Opinion of the European Economic and Social Committee on the ‘Commission Report XXXIInd Competition Policy Report 2002’ — SEC(2003) 467 final
Date: 2004-01-29
Institutions: European Economic and Social Committee
Subjects: EU law - national law, State aid, amendment of a law, competition law, economic concentration

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EN

Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘Commission Report XXXIInd
Competition Policy Report 2002’

SEC(2003) 467 final

(2004/C 108/19)

On 25 April 2003 the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the: XXXIInd Competition
Policy Report 2002.

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 16 December 2003. The rapporteur was Mr
Metzler.

At its 405th plenary session (meeting of 29 January 2004), the European Economic and Social Committee
adopted the following opinion by 60 votes to 18, with three abstentions.

1. Introduction: General Background

1.1
As Commissioner Monti pointed out in his foreword to
the XXXIInd Competition Policy Report 2002 (hereafter ‘the
report’),
the keynote of Commission competition policy in
2002 was sweeping modernisation. In the field of antitrust,
new procedural provisions were adopted doing away with the
Commission's monopoly on exemptions and decentralising the
application of antitrust measures. In order to improve the effec-
tiveness of controls on business concentrations, especially in
the context of EU enlargement, a proposal was submitted for
amending the merger
In addition, a series of
measures were set in motion to enhance the procedural rights
of the parties in the merger control procedure. In the area of
state aid control, the Commission has continued to work on
streamlining procedures and increasing the transparency of
decision-making.

regulation.

One of the main purposes of European competition
1.2
policy is to promote and protect the interests of consumers,
that is, to ensure that consumers benefit from the wealth gener-
ated by the European economy. The introduction to the report
sets out
the Commission's
competition policy: addressing market failures resulting from
anticompetitive behaviour by market participants and from
certain market structures, on the one hand, and contributing to
an overall economic policy framework across economic sectors
that is conducive to effective competition, on the other.

the twofold broad objective of

numerous individual cases. The total number of new cases in
2002 was 1,019 (below the 2001 figure of 1,036). Of these
new cases, 321 were antitrust cases (284 in 2001), the number
of merger cases decreased further to 277 (335 in 2001) and
the number of state aid cases remained more or less the same
at 421 (417 in 2001). The number of cases closed once more
showed a year on year increase, rising to 1,283 (1,204 in
2001), of which 263 were antitrust cases, 268 mergers and
652 state aid cases.

The report is divided into six sections, dealing with anti-
1.4
trust, merger control, state aids, services of general
interest
(SGIs), international activities and the outlook for 2003. The
following is a summary of the key points of the first five
sections referring to 2002, with the Committee's comments.

2. Antitrust – EC Treaty Articles 81 and 82; State mono-
polies and monopoly rights – EC Treaty Articles 31 and
86

The Treaty establishing the European Coal and Steel
2.1
Community (ECSC) expired in 2002 after 50 years with the
result that the sectors which came under the ECSC are now
subject to the primary and derived legislation of the EC Treaty.

2.2
In December 2002 the Council adopted Regulation No.
1/2003 implementing the competition rules laid down in Arti-
cles 81 and 82 of the Treaty (1), which is intended to replace
the old antitrust regulation No. 17 in force since 1962. The
new rules, which are a radical reform of the old arrangements,
are to come into force on 1 May 2004 to coincide with enlar-
gement.

1.3
The report also provides a comprehensive survey of the
activities of DG Competition in 2002, explains its policy,
describes the various legal acts passed and provides details of

(1) cf. ESC opinion on the White Paper on modernisation of the rules
implementing Articles 81 and 82 of the EC Treaty, OJ C 51/55 of
23.2.2000, and the ESC opinion on the draft Regulation in OJ C
155/73 of 29.5.2001.

