Conclusions and points for discussion
145. The Commission's White Paper is a bold and imaginative
initiative. It is an attempt to meet head-on the difficulties
of an outdated procedural regime, competing claims on scarce resources,
and enlargement. The Committee supports the need for more action
to be taken, by both the Commission and national competition authorities,
to combat secret cartels. There is a problem here which clearly
needs to be addressed urgently. Releasing resources within the
Commission by replacing the notification/authorisation system
by a directly applicable Article 81(3) is at first sight attractive:
but there are implications for legal certainty and for national
courts. Harnessing the resources of the national competition authorities
to apply the Competition Rules also has its attractions: but this
might jeopardise the coherence of the Rules and lead to uneven
146. Two concepts lie at the heart of the White Paper
- close co-operation between Member State and Community authorities,
and decentralised application and enforcement of Community law
and policies. Neither is new or unfamiliar. The principle of genuine
or sincere co-operation is enshrined in the Treaty and binds the
Community institutions and Member States, including their courts.
The principle of decentralised enforcement of Community law by
national courts has been given added impetus by the application
of directly effective Treaty law. As regards the enforcement of
the Competition Rules Member States have to date generally shown
little enthusiasm for decentralisation. That position would have
to change. National governments, parliaments, courts and competition
authorities would have to demonstrate and execute a commitment
to enforcing Community competition law far in excess of anything
to date. Community law would have to be given priority in practice,
not just in principle. National law and procedures, some quite
new in the case of the UK and a number of other Member States,
would have to be changed. Adoption of the White Paper proposals
would be a formidable political challenge and there are many hurdles
to overcome if the Commission's proposals are to succeed.
147. While decentralisation is one of the two basic
building blocks of the Commission's proposals, the White Paper
itself provides no more than a skeletal framework for reform.
It raises many questions, some quite fundamental others
more technical but all having practical implications for the success
or failure of the Commission's proposals. We have described a
number of these above and have suggested possible ways forward.
But there needs to be much more work done by the Commission in
close communion with the Member States if some real flesh is to
be put on the bones. As presently proposed, adoption of the White
Paper would, at least without the detail, involve a great step
into the unknown.
148. The timeliness of the proposal has been questioned,
with the reality of enlargement growing ever closer. Enlargement
both provides a stimulus to improve the present regime for application
of the Competition Rules and, somewhat paradoxically, draws attention
to some of the difficulties in what the Commission is proposing.
But things cannot be permitted to get worse before there is change.
The Commission should be looking now to see how much can be done
in the short term, building on the precedents of Regulations 1215/99,1216/99
and 2790/99 (described at para 99 above).
149. The White Paper, while radical, stops short
of proposing Treaty amendment. But the possibility of amending
the Treaty in order to address some of the difficulties, particularly
in relation to the application of Article 81(3), now being faced
should not be discounted. While the requirement for the Community
to have competition rules and strong enforcement is a fundamental
precept the precise content and wording of those rules is not,
in our view, sacrosanct. Perhaps the time is not far off when
it will be necessary to think the unthinkable and to consider
reformulating Article 81 so that it does not require the exercise
of administrative discretion and is more amenable to application
by national judges.
150. The Committee considers that the Commission's
White Paper on modernisation of the rules implementing Articles
81 and 82 of the EC Treaty raises important questions to which
the attention of the House should be drawn and makes this Report
to the House for debate.