|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Whitty: My Lords, the main activity of the European food authority will be to focus on the provision of food to consumers. Therefore, it will co-ordinate European national controls at that end of the food chain rather than at the fresh meat import end. Nevertheless, it will pull together some expertise, which will help in the detection and early identification of the risk of disease.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, the Government have not taken a decision on a possible merger. However, our commitment to maintain until 2009 the share of lottery funds going to charitable good causes will hold for any new body. The independence of lottery distributors in making decisions on individual grants would also be preserved. No decisions have been made on the structure of any new distributor, but we acknowledged in our recent review of lottery funding the importance of local decision-making.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Baroness for her reply. Can she give the House an assurance? There is one general concern in the charity and voluntary sector and two particular anxieties. The general concern is that the notion for the merger is driven more by the Whitehall instinct for control than anything else. The two particular concerns are: first, that the present highly devolved and applicant-sensitive grant-making procedures might be centralised; and, secondly, that the often imaginative and bold grant-making decisions and policies of the Community Fund might be sanitised. Will the noble Baroness comment on those anxieties?
Baroness Blackstone: My Lords, I can confirm that primary legislation would be required for a full merger. But it would be possible to bring together the two existing distributors from an administrative point of view so that they could be co-located, their boards could be merged and they could share a common administration, pending legislation.
Baroness Pitkeathley: My Lords, as chair of the New Opportunities Fund, I declare an interest in this Question. Is my noble friend aware that the New Opportunities Fund gives almost as much money to the voluntary and community sectors as does the Community Fund? Is she also aware that it shares the concern of our colleagues in the Community Fund and, indeed, in the wider voluntary sector about the maintenance and independence of that funding stream? However, does she agree that the potential benefits of such a merger might include making lottery funding more accessible, more visible and more flexible, and that the aim of any such merger must be to make more lottery funding available to more disadvantaged individuals and communities across the United Kingdom in the most effective and efficient way possible?
Baroness Blackstone: My Lords, I can confirm that about 40 per cent of NOF funding goes to the voluntary sector. I believe that the purpose of considering a merger is to try to build on the strengths of both bodies and to form a new organisation which provides a fresh and streamlined funding source for communities with the minimum amount of bureaucracy and reduced spending on overheads.
Baroness Howe of Idlicote: My Lords, will the Minister confirm that any grants given by any new bodyif the two bodies are to be mergedwill cover the full costs, including the overheads, of the activity being funded and that support and advice will be made available throughout the period of the projects undertaken?
Lord Gilbert: My Lords, can my noble and learned friend the Leader of the House cast any light on the fact that this House is not to take the Statement made earlier in another place about the order of the two new aircraft carriers? They are, after all, to be the two biggest ships ever built in this country. They will do a great deal for unemployment in parts of the country that badly need help in that respect. They will maintain greatly needed design skills in this country, and they will add immensely to our forces' extension projection capability to an extent that we have never seen before.
Lord Williams of Mostyn: My Lords, the only knowledge that I have is that the Statement would have been offered in the usual way, and it is a matter for the Opposition parties to come to their own conclusion.
Lord Cope of Berkeley: My Lords, the Government can of course make a Statement if they wish to do so. But also, as the noble and learned Lord the Leader of the House said, the Opposition and the other parties are given the opportunity to insist on a Statement, should they wish to do so. Sometimes, as the House knows, we do. I entirely agree that this is an extremely important order for the reasons that the noble Lord set out. However, at the same time, it is a matter upon which we felt we should like to reflect so that we can consider the details in a way that is not possible in response to a Statement, and that thereafter your Lordships may wish to discuss the matter.
Lord Chalfont: My Lords, does the noble and learned Lord agree that the prime contractorship for the building of these two new aircraft carriers is one of the most important procurement decisions for the Armed Forces and for employment in this country that has been taken for many, many years? Is it not strange that Members of your Lordships' House should have to read in the newspapers what Members of another place are hearing today?
Lord Williams of Mostyn: My Lords, self-evidently it is an important order. I think that that is why the noble Lord, Lord Cope, said that, on behalf of his party, he wanted to reflect on it and possibly come back to it when there is more opportunity than is offered today to reflect on the background and the intricacies of such an important matter.
The noble Lord said: My Lords, I rise in my capacity as the chairman of Sub-Committee A, as I was at the time that we conducted the inquiry and published, in July 2002, the report which is before your Lordships' House this afternoon. I very much regret that your Lordships have had to wait so long for an opportunity to debate it. In my new capacity as chairman of the European Union Select Committee, I am hopeful that the recommendation contained in our recently published report on the scrutiny of European legislationthat the debating of Select Committee reports not be so long delayedis really taken to heart by the usual channels. I am very sorry that a further and eleventh-hour delay in the scheduling of this particular debate inconvenienced a number of noble Lords and deprived us of the participation of two of the greatest experts in the House on this issue. I think that that is a great shame.
I am, however, delighted that the noble Lord, Lord Brittan of Spennithorne, is participating today. As the Competition Commissioner from 1989 to 1992, he did a great deal to develop and expand the European competition policy as the final stages of the single market were being put in place. We much look forward to hearing what he has to say.
This inquiry was prompted by the publication, in December 2001, of the Commission's Green Paper reviewing the European Community's Merger Regulationthe ECMR. The purpose of the Green Paper was to launch a broad debate on how the ECMR was working, and it proposed a wide range of possible ways to improve the merger regime. Our report was a response to Commissioner Monti's desire to gather views from all interested quarters. We were delighted to have this opportunity to contribute once again to the long-evolving debate on the merger regulation as we have done over the years both immediately prior to its adoption in 1989 and on two subsequent occasions (in 1992 and 1996) before this latest inquiry and report.
