Opinion of the Economic and Social Committee on the "Green Paper on the Review of Council Regulation (EEC) No 4064/89" (COM(2001) 745 final)
Date: 2002-07-17
Institutions: European Economic and Social Committee
Subjects: amendment of a law, competition law, economic concentration, merger control

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procedure. However, while considering that this is a consti-
tutional matter, the Committee stresses the need to address
certain unresolved issues in the short term — either in the
context of the Convention or in a future legislative proposal
from the Commission.

3.5.3.
In addition, criteria should be established to ensure
that the decision-making procedure matches the nature of the
committee responsible, giving preference to criteria such as
efficiency, transparency and participation over and above inter-
institutional disputes about the exercise of responsibilities.

Inter alia, the Committee calls on the main players in
3.5.2.
the Community legislative procedure to address the aforemen-
tioned questions and issues such as the role of agencies in
executive decision-making procedures and, more specifically,
its compatibility with the range of comitology procedures
currently in force.

3.5.4.
Finally, guarantees of transparency should be pro-
vided in order to ensure that, whenever legally applicable,
ancillary bodies are fully informed about the forecasts and
progress of legislative procedures with implications for comito-
logy, and to encourage the dissemination of their decisions
and — if possible — the involvement of civil society represen-
tatives in these bodies.

Brussels, 17 July 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Green Paper on the Review of Council
Regulation (EEC) No 4064/89’

(COM(2001) 745 final)

(2002/C 241/25)

On 13 December 2001 the Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the ‘Green Paper
on the Review of Council Regulation (EEC) No 4064/89’.

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 26 June 2002. The rapporteur was Mr
Lagerholm.

At its 392nd Plenary Session on 17 and 18 July 2002 (meeting of 17 July) the European Economic and
Social Committee adopted the following opinion by 32 votes to eight.

1.

Introduction

1.1.
Since the adoption of the Merger Regulation, the
European Union has expanded from 12 to 15 Member
States, whose markets are becoming increasingly integrated.
Moreover, the European Commission’s exclusive competence
for concentrations meeting the thresholds has been extended
to cover the whole territory of the European Economic Area
(EEA). European cross-border corporate reorganisation has
received further impetus from the introduction of monetary
union in 1999.

1.2. We are now facing the prospect of a European Union
with significantly more Member States as of 2004, and the
completion of the monetary union with the final phase of the
introduction of the euro. At the same time the trend towards
internationalisation, or even globalisation, of companies and
markets is continuing at an increasing pace.

1.3.
In a parallel development, an ever-greater number of
pre-merger control regimes are being introduced across the
globe, with a consequent increase in the costs associated with
multiple filing requirements.

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1.3.1.
The Merger Regulation has been based on a principle
by which concentrations are appraised in accordance with a
criterion of market dominance. The main alternative merger
control test, used in a number of major jurisdictions and
currently contemplated in some Member States,
is that of
substantial lessening of competition.

in order to catch the very few cases that raise serious
competition concerns. In addition, similar schemes are in place
at national level across the EU triggering perhaps ten times as
many notifications. Also, the number of regimes outside the
Community is growing. This further underscores the need for
simplifying the formalities, improving clarity and aligning the
various systems, as already stated by the Committee (2) (see
point 3.1.2 below).

1.3.2.
The Green Paper launches a debate on the respective
merits of the ‘dominance test’ as laid down in the Merger
Regulation and of the ‘significant lessening of competition test’
used in certain other jurisdictions. The value and effectiveness
of the dominance test is recognised and it is pointed out
that
international convergence is already occurring to a
considerable extent, independent of any actual harmonisation
of laws.

1.3.3.
This review of the Merger Regulation complements
the previously launched review of Regulation 17 (on the
implementation of Treaty Articles 81 and 82 governing the
prevention of restrictive agreements, decisions and concerted
practices). There is nonetheless a fundamental difference
between the two systems, namely the fact that the Commission
has exclusive competence over concentrations with a Com-
munity dimension, while competence is shared between the
Commission and the Member States in the field of anti-trust.
Notwithstanding this difference, due consideration is given to
the review of Regulation 17, allowing the two review exercises
to form part of a comprehensive modernisation of
the
European legislative framework in the field of competition (1).

