In a speech last night to the Centre for European Policy Studies, Sir Leon Brittan, EC Competition commissioner, announced plans to increase subsidiarity and accelerate procedures in the handling of competition cases. Subsidiarity Sir Leon announced how he believes the Community's competition policy should react to the entry into force of the Maastricht Treaty, which confirms that subsidiarity is one of the basic principles of EC law. Sir Leon has suggested that the following actions could be taken in order to refine further the balance between the Commission and the national competition authorities to ensure that every single case is dealt with by the body best placed to handle it. Complaints: Many of the complaints received by the Commission concern exclusively or almost exclusively a single member state. Such matters can be dealt with perfectly adequately by national authorities or national courts, either directly applying Articles 85 and 86 or under domestic competition law. Thus, where there is no important Community interest at stake either in economic terms or in relation to important questions of legal precedent, and adequate redress is available at national level, the complainant will be referred to the national authorities. In order to help national judges apply Community law, the Commission will also issue a Notice before the end of this year clarifying the rights and obligations of national courts in Article 85 and 86 cases. This Notice will explain that the Commission, and in particular DG IV, intends to play a pro-active role in encouraging and assisting national courts in applying Community law. For example, when requested, DGIV will assist national judges by providing facts and data that will enable them to give accurate and speedy relief. Together with our policy of dealing with complaints only where they raise issues that cannot adequately be addressed in national courts, the Notice should provide a catalyst leading to wider implementation of the Community competition rules at national level. Exemptions: Sir Leon also considered very carefully the question of whether national competition authorities and courts should now be allowed to grant individual exemptions from the EC's ban on illegal agreements (Article 85.1). This would have several benefits, but the time is not ripe to take such a step. At present, there is too great a risk that this would encourage the divergent application of EC law, and would lead to "forum shopping". Mergers: The EC's Merger Regulation, which is to be revised by the end of next year, is living proof that subsidiarity is already working successfully in EC competition policy. However, the thresholds are currently too high to cover all mergers with an EC-wide dimension. DGIV is presently carrying out a detailed analysis of mergers and acquisitions that have already taken place. Proposals should then be made to amend the thresholds, solely on the basis of statistical evidence. If the thresholds are lowered, if would be appropriate to make as flexible as possible Article 9, the provision by which a member state can ask the Commission to refer a case back to it, thereby ensuring that all 'purely national' mergers are controlled at national level, in line with subsidiarity. In particular, if the thresholds are reduced, the requirement should be removed that only cases which threaten to create or strengthen a dominant position may be referred. Furthermore, where it is clear from the outset that the operation can only have effects limited to a single Member State, the Commission could also involve the national authorities before mergers were notified, and could pass on its own file as a basis for examination of a merger at national level. Lastly, subsidiarity would seem to plead for the maintenance of the right of member states to refer a case to the Commission (under Article 22.3) if it falls below the thresholds of the Merger Regulation. Indeed, subsidiarity pleads for the widening of this provision to enable Member States, in cases falling below the thresholds but which have economic effects in a number of countries, and thus require multiple regulatory control, to join together in referring the case to the Commission. Procedural reform The Commission's decisions and procedures can either assist or hamper European industry in its attempts to compete on ever-widening markets. The Commission must therefore provide for quick decision-making and legal security, whilst toughening up its action against cartels, abusive monopolies and curbs on parallel trade. Speeding up procedures may not in any way compromise these vital objectives. As of January 1, 1993, every single case will be dealt with in a fixed, predictable and reasonable period of time. For structural cases that fall under Article 85(1), notably joint ventures, the Commission will send the companies either a 'comfort letter' or a 'warning letter' within 2 months of receiving complete notification of their plans. A comfort letter would effectively enable them to go ahead; if they receive a warning letter, signalling serious competition problems, the Commission would simultaneously send them a second deadline, separate for each case, by which it would pledge to deliver a final decision. As of April 1, 1993, a similar system will enter into force for all other notifications and all complaints. In these cases, a separate deadline will be set individually for the first stage as well as the second stage thereafter if necessary. The first-stage deadline will be no more than a few months. It is not only the Commission which will have to meet new challenges if these measures are to succeed. The new deadlines begin, as in cases under the Merger Regulation, only when the notifying companies have provided all the information necessary for the Commission's investigation that is reasonably available to them. In order to facilitate this, companies will be welcome to contact DGIV prior to notification to discuss the information that they should provide. If notifying companies fail to provide this information, the clock will not start until it is forthcoming. Furthermore, if exceptional circumstances arise, in particular as a result of action by the parties such as recourse to the Court to challenge an intermediate step in the decision-making process, the clock would of course have to stop running. In such circumstances the parties would be so informed. All these deadlines will be further and further reduced over the years as the Commission clears bottle-necks from its inquiries procedures. The Commission will eventually determine what preconditions need to be met in order for it to propose to the Council legally binding deadlines for all structural cases. Today's reforms will be carried out within existing staff. Nonetheless, in his address, Sir Leon laid down the following challenge to Member States: "When the Merger Regulation was adopted, I stated that the Commission could and would implement the very tight deadlines set by the Council if sufficient resources were provided. National governments met this request admirably, providing both material resources and experienced personnel. Today I extend the same challenge to the Member States. I will give the same guarantee for other cases: if an equivalent level of resources is provided throughout DGIV. We would then undertake to meet the strict deadlines of the Merger Regulation in all cases involving structural change, and reach rapid decisions in all other cases. The provision of adequate resources could therefore be accompanied by a change in Regulation 17 (which implements the competition rules) imposing legally binding deadlines in a wide range of cases. International aspects Competition in the GATT: Expressing confidence that the Uruguay Round will be concluded in the spring, Sir Leon expanded on his view that competition should fall firmly within the scope of the GATT, leading to binding minimum rules on enforcement combined with bilateral agreements between countries or trading blocs. This will ensure that the various anti-trust policies are applied in a flexible, efficient and coherent manner.
