Proposal for a Council Decision on a Community position in the Association Council on the implementation of Article 36 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part
Date: 2003-06-20
Institutions: European Commission
Subjects: Morocco, Union for the Mediterranean, association agreement (EU), competition law, cooperation policy, economic development, free-trade area

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.6.2003
COM(2003) 365 final

Proposal for a

COUNCIL DECISION

on a Community position in the Association Council on the implementation of Article 36
of the Euro-Mediterranean Agreement establishing an association between the
European Communities and their Member States, of the one part, and the Kingdom of
Morocco, of the other part

(presented by the Commission)

1.

2.

3.

4.

5.

6.

7.

EXPLANATORY MEMORANDUM

The  EU-Morocco  Association  Agreement  came  into  force  on  1  March  2000  and
provides for the establishment of a free trade area between the EU and Morocco by
28 February 2012 at the latest.

Article  36  of  the  Agreement  states  that  the  Association  Council  may  adopt  the
necessary rules for the implementation of the competition rules within five years of
the entry into force of the Agreement.

The EU's competition policy must help to strengthen economic relations and ensure
that restrictions on competition do not affect trade relations. Above all it must boost
the  economic  dynamism  of  third  countries  by  combating  cartels,  the  abuse  of
dominant  position  and  monopolies  and  primarily  benefit  consumers  and  innovative
small  and  medium-sized  enterprises,  thus  contributing  to  economic  growth  and  job
creation.

New  competition  legislation  entered  into  force  in  Morocco  in  2000  banning
restrictive  competition  practices  and  introducing  the  monitoring  of  economic
concentration operations and price freedom and consumer protection measures. The
legislation is based on French law but consultations were also held with UNCTAD.

A Competition Board was also established by the new legislation. The implementing
decree for the law  was  adopted in October 2001.  It sets out the  composition of the
Competition  Board  (a  President  and  12  members  appointed  for  5  years,  renewable
once).  The  Competition  Board  was  officially  established  in  March  2002  and  will
become operational in 2003.

This proposal is based on the texts adopted for agreements with Mexico, Algeria and
Chile  or  currently  being  negotiated  for  agreements  with  Tunisia,  Israel,  Mercosur,
Jordan, Syria and the GCC, with a view to ensuring a standard approach. Given the
application of the GATT rules, aid (referred to in Article 36(1)(c)) is not covered in
the implementing rules proposed here.

The  aim of this proposal  is to establish the  Community  position  in  the  Association
Council  with  a  view  to  adopting  the  necessary  rules  for  the  implementation  of
competition rules. As the next meeting of the Association Council will not take place
until the first half of 2004, the Commission suggests that this proposal be adopted by
written procedure.

2

Proposal for a

COUNCIL DECISION

on a Community position in the Association Council on the implementation of Article 36
of the Euro-Mediterranean Agreement establishing an association between the
European Communities and their Member States, of the one part, and the Kingdom of
Morocco, of the other part

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular  the
second subparagraph of Article 300(2) thereof,

Having regard to the proposal from the Commission,1

Whereas:

(1)

(2)

The  Euro-Mediterranean  Agreement  establishing  an  Association  between 
the
European Communities and their Member States, of the one part, and the Kingdom of
Morocco, of the other part, was concluded on 24 January 2000.

Article  36  of  the  Agreement  provides  that  the  Association  Council  may  adopt  the
necessary rules for the implementation of the competition rules within five years of the
entry into force of the Association Agreement,

HAS DECIDED AS FOLLOWS:

Sole Article

The position to be adopted by the Community in the Association Council established by the
Euro-Mediterranean  Agreement  concluded  between  the  European  Communities  and  their
Member  States,  of  the  one  part,  and  the  Kingdom  of  Morocco,  of  the  other  part,  on  the
implementation of  Article 36 of the Agreement,  shall  be  based  on  the  draft  Decision  of  the
Association Council annexed to this Decision.

Done at Brussels,

1

OJ C […], […], p. […].