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2.2.1
One salient feature of this reform is the shift from a
system of notification and authorisation to one of legal excep-
tion, where companies must verify the conformity of their
agreements with the EC Treaty themselves. Agreements falling
within the scope of Article 81 of the EC Treaty are effective
immediately even when no block exemption regulation applies
– unlike under the notification and authorisation system – as
long as the requirements of Article 81(3) are satisfied. This is a
positive development, as a legal exception system provides
greater protection for competition because the European
Commission can in future concentrate on the cases with
competition policy implications. The legal exception system
relieves businesses of an unnecessary bureaucratic burden.
However, the lack of legal clarity for companies which never-
theless goes along with this change could have been mitigated
if the regulation had given businesses the right to apply for a
reasoned opinion from the Commission in specific, difficult
cases instead of leaving them to rely on informal advice which
the Commission is not obliged to give out. The Commission
must at all events be ready to give an opinion not only in the
case of new factual and legal queries, but also in the event of
major
structural
changes (2).

and major or

investments

irreversible

law will

European antitrust

2.2.2
in future be applied
directly by national competition authorities and national courts
on a decentralised basis, while competition authorities in the
Member States will collaborate closely in a European competi-
tion network with the Commission and with each other.
However, the Committee would like to see the one-stop-shop
principle more firmly established to exclude the possibility of
companies being the subject of antitrust proceedings in more
than one Member State at once. Since the regulation does not
itself contain any detailed criteria for case allocation,
the
Committee recommends that the Commission create the neces-
sary legal certainty for companies by means of relevant guide-
lines (3).

2.2.3
In future it is to be permissible for national law to be
applied alongside EC law, though the application of national
competition rules may not produce an outcome which deviates
from that resulting from the application of EC Treaty Article
81, as pointed out in the Commission report. In the interests of
creating equal conditions and a level playing field in Europe, it
would have been preferable if – contrary to Article 3(2) of
the Commission had also enforced
Regulation 1/2003 -
uniform application of EC law in the case of unilateral conduct.
in prohibitions
law may
For

example, national

result

which deviate from EC law, thus hampering business activity in
Europe.

In order to ensure that EC competition rules continue
2.2.4
to be enforced effectively under the legal exception system, it is
a logical step for the Commission to have extended its powers
of investigation. However, the regulation only partially guaran-
tees companies' rights of defence. Care should be taken to
ensure that the general principles of legal process are respected
in proceedings against companies if they are not explicitly
mentioned in the regulation itself. It would be preferable if the
Commission were to make this clear
it
announced (4).

in the notices

2.2.5
In the Committee's view, it is also important to ensure
the greatest possible transparency when the competition rules
are applied decentrally by national authorities. The Commission
should press for at least all final decisions by national authori-
ties to be published.

2.3
In February 2002 the Commission adopted a revised
leniency policy which is designed to be more predictable for
companies than its predecessor was. The success noted by the
Commission in the antitrust field – some ten different cartels
were discovered in Europe in the first ten months after the
entry into force of the new leniency policy – is evidence that
thought out. The Committee
the new regulations are well
would recommend integrating the directly relevant guidelines
on setting fines if the leniency policy is revised once again. It
would also be preferable for the Commission to take greater
account of the actual damage caused by the infringement of
competition rules and its implications when calculating fines.

In 2002 the Commission made the fight against cartels
2.4
and the handling of antitrust cases a top priority, even more so
than in 2001, adopting a total of nine decisions and imposing
fines amounting to some one billion euros. However, there
were no decisions adopted on the basis of Treaty Article 82.

The report details developments in competition in par-

2.5
ticular industries.

In the energy sector, work is underway on the Accel-
2.5.1
eration Directive and the regulation on cross-border energy
trade which will further liberalise the energy market and are
intended to enhance competition in energy markets while
maintaining the security of supply (5). However, the Commis-
sion was unable to impose an earlier date than 2007 for
complete market opening for private consumers, which has
once again delayed the creation of the common energy market.

(2) cf. ESC opinion on the draft Regulation, OJ C 155/73, point 2.8.2.5
(3) cf. ESC opinion, OJ C 155/73, point 2.10.1.

