (there being much fewer rules on the time limits for the examination of such agreements by the
Commission than for ‘merger’-type procedures, except in the specific case of cooperative joint ventures ‘of a structural character’ where an
accelerated procedure is established by Commission Regulation (EC) No 3385/94 of 21 December 1994), and of the criterion of compatibility of
the agreement.

(18) Pursuant to Article 60(2) ECSC Treaty, Decision No 4-53 of 12.2.1953 (OJ of the High Authority of 12.2.1953, p. 3) and, as regards coal only,
Decision 72/443/ECSC of 22.12.1972 on alignment of prices for sales of coal in the common market (OJ L 297, 30.12.1972, p. 45). In practice,
the implementation of this obligation had been gradually relaxed, but certain undertakings in the coal sector nonetheless continued to send this
information to the Commission.

(19) The removal of this requirement is without prejudice to the Commission's power to seek from the undertakings concerned all the information it

requires to carry out the tasks assigned to it by the Treaty and Community law.

(20) European Commission, Twentieth Report on Competition Policy (1990), paragraph 122.
(21) Commission Regulation (EC) No 3385/94 of 21 December 1994.

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(22) The Commission had already asked the undertakings concerned to use a simplified form for their applications for authorisation (Twenty-first

Report on Competition Policy (1991), paragraph 138).

(23) Council Regulation (EEC) No 4064/89 as amended by Regulation (EC) No 1310/97.
(24) Article 66(2) ECSC Treaty provides:

proposed transaction will not give to the persons or undertakings concerned the power,
jurisdiction:
— to determine prices, to control or restrict production or distribution or to hinder effective competition in a substantial part of the market for

‘The Commission shall grant the authorisation referred to in the preceding paragraph if it finds that the
in respect of the product or products within its

those products, or

— to evade the rules of competition instituted under this Treaty, in particular by establishing an artificially privileged position involving a

substantial advantage in access to supplies or markets’.

(25) Article 2(2) EC Merger Regulation provides:

‘A concentration which does not create or strengthen a dominant position as a result of which
effective competition would be significantly impeded in the common market or in a substantial part of it shall be declared compatible with the
common market’.

(26) OJ C 66, 2.3.1998, p. 36.
(27) Communication from the Commission, Multisectoral framework on regional aid for large investment projects (OJ C 70, 19.3.2002, p. 8).
(28) Communication from the Commission, Rescue and restructuring aid and closure aid for the steel sector, (OJ C 70, 19.3.2002, p. 21).
(29) OJ C 72, 10.3.1994, p. 3.
(30) Commission Decision No 2496/96/ECSC of 18.12.1996 establishing Community rules for State aid to the steel industry (OJ L 338, 28.12.1996,

p. 42).

(31) OJ C 37, 3.2.2001, p. 3.
(32) OJ C 45, 17.2.1996, p. 5.
(33) Communication from the Commission, Rescue and restructuring aid and closure aid for the steel sector, OJ C 70, 19.3.2002, p. 21.
(34) OJ L 10, 13.1.2001, p. 33.
(35) OJ L 10, 13.1.2001, p. 30.
(36) OJ L 10, 13.1.2001, p. 20.
(37) OJ C 334, 12.12.1995, p. 4. New rules are under preparation.
(38) Council Regulation (EC) No 659/1999 of 22.3.1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83,

27.3.1999, p. 1).

(39) Commission Decision No 2496/96/ECSC of 18 December 1996 establishing Community rules for State aid to the steel industry (OJ L 338,

28.12.1996, p. 42).

(40) OJ L 10, 13.1.2001, p. 33.
(41) OJ L 10, 13.1.2001, p. 20.
(42) Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the coal industry (OJ L 329,

30.12.1993, p. 12).

(43) OJ C 304, 30.10.2001, p. 202.
(44) The Council reached a political agreement on this proposal on 7 June 2002.
(45) Judgment of the ECJ of 6.7.1993 in Joined Cases C-121/91 and C-122/91, CT Control v Commission, [1993] ECR I-3873 at paragraph 22;
Judgment of the ECJ of 12.11.1981 in Joined Cases 212 to 217/80, Amminstrazione delle finanze dello Stato v Salumi, [1981] ECR 2735 at
paragraph 9.

(46) Including the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ C 45, 19.2.2002, p. 3).
(47) Articles 6(3) and 8(5) of the EC Merger Regulation.
(48) Article 10(1) EC Merger Regulation, Articles 3 and 4 of the Implementing Regulation (Commission Regulation (EC) No 447/98 of 1 March 1998
on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between
undertakings (OJ L 61, 2.3.1998, p. 1)).

(49) Decision No 25-67 of 22 June 1967 laying down in implementation of Article 66(3) of the ECSC Treaty a regulation concerning exemption from

prior authorisation (OJ 154, 14.7.1967, p. 11). English special edition: Series-I 67, p. 186.

(50) The ‘triggering event’ within the meaning of the EC Merger Regulation is defined as the moment when the operation becomes irrevocable, see

above paragraph 17.

(51) As regards implementation without notification or prior authorisation of a non-exempted ECSC concentration, see also Article 66(6) of the ECSC

Treaty.

(52) Commission notice on the concept of full function joint ventures under Council Regulation (EEC) No 4064/89 on the control of concentrations

between undertakings (OJ C 66, 2.3.1998, p. 1).

(53) Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time limits and hearings provided for in Regulation (EEC) No

4064/89 on the control of concentrations between undertakings (OJ L 61, 2.3.1998, p. 1).

(54) Where a concentration in the coal or steel sectors was implemented without authorisation before expiry of the ECSC Treaty and the undertakings
involved actually engaged in anti-competitive practices inconsistent with Article 65 ECSC Treaty, the principles set out in point 3.1.3 will apply.
(55) Commission Decision No 2496/96/ECSC of 18 December 1996 establishing Community rules for State aid to the steel industry (OJ L 338,

28.12.1996, p. 42).

(56) Under Article 6(1) and (2) of the Steel Aid Code notifications of aid plans must be lodged with the Commission at the latest by 31 December

2001.

(57) OJ C 119, 22.5.2002, p. 22.
(58) Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the coal industry (OJ L 329,

30.12.1993, p. 12).
(59) See paragraph 23 above.
(60) See paragraph 23 above.
(61) See footnote 44.
(62) See paragraph 23 above.
(63) OJ C 119, 22.5.2002, p. 22.