2. General remarks

Some 2 000 proposed concentrations have been noti-
2.1.
fied to the Commission since the coming into force of the
Merger Regulation (see Green Paper (GP), point 8). Out of
these 18 have been blocked and a further 150 or so were
cleared only after commitments. In some cases notification
has been withdrawn since the parties have understood that the
Commission would oppose acquisition. Obviously,
inter-
ventions are statistically rare. However, the figures also demon-
strate that an extensive administrative procedure is operated

2.2.
The impact of the merger control is not merely, and
not even primarily a question of the number of cases formally
dealt with. Obviously, it affects what structural moves are
being proposed in the first place, and the ones where the
authorities decide to intervene tend to be of great significance
to the overall economy.

2.3.
Against this backdrop, the Committee commends the
Commission for opening the debate on how to improve the
overall system of European merger control, and for its
endeavours to put forward constructive ideas to that effect in
a drive to speed up and simplify European merger control
procedures.

2.4.
However, the assessment under the merger rules is
inevitably complex and being rendered even more difficult by
the increasingly rapid change in economic conditions, caused
i.a. by globalisation. As pointed out earlier by the Com-
mittee (2), this brings into focus the need to develop economic
and productive structures so as to ensure ever-greater competi-
tiveness for the overall Community economy on world
markets.

2.5.
Thus merger control should be considered within the
context of the global economy, in order to take account of the
steadily rising international competitive pressure on European
companies. The Committee would stress the need to assess
acquisitions on the basis of an in-depth global market analysis
and hence not to focus only on European conditions. The
Committee has repeatedly maintained that markets must not
be defined in too narrow terms and that the Commission must
take greater account of the fact that markets are constantly
changing and expanding (3).

( 1) The Committee notes that

the Green Paper presents some

(3) Inter alia the ESC opinion of 6 July 1994, OJ C 388, 31.12.1994,

translation problems at least in its point 13 (Introduction).

rapporteur: Mr Petersen.

(2) ESC Opinion of 10 July 1996, OJ C 295, 7.10.1996, rapporteur:

Mr Bagliano.

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2.6.
Given this perspective, the effects on competition must
remain the focus of the merger control assessment. The
purpose of competition policy is ultimately to protect con-
sumer interests. Considerations belonging to other policy areas
must not be allowed to inspire counterproductive measures.
Obviously the Committee is aware of the multifaceted socio-
economic issues that arise in connection with restructuring. It
is not possible to deal with all of these in the context of
acquisition control but an interaction is needed between
general competition policy and, for instance, regional policy,
research and education measures, employment policy, con-
sumer policy, etc.

2.7.
It should be pointed out that restructuring is necessary
in the
in order to ensure a sustainable business sector
long term, and hence to avoid widescale unemployment. As
specified in EC Treaty Article 127, the objective of a high level
of employment shall be taken into consideration in the
formulation and implementation of Community policies and
activities. Workers therefore have a legitimate interest
in
making their views heard in connection with acquisitions
(see 3.3.17 below). However, the Committee would point out
that this must be done, as in consultation of other parties
concerned, within the set timeframe and observing the need
for secrecy. An overarching principle in all circumstances must
be that government interventions in the restructuring process
should be confined to those cases where it can be established
with a high degree of certainty that the proposed merger
inflict severe and lasting damage to competition. The
will
Committee will revisit
these issues in more detail when
addressing the substantive issues raised by the Green Paper
(3.2, below).

3. Specific remarks

3.1.

Jurisdictional issues

A. C o m m u n i t y d i m e n s i o n ; e x t e n s i o n o f t h e

C o m m i s s i o n ’ s c o m p e t e n c e

3.1.1.
The Committee notes with satisfaction the scrupu-
lous and diligent manner in which the Commission has
consulted interested parties and analysed the functioning of
the present thresholds with regard to the problem of multiple
filing. All the more so, as such procedures may constitute
particular difficulties for SMEs.

reiterate its view that mergers with significant effects extending
beyond the borders of a Member State should be considered
to be of Community dimension (1).

From the information contained in Annex 1 of the
3.1.3.
Green Paper and the Commission’s analysis it is evident that
Article 1(3) as devised in 1997 has failed to meet its objective.
Multiple filing continues to cause increasing problems to the
detriment of both companies and the competition authorities.
the situation should be adequately addressed
Obviously,
without any undue delay.

3.1.4.
The Committee agrees with the Commission’s con-
clusion that modifications to the current criteria of Article 1(3)
or amendments of Article 22 are unlikely to produce the
necessary improvement (GP, points 51-53).

