Source: EURLEX
Language: en
Format: md

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| 24.2.2016 | EN | Official Journal of the European Union | C 71/33 |

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Opinion of the European Economic and Social Committee on the report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — Report on competition policy 2014

[COM(2015) 247 final]

(2016/C 071/06)

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| Rapporteur: | Reine-Claude MADER |

On 6 July 2015, the Commission decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the:

Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — Report on competition policy 2014

[COM(2015) 247 final].

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 17 November 2015.

At its 512th plenary session, held on 9 and 10 December 2015 (meeting of 9 December 2015), the European Economic and Social Committee adopted the following opinion by 128 votes to 1, with 1 abstention.

1.   Conclusions and recommendations

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|  | 1.1. | The EESC welcomes the various initiatives taken by the Commission to promote fair competition, which safeguards the interests of economic operators (businesses, consumers, workers). |

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|  | 1.2. | It supports the steps taken by the Commission to ensure compliance with competition rules, including measures to tackle anti-competitive practices such as abuse of dominant position. These hinder the economic development of the EU and particularly that of small and medium-sized enterprises, which play a key role in growth and employment, as well as the development of social economy enterprises which promote social cohesion. |

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|  | 1.3. | It does regret, however, that yet again the Commission has failed to adopt a genuine legal mechanism for collective actions that would provide effective enforcement of the right to damages for those affected by anti-competitive practices. |

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|  | 1.4. | It supports the Commission’s efforts to publicise the rules and make them transparent, which provides stability for businesses and thus the market too. It wishes to point out in this connection that the practices of the retail sector deserve continued attention. |

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|  | 1.5. | The EESC welcomes the impetus given by the Commission to cooperation with national competition authorities (NCAs), which have a key role to play, particularly in terms of prevention and the development of programmes to raise awareness of competition law. It believes that NCAs should have the necessary means to carry out this work. |

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|  | 1.6. | Given the globalisation of trade, the abovementioned cooperation should be extended to the international level so that Europe is not undermined by unfair competition. |

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|  | 1.7. | The Committee would like political dialogue between the different European institutions (EP, EESC, Committee of the Regions) to be bolstered and even reinforced. |

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|  | 1.8. | The EESC supports the changes to State aid rules which have been aligned so as to support innovative enterprises, particularly in the digital domain. This is creating major opportunities in terms of economic development and job creation, benefiting both consumers and businesses. |

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|  | 1.9. | While conscious of the limits of the Commission’s action on tax planning, the EESC would like the Commission to continue to take steps to rectify, limit or put an end to fiscal and social distortions in so far as its powers allow, while ensuring that this does not lead to a race to the bottom. |

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|  | 1.10. | The Committee believes that there should be a strong focus on the energy market. It is in favour of creating a European Energy Union to ensure security of supply and affordable energy prices across the EU. |

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|  | 1.11. | It also attaches importance to measures that contribute to energy-saving, improved energy efficiency and the development of renewable energy. |

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|  | 1.12. | It believes that the measures to open up the energy market should benefit consumers, who lack genuine scope for negotiation. |

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|  | 1.13. | The EESC calls for every effort to be made to provide free access to digital infrastructure so as to enable rural areas to develop. This objective justifies an approach which dovetails private investment and public support. |

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|  | 1.14. | The EESC calls on the Commission to continue to pay particular attention to the provision of financial services for the purposes of financing the real economy and ensuring that consumers can continue to enjoy the best conditions for the services they use. |

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|  | 1.15. | Finally, in the EESC’s view, it is essential to follow up and assess any policy measures taken. |

2.   The 2014 report on competition policy

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|  | 2.1. | Essentially, this annual report focuses on the digital single market, energy policy and financial services. It also raises questions relating to making European industry more competitive, State aid control, promoting a culture of competition inside and outside the EU and interinstitutional dialogue. |

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|  | 2.2. | It highlights the digital economy as a factor that could boost innovation and growth in energy, transport, public services, health and education. To this end, all the tools of competition law have been used to support development and modernisation of infrastructure, including ‘new generation’ broadband networks on the basis of State aid, while preserving the principle of technological neutrality. |

