Opinion of the European Economic and Social Committee on the XXXIIIrd Report on Competition Policy — 2003 (SEC(2004) 658 final)
Date: 2005-02-09
Institutions: European Economic and Social Committee
Subjects: State aid, competition policy, dominant position, economic concentration, international cooperation, report

8.9.2005

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II

(Preparatory Acts)

EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

414th PLENARY SESSION, HELD ON 9 AND 10 FEBRUARY 2005

Opinion of the European Economic and Social Committee on the XXXIIIrd Report on Competition
Policy — 2003

(SEC(2004) 658 final)

(2005/C 221/01)

On 4 June 2004, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the XXXIIIrd Report
on Competition Policy — 2003

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 11 January 2005. The rapporteur was Mr Chir-
iaco.

At its 414th plenary session, held on 9 and 10 February 2005 (meeting of 9 February), the European
Economic and Social Committee adopted the following opinion with 75 votes in favour and one absten-
tion:

1. Introduction

The 2003 annual

report highlights changes to the
1.1
internal organisation of the sector and to the working methods
of the Commission, and documents the way the Commission
secures coherence within the fabric of European economic
governance.

EU competition policy plays an important

role in
1.2
achieving the competitiveness goals set out
in the Lisbon
strategy. It encompasses not only antitrust and merger rules,
but also the application of an efficient and firm state aid disci-
pline.

1.3
To enable trouble-free accession for the 10 new Member
States, the Commission developed a common set of competi-
tion rules for all the Member States, to ensure fair application
of state aid rules, highlighting the importance of tackling state
same
intervention which distorts
commitment as is applied to company law.

competition, with the

concern of competition policy, but whose voice is not suffi-
ciently heard when individual cases are handled or policy issues
discussed. The role of
the consumer liaison officer is not
confined to merger control, but also concerns the antitrust field
— cartels and abuses of dominant positions — as well as other
competition-related policies.

1.5
In October 2003, the European Commission published
draft rules and guidelines on technology transfer licensing
agreements, on which the EESC has already issued an
opinion (1). The proposed reform takes into account develop-
ments in this type of agreement in recent years and is aimed at
simplifying and broadening the scope of the Community block
exemption regulation. The new provisions offer the following
advantages:

— the block exemption regulation will have only a black list:
whatever is not explicitly excluded from the block exemp-
tion is now exempted;

— a clear distinction is drawn between agreements between
competitors and agreements between non-competitors;

In 2003, 815 new cases of competition law infringe-
1.4
ments were recorded, and measures included the establishment
of the post of consumer liaison officer to ensure a permanent
dialogue with European consumers, whose welfare is the prime

— there are already plans to adopt a ‘modernisation package’.

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1.6
The Commission appointed a chief competition econo-
mist to take up office on 1 September 2003, while also giving
a positive boost to the role of the hearing officer. The chief
economist has three main tasks:

complaints, and guidance letters to be issued to assist compa-
nies in assessing novel or unresolved questions. For comments
on the modernisation package as a whole, the reader is referred
to the EESC opinion (1).

— to provide guidance on economics and econometrics in the
this may include
application of EU competition rules;
contributing to the development of general policy instru-
ments;

— to provide general guidance in individual competition cases

from the early stages;

— to provide detailed guidance in the most important compe-
tition cases involving complex economic issues, in particu-
lar those requiring sophisticated quantitative analysis.

1.7
Hearing officers, meanwhile, have been granted greater
powers and autonomy in the role of defending the right to be
heard in certain competition proceedings. They are directly
answerable to the commissioner responsible and do not take
instructions from the Competition DG. They may intervene
whenever legitimate due process issues are at stake, must orga-
nise and conduct oral hearings objectively, and decide whether
third parties should be heard and whether fresh documents
may be produced. They refer to the relevant Commissioner on
all issues.

electrical

involving:

agreements,
and mechanical

In 2003, the Commission issued five decisions against
2.3
French beef,
unlawful horizontal
sorbates,
carbon and graphite
products, organic peroxides, and industrial copper tubes. The
fines imposed totalled EUR 400 million. The level of fines set
should act as a deterrent.
Investigations involve company
inspections. Full
immunity is granted to companies that are
first to reveal the existence of an agreement and that provide
sufficient evidence to carry out an investigation. The Commis-
sion will express a favourable opinion in cases where agree-
ments between companies do not restrict competition on the
relevant markets, and where consumers benefit from the coop-
eration. Also in 2003, the Commission ruled on three cases of
violations of Article 82, relating to:

— the rates imposed by Deutsche Telekom AG on competing
companies for access to the local infrastructure of its tele-
communications network,

— Wanadoo's pricing strategy for ADSL services, and

— the abuse of a dominant position by Ferrovie dello Stato
SpA in markets for access to the rail network, traction and
passenger services.