(4) cf. ESC opinion, OJ C 155ç/73, point 2.12.
(5) cf. ESC opinion the two drafts, OJ C 36/10 of 8.2.2002

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2.5.2
In the postal sector, following a proposal from the
Commission, the Council and the European Parliament adopted
the new postal directive (2002/39/EC) (6), which provides for
further opening of the market by progressively reducing the
reserved area until 2006.

In the telecommunications sector, the Council adopted
2.5.3
a new legal framework consisting of five directives for the ex-
ante regulation of electronic communications networks and
services, overhauling the legal framework for telecommunica-
tions and opening it up to greater competition (7). Particular
attention should be paid to the new definition of the notion of
‘significant market power’ (SMP) in Article 14 of the framework
directive 2002/21/EC in line with the definition of dominance
under Article 82 of the EC Treaty. This deregulation will have
implications for all market players.

In air

transport,

the block exemption regulation
2.5.4
1617/93 was extended in June 2002 and in maritime transport,
the Court of Justice delivered three judgements on the block
exemption regulation 4056/86, which the Commission would
like to revise after 15 years in force in order to simplify it. For
rail transport, the Commission submitted a number of propo-
sals for legislation to integrate national rail networks into a
single European railway area. The Commission is right when it
points out that, even today, there is still no effective competi-
tion in the railway market.

2.5.5
In the media field, the Commission looked at the joint
selling of TV rights to football events, objecting to the confer-
ring of exclusive rights as this increases media concentration
and threatens to stand in the way of competition between
broadcasters.

In the area of

financial services,

2.5.7
the Commission
published a draft block exemption regulation in the insurance
sector in July 2002, which was adopted with minor modifica-
tions on 27 February 2003. Instead of listing the provisions
exempted from antitrust rules, the regulation now only lists
those arrangements which may not be contained in exempted
co-insurance
agreements.
groups is linked to emerging market power. This is consistent
with the business-oriented approach now also followed by the
Commission in other block exemption regulations.

exemption of

Furthermore,

the

In order to promote the information society,

the
2.5.8
Commission continued with its efforts to create an open and
competitive environment for the development of the Internet
and e-commerce. In this context, it was particularly concerned
with Internet access markets and complaints against registry
operators of top-level domain names under Article 82.

2.5.9
is taken up with a discussion of the liberal professions.

A comparatively large amount of space in the report

2.5.9.1
The Committee welcomes the Commission's efforts
to make the liberal professions sector more transparent for
consumers (9). The Commission reports that it has commis-
sioned a comparative economic cost-benefit analysis of the
regulation of liberal professions in the Member States. The
Commission has also entered into discussions with national
competition authorities on the regulation of the liberal profes-
sions. Consultation with national competition authorities, who
are familiar with binding national rules on the liberal profes-
sions, is a welcome first step in this direction. To ensure that
the individual
the process is transparent, representatives of
professions should be consulted for their expert input.

2.5.6
In October 2002, the new motor vehicle block exemp-
tion regulation 1400/02 entered into force. This deals with the
distribution and repair of motor vehicles and the selling of
spare parts, as well as introducing new marketing methods,
such as Internet sales and multi-branding (8). By tightening the
the Commission hopes to create more intense
regulations,
competition between dealers,
to make cross-border motor
vehicle purchase easier and to enhance price competition. The
combination of exclusive and selective distribution and the
enactment of location clauses are no longer allowed under the
new regulation. Whether the Commission's objectives are ulti-
mately achieved depends on future market developments, as
will be ascertained in further market monitoring exercises.
Appropriate steps should then be taken.