I am extremely grateful to members of the sub-committee who put a great deal of hard work, time and effort into the inquiry and the deliberation on the draft report which was so brilliantly prepared by our clerk, Dr Richard McLean, to whom we are greatly indebted. Our warm thanks go also to Dr Richard Whish and Miss Jennifer Halliday of King's College
As we note in paragraph 21 of the report, the merger regulation has become one of the cornerstones of EC competition law and many witnessesfrom the business community to the regulatorstold us how highly they regarded the regulation and what a success its operation had been. The committee recognises the good work of the Commission in applying the ECMR, and we endorse the Department of Trade and Industry's view, as offered to us in oral evidence, that the Commission has,
That said, one has to acknowledge that not all is sweetness and light. We shared the view of the many witnesses who expressed disappointment that the Green Paper devoted only limited attention to the important issue of due process and the checks and balances to the Commission's decision-making procedures. Of course, these issues go beyond the rules set out in the ECMR itself and concern the Commission's internal administrative practices for handling cases and the role of the Community courts.
Meanwhile, the Commission has been the subject of some serious criticism, and witnesses drew attention to shortcomings in the ECMR system which were causing increasing concern. Some had already been borne out by the judgment, on 6th June 2002, of the Court of First Instance in the Airtours/First Choice case which, while our inquiry was still in progress, overturned the Commission's decision to block the merger. Then, three months later, within the space of just one week, the court overturned two more Commission decisions: Schneider/Legrand and Tetra Laval/Sidel. I should add in parenthesis, however, that one should bear in mind, before accusing the Commission and its Merger Task Force, as some have, of being too big for their boots, that it has blocked only 18 out of almost 2,100 of the mergers it has examined since given its powers of control in 1990.
That said, and in light of these recent reverses in court, our committee was, I think, in retrospect, right to have considered it important that the broad review of the Green Paper be taken as an opportunity to assess all of the ECMR procedures. Obviously, the committee could not address all of them ourselves in our inquiry, so we focused on what we considered the three essential issues, which were jurisdictional, substantive and procedural. Late last year, when Commissioner Mario Monti completed his review and the full Commission, on 11th December, adopted his recommended package of reforms, we found that many if not most of our own recommendations were in line with the conclusions that he himself had eventually reached after considering the extensive advice he had invited from many quarters.
What, then, were our own recommendations? I will certainly not weary your Lordships with a long recital of them. For convenience's sake, they are set out in summary form in Part 6 of our Report, at pages 51-52. As noble Lords will hear, I suspect, from the Ministerthe noble Lord, Lord Sainsbury, who will be replying this afternoonthe committee's position on all the major issues appeared very close to that of the Government as stated in their own response to the Green Paper and in their response to our report. Indeed, there are reflections of our common position on some of the issues in the Enterprise Act which the noble Lord skilfully guided through this House. We look forward to hearing his reply to this debate.
Although we dealt with jurisdictional issues first in our inquiry, we were in no doubt from the start that the top priority for reform was the need to ensure greater objectivity and fairness and greater efficiency in the ECMR process. The grounds on which the Commission suffered those three recent reverses in the court suggest that we were not wrong to place such emphasis on due process. In your committee's view, the many concerns about due process would be best addressed by improving the procedural safeguards in the current system, in particular enhancing the internal checks and balances in the ECMR regime. Efforts to ensure an effective system of due process cannot, in the committee's view, be limited solely to trying to obtain speedier judicial review or a greater role for the courts.
Our report strongly recommends that any case reaching Phase II should be subjected to a measure of independent thinking through the introduction of the so-called "second pair of eyes". In practice, that means that the Commission should divide responsibility for the consideration of cases in Phase I and Phase II. Appointment of a review panel is one of the Commission's own new recommendations. We believe that that is a step in the right direction.
We also concluded that the objectivity of the Commission's proceedings would be further enhanced if the hearing officer's report was fully reasoned and contained a comprehensive explanation of his or her conclusions. The Government agreed with that, and we are very happy to note that the Commission recommends increasing the hearing officer's support staff, presumably with this among other improvements in mind.
We were particularly insistent that the Commission strengthen its overall capacity for economic analysis in merger cases. There has been, according to many of our witnesses, a tendency in the merger task force to rely too much on narrow legal points or untested theories instead of on hard economic evidence. We recommended that the Commission appoint a chief economist, and we are pleased to see that the Commission's package of recommended reforms includes the creation of a chief competition economist in the directorate-general.
We note with interest provisions in the package for merging parties to have an earlier opportunityfor example, before the statement of objection is issuedto review the content of the Commission's files pertaining to the deal that they wish to make and any third-party submissions on the impact on competition.
In our inquiry we were much impressed by evidence strongly suggesting that by conducting the oral hearing before the statement of objections, the issues involved in the case would be out on the table earlier, which would be to everyone's benefit. That is reflected in our recommendation summarised in paragraph 299. It would allow the hearing officer to summarise the situation after the oral hearing, identifying the competition problems and their possible solutions. Drawing on that, the merger task force would then be able to come up with a statement of objections amounting to a draft decision which could act as the framework for remedy negotiations. That would be fairer to the parties concerned and a more logical and orderly way of proceeding.
I turn now to jurisdictional issues. They are covered in paragraphs 32 to 97 with our recommendations summarised in paragraphs 275 to 285. Once again I shall not abuse your Lordships' patience by itemising them, but I shall say a word about those that are related to important new measures now proposed by the Commission.
As we saw it, the key jurisdictional issue was how best to amend the regulation to minimise the problems associated with multiple filings while ensuring that mergers that could significantly affect competition in a distinctive market within a member state are examined at national level. That is to say, mergers must be examined by the regulatory body that is best placed to ensure the maintenance of effective competition. We agreed that no single measure would achieve that, and that a workable package of measures had to be devised.
As an important component of that package, and to clarify the issue of who has jurisdiction over which mergers, we supported the Green Paper's proposal to move to a simpler system whereby the Commission would have jurisdiction over all mergers that are subject to three or more national filingsthe so-called "three-plus rule". That change, we felt, would provide greater certainty to businesses as it would reduce the instances where companies are required to file with a multiplicity of national competition authorities. We felt that the three-plus rule would serve better if it were mandatory, thus lessening the risk of so-called forum shopping. The Government feel that it should be optionalone of the rare instances where our recommendations and the Government's response part company.