2. Application of antitrust rules — Treaty Articles 81 and

82

3. Competition policy developments at sectoral level

2.1
In October 2003, the Commission launched the final
phase in the process of reforming the enforcement of EU anti-
trust rules (known as the modernisation package) to facilitate
the application of
the enforcement powers vested in the
competition authorities and to elaborate on the cooperation
mechanisms with national competition authorities (NCAs) and
national courts provided for by Regulation 1/2003.

3.1
2003 brought significant, though not entirely satisfac-
tory, progress for the liberalisation process in the energy sector
(electricity and gas). In June, a legislative package was passed
ensuring that all European consumers will be able to choose
their supplier by 1 July 2007. These provisions aim to strike a
balance between incentives to build new infrastructure and the
completion of the common market.

2.2
The modernisation package contains a new imple-
menting regulation, addressing the modalities for hearing the
parties concerned and a range of other procedural issues, such
as access to files and the treatment of confidential information.
The six draft notices concern in part mechanisms for coopera-
tion within the network of European competition authorities
and between the Commission and national courts, the concept
of effect on trade between Member States, the treatment of

there is

Nevertheless,

3.2
still widespread dissatisfaction
among consumers and companies in various EU countries
regarding the persistently high prices and relative efficiency of
these services. In the new Member States in particular, social
partners and consumer organisations strongly emphasise the
need for national competition authorities and public utility
regulators to be guaranteed full independence.

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it is sometimes the case,

3.2.1 When appropriate and comprehensive competition
legislation is in place,
in the new
Member States in particular, that monitoring and enforcement
agencies encounter difficulties in fulfilling their role indepen-
dently. As a result, competition legislation sometimes fails to
promote either consumer interests or market efficiency. The
Committee is in favour of a more functional relationship
between competition policy and consumer protection policies.
A more organised and involved consumer movement could
also aid government decision-making, and provide information
on markets and anti-competitive practices.

3.5.2
In addition, there have been developments in industry
dialogue in the maritime transport, motor vehicle distribution
and insurance sectors, with a view to adopting or revising
block exemption regulations.

3.5.3
of tax treatment.

This dialogue should also consider comparable forms

3.3
In the field of postal services, the directive adopted in
2002 is geared towards completion of the internal market, in
particular through a progressive reduction of the reserved area
and the liberalisation of outgoing cross-border mail. Further-
more, on the basis of an agreement reached by the European
Council, the Commission will carry out a study in 2006 to
assess the impact of universal services for every Member State.
Working from the results of that study, it will adopt a proposal
to open up the postal market completely from 2009, including
measures to secure the universal nature of the service.

to both the development of

3.6 Media: the Commission believes that media pluralism is
fundamental
the EU and the
cultural identity of the Member States, but stresses that respon-
sibility for the control of media concentration rests primarily
with the Member States. The application of competition policy
instruments is limited to addressing the structure of the under-
lying market and economic impact of media undertakings'
behaviour, and to controlling state aid. They cannot replace
national media concentration controls and measures to ensure
media pluralism. The function of competition rules is limited to
resolving problems raised by the creation or strengthening of
dominant positions in the respective markets and the foreclo-
sure of competitors from those markets.

for

The deadline

3.4
transposing the new regulatory
package on electronic communications expired in July 2004. In
its report on the subject, the Commission stressed the following
principles in particular: markets must be analysed on the basis
of the principles of competition; operators can be regulated
only if they have a dominant position; all electronic communi-
cations services and networks are to be treated in a similar
manner (technological neutrality). Development of, and general-
ised access to, electronic communications are not enough in
themselves to secure the relaunch of economic growth. For
that it is fundamental to increase the knowledge and skills
levels of all those required to use information and communica-
tion technologies.