3.1.5.
Thus, the Committee supports the proposal to grant
automatic Community competence over cases involving three
or more national notifications (GP, point 57). The result
thereof will, in practice, be better in line with the Community
dimension concept (3.1.2). Nonetheless the Committee con-
siders that the proposal does not go far enough to tackle the
problem effectively. The rule should instead be based on
notification in two or more Member States. However, as
national notification is not always mandatory, the criterion
should rather be that the merger is subject to review (comes
under national jurisdiction) in two or more Member States.

For reasons given in the Green Paper (footnote 10),
3.1.6.
jurisdiction would have to be confirmed by the relevant
National Competition Authorities (NCAs). As speed is of the
essence, the Committee supports the proposed introduction of
a non-opposition procedure with a very short time limit. What
results from that should be final and binding. Thus, a NCA
declining jurisdiction should not be able to open the case at a
later stage.

3.1.7.
A more radical solution would be to remove the
thresholds from the ECMR. However, such a move requires
coordination of the thresholds at Member State level, so as
not to make Community competence totally dependent on
national
legislation and to avoid usurping the concept of
Community dimension.

3.1.2.
In this context, the Committee again would like to
lend strong support for the one-stop shop principle, and

(1) ESC Opinion of 25 October 1995, rapporteur: Mr Petersen, OJ
C 18, 22.1.1996; ESC Opinion of 10 July 1996, rapporteur:
Mr Bagliano OJ C 295, 7.10.1996.

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3.1.8. With the completion of the Internal market, and
particularly in view of the enlargement,
the various and
differing schemes will have to come together and form an
integrated system. Harmonised turnover thresholds could e.g.
be established by setting them in proportion to Member State
GDP.

3.1.9.
As the Commission rightly says (GP, point 68),
further harmonisation in substance will be necessary. Indeed,
the Committee feels that in an economically integrated Europe,
it does not make much sense to apply different rules in cases
of Community relevance. Therefore, national merger controls
should be brought in line with the ECMR, or the Regulation be
applied directly by the NCAs, when the thresholds are not met
in three (two) or more Member States (cf. the ‘modernisation’
reform). Also, with the completion of the Internal market,
there should be less need to deal with relatively small mergers,
and national thresholds should be adapted accordingly. The
Committee urges the Commission to initiate work on substan-
tive as well as procedural harmonisation.

B. R e f e r r a l s t o M e m b e r S t a t e s

3.1.12.
According to the Green Paper (point 82), notifying
parties should not be put in a worse position by the referral.
The Committee fully agrees with that, and consequently with
the proposal to apply not only the ECMR timeframe, but also
its procedure as such. This should include an obligation on the
receiving NCA to accept the notification performed on Form
CO, without requesting the parties to renotify under national
rules. Indeed, the Committee considers that EC rules should
apply in those cases. There would also seem to be a general
need to seek at all times to improve international coordination
and harmonisation of acquisition control procedures.

3.1.13.
However, this principle of not putting parties in an
aggravated position, and the overall interest to deal with a
merger in a transparent and comprehensive manner (e.g. via a
one-stop shop) bring into question the technique of partial
referrals. In the view of the Committee it suffers from the
same, if not worse, weaknesses and flaws, as does multiple
filing. Therefore, the Committee is of the opinion that partial
referrals should not take place, either geographically, or with
regard to certain aspects of the merger. Hence any referral by
the Commission may only be to a single national authority
and the Member State to which the referral is made shall then
have exclusive competence.

3.1.10.
Generally the Committee has reservations about
referrals as they represent derogation from the proper balance
between Community competence and subsidiarity (1). Admit-
tedly, this carries less weight concerning cases without signifi-
cant cross-border effects. However, in the view of the Com-
mittee, such referrals are still not acceptable if they give rise to
legal uncertainty or more than negligible delay.

3.1.14.
The Commission argues it should be empowered to
refer cases at its own initiative (GP, point 81 b), subject to the
same criteria as requesting Member States. The Committee can
see the logic in this, but doubts it will make much difference
in practice; it is hardly conceivable that the Commission would
‘force’ a case upon a Member State unwilling to take it on.