The Commission package proposes a simplified system for the referral of cases by the Commission to member states and vice versa, an idea that we ourselves advanced by means of a simplification of Articles 9 and 22 of the regulation. The Commission's changes are clearly designed at least in part to make the one-stop shop in Brussels available in more cases, but
I turn to the third of our three main concerns, the substantive test. That is dealt with in Part 4 of our report in paragraphs 98-161 and our conclusions and recommendations are summarised in paragraphs 289-290. We were impressed by the arguments for having the Commission switch from the dominance test to the substantial lessening of competition test, commonly known as the SLC test as applied in the US, Canada and a number of other jurisdictions. Some of our witnesses claimed that only semantics distinguished the two tests, and that a switch from one to the other would produce no fundamental change in how the ECMR functioned. We accepted that there were similarities between the two tests and that in many cases their application may give the same result. However there seemed to be broad agreement that the SLC test is in many ways better in theory, and that if one were today drafting the regulation from scratch, one would probably adopt the SLC test.
We accepted, however, that a change in the test should not be made lightly. There would inevitably be short-term disruptive consequences. We remained persuaded that the longer-term interest would be better served by a switch. Given that the Enterprise Act replaces the existing United Kingdom public interest test with one based on SLC, it is not surprising that we and the Government are at one in wanting to see the switch made at the European level.
We set out our reasons for recommending a switch in six bullet points appearing in paragraph 160. Time does not permit me to elaborate, but I suggest that they are clear enough. At the heart of our argument lies the conviction that any merger that substantially lessens competition should be investigated, and that the SLC provides a better basis on which to assess such cases than the dominance test, even though it can be argued that today the dominance test could fairly be described as "dominance plus".
When we met with Commissioner Monti he told us that he had not yet reached any conclusion on this issue and might not do so during the time available to him for the review of the Green Paper. In the end he reached a conclusion, which was to retain the dominance test. However, it seems that it will be redefined to extend to situations in which,
The Committee was extremely sceptical of the necessity or desirability of introducing into the text of the ECMR provisions setting out an explicit efficiency defence. We felt that if there were a significant reduction in competition in a market, there would be very little incentive or reason for the company to pass
Let me close with one specific plea that we on the committee wished to express strongly. The ECMR and its effective, equitable and transparent implementation is far too important to be jeopardised by resource constraints. We urge member statesthis is the final recommendation in our reportto agree the provision of the necessary new posts; otherwise, all the advice that has been tendered to the Commission and the Commission's own generally commendable recent proposals to improve this vitally and increasingly important regulatory system will have been in vain.
I have covered much less than the totality of our findings and recommendations in this long and fairly complex report, but doubtless others will fill in some of the gaps. I greatly look forward to the debate. I beg to move.
Lord Brittan of Spennithorne: My Lords, I warmly welcome the debate and congratulate the authors of the report on the way in which their conclusions are argued and on the care that they have taken in considering this extremely important subject. I also welcome the debate because, in spite of the kind invitation to give evidence to the committee, unfortunately I was unable to do so due to absence overseas.
Much has happened since the committee deliberated. There has been further criticism by the Court of Justice of the handling of particular cases, and most notably last December the Commission put forward its own reform proposals. That has not rendered the report or the debate less valuable because the Commission's proposals are still being considered, although there have been firm announcements on some points such as the appointment of an independent economist, as recommended by the committee.
When I arrived at the Commission as the commissioner responsible for competition, it was by no means clear that the merger regulation would be enacted. It had been the subject of debate for some 16 years. The noble Lord, Lord Hannay, who at the time was the permanent representative in Brussels, however, immediately assured me that by the end of
As one can imagine, it is all the more gratifying to me that so many years later the noble Lord, Lord Grenfell, and his committee have felt able to commend the regulation and how it has operated in paragraph 21 of the report.
In considering the faults, the problems and the desirable reforms, the noble Lord was absolutely right to lay stress on the enormous increase in cases that have occurredan increase that is far greater than we could have envisaged at the time that the regulation was passed. However, as part of the bargain between the Commission and the member states for approving the regulation, we insisted that the Commission should be adequately staffed with people who could handle issues of this kind. It was impossible to predict the explosion from three to over 340 cases that occurred in a decade.
The handling of cases has been criticised by the court in recent times and condemned by others for arrogance. I suspect that that was in large part caused by the sheer pressure of the workload. Therefore, I strongly support the conclusion of the committee, referred to by the noble Lord, Lord Grenfell, that adequate resources must be provided for this work. It is a priority. It is, indeed, a service to industry in the European Union.
The report is full of other detailed recommendations. I want to focus on two main issues. The first is the question of the support for switching the tests from the dominant position to the substantial lessening of competition test. Despite reading the report carefully and participating in numerous debates on this issue here, but mostly in the United States, I do not believe that the committee has made that case out. The report includes a very fair and full analysis of the pros and cons, but the conclusion it ultimately put forwardif one reads it carefullyis on the narrowest of grounds.
The report refers to serious and considered arguments on both sides. In fact, the most vociferous calls for change have come from the other side of the Atlantic, from the American business community, which is furious that the Commission dared to reach a different conclusion from the American authorities in the Honeywell case. Those who have spoken in that sense have been motivated by not only a desire that we should accede to the American test, but also a desire to make it easier for companies to push mergers through.
The reality is that the difference of opinion that occurs in cases where the two tests are applied is almost always caused not by the difference in the test but by the difference in the application of the test to the facts. Indeed, paragraph 102 of your Lordships' committee states:
Therefore, the argument is a narrow one. I think sufficient weight has to be given to the fact that a considerable jurisprudence has evolved applying the dominance test and that if a change were to be made that jurisprudence would be lost and the precedents would disappear. Unless, therefore, a substantial gain is to be achieved by a change in the test, that in itself is a ground for not making such a change. As all seem agreed that the differences are narrow and the results difficult to predictand probably not in the direction that the advocates of change would wishI feel that the case for change has not been made out.