It can be seen that

3.6.1
the Commission's approach,
though correct in theory, has not been able to prevent or
oppose dominant positions and the related anti-competitive
practices in certain countries in particular. Different markets
are concerned, and the television advertising market, not yet
adequately examined,
increasing importance when it
comes to protecting pluralism.

is of

3.6.2
Furthermore, the methods some media groups use to
strengthen a dominant position have been overlooked, in par-
ticular the use of poison pills and multiple voting rights which
permit a minority shareholder to control a company through
voting rights in excess of their shareholding.

In the air transport sector,

3.5
in 2003 the Commission
decided to launch a comprehensive and non-case-related
dialogue with all the industry stakeholders, in order to prepare
transparent guidelines on competition enforcement issues in
the field of airline alliances and mergers.

3.6.3
The Commission will therefore have to be exception-
ally vigilant in the application of competition rules and prac-
tices.

3.5.1
Progress has also been made on defining and imple-
menting common guidelines on the application of antitrust
rules in the rail sector for both goods and passenger transport.

3.7
Liberal professions: A study carried out for the Commis-
sion by the Vienna-based Institute for Advanced Studies (IHS)
has been made accessible to the public. The study reveals
service provision among
differing levels of
Member States and among the various professions. The study
concludes that
in countries with less regulation and more
freedom in the professions, more wealth can be created overall.

regulation of

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3.7.1
The conference on the regulation of professional
services held in Brussels in October 2003 brought together
260 representatives of the professions to discuss the effects of
rules and regulations on business structure and consumer
protection.

concept of dominance, only to the anti-competitive effects of a concen-
tration resulting from the non-coordinated behaviour of undertakings
which would not have a dominant position on the market concerned.’.
It follows that the scope will continue to be defined in relation
to the concept of dominance.

3.7.2
At the conference, Commissioner Monti announced
the Commission's intention to issue a report on competition in
professional services in 2004. This report, which contains
some important pointers and guidelines, was published on 9
February 2004.

4. Reform of the merger control system

On 27 November 2003, the Council reached a political
4.1
agreement on a recast Merger Regulation incorporating most of
the reforms proposed by the Commission in December 2002.
These reforms involved non-legislative measures designed to
streamline the decision-making process, strengthen economic
analysis and provide better protection for the rights of defence.
In addition, a chief competition economist was appointed and
panels set up to ensure the conclusions are totally independent.
On the subject of merger evaluation, the reader is referred to
the EESC opinion on the Proposal for a Directive of the European
Parliament and of the Council on cross-border mergers of companies
with share capital (1).

Objective:

to ensure that

the substantive test

4.2
in the
Merger Regulation (dominance test) would cover all anti-
competitive mergers effectively while at the same time ensuring
continued legal certainty. The substantive test criteria were
compared with those of the ‘substantial lessening of competi-
tion’ test and the terms of the new test adopted are as follows:
‘a concentration which would significantly impede effective
competition, in the common market or in a substantial part of
it, in particular as a result of the creation or strengthening of a
dominant position, shall be declared incompatible with the
common market’.

i.e. mergers
4.3
Guidelines on assessing horizontal mergers:
between competing, or potentially competing,
firms. These
mergers will only be unlawful to the extent that they enhance
the market power of companies in a manner which is likely to
have adverse consequences for consumers, notably in the form
of higher prices, poorer quality products, or reduced choice.
This is irrespective of whether the anticompetitive effects result
from the creation or strengthening of a single dominant market
player or from a situation of oligopoly. The impact of a merger
will, moreover, be assessed in relation to what would otherwise
have occurred in the market. This may mean, for example, that
the acquisition of a failing firm would not justify intervention
by the Commission.

New best practices: as part of

4.4
the 2002 package of
reforms, a consultation was held and completed in February
2003. The aim was to provide guidance for interested parties
on the day-to-day conduct of EU merger control proceedings.

5. International cooperation

5.1
The Commission is an active participant in the Interna-
tional Competition Network's Working Group on multi-juris-
dictional merger control. The group's activities have been in
three sub-groups:

— notification and procedures,

— investigation techniques,

— analytical framework.

