WRITTEN QUESTION E-0806/04 by Antonio Di Pietro (ELDR) to the Commission. Tremonti Law — Mediaset.
Date: 2004-03-15
Institutions: European Parliament, Provisional data
Subjects: Italy, application of EU law, business ethics, communications industry, competition law, dominant position, political morality, private media, tax relief

C 88 E/536

Official Journal of the European Union

EN

8.4.2004

Answer given by Mr Lamy on behalf of the Commission

(1 April 2004)

The Honourable Member can rest assured that the Commission is always ready to protect the
1.
European industry from any imports under unfair and injurious conditions provided that the applicable
requirements of Community’s international obligations and EU law (1) are met.

According to the relevant rules, the implementation of anti-dumping measures requires a formal procedure
starting with a complaint lodged on behalf of the Community industry either in its totality or a major
proportion thereof. It is followed by an investigation carried out by the Commissions’ Trade Defence
Service and may lead to a proposal of anti-dumping measures (e.g. an anti-dumping duty) by the
Commission which has to be adopted by the Council of Ministers.

The Commission is ready to provide the relevant Community producers with any information and help
requested to enable them to lodge such a complaint. In this respect it would like to draw the attention of
the Honourable Member
to its web-site (http://europa.eu.int/comm/trade/policy/dumping/compl.htm)
where a ‘Guide on how to draft an anti-dumping complaint’ can be found.

2. With regard to the protection of the EU market and the European producers, the Commission will
take any appropriate initiative as described in the answer above. However, trade defence based on Council
Regulation (EC) No 384/96 does not aim for the protection of product quality.

The use of copper sulphate in plant protection is governed by Council Directive 91/414/EEC (2). This
provides that a substance can only be used if the Commission, on the basis of the evaluation of a dossier,
has adopted a Directive inscribing the substance in Annex I to Directive 91/414/EEC. For substances that
were already on the market in 1993 (including copper sulphate), national rules continue to apply pending
the Commission Decision. A dossier that was submitted by industry during 2002 in support of copper is
currently being evaluated at Community level. It is expected that a decision will be taken in or before
2006. Should the decision be negative, then all uses of copper in plant protection will have to be
withdrawn. Should the decision be positive, it will include minimum technical standards for purity of
copper (including copper sulphate) to be used in plant protection. It will be binding throughout the
Community.

As the Honourable Member will certainly be aware, there are at present no anti-dumping duties
3.
imposed on copper sulphate. Therefore,
justification for suspecting fraudulent
there is no apparent
trafficking. In order for anti-dumping duties to be imposed, the Community industries affected by this
situation would first have to lodge an anti-dumping complaint as set out in the first part of this reply.

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries
not members of the European Community as last amended by Council Regulation (EC) No 461/2004 of 8 March
2004, OJ L 77, 13.3.2004 (the ‘Basic Regulation’).

(2) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market

OJ L 230, 19.8.1991.

(2004/C 88 E/0548)

WRITTEN QUESTION E-0806/04

by Antonio Di Pietro (ELDR) to the Commission

(15 March 2004)

Subject: Tremonti Law (cid:1) Mediaset

By law No 489 of 8 August 1994 (’Tremonti Law’) the Mediaset company, which operates in the
information and media sector, was granted tax reductions of at least LIT 243 billion. As a direct result of
these reductions, Mediaset has considerably strengthened its own dominant position on the market,
cancelled out huge budgetary losses and been quoted on the stock exchange. The law’s decision-making

8.4.2004

EN

Official Journal of the European Union

C 88 E/537

procedures were, for the most part, established by the head of the media company, who was at the same
time Prime Minister, and hence faced with an obvious conflict of interest. In the restricted television
segment of the market, the Mediaset company is in actual fact the main if not exclusive beneficiary of the
law. The beneficiary’s involvement in the decision-making procedures of the provision or act constitutes a
serious violation of competition law if it occurs, as was undoubtedly the case, ‘in a way which may be
regarded as having affected their outcome, at least where its position on the market is significantly affected
by the measure’ (conclusions of Advocate-General Jacobs, of 21 March 1991, Extramet).

It is also a serious violation of competition law for the company to seek, through its representatives, to
have measures adopted in its favour, with a view to strengthening its dominant position or excluding third
parties from the market (Milan Court of Appeal, 9 to 13 July 1998 and judgment of 22 March (cid:1) 16 June
2000), as was clearly the case here. Conflicts of interest are also extremely prejudicial to the organisations
in which they arise.

Will the Commission explain why it has so far refrained from adopting any measures to protect the media
market in Italy, which has clearly been seriously undermined by the above violations of competition law,
given that the Commission’s failure to act could also, in this particular case, result in it being impossible to
prosecute these violations, thereby causing considerable prejudice to the Community and national markets
and finances?

Answer given by Mr Monti on behalf of the Commission

(30 April 2004)

Following a complaint, the Commission already considered the subject matter of the question and
concluded that there were insufficient grounds to prolong its investigation of the case, given that there was
no indication of a possible infringement of the Community law of competition.

As regards the claim that participation of the undertaking in the decision-making procedures of the law
represents a violation of competition law in view of a conflict of interest, the Commission considers the
following: the Community law of competition does not include any reference to the conflict of interest,
therefore the Commission does not have the legal means to deal with a situation of conflict of interest in
itself, independently of its effect on the market. The Commission, however, can deal with a situation of
abuse of dominance or of State aid.

However, regarding dominance, the mere fact that Mediaset benefited under Law No 489 of 8 August
1994 from tax legislation which is not aimed at Mediaset only, or even at radio and television companies
only, cannot be described as an abuse of a dominant position.

In addition, in the case in question, the conflict of interest is supposed to have altered competition by
means of legislation granting tax relief. Distortions of competition due to advantages granted through State
resources are assessed under the State aid rules of the Treaty. It is consolidated case law that article 87
‘does not distinguish between the measures of State intervention concerned by reference to their causes or
aims but defines them in relation to their effects’. What the Commission has to consider is whether a
the
measure fulfils the Treaty definition of State aid. The elements referred to in the question of
Honourable Member do not show that this is the case and the possibility that a conflict of interest may
have played a part in the drafting of such a measure cannot alter this assessment.

(2004/C 88 E/0549)

WRITTEN QUESTION P-0810/04

by José Ribeiro e Castro (UEN) to the Commission

Subject: Mozambique (cid:1) Nampula (cid:1) murder of a missionary

(8 March 2004)

On 24 February Doraci Edinger, a 53-year-old Brazilian Lutheran Church missionary (for the Igreja
Evangélica de Confissão Luterano no Brasil), who was involved in school- and hospital-building projects
and in well-sinking projects to supply water to the region, was found dead in the flat where she had been
living, in Nampula.