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|  | 2.3. | The smart mobile device market is developing very rapidly, as illustrated by Facebook’s acquisition of WhatsApp following the first examination phase of the merger, authorised unconditionally by the European Commission in application of Merger Regulation (EC) No 139/2004[(1)](#ntr1-C_2016071EN.01003301-E0001) [(2)](#ntr2-C_2016071EN.01003301-E0002). |

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|  | 2.4. | 2014 was another opportunity to see that the application of competition law to the digital sector is characterised by the complex relationship — and the need to ensure a balance with — intellectual property rights deriving from a patent, as illustrated by the Samsung and Motorola[(3)](#ntr3-C_2016071EN.01003301-E0003) decisions, or from copyright, as shown by the opening of formal proceedings against several US film studios and European pay-TV broadcasters in the ‘cross-border access to pay-TV content’ case[(4)](#ntr4-C_2016071EN.01003301-E0004). |

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|  | 2.5. | The report then turns to the energy sector, underlining the need to reform European energy policy. The Commission plans to support infrastructure investment by providing a framework for State aid and simplifying its implementation: the new General Block Exemption Regulation stipulates that, under certain conditions, prior authorisation by the Commission will no longer be necessary[(5)](#ntr5-C_2016071EN.01003301-E0005) for aid for energy infrastructure, aid to promote energy efficiency in buildings and support for renewable energy production, decontamination of polluted sites and recycling. |

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|  | 2.6. | However, aid for nuclear energy is not included in the new guidelines. For this reason it is still being examined by the Commission under Article 107 TFEU, as was the case with UK plans to subsidise the construction and operation of a new nuclear power plant at Hinkley Point[(6)](#ntr6-C_2016071EN.01003301-E0006). |

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|  | 2.7. | Finally, competition policy was used as a tool to lower energy prices by penalising the misconduct and collusive practices of operators such as EPEX Spot and Nord Pool Spot (NPS)[(7)](#ntr7-C_2016071EN.01003301-E0007) and OPCOM in Romania, where it had abused its dominant position[(8)](#ntr8-C_2016071EN.01003301-E0008), the Bulgarian Energy Holding (BEH) in Bulgaria[(9)](#ntr9-C_2016071EN.01003301-E0009), and even Gazprom in connection with upstream gas supplies to central and eastern Europe[(10)](#ntr10-C_2016071EN.01003301-E0010). |

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|  | 2.8. | In 2014, competition policy also sought to improve the transparency of the financial sector and to support better regulation and supervision of the banking sector. |

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|  | 2.9. | For example, the Commission monitored implementation of State aid in Greece, Cyprus, Portugal, Ireland and Spain, whilst ensuring that development banks did not distort competition[(11)](#ntr11-C_2016071EN.01003301-E0011). |

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|  | 2.10. | It also instituted legal proceedings on two occasions against the banks RBS and JP Morgan, which were involved in both an illegal bilateral cartel aimed at influencing the Swiss franc Libor benchmark interest rate and a cartel with UBS and Crédit Suisse on bid-ask spreads of Swiss franc interest rate derivatives in the EEA (European Economic Area)[(12)](#ntr12-C_2016071EN.01003301-E0012). The Commission imposed a fine of EUR 32,3 million[(13)](#ntr13-C_2016071EN.01003301-E0013). |

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|  | 2.11. | Finally, the Commission continued to institute legal proceedings against anti-competitive practices by Visa Europe, Visa Inc., Visa International and MasterCard which were linked to the multilateral interchange fees: the Commission made binding the commitments offered by Visa Europe and at the same time instigated proceedings against Visa Inc. and Visa International in relation to international inter-bank fees. |

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|  | 2.12. | The report also mentions the Commission’s efforts to boost the competitiveness of European enterprises, notably SMEs, by making it easier for them to access funding in the development phase[(14)](#ntr14-C_2016071EN.01003301-E0014) and by supporting research and innovation through a new aid framework establishing a block exemption[(15)](#ntr15-C_2016071EN.01003301-E0015). |

