New “protocol” is binding but…The overall debate on the orientations and content of Europe's economic policies has already begun and this is not just a theoretical debate: the apparently vague notions such as “European identity” and “Community preference” underpin divergent operational attitudes. Beyond the more or less resounding verbal positions taken, the first act to be made was France's request to no longer include “free non-distorted competition” among the Union's future treaty objectives but to indicate in a protocol that the internal market include a system guaranteeing non-distorted competition. Nicolas Sarkozy explained that competition is not an objective in itself but rather an instrument for helping the single market function correctly. In exchange for the protocol, the French request was agreed to. Indiscreet sources suggesting that Gordon Brown had then telephoned Tony Blair from London to protest were never confirmed. The first qualified commentaries attempted to play down the significance of the modification made. The most significant of them are logically those made by the three most recent European commissioners for competition: Karel van Miert, Mario Monti and the current commissioner, Neelie Kroes.
After pointing out that competition policy represented “one of the most successful European policies” Van Miert said that Mr Sarkozy's action had been taken for “essentially symbolic reasons”. He underlined the fact that references to competition still remained anyway, “in quite a few other Articles of the treaty” and were entirely valid. Mario Monti affirmed that the “legal significance of the provisions on competition should be ensured” but that the amendment made could have an impact on “the political strength needed by the Commission to take decisions that the big member states sometimes find disagreeable”. This implies that in the future “it will be even more necessary still for the Commission and national authorities to clearly explain to the public why they are taking action and how this will benefit consumers and economic growth”. Neelie Kroes declared to MEPs that she was “not worried” about the transfer of the concept of “undistorted competition” to a protocol because “the protocol is legally binding and the current rules will continue to apply”. Nothing has changed: she herself and her services will continue to track down cartels and tackle abuse of dominant position, in the consumers' interest, as well as inspect mergers (in order to avoid the rise of new dominant positions) and monitor public aid that could help a sick company to the detriment of a healthy one.
Influence on the Court of Justice? In this respect, we are at the heart of a fundamental problem that has never really been overcome. Some of the public believe that scrupulous monitoring of respect for free competition can have negative repercussions on the survival of certain firms and therefore, on job security, as well as increasing pressure on wages. Supporters of greater rigour, however, believe that competition benefits consumers, prevents excessive pay claims by business leaders and encourages innovation and research and therefore quality of products and economic growth. Some legal experts have expressed fears about “retrogradation” of competition which may encourage the European Court of Justice to consider it as of secondary importance compared to the Union's fundamental objectives such as growth and employment. But this perspective could also be seen as a hope rather than a fear. I have always considered the Court's increasing consideration of the essential objectives, such as environmental protection and social balance, and not just the to the letter interpretation of rules on free movement of goods, as positive (see this section in EUROPE 9359, last February).
A much more delicate point is the assessment of certain public aid aimed at preventing the closure of big companies. The Commission decides on the rules and limitations when assessing this category of state intervention. In the past it had to take decisions on extremely complex cases. We only have to recall the case of Crédit Lyonnais. In his “Memoirs”, Jacques Delors described the fact that the decision taken by the Commission he presided over at the time, authorising the rescue of Air France, was positive, and the company has now fully recovered. At present, the limits allowed for state intervention in the economy are again the topic of discussion. Competition policy is only a partial aspect. I'll be coming back to the other aspects later.
(FR)