(6) cf. ESC opinion on the draft directive, OJ C 116/99 of 20.4.2001
(7) cf. ESC opinion on the five draft directives, OJ C 123/50, C 123/53,

C 123/55 and C 123/56 of 25.4.2001

(8) cf. ESC opinion on the draft regulation, OJ C 221/10 of 17.9.2002

2.5.9.2
The Committee welcomes the application of compe-
tition rules in principle. Since the liberal professions fulfil social
as well as economic functions and are thus subject to binding
legal requirements, the Committee feels that the competition
rules must respect the minimum level of regulation needed to
comply with these binding legal
(‘code of
conduct’). This was confirmed by the judgement of the Court
of Justice in the Wouters case cited in the report. In terms of
integration, the Committee sees a further problem in that disre-
garding the code of conduct of the liberal professions could
prompt those Member States which currently operate a self-
governing model to resort to individual state regulation in
conformity with antitrust law. The result would be greater indi-
vidual state regulation of the liberal professions sector, which
would be detrimental to consumers and the general interest.

requirements

(9) This is also expressed in work on the mutual recognition of qualifi-

cations directive.

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2.5.9.3
The Commission does not question the existence of
self-regulating bodies, but, with a view to the primary objective
of consumer protection, intends to review the grounds for rules
in the areas of fee scales, multidisciplinary partnerships, adver-
tising, soliciting clients and access to the profession. The
Committee would point out that many regulations to do with
the
the liberal professions may also exist specifically for
purpose of consumer protection.

3. Merger control

In 2002 the Commission did not make one prohibition
3.1
decision under merger control
law (cf. five in 2001). Seven
mergers were approved in Phase II (cf. 20 in 2001). Of 275
final decisions, 252 were taken in Phase I, 111 of these in the
simplified procedure.

the Airtours/First Choice decision,

There were three significant judgements by the Court of
3.2
First Instance in which merger prohibition decisions were over-
turned, namely
the
Schneider/Legrand decision and the Tetra Laval/Sidel decision.
The Airtours judgement clarifies what evidence is needed to
prove collective market dominance on the basis of tacit coordi-
nation by companies. The Schneider judgement revealed errors
of analysis and assessment by the Commission, as well as
infringement of the rights of the defence. In the Tetra-Laval
judgement, which the Commission challenged in the Court of
Justice because of its fundamental importance, it was the first
time a European court has been involved in ruling on conglom-
erate mergers, that is, mergers of companies which operate in
different markets.

3.3
The total number of referrals between the Commission
and the Member States has increased. 11 cases were referred
from the Commission to the Member States (cf. seven in 2001)
and for the first time there were two referrals from several
Member States to the Commission.

3.4
It should be noted in particular that the Commission
intends to carry out a reform in the area of merger control. To
this end it submitted the draft of a new merger control regu-
lation in December 2002 (10). At almost the same time it also
published a draft notice on the appraisal of horizontal
mergers (11) and certain best practice recommendations and
other administrative measures designed to enhance transpar-
ency as well as the current internal procedures and systems
within Merger Control. The reason behind this is first and fore-
most, after over twelve years' of practical implementation, to
prepare the Community's merger control
legislation for the
challenges of the coming years (EU enlargement to the east, the
increase in mergers worldwide as a result of globalisation)

(10) cf. ESC opinion on the draft regulation, CESE 1169/2003 of

24.9.2003

(11) cf. ESC opinion on the draft communication, CESE 1170/2003 of

24.9.2003

and to simplify and speed up the merger control procedure as
a whole.

3.4.1
The draft regulation contains some improvements,
which the Committee welcomes, but on other points it falls
the
short of expectations. The proposed simplifications of
investigation procedure are well conceived (12). For example,
the removal of the one-week deadline (notification within a
week of the contract being signed) allows better management
of concentrations for which there also has to be notification
outside Europe. It also allows scope for being able in future to
give notification of a merger as soon as there is a firm intention
to sign a contract. The Committee also supports the Commis-
sion in allowing concentrations to be effected immediately,
where notification may be given through the simplified proce-
dure, rather than only after completion of the investigation
procedure. This is consistent with companies' practical needs.
Another key element of
the reform is the possibility of
extending the investigation procedure in both phases if the
circumstances warrant this. At the same time, care must be
taken to ensure that the strict system of deadlines is in no way
abandoned so as not to compromise the speed of concentra-
tions.