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|  | 2.13. | SMEs are also the main target of the revision of the De Minimis Notice, which provides them with guidance on assessing whether their agreements fall within the scope of Article 101 TFEU prohibiting illegal cartels between undertakings[(16)](#ntr16-C_2016071EN.01003301-E0016). |

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|  | 2.14. | 2014 also saw the Commission paying particular attention to some businesses’ use of differences between Member States’ tax regimes to reduce their tax base; it opened formal investigations into Apple in Ireland, Starbucks in the Netherlands and Fiat Finance & Trade in Luxembourg. |

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|  | 2.15. | Above all, the year marked the tenth anniversary of the application of Regulation (EC) No 1/2003 and the revision of the regulation on merger control[(17)](#ntr17-C_2016071EN.01003301-E0017). In this connection, the report states that progress would be welcome on the independence of competition authorities and on the mechanism enabling them to institute proceedings against — and to penalise — illicit practices. It also stresses the need to further streamline merger control. |

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|  | 2.16. | The Commission also reports that a major achievement in the field of competition policy in the year was the adoption of the Directive on antitrust damages actions which came into force in 2014, arguing that thanks to this Directive, it will be easier for European citizens and companies to receive effective compensation for the harm caused by antitrust violations, such as cartels and abuses of dominant market positions. |

3.   General comments

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|  | 3.1. | The EESC supports digital development policy and initiatives taken to boost innovation and growth. It believes that broadband should be available throughout the EU, which may require the use of State aid accompanied by additional EU funding. The guidelines for the application of State aid rules in relation to rapid deployment of broadband networks should be useful in this connection[(18)](#ntr18-C_2016071EN.01003301-E0018). |

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|  | 3.2. | Moreover, there can be no digital market without a broadband network across the whole EU. The Commission’s objectives are rather modest, given private operators’ lack of interest in certain areas, including rural areas which need support for their economic development. |

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|  | 3.3. | The EESC supports the Commission in its desire to penalise infringements of competition rules: it believes that the size of the penalties should act as a deterrent and that they should be made more severe in the event of a repeat infringement. Furthermore, competition policy should be explained, including to businesses, so as to prevent anti-competitive behaviour. |

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|  | 3.4. | The EESC notes, as the Commission states, that the number of users of smart mobile devices is increasing. Innovation is crucial here, but the ‘rules of the game’ must be drawn up for operators, they must be widely known and should be transparent. The Committee believes that the ubiquity of major international groups, such as Google, has given rise to the risk that a dominant position might be abused and that it is important to enforce the existing rules to allow new operators to enter the market. |

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|  | 3.5. | In addition, the EESC maintains that patent holders must propose patent licence agreements on fair, reasonable and non-discriminatory terms. |

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|  | 3.6. | The Committee supports the adaptation of the legislative framework applicable to copyright in the digital era[(19)](#ntr19-C_2016071EN.01003301-E0019); it must keep up with the times, as the Commission quite rightly points out. |

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|  | 3.7. | As regards the functioning of energy markets, the EESC believes that there can be no economic development without a common energy policy. It therefore welcomes the Commission’s intention to create a European Energy Union. |

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|  | 3.8. | It believes that this Union will be good for businesses and consumers, who should also benefit from reasonable prices and security of supply. |

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|  | 3.9. | The Committee supports the attention paid by the Commission to the energy market with a view to ensuring genuine competition and the steps taken to remove obstacles to competition on these non-regulated markets. It is keen for the Commission to use all means to avoid shortcomings that have repercussions for the economy. |

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|  | 3.10. | Finally, it attaches particular importance to measures that contribute to energy-saving, improved energy efficiency and the development of renewable energy sources and bioenergy. |

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|  | 3.11. | The EESC would like the whole financial sector to behave in a more ethical and transparent way, while at the same time supporting growth. |

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|  | 3.12. | It welcomes the fact that State aid control has contributed to a consistent policy response to financial challenges and helped limit distortions of competition, while at the same time reducing the use of taxpayers’ money to the minimum necessary. It points out that steps taken to consolidate and establish supervision mechanisms as part of State aid control have made it possible to limit certain distortions of competition in the market. |