It is also important to point out that, in practice, the two tests have moved closer together. That is stated in the report. The reason for that is largely because of how the Commission has developed the doctrine of collective dominance. Indeed, paragraph 138 specifically accepts the fact that the two tests have moved together.
So, if one considers all thatthe limited difference between the tests, the fact that they have increasingly converged and the last of the jurisprudence under the existing testit is difficult to see a reason for change. Indeed, the only reasons for change given in the report are three specific examples where it might be difficult to apply the collective dominance test and a desire to distinguish the tests under the merger regulation from the tests applied under Article 82 with regard to the abuse of a dominant position.
The argument that it is difficult to apply the merger regulations unless one changes the test, has, I think been rendered less cogentand will be rendered still less cogent when the Commission adopts measures, as it says it will, that deal with vertical mergers and conglomerates. These will tackle the concept of oligopolistic market dominance and reflect the experience acquired through the examination of over 2,000 cases. So, I think that the argument founded upon the three specific examples is not sufficient for a change.
As to the argument that there should be a distinction between the tests applied under the merger regulation and the tests applied under Article 82, I find no real evidence that there has been confusion because the language of the two is similar. I do not find that a reason for change either. Therefore, I would go along with the Commission's rather than the committee's conclusions on that point.
I shall say a word on the efficiencies defence. The report is very cool on that issue. As the noble Lord, Lord Grenfell, has indicated, it is considerably chillier than the Government. I was extremely reluctant to accept arguments in favour of such a test at the time of the introduction of the merger regulation. The reason for that was very simple. It seemed to me thatat a time when many people wanted the merger regulation to be used to apply industrial policy rather than competition policyexplicitly to include an efficiency test would be an open invitation for protectionist tendencies to gain force.
On the other hand, the Government are right to say that efficiencies are not absolutely irrelevant. The latest Commission position is reasonable: it has promised to grant particular attention to the positive effect of a merger that at first glance would appear a threat to competition; but concrete and sufficient proof will be requested from the companies and a positive effect on consumers will have to be demonstrated. The Commission said that a green light to the creation of monopoly or quasi-monopoly was unlikely. In other words, there would be a hard row to hoe for those who wanted to run an efficiencies defence.
The other question to which I shall refer is that of checks and balances. The committee recommends that responsibility for consideration of phases I and II should be divided between two separate teams of officials. As I understand it, after phase I, the first team would leave and the phase II officials would enter. That proposal was made because the committee thought that a switch to a judicial-based system would be premature and too radical, but that, on the other hand, something had to be done to deal with the objections to the Commission acting as prosecutor, judge and jury in merger cases.
I should like to be somewhat less cautious and take the argument head-on. I do not favour going down the American route of requiring a judicial determination before a merger can be banned. That would certainly import considerable delays to the decision-making process and not have the effect favoured by those that advocate it. The desire to avoid delays would lead to exactly the same process of negotiation over remedies that takes place today. Moreover, it would give the courts the task of taking the decisions, as opposed to reviewing thema role that does not fit well with the basic distribution of functions between the institutions that has been central to the EU's operation.
Whether such a system will satisfy the Commission's critics will depend heavily on the precise way in which it is set up and then operates. The panel must be of high standing, with full access to the file and considerable transparency in its operations, if it is to win the confidence of critics. Even so, it is in my view unlikely to be considered sufficiently independent if it consists solely of senior Commission officials.
One way to strengthen what is proposed and make the scrutiny of the merger taskforce's operations appear more robust would be to include one genuinely independent person on each panelsomeone who is not a Commission official. I hope that that suggestion can be seriously considered during current discussions.
I conclude by once again warmly commending the report. I remember Jacques Delors once telling mealthough we often had our disagreements, we often met to discuss themthat reports of the House of Lords represented by far the best analysis and critique of Commission proposals in the European Union. This report can only enhance support for that opinion.
Lord Hannay of Chiswick: My Lords, I begin by paying tribute to the noble Lord, Lord Grenfell, for introducing the debate and chairing Sub-Committee A during the production of the report. He chaired the committee with great determination, patience and skill, and managed to squeeze out the report before the summer holiday. That is all the more reason to regret that it has taken us well into the New Year to get around to debating it.
It is also a pleasure to follow the speech of the noble Lord, Lord Brittan of Spennithorne. As he reminded the House, he and I had some dealings when the regulation was being adopted. It was my duty from time to time to go to express the deep regret of the British Government that he was taking an especially tough line on some piece of state aid. I am glad to say that he always gave me a fair hearing; I am equally glad to say that he was always firm.
This debate is taking place at an important stage in the evolution of the European Union's competition policyin particular, of its arrangements for dealing with mergers. The Commission has now completed its analysis of the responses to its Green Paper on the reform of those arrangements, of which the report that we are debating forms part. It has revealed its thinking and the member states will shortly begin consideration of changes to the basic regulation on mergers arising from the whole complex and lengthy process.
I hope that it will not be considered unduly self-congratulatory if, as a member of the sub-committee that drafted the report before us, I point out that many of the ideas that the Commission has now decided to
When one plunges into the wood of the merger regulation, it is all too easy rapidly to lose sight of anything but the technical trees, each one lovingly analysed by a host of legal and economic experts whose daily task it is to work in the field. But it is important to remember at every stage just how vital a part of the single market is an effective, objective and smoothly functioning merger regulation. I doubt whether many would now deny that without such a regulation, the single market would be lacking an essential component. National competition authorities have their role to play, but the degree of integration now reached by the European single market makes a central, regulatory authority for mergers a necessity, not an optional extra.
How well, then, are the present arrangements functioning? Although the apocalyptic conclusions drawn by some commentators from recent European Court cases that found against the Commission are often wide of the mark, there have been rather too many such cases to be able to dismiss them as of marginal significance. So the honest answer to the question is probably not far from that of the curate's reply to the Bishop on the quality of his breakfast egg: "Good in parts, my Lord".