Therefore,

3.1.11.
the criteria of Article 9 should be
simplified and the time limit reduced accordingly. Thus, the
Committee agrees with the general direction of the proposals
put forward by the Commission (GP, point 81). However, the
Committee is not convinced that the dominance requirement
should go. It would seem reasonable that the requesting
Member State should show at least that the case is likely to
involve a dominant position within its territory. If it is unable
to do so, the referral of a merger under the ECMR does not
appear to be justified. The period for request should still be
shortened by one week.

( 1) ESC Opinion of 10 July 1996 (p. 7.7.1) OJ C 295, 7.10.1996.

C.

J o i n t R e f e r r a l s t o t h e C o m m i s s i o n

The shortcomings of Article 22(3) are well demon-
3.1.15.
strated in the Green Paper. Clearly, the provision has become
obsolete, and attempts to make it more operational have
been unsuccessful. If the Commission were given automatic
jurisdiction by the proposed three-countries rule, joint referrals
would in practice only be made by two Member States. Its
potential for helping to resolve problems caused by multiple
filing then seems to be even less than at present. If the

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provision is to be retained at all, the Committee feels referral
should be subject
to consent by the parties. As already
indicated (point 3.1.5 above), the Committee is, however, in
favour of automatic jurisdiction when two or more Member
States are concerned. In such cases, Article 22(3) becomes
irrelevant.

D. T h e c o n c e p t o f ‘ c o n c e n t r a t i o n ’

3.1.16.
As for minority shareholdings, the Committee is
convinced they should not be brought in under the ECMR, as
long as they do not constitute the basis for control of the
undertaking concerned. Control is the relevant and adequate
criterion determining the scope of the Regulation in this
regard. Introducing ambiguity would provoke legal uncertainty
and increase the number of notifications to little or no avail.
In the Green Paper there are no facts indicating significant
problems associated with minority shareholdings, coupled or
not with interlocking directorships, which cannot be dealt
with effectively under Articles 81—82 EC.

3.1.17.
As shown by the Alitalia-KLM case, a strategic
alliance can fall under the ECMR (GP, point 114). However,
this is rather the exception than the rule, due to the fact that
such alliances are usually not structural in nature. Currently,
the Committee sees no justification for extending the reach of
the ECMR in this respect. Thus, the Committee agrees with the
conclusion of the Green Paper (point 113).

3.1.18.
In 1998 so called full-function co-operative joint
ventures were brought under the Merger Regulation. Experi-
ence confirms this was an appropriate measure. The Com-
mittee concurs with the Commission that there is no reason
for reconsidering the amendment.

However,

the Committee does not

3.1.19.
fully agree
nothing should be done with regard to partial-function
production joint ventures (GP, point 123). Obviously, they
should not all be subjected to the application of the Merger
Regulation. As pointed out by the Commission, they are not
in general more suited to ex ante control than e.g. R&D joint
ventures. However, some bring about lasting structural change
and large investments, and could therefore justify notification.
This goes mainly for those partial-function joint ventures that
involve productive assets. In order not to trigger unnecessary
filing, and given the fact that such joint ventures are in the
structural measures — cooperation grey zone, notification
could be made optional; if not used, Article 81 EC would
apply.

Concerning multiple transactions, the Committee
3.1.20.
agrees,
formally
in principle, with the Commission. Thus,
separate transactions that are economically coherent and
closely linked in time, should be treated as one and the same
concentration. Nevertheless, the Committee wants to warn
against amending the present rules without further and careful
analysis of the consequences. Obviously, this involves some
highly technical issues, and it is not always easy to foresee the
practical impact. Also, transactions, which really are separate,
risk being unjustifiably dealt with as one.

3.1.21.
For instance, the Commission proposes to cover
‘creeping’ take-overs, but the Committee finds it difficult to see
how that would work in practice. Nor is it clear how one
should deal with acquisitions which do not lead to control,
some of which may lack any structural intent. As for ‘hostile’
takeovers, the Committee is of the view that the rules should
stay as neutral as possible, and not work to the advantage of
either party.

It emerges from the Green Paper (point 144) that
3.1.22.
the Commission wants to exclude certain venture capital
transactions from being looked at by expanding Article 3(5).
The Committee supports the idea as a step towards minimizing
the number of unnecessary notifications. Any further assess-
ment would require more technical details on the intended
amendment.

