Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-10-08-Speech-3-119"
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"en.20031008.11.3-119"2
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".
I have the luxury of being able to address the Parliament twice in succession. I will only do so once, but I hope – if you do not mind – that I can combine the speaking times. Mr President, I have, first of all, a great deal of appreciation for the Commission's proposals for the revision of the regulation on the control of concentrations and an exceptional amount of appreciation for the sterling report by Mr Della Vedova. We support the objective of creating more clarity, legal certainty and quicker procedures. Against this background, I should like to make a few observations. In the first instance, Parliament welcomed the Green Paper’s proposals for a ‘one-stop-shop’ system in Brussels for multiple filings in more than two Member States. As Mr Della Vedova said a moment ago, that is why we regret the Commission’s failure to incorporate this principle in the present proposal. With the forthcoming enlargement, the number of multiple filings will increase substantially, always assuming that policy remains unchanged. The lack of mutual coordination among Member States has led to bureaucratic, costly and time-consuming procedures. The coordination and harmonisation of national procedures is very much what is wanted and we would therefore urge the Commissioner to make every effort to promote this idea. I know that this does not fall within the Commission's remit, but it can, of course, talk to the Member States and call for further harmonisation and mutual coordination. A single procedure in Brussels will not only cost less but will also significantly improve legal certainty for businesses and ensure that the procedure can be completed more quickly. The Commission does create some scope for promoting central processing in Brussels by means of the referral procedure, but we do not believe that this goes far enough. If a merger clearly has a cross-border impact, it ought to be considered by the Commission wherever possible. It should be made possible for cases to be referred to the Commission on the basis of objective criteria and at the request of the merging parties. We have developed concrete proposals to this effect. For the same reasons, the idea of referring concentrations to Member States needs to be treated with caution. Concentrations that comply with the requirements of a simplified procedure ought not, in principle, to be referred to the Member States.
One of the purposes of this revision of the regulation is to increase legal certainty. However, in our view, if the concept of the dominant economic position is broadened in the way proposed by the Commission, this is more likely to have the opposite effect. Any merger conferring a certain advantage over competitors would fall within the new definition. All parties concerned are used to applying the existing definition, on which there is now ample case law. A change in the definition would obscure the situation and lead to unnecessary legal uncertainty. Moreover, there is, in our opinion, a danger that the market would lose its dynamism if concentration processes were to be interfered with on a far bigger scale than at present. I accordingly believe that it would be better not to expand the definition. We agree with the proposal to leave Article 2(1) unchanged. However, the requirements applicable to evidence of the existence of efficiencies must not become excessive. It is future advantages that would have to be demonstrated, and these cannot possibly be guaranteed 100%. There is a need to clarify exactly when relevant information about efficiencies would have to be provided. The Commission calls for a substantial expansion of its powers of investigation, in line with those relating to cartel procedures under Regulation 1/2003. However, in our view, there is an essential difference between the aim of merger control and combating violations of cartel rules. When investigating a concentration, unlike in the case of a cartel violation, it is not assumed that the law has been broken. We accordingly consider the Commission’s proposal for increasing its investigative resources under this Regulation excessive, particularly if viewed in the context of the enormous fines that the Commission can impose for non-compliance with the provisions of the Regulation.
No one can be compelled to give evidence against himself. This is an important basic principle of criminal law and should apply here too. It is therefore well worth laying down in the Regulation that, when carrying out an investigation, the Commission should respect the rights of the parties concerned. This particularly applies to the right to silence for company lawyers, and also indeed for other employees whom the Commission may question.
Additionally, I would draw attention to the lack of internal and external monitoring of the Commission’s decision-making. As things stand at present, there is no separation between the investigating authority and the authority taking the decision. This is difficult to reconcile with the requirement of legal certainty and independence. The legitimacy of decision-making can be further promoted by setting up a specialised chamber for competition at the Court of First Instance. This could also speed up the procedure and improve the quality of the administration of justice."@en1
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