The Commission provides a speed of service that is the envy of companies in other parts of the world, including the United States. It has built up a body of case law that enables companies contemplating mergers to proceed with a fair degree of confidence as to what will be acceptable and what will not. The benefits of the EU's competition policy to consumers and to the effective functioning of the market have been realalbeit intangible and not easy to quantify.
However, time and experience have shown up weaknesses and it is now necessary that they be remedied, not just swept under the carpet. Many arise within the Commission itself and are of an organisational nature, which the Commission itself can remedy without much involvement by the member states. The appointment of a chief competition economist, properly staffed to ensure that economic considerations are as carefully analysed at every stage of the process as are legal considerations, is one such measure.
Another is to ensure that during the second, critical phase of any merger review, the work of the reviewer is considered by a second, independent panel of experts not hitherto involved in the process. A third is to give hearings officers more resources and to make their work more transparent. A fourth is to issue guidelines on the scope for and limits of an efficiencies defence of a merger.
On wider issues requiring a more direct response by the member states, and perhaps some amendment to the basic regulation, the introduction of provisions for a limited stopping of the clock makes sense. So, too, does the clarification of the rules for transferring cases between the national competition authorities and the Commission. But I regret that the Commission seems to be turning its face against any radical change in what is called the "substantive test" to be applied to merger cases. Despite the fact that some of the problems in recent court cases seem to result from the lengths to which the Commission has gone to stretch the existing notion of a dominant position, it appears to think that minor changes to the notion of dominance will suffice. It is, thus, setting aside the compelling arguments for moving to a substantive test based on the alternative notion of a significant lessening of competition (SLC) test.
The main argument for such a switch in the substantive test is not just that the SLC test is widely applied internationallyfor instance, in the USA, Canada, Japan and New Zealand, as well as nationally in the Enterprise Act that we passed in the last Sessionalthough there would be benefits from the application of a global standard. Rather, the real argument is that the SLC test has a more obvious and common-sense relevance; it is wider in its scope and thus more likely to catch the broadest number of anti-competitive features of proposed mergers. In that respect, I agree with the noble Lord, Lord Brittan, in thinking that the US advocates of the test as being more restrictive might have a nasty shock if it were applied. The SLC also seems to bring economic factors more directly into play.
There are arguments against such a switch: it will create confusion and a lack of continuity for European businesses contemplating mergers. But I hazard a guess that, even if the European Union follows the Commission in sticking to a dominance test on this occasion, it will not be long before we are all back again examining the case for the EU to switch to the SLC test. That will not be a disaster but an opportunity missed.
I very much agree with the Commission's resistance of the arguments advanced in favour of handing over the final determination of all negative merger cases to the courts, as in the United States. That would put at risk one of the chief merits of the European Union systemits relative expeditiousness and the certainty of the timetable that a company faces. It would also tip
In conclusion, I hope that our debate will send to the Commission a general message of firm support for its vital work on competition policy, tempered by a strong desire to see the earliest possible introduction of reforms designed to make the system more flexible, transparent and objective. No aspect of the European Union brings its citizens more benefits and value than the single market. A competition policy that works well is a necessary part of that single market.
Lord St John of Bletso: My Lords, I, too, have been greatly privileged to serve under the able chairmanship of the noble Lord, Lord Grenfell, on Sub-Committee A in this, my second term. The timing of this inquiry was opportune in the light of the Airtours case, which effectively expedited many of the sought-after reforms in the EC Green Paper. I should at the outset declare an interest as a consultant to Merrill Lynch, which is not mentioned in the report. I thank our specialist advisers, Professor Whish and Dr Jennifer Halladay, for their able stewardship and expert knowledge of this complicated subject.
The noble Lord, Lord Grenfell, has given us an admirable overview of the main findings of our report. I shall touch on two key issues: enforcement, which all noble Lords have mentioned, and the need for a universal substantive test. One of my concerns throughout the inquiry was the fact that the Commission has tended to act on referrals as investigator, prosecutor and judge, and that there has been inadequate separation of responsibilities and insufficient checks and balances on the Commission's decision-making process.
As the noble Lord, Lord Grenfell, mentioned, following the publication of our report, the European Commission suffered three consecutive defeats in the European Court of First Instance in the cases of Airtours, Schneider and Laval. The court used unusually harsh language in concluding that the Commission had failed to satisfy its burden of proof and had variedly failed to take into account the evidence, had drawn speculative conclusions from selective bits of evidence, and, in the Schneider case, had failed to protect the parties' rights by failing to give them the opportunity to respond to, and defend themselves against, specific allegations. If one reads those decisions, taking into account how the Commission has in the past rebutted its critics by bragging that a merger had never been overturned by the courts, there is an inference that the Commission
Having said that, there is much respect and appreciation of the Commission's work in applying the EC Merger Regulation to the ever-burgeoning numbers of referrals. The critics have been constructive in the consultation process. It is noteworthy that over 40 per cent of the submissions to the consultation on the Commission's Green Paper on merger reform came from the United States. I, therefore, warmly welcomed the comprehensive package of reforms of EU merger controls that the Competition Commissioner, Mario Monti, announced last month. I welcomed, in particular, plans for the European Commission to improve its scrutiny of takeovers by listening more to companies involved in the deals. I hope that the Commissioner's business-friendly words will be matched by the Commission's actions. To quote Commissioner Mario Monti:
The proposals addressed another recommendation in our report; namely, the need for a chief economist to bolster the Commission's expertise. It was accepted that the Commission's level of in-house economics expertise was weak and that more legal certainty should be given in setting out clear economics-based guidelines, mirroring the US merger guidelines.
I also support the move to create a peer review panel composed of experienced officials to review cases at key points during the inquiry and, in a way, act as devil's advocate. That certainly goes a long way towards addressing my concern that officials were acting as investigators, prosecutors and judges in the merger control process. I also welcome the move towards more transparency whereby merging firms will be able to review the Commission's file and third party submissions to the inquiry. That is a good move and will give the merging parties more of a chance to discuss their case with senior Commission management. The reforms are all welcome, if not a bit overdue. However, they still leave concerns over the accountability and competence of the Commission.