4.2.1
The new regulation, in stating ‘in particular as a result of
the creation or strengthening …’ hints at potential for enlarging
the scope of application of the ban, no longer strictly linked to
the requirement of a dominant position. Nevertheless, this rule
will have to be interpreted in the light of the content of the
joint Council and Commission declaration on Article 2 with
reference to the 25th recital to the Regulation (2), which states
that this concept ‘should be interpreted as extending, beyond the

(1) OJ C 117 of 30.4.2004
(2) Council Regulation 139/2004, of 20.1.2004

5.1.1
The Commission takes part in the work of all three
sub-groups. The basic aim is to improve mutual understanding
between different jurisdictions so as to make merger control
activities more effective.

5.1.2 More generally,
the ICN acts as a virtual network
between various national competition authorities, with a view
to facilitating international cooperation and making proposals
to reduce regulatory costs and encourage procedural harmoni-
sation and real convergence.

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5.1.3
The Second ICN Conference held in Merida, Mexico in
June 2003 highlighted the need to adopt clear and easily acces-
sible language in the area of competition rules and also stressed
the strategic nature of activities promoting competition in the
field of regulated sectors, with a view to reducing regulatory
costs and overcoming obstacles to a mutual understanding of
merger policy between jurisdictions.

6.3 Multisectoral Framework for large investment projects: strict
rules in sectors with structural difficulties. A list of such sectors
was to have been established by the end of 2003. Due to meth-
the Commission has
odological and technical difficulties,
decided to postpone the adoption of the list and to extend the
existing transitional rules for large investment projects in ‘sensi-
tive’ sectors until December 2006.

6.4
R&D aid for SMEs: aid for research and development can
contribute to economic growth, strengthening competitiveness
and boosting employment. For SMEs, this is particularly impor-
tant.

6.5
training
Environmental aid, research and development aid,
aid, fiscal aid In the latter field, special attention has been given
to alternative taxation methods, such as the cost-plus method
(taxable income calculated on a flat-rate basis as a percentage
of the amount of operating expenditure and expenses). In the
field of sectoral aid (see in particular the application of the
temporary defensive mechanism (TDM)), the following sectors
have been addressed: steel, telecommunications, coal, rail trans-
port, combined transport, road transport, maritime transport
and air transport.

Agriculture: on 23 December 2003,

6.6
the Commission
adopted a new regulation introducing a block exemption
regime for certain categories of state aid, meaning that Member
States no longer need to notify them in advance to the
Commission for approval. The new regulation, which will
apply until the end of 2006, concerns state aid granted to
SMEs in the agricultural sector. In view of the definition of an
SME (no more than 250 employees, a turnover of no more
than EUR 40 million or a balance-sheet total of no more than
EUR 27 million), the provisions cover almost all agricultural
sector enterprises. Lastly, the Commission is introducing a new
transparency standard: a summary of all exempted state aid
measures, by Member State, will be published on the Internet
five days before the aid is first paid out, so as to ensure all
interested parties have all the necessary information.

6. State aid

6.1
The control of state aid focuses on the effects on compe-
tition of aid measures granted by Member States to undertak-
ings. Objective: to ensure that government interventions do not
interfere with the smooth functioning of the internal market, to
foster competition and competitive markets and to enhance
structural reforms. Particular attention is given to ensuring that
the beneficial effects of liberalisation are not undermined by
state aid measures. Stockholm European Council: Member States
are to reduce the general
it
towards horizontal objectives of Community interest (strength-
ening of economic and social cohesion, employment, environ-
mental protection, and promotion of SME R&D). The Commis-
sion considers the recovery of unlawful aid granted by Member
States a priority.

level of state aid and redirect

6.1.1
In this context, the failure of a number of Member
States to open up their public purchasing to bidders from other
Member States is highly regrettable. Public procurement in the
EU totals over EUR 1,500 billion annually and certain Member
States' practice of favouring ‘national champions’ harms compe-
tition and adds to the tax burden on consumers.

6.2
State aid for rescuing and restructuring firms in difficulty: The
relevant guidelines, which expired in October 2004, stated that
aid may be regarded as compatible only under certain strict
conditions. These guidelines have been reviewed, with a special
focus on the following issues:

— ensuring that rescue aid is limited to reversible, temporary,
short-term financial support which is granted only for so
long as is necessary to put a comprehensive restructuring
plan into effect;

— focusing state aid control on large enterprises that trade

7. General assessment

across the EU;

— reinforcing the principle, in particular in the case of large
enterprises, that the aid recipient is obliged to finance a
large part of the restructuring cost without any state aid;

— applying the ‘one time, last time’ principle.