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|  | 3.13. | The Committee feels that the measures taken by the Commission to reduce the costs of using bank cards, which have led to a 30-40 % reduction in operational costs in the single market, should be highlighted. |

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|  | 3.14. | The announced objective of promoting economic growth is absolutely essential and could be supported by the policy on innovation aid included in the ‘Framework for State aid for research and development and innovation’. |

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|  | 3.15. | In its earlier opinions, the EESC welcomed the Commission’s initiative on State aid modernisation and expressed the belief that the new guidelines[(20)](#ntr20-C_2016071EN.01003301-E0020) were more in tune with the needs of Member States and the realities of the market. It believes that increased transparency will lead to a better understanding of the allocation of State aid. Supervision by the Commission will verify that aid has been allocated in accordance with the rules laid down. Finally, the evaluation will enable Member States to make sure that the allocated aid has been used correctly. |

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|  | 3.16. | The Commission communication on the conditions to promote implementation of European projects, together with the announcement of the creation of the European Fund for Strategic Investments, should help meet this objective. |

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|  | 3.17. | The EESC also welcomes the recognition of the need to grant State aid for the rescue and restructuring of businesses which are in difficulty, but which are viable. It supports measures to put an end to the illegal cartels that undermine development — especially that of SMEs (which create jobs) — and have an impact on employment and prices. |

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|  | 3.18. | The Committee notes that large companies continue to conduct their tax planning in a way that takes account of the subtle differences between tax systems. It welcomes the Commission’s efforts to tackle tax evasion arising from tax distortions, to limit it or put an end to it in so far as its powers allow. |

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|  | 3.19. | The Commission’s efforts to ensure convergence with and between national competition authorities (NCAs) are particularly important. |

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|  | 3.20. | The Committee will closely monitor the follow-up to the White Paper entitled Towards more effective EU merger control, which seeks to improve existing mechanisms. |

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|  | 3.21. | Given the globalisation of trade, the EESC supports the development of multilateral cooperation (OECD, ICN and Unctad), as well as cooperation and technical assistance programmes. |

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|  | 3.22. | DG Competition’s dialogue with the European Parliament, the EESC and the Committee of the Regions must ensure that the interinstitutional debate on policy implementation is transparent. |

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|  | 3.23. | This commitment to dialogue should be maintained, particularly as Mr Juncker emphasised this political partnership in his mission letter to Ms Vestager. |

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|  | 3.24. | Unlike the Commission, the EESC does not believe that Directive 2014/104/EU of the European Parliament and of the Council[(21)](#ntr21-C_2016071EN.01003301-E0021) or the recommendation on common principles for collective redress mechanisms in disputes concerning infringements of competition law are capable of providing the necessary collective redress for the rights of those affected by such violations. |

4.   Specific comments

4.1.   The delicate balance to be achieved between innovation, competition and industrial property rights with a view to creating a connected digital market

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|  | 4.1.1. | According to the Commission, better standard-setting procedures and increased interoperability are crucial if the digital agenda is to be effective. What is meant by ‘better’ standard-setting procedures still has to be established. |

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|  | 4.1.2. | The Motorola case[(22)](#ntr22-C_2016071EN.01003301-E0022), one episode in the ‘smartphone patent wars’, is used as an example for the guidelines to be followed by businesses in the sector. In this particular case, the Commission had decided that Motorola, the holder of GPRS standard essential patents (SEPs), had abused its dominant position by seeking to get and have enforced an injunction against Apple before a German court. These SEPs were considered ‘essential’ because they were vital for the implementation of the GSM standard. Potentially, companies holding a SEP have considerable market power. Therefore, standardisation bodies often require them to commit themselves to licensing their essential patents on fair, reasonable and non-discriminatory (FRAND) terms in order to ensure that all market participants have access to this standard. |

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|  | 4.1.3. | In this instance, without access to the essential patent of which Motorola was the holder, it was not possible for its competitor, in this case Apple, to produce and market a certain category of smartphone. |