3.1.23.
The Commission points to certain discrepancies
between Articles 3(3) and 5(4) caused by the definitions of
‘control’ and ‘group’. In principle, the Committee feels those
inconsistencies are unsatisfactory and should preferably be
removed, even though they in practice seem to be problematic
only rarely. The basis should clearly be the concept of ‘control’.
It appears Article 5(4) could be rephrased to state simply that
a company shall be considered part of a group if the group
controls it (in the sense of Article 3(3)).

3.2.

Substantive issues

A-B. T h e s u b s t a n t i v e t e s t ; e f f i c i e n c i e s

3.2.1.
First, the Committee would like to commend the
issue,
Commission for opening the debate on this crucial
which is not only a regulatory question, but also links itself to
various important aspects of application.

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3.2.2.
In view of the ongoing globalisation of the economy,
and the increasing cross-regional restructuring, the Committee
would also like to emphasise the need for further international
harmonisation.

3.2.3.
In this context, the Committee finds it essential to
highlight some of the key features of the change currently
happening to the overall economy.

3.2.4.
Globalisation is deeply affecting business and society
as a whole. It causes fundamental and lasting change. For
many sectors of strategic importance to European growth,
employment and wealth,
it means they have to up-grade
substantially their adaptation abilities. Re-structuring is at the
heart of this. It should be borne in mind that European
industry, compared to that of other important regions —
notably the US — is still too diverse in structure. In terms of
growth rate, Europe is still trailing behind the US.

3.2.5.
The competition pressure is steadily growing, on a
global basis. Hence national borders and markets become less
and less significant. Product and technology development is
accelerating, and customer preferences shift more quickly.
This,
in combination with a greater freedom of choice,
enhances the economies of scale related to i.a. R&D and
internally as
marketing. The restructuring of companies,
well as externally, takes place faster and faster. Sectors and
companies are integrating and combining in new patterns.

3.2.6.
General market liberalisation and decreasing barriers
to entry have brought about a severe pressure of potential
competition; global players have the capacity and capability to
act on all markets. Products can be manufactured almost
anywhere, and modern information technology makes it
possible to provide services over long distances. Thus, com-
panies may encounter competition originating from around
the world. Also, European companies often face very powerful
competitors.

3.2.7.
Therefore, it is crucial that the European business
climate is such as to foster competitiveness. Economic policy,
therefore, has to keep up the transformation pressure, but also
to facilitate the reshaping of companies into entities that
render them truly effective. If that is not allowed to happen,
the goal set by the Lisbon Summit cannot be achieved, i.e. to
make the European Union ‘the most competitive and dynamic
knowledge-based economy in the world, capable of sustainable
economic growth with more and better jobs and greater social
cohesion’.

3.2.8.
Against this backdrop, the Committee finds it evident
that a more long-term and dynamic approach is needed when
assessing a proposed merger. The development underscores
and confirms statements already made by the Committee (1). It
is of importance to the delimitation of the relevant market,
and even more so to the execution of the competition test.
The heart of the matter lies in keeping the merger control in
phase with economic realities, not at making the protection of
competition more lax. The Committee is of course alive to the
fact that the assessment of mergers is not an exact science, and
that capturing market dynamism involves some complexity.
However, this makes it even more important to address the
issue. It cannot be avoided, and the Committee maintains it is
fully feasible. In particular the Committee would stress that it
is of key importance that assessment of an acquisition does
not become counter-productive and give major competitors
such as the USA an unjustified structural advantage. The
Committee urges the Commission to waste no time in tackling
this matter.

3.2.9.
This raises the question whether the so called SLC-
test is better suited to apply a dynamic perspective. Apart from
that, international convergence obviously has a value in itself.

The Committee is of

3.2.10.
the same opinion as the
Commission in saying there are many similarities between
the dominance test and the SLC-test (GP, point 162). The
Committee maintains that differences for the most part are to
do with application and interpretation, rather than being of a
conceptual nature. The second limb of the dominance test
relates in particular to economically oriented analysis and
assessment. It provides for a high degree of flexibility and
discretion (2), characteristics often ascribed to the SLC-test.

3.2.11.
The Merger Regulation is applied using a wide
range of assessment criteria, which by and large are also used
in the SLC-test. The problem with the ECMR is that it does not
provide any comprehensive and theoretically well-founded
analytical model into which the listed factors and tests can be
fitted. Arguably, it is therefore currently less apt to accommo-
date dynamics etc. as described above. However, that appears
as more or less entirely a question of developing the method-
ology for the application.