The Committee is pleased to note that, for reasons of
3.4.2
legal certainty, the Commission wishes to stick to the original
market dominance test and not to switch to the substantial
lessening of competition test (13). However, the Committee is
concerned about the broad wording of Article 2(2) of the draft
regulation. The proposed wording of this paragraph is based
on the concrete intention of closing a glaring loophole in the
market dominance test which has supposedly existed up till
now in the case of concentrations in concentrated markets
where market dominance does not arise. According to Article
2(2), one or more undertakings shall already be deemed to be
in a dominant position ‘if, with or without coordinating, they
hold the economic power to influence appreciably and sustain-
ably the parameters of competition,
in particular, prices,
production, quality of output, distribution or innovation, or
appreciably to foreclose competition’. The Committee takes the
view that the new Article 2(2) of the draft regulation does close
up any loophole there might be, but, because of its broad
wording,
intervention threshold,
creating new uncertainties, which call into question the tried
and tested decision-making practice of the European courts and
the Commission. The Committee therefore urges the Commis-
sion to address only the special case of ‘unilateral effects’, but
otherwise to keep to the old notions so as to prevent a loss of
legal certainty for European businesses. (14) The original market
dominance test should therefore be retained.

significantly

lowers

the

(12) cf. ESC opinion on the draft regulation, CESE 1169/2003 of
24.9.2003 , point 3.10, and on the Green Paper on the Review of
the Merger Regulation, OJ C 241/130 of 7.10.2002, point 3.3.1
(13) cf. ESC opinion on the draft regulation, CESE 1169/2003 of
24.9.2003 , point 3.10, and on the Green Paper on the Review of
the Merger Regulation, OJ C 241/130 of 7.10.2002, point 3.2.13
(14) cf. ESC opinion on the draft communication, CESE 1170/2003 of

24.9.2003, point 3.1.4.

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The Committee also welcomes

3.4.3
the Commission's
intention in future to carefully examine arguments about effi-
ciency in its overall appraisal of a concentration. This is the
only way Merger Control can serve the interests of European
consumers in the long term (15). With regard to the relevant
discussions among interested circles, it would also be preferable
for the Commission to take a clear position on the circum-
stances under which increased efficiency achieved through a
merger may exceptionally be held against
the companies
concerned. With no such clarity on this point there is a risk
that companies will continue not to cite efficiency as a motive,
thereby rendering the Commission's new policy ineffectual. (16)

3.4.4
The Commission's efforts to extend more or less the
same powers of investigation and intervention contained in the
new regulation No. 1/2003 on antitrust procedure to merger
control are problematic. The prosecution of antitrust violations
and the investigation of company concentrations are two
different objectives requiring the use of different means. Anti-
trust violations are directly detrimental to third parties and
consumers and are punishable by fines, or in some countries
even with criminal sentences. Merger control is not a question
of confirming an initial suspicion of unlawful conduct and then
prosecuting by the usual methods. In the vast majority of cases,
concentrations are lawful processes, as witnessed by the low
number of prohibitions. The Committee therefore advises the
Commission against making any changes in the area of merger
control, recommending that explicit recognition of the ban on
self-incrimination and other rights of defence enjoyed by busi-
nesses, such as legal privilege for external and internal lawyers,
be written into the text of
the
existing system of fines and penalties should remain in place,
as the fines imposed should be in reasonable proportion to the
gravity of the infringement.

the regulation. Moreover,

States, this proposal is not expected to provide a substitute for
a clear rule on competence.

3.4.6
The Committee wholeheartedly supports the proposed
measures to improve economic decision-making processes in
DG Competition by creating the position of Chief Competition
Economist with his/her own staff. In this way the Commission
is addressing the issue of insufficient economic analysis, which
was the key factor in the three above-mentioned judgements
overturned by the Court of First Instance. The success of this
institutional renewal will depend on the Chief Competition
Economist and his/her staff being involved in the assessment of
individual cases at an early stage and on an ongoing basis.