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|  | 4.1.4. | It is legitimate for a patent holder to seek an injunction before a national court in the event of that patent being infringed, but this may constitute abusive conduct where the SEP holder has a dominant market position, where it has pledged to grant access on FRAND terms and where the competing business which is the subject of the injunction is prepared to obtain a licence under these FRAND conditions. In spite of this, the Commission did not impose a fine on Motorola owing to the absence of case-law in EU jurisdictions on the legality, under Article 102 TFEU, of SEP-related injunctions and because of the differences in national case-law. However, the Commission did order Motorola to put a stop to its abusive conduct. |

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|  | 4.1.5. | In a similar case, the Commission accepted the commitments offered by Samsung not to seek injunctions in the EEA, on the basis of SEPs for smartphones and tablets, against businesses belonging to a specific licensing framework. |

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|  | 4.1.6. | These cases illustrate that it is very difficult to strike the right balance between competition, patent rights and innovation in pursuing the ultimate goal of enabling the consumer to acquire technological products at a reasonable price, whilst also benefiting from the widest possible choice between interoperable products. |

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|  | 4.1.7. | The EESC supports the Commission’s efforts in this connection and urges it not to lose sight of the fact that the objective of competition is not simply to apply the rules of competition per se, but rather to ensure a form of competition which ultimately benefits the consumer. |

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|  | 4.1.8. | The EESC supports the idea of supplementing private investment with public investment in order to avoid a digital divide within the EU, provided that State aid does not impede private investment. The EU Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks[(23)](#ntr23-C_2016071EN.01003301-E0023) were the first document to be adopted definitively as part of efforts to modernise State aid — a sign, perhaps, of the Commission’s interest in the subject. |

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|  | 4.1.9. | However, the EESC regards as insufficiently ambitious the Commission’s goal of achieving blanket fast broadband coverage (30 Mbps) for services and the adoption of ultra-fast broadband (100 Mbps) services for 50 % of Europeans by 2020. |

4.2.   The energy markets

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|  | 4.2.1. | Ensuring Europe’s energy independence and promoting the creation of an integrated energy market are crucial for access to energy, the abolition of energy islands and security of supply. The EU must have a genuine political commitment to meeting this objective and encouraging diversification of energy sources by promoting renewables. Mr Juncker’s goal of a European Energy Union[(24)](#ntr24-C_2016071EN.01003301-E0024) will undoubtedly play this role of policy catalyst. |

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|  | 4.2.2. | The EESC believes that the third ‘energy package’ must be implemented swiftly, especially as the rules on the cross-border trade in energy remain fragmented. |

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|  | 4.2.3. | The EESC underlines the need to implement without further delay the structural reforms needed to remove barriers to investment in infrastructure, in particular those with a cross-border dimension. |

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|  | 4.2.4. | The EESC is in no doubt that promoting competition rules helps open up domestic energy markets, as demonstrated by the ‘power exchanges’ and ‘OPCOM/Romanian Power Exchange’ cases mentioned in the Commission’s report[(25)](#ntr25-C_2016071EN.01003301-E0025), where the Commission imposed a fine under Article 101 TFEU on two exchanges which had agreed not to compete and to divide up geographical areas between them and another fine on the Romanian power exchange OPCOM, under Article 102 TFEU, for discrimination against electricity traders from other Member States. |

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|  | 4.2.5. | However, the Committee questions the assertion that, while wholesale electricity prices have fallen thanks to increased competition, this has not often led to a reduction in the overall level of prices for final consumers[(26)](#ntr26-C_2016071EN.01003301-E0026). |

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|  | 4.2.6. | In this connection, the EESC supports the Commission’s investigations under Article 102 TFEU on abuse by Gazprom of its dominant position in the supply of natural gas to central and eastern Europe[(27)](#ntr27-C_2016071EN.01003301-E0027). |

4.3.   Financial and banking services

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|  | 4.3.1. | 2014 saw the continuation of the in-depth revision of bank regulation and supervision. The proposed rules seek to make financial markets more transparent. |