(1) ESC Opinion of 10 July 1996, OJ C 295, 7.10.1996.
(2) See e.g. the Kali und Salz judgement of 14.5.1975, ECR 1975,

p. 499.

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3.2.12. Where there seems
to be a discernible and
important difference is in the area of merger-specific efficienci-
es. In any event it seems unclear what scope currently exists
under EC law for taking account of them. The pursuit of such
effects is often among the legitimate motives for a proposed
merger. When they further the consumer interest and promote
the objective of overall economic efficiency, the Committee
fails to see why they should not be taken into account. Again,
the explicit inclusion of efficiencies in the ECMR would seem
objectively justified and would also seem to serve the interest
of harmonisation.

To conclude, the Committee holds that the desirable
3.2.13.
alignment
towards a global standard can be achieved by
international cooperation and by putting the emphasis on a
developed second limb of Article 2(3). Thus the Committee
does not consider any transition to the SLC-test
to be
necessary; on the contrary, it would generate unnecessary legal
uncertainty. Retention of the dominance test will make it
possible to avoid discrepancies between EU law and the
Member States’ national rules on acquisitions. The Committee
would also point to the advantage of consistency between the
Regulation’s concepts and other competition rules (Article 82).
Further, it should be noted that scope for intervention already
covers situations where companies jointly occupy a dominant
position. The conclusion is therefore that the SLC-test should
not be introduced into the Merger Regulation. The Committee
would also like to stress the importance of increased efforts to
coordinate the American and EC procedures pragmatically, as
it imposes a heavy burden on the parties to run cases in
parallel.

C.

S i m p l i f i e d p r o c e d u r e

3.2.14.
The Committee congratulates the Commission on
the success of the simplified procedure (GP, point 174), and
urges the Commission to develop it e.g. by means of a
shortened Form CO. Furthermore, the Committee is of the
opinion that referrals should not be possible in cases under
the simplified procedure. Article 9(2) should be amended
accordingly.

3.2.15.
The Committee strongly supports the idea of
removing ‘harmless’ concentrations from the process altogeth-
er (GP, point 177). The Committee, however, has some doubts
with regard to the proposed technique of a block-exemption,
which potentially could introduce more complications than it
resolves.

3.2.16.
Also, the concept of a de minimis threshold has
some attractions. However, it remains unclear how it would
work in practice and what its legal effects would be. The
Committee finds the proposal concerning ‘small markets’ (GP,

point 178)
interesting, but it needs to be amplified. The
Committee would stress that the introduction of a threshold
of the present type must not result in the application of
national sets of rules instead, leading to multiple filing, etc.

3.3.

Procedural issues

A. N o t i f i c a t i o n — t r i g g e r i n g e v e n t

As explained in the Green Paper (point 182) the
3.3.1.
parties want to notify as early as possible in order be allowed
to implement the concentration in question. It also emerges
that the current one-week rule is not upheld. Therefore, the
Committee feels it should be repealed, and thus left to the
parties to decide when to notify. It should be kept in mind that
notification cannot take place earlier than when the parties are
able to provide the necessary information according to Form
CO.

B.

S u s p e n s i o n o f c o n c e n t r a t i o n s

3.3.2.
The Committee takes the general view that similar
cases should be treated in the same fashion, and would
therefore not object to the proposed extension of Article 7(3).
However, the Committee would also like to reiterate that
where there typically is a conflict between the parties, the rules
should remain as neutral as possible (above, point 3.1.21).
Any amendment should be done with a view to achieve such
neutrality.

C. C a l c u l a t i o n o f t i m e l i m i t s

3.3.3.
The Committee can clearly see the simplification
achieved by consistently using working days instead of calen-
dar days. However, the switch must not in practice lead to an
extension of the time limits.

D. A d m i n i s t r a t i v e e f f i c i e n c y

Obviously, for the parties it is an integral part of the
3.3.4.
one-stop shop to have a single filing point. Therefore, the
Committee does not consider it a good idea to make them
responsible for copies to Member States. Instead, the Com-
mission can establish a system for electronic exchange of
information, as envisaged for the ‘modernisation’ reform,
subject of course to reliable secrecy safeguards. For practical
reasons, electronic filing should remain optional.

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E. C o m p l e t e n e s s o f f i l i n g s

H-I.