7.1
Having summed up and offered some comments on the
Commission's XXXIIIrd report on competition policy in 2003,
the Committee will now make a number of general observa-
tions on the report as a whole and in particular on its most
significant, forward-looking aspects.

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7.2 Relationship between competition policy and economic growth

policy

7.2.1
The introduction of new procedures for applying anti-
trust rules, the review of the Merger Regulation and the new
organisational set-up in the Commission have made the Euro-
pean Union's competition policy more efficient and more open
to a positive relationship with companies and consumers.

Competition policy has enabled the EU to make
7.2.2
considerable steps forward in the liberalisation process, by
restoring entire economic sectors to the logic and dynamic of
the market and thus making a practical contribution to the
creation of a single European market. Competition policy is
therefore essential and must always be allowed full autonomy.

7.2.3 Working alone, it cannot however meet the particu-
larly acute need throughout the EU for an intense upturn in
growth and for a sustainable economic development policy
based on innovation and social dialogue. Structural changes in
production and world trade, starting with those generated by
the new technological system, require the Commission to
launch and coordinate other economic policy instruments. The
goal is to safeguard and revive the competitiveness of the Euro-
pean economy and to bolster economic and social cohesion,
employment
also
development
promoting major, weighty
programmes. This is the thrust of the Commission's communi-
cation on Fostering structural change: an industrial policy for an
enlarged Europe and the relevant EESC opinion (1). The Lisbon
Its implementation must
agenda outlines the way ahead.
however be facilitated and speeded up at both general and
sectoral levels.

protection while

environmental

research

and

and

level,

At sectoral

7.2.3.1
in confirmation of the points it
made in its opinion of 30 June 2004 on LeaderSHIP 2015 —
Defining the Future of the European Shipbuilding and Repair Industry
— Competitiveness through Excellence (2), the EESC would reiterate
the need to push forward with the new fully integrated
approach defined by the Competitiveness Council of November
2003 with a view to strengthening industrial competition and
encouraging all sectors of research, development and innova-
tion.

number of measures adopted by the Commission, such as
extending to a degree the scope of aid to research and develop-
ment; producing guidelines on technology transfer agreements,
on restructuring companies in difficulty, and on aid for training
and for environmental protection; and establishing multisec-
toral rules for major investment projects.

7.3.2 With its judgment on the Altmark case in July 2003,
the Court of Justice confirmed that compensation to companies
responsible for providing services of general
interest will be
excluded from the definition of state aid, subject to a few
conditions. There are still some unresolved issues, however,
relating in particular to establishing an optimal link between
state aid and services of general interest (SGI). The nature of
the conditions imposed by the Court demands an improvement
in legal certainty, particularly in the area of assessing costs,
defining financing for services (1) and specifying more clearly
the public service obligations eligible for compensation. Mean-
while, the Green Paper on services of general
interest (SGI),
published in May 2003, had already acknowledged the need to
assess whether the principles governing SGI should be further
consolidated within a general Community framework, and to
define optimal rules for the services and measures, in order to
increase legal certainty for all operators.

If

7.3.3
they are not correctly defined and financed,
universal service obligations could cause the companies respon-
sible to suffer increasing losses, owing to the potential entry of
competitors into the most profitable areas of their activity.

7.3.4
The EESC would therefore stress the need, already
highlighted in its opinion (3) on the Commission's Green Paper,
to adopt a clear legal text on SGI in order to secure effective
and fair access for all users to high quality services that meet
their requirements. Furthermore, it recommends instigating as
broad as possible a dialogue with the social partners and
NGOs, particularly regarding the reorganisation and func-
tioning of social services.