For the Council
The President

3

                                                
ANNEX A

Draft

DECISION OF THE EU-MOROCCO ASSOCIATION COUNCIL

adopting the necessary rules for the implementation of the competition rules

The EU-Morocco Association Council,

Having regard to the Euro-Mediterranean Agreement establishing an Association between the
European  Communities  and  their  Member  States,  of  the  one  part,  and  the  Kingdom  of
Morocco, of the other part,

Whereas:

(1) 

(2) 

(3) 

A  free  trade  area  is  to  be  established  between  the  EU  and  Morocco  by  28  February
2012 at the latest.

Article  36(3)  provides  for  the  existence  of  administrative  cooperation  arrangements
between  the  Parties  to  facilitate  the  implementation  of  paragraphs  1  and  2  of  the
Article, and for the possibility of adopting technical cooperation measures.

Article 36(3) provides that the Association Council may adopt the necessary rules for
the implementation of the competition rules within five years of the entry into force of
the Association Agreement,

HAS DECIDED AS FOLLOWS:

Sole Article

1.  A  mechanism  of  cooperation  between  the  Parties'  authorities  responsible  for  the
implementation of competition rules is established in Annex I.

2.  The  Parties'  competition  authorities  shall  inform  the  Association  Committee's  Internal
Market  Subcommittee  on  the  implementation  of  the  cooperation  established  under  the
mechanism referred to above.

3. This Decision shall enter into force on the day of its adoption.

Done at

on

For the Association Council

4

ANNEX 1

EU-MOROCCO ASSOCIATION AGREEMENT

Mechanism of cooperation between the Parties' competition authorities

responsible for the implementation of competition rules

Chapter I. General provisions

1. Objectives

Cases  relating  to  practices  contrary  to  Article  36(1)(a)  or  (b)  of  the  Euro-
1.1
Mediterranean Agreement shall be dealt with by applying the appropriate legislation, in order
to avoid adverse effects on trade and economic development and the possible negative impact
that such practices may have on the other Party's important interests.

1.2
The competences of the Parties' competition authorities to deal with these cases shall
flow from the existing rules of their respective competition laws, including where these rules
are applied to undertakings located outside their respective territories.

1.3
The  purpose  of  these  rules  is  to  promote  cooperation  and  coordination  between  the
Parties  in  the  application  of  their  competition  laws  in  order  to  ensure  that  restrictions  on
competition  do  not  block  or  cancel  out  the  benefits  which  should  be  ensured  following  the
progressive liberalisation of trade between the European Community and Morocco.

2. Definitions

For the purposes of these rules:

(a) "Competition law" shall mean:

(i)  for  the  European  Community  ("the  Community"),  Articles  81  and  82  of  the  EC  Treaty,
Council  Regulation  (EEC)  No  4064/89  and  related  secondary  legislation  adopted  by  the
Community;

(ii)  for  Morocco,  the  Price  Liberalisation  and  Free  Competition  Act  (No  6/99)  of  2  rabii  I
1421 (5 June 2000), and related secondary legislation.

(b) "Competition authority" shall mean:

(i) for the Community, the Commission of the European Community as to its responsibilities
pursuant to the competition law of the Community;

(ii) for Morocco, the Deputy Ministry for Economic and General Affairs and the Upgrading
of the Economy - Department of Prices and Competition.

(c)  "Enforcement  activity"  shall  mean  any  application  of  competition  law  by  way  of
investigation  or  proceeding  conducted  by  the  competition  authority  of  a  Party,  which  may
result in penalties or remedies.

(d)  "Anti-competitive  activity"  and  "conduct  and  practices  which  restrict  competition"  shall
mean any conduct or transaction that is impermissible under the competition laws of a Party
and may be subject to penalties or remedies.

5

Chapter II. Cooperation and coordination

3. Notification

3.1  Each  Party's  competition  authority  shall  notify  the  other  of  its  enforcement  activities
where:

(a) the notifying Party considers them relevant to enforcement activities of the other Party;

(b) they may significantly affect important interests of the other Party;

(c) they relate  to restrictions on competition  which  may  directly  and  substantially  affect  the
territory of the other Party;

(d)  they  involve  anti-competitive  activities  carried  out  mainly  in  the  territory  of  the  other
Party;

(e) they condition or prohibit action in the territory of the other Party.