E n f o r c e m e n t p r o v i s i o n s ; F i l i n g f e e s

3.3.5.
The Committee notes with satisfaction the decrease
in the number of declarations of incompleteness resulting
from the 1999 guidelines (GP, point 199). Nevertheless, the
Committee feels, as a matter of principle, a deadline should be
fixed. Alternatively, a rule could be introduced to the effect
that after a certain period, declaration of incompleteness would
require the consent of the Hearing Officer.

3.3.11.
As the Merger Regulation does not relate to pro-
hibited activities, the Committee finds the analogy to Regu-
lation 17 incorrect and not relevant. Nor does the Committee
see any other reasons in support of the need for the indicated
remedies and sanctions.

F. C o m m i t m e n t s p r o c e d u r e

3.3.6.
The problems with the current procedure are well
described and explained in the Green Paper (e.g. point 207). In
short, parties are sometimes unduly ‘squeezed’ between late
Statements of Objections and the final time limit. The Com-
mittee is therefore supportive of a ‘stop the clock provision’,
provided it is entirely for the parties to trigger it.

3.3.7.
Clearly, such a provision will have its greatest value
in the second phase. However, it should be made available also
in the first phase. If it is kept within a short timeframe, the
Committee fails to see why the Commission should be able to
overrule a request in the first phase (GP, point 219). Generally,
more time is needed in the second phase, and the Committee
could accept the possibility of extension to up to thirty days,
provided that full advantage is not necessarily taken of this
facility. The rule should therefore be flexible, in the sense that
the parties could take advantage of the number of days
required without triggering the full period. The Commission
and Member States would be given the same number of days.

3.3.8.
Also, the Committee feels problems could be more
easily resolved if the Commission were to be more active in
advising the parties as to what measures would be required to
clear the concentration.

3.3.9.
A further amendment of the procedure to be con-
sidered would be to set a deadline for the Statement of
Objections.

3.3.12.
The Committee firmly objects to the introduction
of filing fees. The Committee maintains the services of the
Commission should be funded via the Budget, law enforcement
activities in particular.

J. D u e p r o c e s s a n d ‘ c h e c k s a n d b a l a n c e s ’

3.3.13.
To block a merger is indeed a very far-reaching
measure. Therefore the courts should be more involved in
practice. Admittedly, there have been some appeals, but the
parties do still often not perceive that as a realistic option. The
improved procedure of the CFI is of course commendable, but
the Committee finds it too early to judge its impact.

3.3.14.
In many countries a blocking decision has to be
taken by a court of law. Under the current EC regime, however,
the Commission has the dual role of investigator and decision
maker. In the Committee’s view, these provisions therefore
need to be discussed from the angle of legal certainty. It
considers that strong arguments of principle can be levelled
against a situation where, in cases which typically involve
extensive economic implications, the decisionmaking body is
the same as the investigating body. At the same time the
Committee is of course aware that no fundamental change can
be made in the existing provisions without careful reflection
and such a reform will take more time than the current review
allows. In view of the major importance of the principles at
issue, the Committee would anyway call on the Commission
to instigate a more in-depth debate on which system is
ultimately the most satisfactory and appropriate.

G. A r t i c l e 8 ( 4 ) — r e v e r s a l o f

i m p l e m e n t e d

m e r g e r s

The Committee is not convinced there is a problem
3.3.10.
of practical importance, and tends to agree with the Com-
mission’s interpretation of the relevant provisions.

3.3.15.
The Committee can also see some scope for
‘internal’ improvements. The role of the Hearing Officer should
be strengthened so that he is able to monitor the procedure
throughout. He should be independent of DG Competition
and be able to act both on his own initiative and following a
complaint by the parties to the acquisition. The resources must
be increased so as to be commensurate with the tasks involved.

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Official Journal of the European Communities

7.10.2002

3.3.16.
The Commission stresses in the Green Paper
(points 242-244) that it is important for the process to draw
on the views both of the consumer groups affected by the
proposed merger and of the workforce and solicits proposals
as to how this can effectively be achieved. The Committee
agrees that it is important in many mergers that all parties
concerned — both employees and consumers, but also in
many cases local and regional authorities — should have an
opportunity to express their views. Arrangements compatible
with efforts to speed up and simplify the merger control
procedure need to be worked out. Regarding the workforce,
the new Directive on information and consultation of
employees will — when implemented — in many cases oblige
the companies involved to inform and consult with their
employees about the effects of the concentration being con-
sidered. The information originating from that process can
make it easier for the Commission to obtain the views of
the workforce. Provision should be made to ensure that
consultation takes place every time and that it takes place
before the definitive approval of the merger.