The question of how the merger will foster or impede efficiency is a black hole in the European merger regulation. I was alarmed to read in a recent KPMG report that over 82 per cent of cross-border mergers involving the United Kingdom and other member states had unfortunately failed to deliver value. The reasons for that include the lack of understanding and consistency in commercial and financial due diligence, which stems from cultural differences as well as corporate governance inconsistencies.
My final point relates to the substantive issue. The Commission was pulled up by the Court of First Instance in the Airtours case, particularly over the way in which it interpreted and applied the concept of collective dominance, under which a number of firms with significant market share can be regarded as
Despite the far-reaching reforms, the Commission has decided to continue using the dominance test as the merger competition test. In our inquiry, most of our witnesses were in broad agreement that the SLC test was better in theoryI notice that the noble Lord, Lord Brittan of Spennithorne, disagrees with meand was a more economically based test than the dominance test. We did not have the wisdom of the noble Lord, but, as outlined in paragraph 160 of our report, some witnesses,
I disagree fundamentally with that approach and support the view of Mr Vickers. In a speech at the joint conference held by the International Bar Association and the European Commission in November in Brussels, he pointed out that the word "dominance" has different meanings. He referred to Humpty Dumpty and Through the Looking Glass and claimed that the dominance test reduced legal certainty. Furthermore, from a practitioner's point of view and from a company's point of view, the position is complicated by the fact that some member states, such as Ireland and, following the recent reforms under the Enterprise Act 2002, the United Kingdom, have changed to the SLC as they reform their merger laws, while the Commission continues with the dominance test by shoring up the gap. In brief, the risk for Europe is that we have differing merger standards, thus undoing the benefits of consistency and certainty.
Although I still have several reservations about the reform of the EU Merger Regulation, there is no doubt that we are moving in the right direction. We are moving in the right direction to ensure transparency, checks and balances, and speed and efficiency. I am often concerned that our Select Committee reports and sub-committee reports are rarely read and rarely get much coverage in the broadsheets, and I was delighted to hear the comments made by the noble Lord, Lord Brittan of Spennithorne, about the praise from Jacques Delors. However, this inquiry has raised many important questions, several of which have, thankfully, recently been addressed.
As the noble Lord, Lord Hannay of Chiswick, said, EU competition policy has emerged in the past 20 years as part of the bedrock of the single market. Merger policy, which has shorter rootsthe merger regulation came into effect only in 1989has become a vital part of competition policy. When the merger regulation was introduced, it was agreed that there would be regular reviews of how it worked. The Green Paper, which was the impetus for our report, was, in its way, a routine part of that review process. It raised several questions about difficulties and wrinkles in the way in which the regulation worked, suggested ways in which it might be revised and asked for views on those suggestions. In some senses, what we covered in the review was part of the routine process of monitoring and review.
Some of the issues that were covered were, in a way, commonsense proposals to tighten up procedures. On the whole, the jurisdictional issues that we dealt within particular, how to cope with multiple filings, given the substantial increase in the number of applicationswere fairly routine. There was also the question of whether we should stop the clock on procedures, to enable the initial phase 1 and phase 2 investigative procedures to be given more time in complex cases. They were routine issues, and the proposals that were made were relatively commonsense proposals. I am pleased that, in that sense, the Commission took note of our views. On the whole, the developments on those lines are sensible.
I shall talk about two of the more substantive issues that emerged in the report. There was the question of shifting from the dominance test to the substantial lessening of competition; and there was the issue of due process and whether the Commission, in acting as prosecutor, judge and jury, allowed for a fair hearing. On the latter point, we on these Benches endorse the committee's conclusion that the shift to the US system, in which cases are dealt with judicially, would be a major step. It would not be necessary and would not be welcome. We endorse the committee's proposals, and, to some extent, the Commission has gone along with them.
There are ways of strengthening current procedures. The procedures needed to be more obviously objective. It was proposed to separate phases 1 and 2, and to strengthen the role of the hearing officer. Indeed, like the Commission, we should have liked to go along with the committee's proposals to have a separate review of phases 1 and 2. However, in the event, we are pleased that the Commission has gone as far as it has in proposing independent members of panels. Perhaps it has not gone as far as we might have wanted, but it is a move in the right direction.
I turn to the issue of the substantive test. I shifted my stance during the course of the committee hearings. I began by feeling strongly that the dominance test had been applied; that there was little difference between the concept of collective dominance and the
I changed my mind during the inquiry. I should like to explain why, and how ultimately I came down firmly in favour of the substantial lessening of competition. To economists, the case for mergers is known as the "market for managerial control". A firm can be seen as a collection of physical assets, human capital, goodwill and so forth. If a group of managers do not make the most of those assets, and that is reflected in their market capitalisation, they may be challenged in the market by another group of managers who believe that better use could be made of those assets. Thus, there are take-overs and mergers. Essentially, the case for non-interference is that the market knows best and should be allowed to decide which group of managers can make the best use of those assets.
However, a substantial body of literature now suggests that mergers do not always perform as the market predicts. In the late 1970s, the economist Ronald Meeks, wrote a seminal study on how a series of mergers worked outor rather, how badly a series of mergers worked out. The book is entitled Disappointing Marriages. Since that time there have been a substantial number of academic studies on post-merger developments.
The dominant market structures that we face today are structures of oligopolycompetition among the few. In many ways, where there is oligopoly, there is often intense competition. One has only to look at the intense competition between Tesco and Sainsburys, the two main supermarkets within an area. But oligopoly also poses problems for monopoly control. That is seen most regularly with oil companies, the large oil companies competing intensely with each other. Yet, by a process of osmosis, prices always go up and go down at the same time. That is partly because the companies are watching each other intensely. The whole structure of oligopoly encourages what is sometimes called implicit collusion. There is no question of explicit collusion, but there is a degree of implicit collusion.