3.2 As far as possible, and provided that this is not contrary to the Parties' competition laws
and does not adversely affect any investigation being carried out, notification shall take place
during  the  initial  phase  of  the  procedure,  to  enable  the  notified  competition  authority  to
express  its  opinion.  The  notified  authority  shall  give  due  consideration  to  the  opinions
received when taking decisions.

3.3 The notifications  provided  for  in Article  3.1  of this Chapter  shall  be  detailed  enough  to
permit an evaluation in the light of the interests of the other Party.

3.4  The  Parties  undertake  to  give  the  above  notification  wherever  possible,  depending  on
available administrative resources.

4. Exchange of information and confidentiality

4.1  The  Parties  shall  exchange  information  which  will  facilitate  the  effective  application  of
their respective competition laws and promote a better understanding of their respective legal
frameworks.

4.2 The exchange of information shall be subject to the standards of confidentiality applicable
under  the  law  of  each  Party.  Confidential  information  whose  dissemination  is  expressly
prohibited or which, if disseminated, could adversely affect the Parties, shall not be provided
without the express consent of the source of the information. Each competition authority shall
maintain, to the fullest extent possible, the confidentiality of any information provided to it in
confidence by the other competition authority under the rules and shall oppose, to the fullest
extent possible, any application for disclosure of such information by a third party that is not
authorised by the competition authority that supplied the information.

5. Co-ordination of enforcement activities

5.1  Each  competition  authority  may  notify  the  other  of  its  willingness  to  coordinate
enforcement activities with respect to a specific case. This coordination shall not prevent the
Parties from taking autonomous decisions.

5.2 In determining the extent of coordination, the competition authorities shall consider:

6

(a) the effective results which coordination could produce;

(b) the additional information to be obtained;

(c) the  reduction  in  costs  for  the  competition  authorities  and  the  economic  agents  involved,
and

(d) the applicable deadlines under their respective legislation.

6.  Consultation  when  important  interests  of  one  Party  are  adversely  affected  in  the
territory of the other Party

6.1 Each Party shall, wherever possible and in accordance with its own legislation, take into
consideration  the  important  interests  of  the  other  Party  in  the  course  of  its  enforcement
activities.  A  competition  authority  which  considers  that  an  enforcement  activity  being
conducted  by  the  competition  authority  of  the  other  Party  under  its  competition  law  may
affect the important interests of the Party it represents should transmit its views on the matter
to  or  request  consultations  with  the  other  competition  authority.  Without  prejudice  to  the
continuation of its action under its competition laws or to its full freedom of ultimate decision,
the competition authority so addressed should give full and sympathetic consideration to the
views expressed by the requesting competition authority, and in particular to any suggestions
as to alternative means of fulfilling the needs and objectives of the enforcement activity.

6.2  A  competition  authority  which  considers  that  one  or  more  undertakings  situated  in  one
Party's territory are or have been engaged in anti-competitive activities of whatever origin that
are  substantially  and  adversely  affecting  the  interests  of  the  Party  it  represents  may  request
consultations  with  the  other  competition  authority,  recognising  that  entering  into  such
consultations  is  without  prejudice  to  any  action  under  its  competition  laws  and  to  the  full
freedom  of  ultimate  decision  of  the  competition  authority  concerned.  The  requested
competition authority may take the appropriate remedial action, in the light of the legislation
in force.

7. Technical Cooperation

7.1.  The  Parties  shall  be  open  to  technical  cooperation  in  order  to  enable  them  to  take
advantage  of  their  respective  experience  and  to  strengthen  the  implementation  of  their
competition law and policies, according to the resources available to them.

7.2.  The  following  cooperation activities  may be included in the programme  to  back  up  the
implementation of the Association Agreement:

(a) training for officials, to enable them to gain practical experience,

(b) seminars, in particular for civil servants,

(c) studies of competition law and policies, with a view to supporting their development.

8. Management of implementing rules

Cooperation  will  be  monitored  and  evaluated  by  the  Internal  Market  Subcommittee
established in the Association Agreement by the Association Council Decision of 24 February
2003.

7

9. Amendment and update of the rules

The  Association  Council  may  amend  these  rules  after  consultation  of  the  competition
authorities.

8