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|  | 4.3.2. | The Commission has also ensured that financial undertakings supported by State aid are either restructured or exit the market and has paid particular attention to the risks of distorting competition between such undertakings[(28)](#ntr28-C_2016071EN.01003301-E0028). |

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|  | 4.3.3. | The EESC has followed attentively the Commission’s investigations into anti-competitive business practices and welcomes the decisions taken by the Commission and the national competition authorities penalising ‘interchange fees’. |

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|  | 4.3.4. | The EESC welcomed the ruling of the EU Court of Justice in the MasterCard case[(29)](#ntr29-C_2016071EN.01003301-E0029), confirming the Commission’s analysis. The interbank fees paid by consumers at the time of payment by bank card were indeed increasing in size and number and becoming less and less transparent. |

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|  | 4.3.5. | In addition, these business practices prevented non-bank economic operators from entering the payments market. Such operators would probably have offered consumers other means of electronic, mobile and secure payment — via their smartphones, for example. |

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|  | 4.3.6. | The particularity of the MasterCard case also stemmed from the fact that the restriction engendered by the mechanism for setting multilateral interchange fees was an effect of that mechanism and not the objective. |

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|  | 4.3.7. | The EESC welcomes the fact that the Court of Justice, like the General Court, found that multilateral interchange fees were not objectively necessary for the operation of the MasterCard system. |

4.4.   Further support for SMEs

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|  | 4.4.1. | The EESC welcomes the attention paid to SMEs, which play a fundamental role in growth and an important role in meeting the Europe 2020 targets. It endorses the Commission’s decisions to support the financing of their operations and adapt the rules to their specific needs. |

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|  | 4.4.2. | The EESC appreciates that these policies signal an openness towards the intellectual professions and recognises the crucial role Europe’s professionals play in growth by providing, sector by sector, the vital contribution of knowledge needed to solve the complex problems faced by the public and businesses. The EESC also recommends that the Commission continue, and if possible redouble, efforts in this direction. |

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|  | 4.4.3. | For example, the guidelines on State aid to promote risk finance investments[(30)](#ntr30-C_2016071EN.01003301-E0030) could enable Member States to make it easier for SMEs to access finance in their start-up phase. Moreover, they seem to have been designed to be more attuned to the realities of the market. |

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|  | 4.4.4. | It also supports the measures taken by the Commission to tackle abuses of dominant position that could hinder the creation and development of SMEs and affect their activities. |

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|  | 4.4.5. | The 2014 De Minimis Notice[(31)](#ntr31-C_2016071EN.01003301-E0031) provides a safe harbour for such agreements with no tangible effect on competition, as they are implemented by companies which do not exceed certain market share thresholds. The Commission has also published a guidance document for SMEs. However, the EESC believes it would be a good idea to publicise information at grassroots level. |

4.5.   Boosting the means available to NCAs and international cooperation

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|  | 4.5.1. | The EESC welcomes the quality of cooperation between the Commission and NCAs. It believes that this cooperation ensures the interaction which is essential if the market is to function smoothly. |

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|  | 4.5.2. | It supports all measures required for cooperation with NCAs, which means that they must have resources and must be independent. |

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|  | 4.5.3. | The EESC approves of the Commission’s initiatives to create a genuine European area of competition, which implies that the basic rules of national law must be harmonised, since this safeguards economic activity in the single market. |

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|  | 4.5.4. | It also believes that Member States need to have a comprehensive set of legal tools to conduct the necessary inspections and to impose effective and proportionate fines. |

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| --- | --- | --- |
|  | 4.5.5. | Leniency programmes which have proved their worth in the fight against cartels must also be rolled out across all Member States. |

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| --- | --- | --- |
|  | 4.5.6. | There must continue to be active multilateral cooperation with the OECD, the International Competition Network and Unctad and the Commission should seek to play a leading role in this connection. |

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| --- | --- | --- |
|  | 4.5.7. | Finally, the EESC stresses that technical assistance should play a greater role in accession talks with candidate countries. |

Brussels, 9 December 2015.

The President of the European Economic and Social Committee

Georges DASSIS

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