3.5
The Commission is an active participant in all three sub-
groups of the merger control working group of the Interna-
set up in 2001. The
tional Competition Network (ICN)
Committee sees the Commission's commitment to this as extre-
mely positive. Improving convergence and reducing the public
and private burdens arising from the application of different
merger control systems and multiple notifications by businesses
are a major concern for European enterprises, who wish to
hold their own in global competition. The Committee is very
much in favour of the closest possible alignment of the various
systems and the development of best practices.

4. State aid

3.4.5
The Committee regrets that it has not been possible to
extend the European Commission's competence so that there
will be less multiple notifications in future (17). On the contrary,
with EU enlargement, multiple notifications should be more
frequent, involving a large bureaucratic burden, high costs and
lost time for businesses. On a positive note, the Commission
intends in future to decide within a short time in a preliminary
procedure at the request of companies whether an intended
concentration has Community-wide implications and whether
the Commission is therefore responsible for investigating it. But
the Member
since the decision is within the discretion of

(15) cf. ESC opinion on the Green Paper, OJ C 241/130 of 7.10.2002,

point 3.2.12

(16) cf. ESC opinion on the draft communication, CESE 1170/2003 of

24.9.2003, point 4.7.2.

(17) cf. ESC opinion on the Green Paper, OJ C 241/130 of 7.10.2002,

point 3.1.2

4.1
In 2002, the Commission continued to push ahead with
reform of both procedural and substantive rules in the area of
state aid. One of the main purposes of the reform package is to
streamline procedures and free the process of examining state
aid from an unnecessary procedural burden, thereby facilitating
speedy decisions in most cases and reserving major resources
for the most contentious questions in the area of state aid. The
Commission expects to be able to complete the reform before
enlargement on 1 May 2004. The Committee welcomes the
proposed streamlining of procedures, not least because main
examination procedures have often taken longer than a year in
the past, thus often exposing companies to prolonged legal
uncertainty. However, the Committee feels that the measures
taken to date are insufficient to actually achieve this end and
calls on the Commission to lose no time in announcing the
further measures it has planned so that these can indeed be
implemented for 1 May 2004.

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4.2
Already in 2001, the Commission created the state aid
register and the state aid scoreboard as a basis for discussion
among the Member States on how a reduction of the overall
level of state aid and a redirection of aid towards horizontal
objectives can be achieved. These tools were developed further
in 2002. The Committee welcomes the Commission's efforts to
achieve greater transparency in the area of state aid, which
would seem to be especially important with regard to state aid
in the accession countries. Given that there is provision, after
review by the Commission, for current aid arrangements in the
accession countries to benefit from inventory protection as
‘existing aid’ in the enlarged Community, there must be guaran-
tees that the interest groups concerned are given the opportu-
nity to put their views across beforehand. The Committee also
recommends that
the state aid register, which at present
contains all decisions made after 1 January 2000, should gradu-
ally be extended back in time in order to draw on the Commis-
sion's wealth of experience for future cases.

indeed be responsible for performing SGEIs, and these obliga-
tions must be clearly defined. Secondly, compensation must be
calculable on the basis of objective and transparent parameters
to be established beforehand. Thirdly, compensation is only
allowed to cover the cost of performing the obligations, taking
into account
the revenue earned and a reasonable profit.
Fourthly, the level of compensation should be limited if the
contracts have not been awarded through a competitive award
procedure. The yardstick would be the costs incurred by an
average, well-run company in fulfilling the obligations. Since
compensation which does not fulfil the conditions imposed by
the Court of Justice constitutes state aid, there is still a need for
the proposed clarificatory Community legal framework. The
Committee notes the debate with Member States' experts
ushered in by the Non-Paper of 12 November 2002 and
recommends concluding this debate rapidly, taking account of
the Altmark judgement, in order to establish legal certainty for
European businesses as soon as possible by adopting the neces-
sary clarifications.