However, oligopoly has posed to all anti-trust authoritieswhether they be British, American or indeed now Europeana very real problem. It could be suggested that during the past 20 to 25 years there has been in Britain a shift away from national
In the 1990s, a huge number of trans-national mergers took place and the word "globalisation" is often applied to that. Glaxo, a British company, became GlaxoWellcome. Still a British company, it finally became GlaxoSmithKline, a huge multi-national company. AstraZeneca and ABB, formed in the 1980s, are large European multinationals.
One of the problems that has arisen with the push towards globalisation is that one has seenABB illustrates the point wella move from family management to the development of managerial capitalism, with professional managers and perhaps accountants going in and taking over. One of the results has been the emergence of large international conglomerates in which the assets of companies are being traded around, rather in the manner of a game of Monopolycasino capitalism. Thus, we have seen the emergence of huge companies such as Enron, TXU Energy, and so forth, who are trading assets around.
Those companies have turnovers which are often well in advance of the turnover of some small national states; namely, countries such as Estonia or Lithuania. Clearly, there are dangers. Those huge companies wield considerable political influence. The offer of foreign direct investment can mean that those companies have considerable influence on national governments. Therefore, it is of vital importance that we have within the European Union a strong measure by which we can, to some extent, hold those companies to account.
The noble Lord, Lord Brittan, said that there was by no means agreement, but those pushing for the term "substantial lessening in competition" were largely the aggrieved American partners who were fed-up at the decision made as regards GEC/Honeywell. It is clear from the evidence of the economists and those involved in the regulatory framework that they substantially endorse that view. Perhaps I may quote from Derek Morris, who felt strongly that the "substantial lessening in competition" was an important concept and a better concept than that of "collective dominance".
That picks up the concept of what the economists call "contestable competition"; that what we are concerned about is the dynamics; that there is the ability for new companies to come into the market and to make their mark.
We on these Benches are highly sceptical about mergers and we back the SLC test because it is tougher. We believe that governments, whether at national or European level, should be tough about mergers. We are worried about the emergence of giant international companies and the power and influence they can wield.
It is vital that at the supra-national European level we have effective competition policies, including effective merger control. We are very sceptical on these Benches as to how much benefit derives from mergers. We generally take the view that competition has increased, is increasing, and should be diminished. The tougher the controls exercised, the better.
Baroness Miller of Hendon: My Lords, I declare a former interest by reminding noble Lords of my membership of the Monopolies and Mergers Commissionnow the Competition Commissionfrom which I resigned immediately on my elevation to your Lordships' House because of the obvious conflict of interests that could have arisen.
Having said that, I, too, thank the noble Lord, Lord Grenfell, for his presentation of his committee's report. I also congratulate the committee on the comprehensive way in which it has studied the many problems in regard to mergers within EC law, as well as on its mastery of the alphabet soup of acronyms that issues from EC jargon.
So far five very distinguished noble Lords have spoken. Four served on the committee, one as the chairman and the other three as members, and the fifth, my noble friend Lord Brittan, was not on the committee but his experience and expertise speak for themselves so he did not need to be. I make the point merely because the Minister and I are the only two speakers who were not involved in this. I find it daunting following all of those speakers, knowing very well that I shall be overtaken in due course by the Minister. That is why I am particularly grateful for the useful glossary included in the report.
After admitting that the Commission had in these three cases suffered "unprecedented criticism"which in some regimes might have resulted in his resignationProfessor Monti told the European Commission/IBA conference on EU merger control that:
Turning to the substance of the Commission's proposals, it seems that it is in favour of an approach that uses the market dominance test in deciding about a proposed merger, as many noble Lords have mentioned. Quite rightly, your Lordships' Select Committee takes the view that the so-called SLC testthat is, the substantial lessening of competition testis the more appropriate criterion and one which will inevitably lead to more consistency in its decisions. Again, other nobles Lords have made that point.
That is also the view of witnesses who gave evidence to the committee, such as the TUC and Professor Kay. It is also the view of the Government and most European competition experts. Not only does the test conform to the test applied in the United States; it is also in accordance with the views of the Director-General of Fair Trading, who attacked the dominance
It was suggested that applying the SLC test might lead to more applications being made to the Commission, but I cannot see why it should, because applications would be based on more clearly defined facts rather than on opinions. It might also concentrate the minds of the Commission on not shooting at everything in sight in a kind of Pavlovian reaction to every large merger that comes before it.
As regards a philosophical approach, I hope that your Lordships will forgive me if I digress for a moment to tell you about my own personal experience in Europe. When I expanded my successful United Kingdom mail order business into Germany, I was immediately assailed by two cases alleging that I was guilty of unfair competition. Me! Unfair competition! Noble Lords know that I would not be involved with that.
In one case it was said that I was charging too much for my goods, whereas in the other case, which came before the Kartellamtthe competition courton exactly the same day, I was accused of unfairly competing because I was charging too little. Both cases were heard in the same court on the same day. I had to fight no fewer than 18 separate law suits before I could convince the German courts and competitors that I was there to stay, with a better mousetrap that I had built, and that I was not unfair to the consumer or to the competitor. Your Lordships will therefore understand why I view the EC's approach, with its sometimes rigid attitude to competition, with some scepticism.
The Commission is discussing procedures intended to save parties from having to make multiple applications to member states, and it is acknowledged that the current rules under Article 1(3) of the EC treaty are extremely complex and cumbersome.
The suggestion is that the new so-called "three plus" rule should be imposedthat is, when a filing is necessary in three or more member states, the Commission should have jurisdiction. Despite the fact that the committee embraces this idea, I personallyI stress that this is a personal viewhave reservations for two reasons: first, because, as the Select Committee points out:
A higher number than three might be better. But, as ever, I defer to the committee's view, and that of the Commission, that three-plus is the correct level. I hope, however, that the level will be kept under review when it is seen how it operates in practice, since it is obvious that the greater number of applications that have to be referred to the Commission instead of the individual national committees, the greater might be the degree of interference in commercial transactions by the Commission instead of by the states that are actually involved.