Brussels, 17 July 2002.

3.3.17.
It is obvious that the Commission should invariably
give employees in the enterprises directly concerned a chance
to make their voices heard but the Committee considers
that the Commission should also seek to consult workers’
organizations in sectors affected at European level. In many
cases these organizations would seem to be best placed to
assess the long-term, broader impact on employment of a
proposed merger.

However, the Merger Regulation needs to be applied
3.3.18.
in the light of its aim to promote competition with a view to
boosting the efficiency and competitiveness of EU business.
This means that it should be possible to apply the Regulation
impact on
in such a way that
competitiveness, growth and employment as such is a valid
ground for authorising a merger, even if the concentration in
the short run could have some negative effects on competition.

the long-term beneficial

The President

of the Economic and Social Committee

Göke FRERICHS

APPENDIX

to the opinion of the Economic and Social Committee

The following amendment (slightly modified by the rapporteur) was rejected by the Assembly but obtained more
than one quarter of the votes cast:

Point 3.3.16

The point should end after the sentence:

‘Arrangements compatible with efforts to speed up and simplify the merger control procedure need to be worked
out.’

Point 3.3.17

Rewrite as follows, incorporating the text deleted from point 3.3.16:

‘Regarding the workforce and their representatives, their rights to information and consultation on the possible
consequences of proposed concentrations are already comprehensively protected by the Directive on European
Works Councils and the Directive on information and consultation of employees. These provisions guarantee the
employees of the enterprises directly involved and, if they wish, representatives of workers in the industries concerned
at European level the opportunity to express their views. The information originating from that process can make it
easier for the Commission to assess the impact of a planned merger on employment.’

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Reason

Firstly, it makes sense to deal with the consultation of workers in a single paragraph. Secondly, clearer reference
should be made to the current legal situation at European level.

Result of the vote

For: 18, against: 21, abstentions: 2.

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Recommendation
concerning the application of legislation governing health and safety at work to self-employed
workers’

(COM(2002) 166 final — 2002/0079 (CNS))

(2002/C 241/26)

On 28 May 2002 the Council decided to consult the Economic and Social Committee, under Article 262
of the EC Treaty, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on this subject, adopted its opinion on 20 June 2002. The rapporteur was
Mrs Schweng.

At its 392nd Plenary Session (meeting of 18 July 2002), the Economic and Social Committee adopted the
following opinion by 77 votes to 32, with 15 abstentions.

1.

Introduction

1.3.
As part of the social dialogue, the European social
partners were also consulted on the form and content of a
possible Community initiative.

1.1.
The Community programme for 1996-2002 concern-
ing safety, hygiene and health at work already made provision
for examining ‘the need for a proposal for a Council Rec-
ommendation on the safety and health at work of self-
employed workers’. As early as 1996 the Commission submit-
ted to the Advisory Committee on Safety, Hygiene and Health
Protection at Work, for its opinion, an initial draft of the
Recommendation under review. The Advisory Committee
issued two opinions on this subject. In its first opinion, issued
in 1997, the Advisory Committee called upon the European
Commission to draw up a report on the measures taken by the
Member States to ensure the safety and protect the health of
self-employed workers. The aim was to help pinpoint more
clearly possible lines of action.

2. Contents of the Recommendation

2.1.
The Proposal for a Recommendation provides for the
following measures: the Member States should recognise the
rights and duties of self-employed workers to ensure their
safety and protect their health, in the same way as employed
workers.
that self-employed
workers be brought within the scope of health and safety
provisions and, where necessary, that these provisions be
adapted to take account of the particular situation of self-
employed workers.

It is proposed,

in particular,

After the Bilbao Agency had drawn up the abovemen-
1.2.
tioned report for the European Commission, the Advisory
Committee issued a second opinion in 1999,
in which it
addressed the content of the Commission’s draft recommen-
dation. The Advisory Committee proposed that individual
provisions be more clearly formulated and that clearer distinc-
tions be drawn between them. The Commission largely acted
upon the recommendations made by the Advisory Committee.

2.2.
It is further proposed that self-employed workers be
given access to particular services and bodies where they can
obtain information and advice on health protection and the
prevention of occupational safety hazards. Self-employed
workers should also be given access to health and safety
training measures without having to incur excessive expense.