4.3
In 2002 the Commission overhauled a series of frame-
works and guidelines. The Committee welcomes the ongoing
clarification and fine-tuning of the rules by the Commission.
The block exemption regulation for employment aid (18)
designed to facilitate Member States'
job creation initiatives
merits particular attention.

The Committee approves the fact that the Commission's
5.2
Green Paper on Services of General Interest, announced in the
report and published on 21 May 2003, begins the review called
for by the Barcelona European Council (2002) into whether the
interest should be
principles governing services of general
further consolidated and specified in a general Community
framework (19).

4.4
Given that the rules on state aid are applied to regional
aid or other assistance in conjunction with the Structural
Funds,
future reports contained an
if
outline of Commission practice in this particular area.

it would be helpful

6. International cooperation

5. Services of general interest

In its report

to the Laeken European Council

5.1
the
Commission had announced a Community legal framework for
aid to companies responsible for providing services of general
economic interest. However, the Court of Justice, contrary to
the case law of the Court of First Instance, has subsequently
decided in the Ferring case that public service compensation
does not constitute state aid when it merely compensates the
companies concerned for services rendered. At
the end of
2002,
it remained to be seen whether or not the Court of
Justice would stand by this change in case law. In its judgement
of the Altmark case of 24 July 2003, the Court of Justice main-
tained the exclusion from the category of state aid recognised
in the Ferring case, but made such exclusion subject to four
far-reaching conditions. Firstly, the company concerned must

In 2002 the Commission continued with preparations
6.1
for the new accessions and enlargement negotiations, verifying
to what extent the accession countries already have functional
competition rules. The only field in which it found there still to
be a certain number of shortcomings was that of state aid
control. In 2002 the Commission included data from the acces-
sion countries in the state aid scoreboard for the first time,
making it accessible to all.

In the context of bilateral cooperation,

it should be
6.2
noted that the Commission and the US antitrust authorities
jointly adopted best practices
for cooperation in merger
control. The Committee considers close cooperation between
merger control authorities in the world's two biggest economic
blocs to be particularly important and positive, as it will lessen
the risk of divergent decisions and reduce the administrative
burden for the companies concerned.

(18) cf. ESC opinion on the draft

regulation, OJ C 241/143 of

(19) cf. ESC opinion on services of general interest, OJ C 241/119 of

7.10.2002

7.10.2002

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7. Conclusions

7.1
The report contains a great wealth of information and a
series of important policy adjustments for European competi-
tion law, affecting both consumers and companies in equal
measure.

The Committee's conclusions may be summarised as

7.2
follows:

— The Committee is in favour of the new antitrust arrange-
ments and the concomitant change to the legal exception
system. However,
the Commission should make some
further improvements to the reforms contained in the
modernisation package, providing greater legal certainty for
companies and more firmly enshrining the one-stop-shop
principle and companies' rights of defence (points 2.2.1,
2.2.2, 2.2.4).

— Greater account should be taken of

the actual damage

caused when calculating fines (point 23).

— Competition rules should allow the degree of regulation of
the liberal professions needed to ensure that their particular
remits and legal obligations are fulfilled (point 2.5.9.2).

— In reforming merger control, the Commission should only
address the special case of ‘unilateral effects’ with the new
version of the market dominance test so as to continue to
ensure maximum legal
companies. The
Commission could increase still further the incentive to cite
arguments about efficiency and should bear in mind with
regard to investigative powers and the level of penalties
for
that merger control and antitrust procedure call
different means (points 3.4.2, 3.4.3, 3.4.4).

certainty for

— The Commission should publish the announced measures
for reforming the area of state aid as soon as possible,
allowing the parties concerned the opportunity to give their
views on the future handling of ‘existing aid’ in the acces-
sion countries. Future competition reports could also
explain Commission practice on state aid law as it relates to
the Structural Funds (points 4.1, 4.2, 4.4).

Brussels, 29 January 2004.

The President

of the European Economic and Social
Committee

Roger BRIESCH