7.4 Liberal professions

7.3 State aid and services of general interest

The

reform process designed to streamline and
7.3.1
simplify procedures for the control of state aid has made major
progress, following the course set by the Stockholm European
Council towards reducing the level of state aid and redirecting
towards horizontal objectives of Community interest,
it
this are a
including the cohesion objectives. Examples of

7.4.1
The in-depth analyses carried out by the Commission
on the regulatory systems for professional services in the
Member States have proved very useful, as they have reinforced
the message on the need to carefully review the restrictive regu-
lations in this field and to make the major cultural and knowl-
edge-related resources existing in the professional world more
productive and competitive. This clearly brings major benefits,
not just for the professionals themselves, but also for firms and
consumers.

(1) OJ C 157 of 28.6.2005.
(2) OJ C 302 of 7.12.2004

(3) OJ C 80 of 30.3.2004

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are fundamental objectives of the European Union as values
crucial to the democratic process. It also states that responsi-
bility for the control of media concentration rests primarily
with the Member States. The application of competition policy
instruments in the media sector, it adds, is limited to addressing
the problems raised by the creation or strengthening of domi-
nant positions in the respective markets and the control of
foreclosure of competitors from those markets. In the EESC's
opinion, the distinction between the EU's tasks and those of
national governments is somewhat vague, and also leaves a
number of important issues unresolved:

— It should be noted that in the various Member States there
are differing regulations and approaches requiring harmoni-
sation: the Commission began the process in 1989 and
then continued in 1997 with the Television without Fron-
tiers directive, whose objectives were not only economic
efficiency but also respect for cultural diversity, protection
of minors, right of reply, etc.

— A distinction must be drawn in the media field between
general antitrust rules and rules specifically designed to
defend the pluralism of information. Operational competi-
tion rules are a basic condition for promoting pluralism,
but not enough in themselves. Unlike a competitive system
in which the market power of each company must face up
to the initiative and activities of competing companies, the
promotion and defence of pluralism demands the explicit
recognition of the public's right to have effective access to
independent sources of information and to alternative and
potentially differing information, a right
that should be
protected at all levels.

— Lastly, the process of the gradual convergence between tele-
communications, IT, radio, television and publishing makes
it difficult to pinpoint the structures of the various markets.
The danger of failing to properly understand this process is
that the competition rules will be diminished and the prin-
ciple of pluralism weakened.

The new European Constitution will

7.5.2
significantly
expand the Commission's brief. The EESC is convinced that the
inject additional vigour into the
new legal
Commission's role in guiding and/or intervening directly to
defend and develop the freedom and pluralism of information.

framework will

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

7.4.2
The principle repeated several times by the Court of
Justice is now generally accepted, namely, that suppliers of
professional services must also respect competition rules. While
it is absolutely true that economic criteria cannot be the only
parameter by which professional services are assessed, as they
are not simply repetitive technical applications but rather
services that apply knowledge to a problem, it is also true that
they are an economic activity which, when carried out with
respect for competition rules, generate greater welfare and can
make an important contribution to the Lisbon agenda.

is

the European economy,

The content of the Commission Communication on
7.4.2.1
Competition in Professional Services (1)
interesting in this
respect. This report in fact underscores the important role the
professional services can play in improving the competitiveness
of
inasmuch as they are essential
inputs for companies and families. At the same time, it uses
empirical research to argue the negative effects that excessive
or outdated regulations, such as those regarding pricing, adver-
tising, entry requirements, exclusive rights and business struc-
ture, can and do have on consumers.

7.4.3
The priority is therefore to implement and accelerate
the reform process. To this end, the EESC urges the Commis-
sion to stand by its commitment to publish a new report on
‘progress in eliminating restrictive and unjustified rules’
in
2005.
In this context, the Commission has also committed
itself to looking more closely at the link between the level of
regulation, economic results (prices and quality) and consumer
satisfaction.

the Court of

7.4.4 Meanwhile, the EESC would reiterate the importance
Justice ruling of 9 October 2003 on the
of
Consorzio Industria Fiammiferi case, which allows the national
authorities to ‘disapply’ national rules obliging companies to
engage in conduct contrary to Article 81.

7.4.5
Lastly, efforts must be made to promote greater and
more informed involvement in the reform process on the part
of the sectors concerned.

7.5 Plurality of information and competition law

In its XXXIIIrd report on competition policy,

the
7.5.1
Commission states that maintaining and developing media
pluralism and the freedom to provide and receive information

Brussels, 9 February 2005.

(1) COM(2004) 83 final of 9.2.2004