The other reason for limiting the extent of EC interference in mergers is the principle of subsidiarity which the former Prime Minister, John Major, established for the benefit of the United Kingdom at the time of the Maastricht Treaty.
There may be occasions when a merger with cross-border implications is nevertheless of real concern to just one state. Let us suppose that an international airline is in serious difficulty, and suppose that the solution is either merger with another airline or for a "White Knight" to come to its rescue. This is a case where the national competition authority could be the sole judge, able to make a speedy decision rather than going through the cumbersome procedures of the Commission, which could cause such delay that the struggling company could collapse, thereby reducing the market by one business in any case.
It would not be right simply to substitute interference from Brussels with interference from Whitehallwhich is why it is right that we should have a strong Competition Commission operating in this country. The matter of the composition of the merger task force also comes into question after the debacle of the three adverse judgments. These three judgments, in the words of an article in the Financial Times of October 28th last, have:
Professor Monti is himself an economist, and it is reported in the same article that he wants to bolster the Commission's economic expertise by appointing a chief economist and several junior economists. The committee states in its report that,
Of course it is important to start the merger task force with economists and with whatever expertise it currently requires from its employees, but I suggest that it might not do any harm if some experienced business people or industrialists were involved. I mean
On 25th October 2002, Professor Monti suggested that the wheels of justice might be speeded up by creating a special competition court within the European Court of Justice. Far be it from me to suggest that the criticism that he recently received from the ECJ had anything to do with that particular idea. However, the idea would load more cost on to the EC. It would probably result in insistence by each of the 15 EC memberssoon to be increased to 25appointing their own competition judge and having the decisions translated into all of their national languages.
I spoke earlier of the philosophical aspects of the regulation of mergers. There is, not for the first time, a vast difference in approach between the United Kingdom and the rest of Europe. In the rest of Europe, the test of a merger can be prohibited only if it creates or strengthens a dominant position. That means that if a company is already in a dominant position, a permanent lid is put on further expansion.
The Select Committee has produced a massive and carefully reasoned report and has made no fewer than 31 recommendations to your Lordships. It is not necessary for every Member of this House to agree with every one of those recommendations for me to say, nevertheless, that the report has provided us with a great deal of food for thought and a great deal of common sense.
I can only hope that Her Majesty's Government will take the report to heart and, more importantly, will ensure that it is also given serious consideration by Brussels, which has to remember that its task is simply to ensure that there is a fair and free market in the EC.
Lord Sainsbury of Turville: My Lords, I join other noble Lords in welcoming the report of the European Union Committee on the review of the EC Merger Regulation and I congratulate the committee and the noble Lord, Lord Grenfell, on producing an outstanding and extremely effective report. We have had an excellent debate.
The Government support the great majority of the findings and recommendations in the Select Committee's report. The committee's position on all the major issues is very close to the Government's own. We agree in particular with the report's assessment of the priority issues for the review: improving the system of internal checks and balances; changing the
As the House will be aware, the European Commission recently published its proposals for amendments to the merger regulation itself, which will come before the European Council for consideration in due course. I know that it considered the Select Committee's report in drawing up its proposals, and in this sense the Select Committee report has already had a very successful impact. It may be that having an impact on the Commission's view is a more satisfying outcome even than early debates on the report. The report has been extremely effective and many of its considerations have been taken on board.
I emphasise that in our view the EC Merger Regulation is a success story. I was pleased to hear the intervention of the noble Lord, Lord Brittan. He was the Commissioner responsible for competition matters when the regulation was first brought into force. He is to be congratulated on introducing a regulation which, in the 12 years since it came into force, has become embedded as one of the cornerstones of European competition law.
The Commission has responded with great success to the huge challenge of enforcing the regulation rigorously but fairly, despite an exponential increase in its caseload. As the noble Lord, Lord Grenfell, reminded us, in 1990 there were only 12 mergers notified under the regulation; in 2001 there were more than 300. I make the point because I believe that it is important to keep the system's fundamental strengths in mind when considering possible improvements to it. Having said that, the system's strengths do not mean that there is no room for improvement.
As I said earlier, we attach priority to three key issues, as did the committee. First, priority must be given to the possibility of improving the checks and balances in the EC Merger Regulation system. The results of our consultation of key UK stakeholders and the wider debate on the Green Paper indicated that this was clearly the main issue of concern to those using the ECMR system.
The European Commission has announced a number of changes to its internal working methods to address some of these concerns. We welcome its appointment of a chief economist, which should improve the quality of the economic analysis in merger cases. I would say to the noble Baroness, Lady Miller, that economic analysis is key to these cases. A high level of expertise is essential to getting them right, even if we do not always feel that the people involved understand the problems of business as we should like them to.
Secondly, we believe there is a clear need to reconsider the way in which jurisdiction over mergers is divided between the Commission on the one hand and the member states on the other. This is not a turf war; the question is simply whether changes to the current arrangements could improve the chances of merger cases being considered by the competition authority best placed to do the job without compromising clarity and certainty for business. We are studying carefully the Commission's proposed amendments to the relevant articles of the merger regulation and will want to ensure that they provide a rapid, predictable and effective mechanism for allocating cases to the most appropriate competition authority.
Thirdly, there is the question of the substantive test used in the assessment of mergers, which has played a prominent role in the debate. The Enterprise Act will introduce a competition test for the new UK merger regime based on the concept of a substantial lessening of competitionor SLC. We see benefits in a move to SLC in the EC Merger Regulation from the current substantive test, which is based on the different concept of "dominance". We are disappointed that, although the Commission has sought to clarify the way in which the substantive test is applied, it has not taken the opportunity to introduce an SLC test into the regulation, despite support for its introduction from a great number of respondents to the Green Paper.
An SLC test has been selected for the new UK merger regime for good reasons. It is not correct to say, as the noble Lord, Lord Brittan, said, that it is simply a question of American pressure.
Back to Table of Contents
Lords Hansard Home Page