EU finds no 'independence' problem

The European Commission sees nothing amiss in the fact that the Office of Fair Competition, which ensures that EU fair trade and competition rules are applied, forms part of the civil service structure.

According to the Commission's competition spokesman, EU law "does not prevent the Maltese competition authority from being set up as part of the civil service".

The Commission explained its stand on the matter in reply to a complaint flied last year by the Chamber of Small and Medium Enterprises - GRTU. The GRTU had complained of a conflict of interest in both the set up of the Office of Fair Competition and in the fact that the same person occupies the post of Permanent Secretary at the Competitiveness Ministry and Director General of the Consumer and Competition Division, under which the Office of Fair Competition falls.

In its complaint, the GRTU had called upon Competition Commissioner Nellie Kroes to look into the matter and issue directives to the government to take immediate remedial action and establish the Office of Fair Competition as an independent, autonomous public regulatory authority with responsibility only for the monitoring and implementation of EU competition, merger and anti-trust rules.

The Commission argues that the same EU laws offer safeguards to guarantee that EU competition rules are enforced even if the Office of Fair Competition forms part of the civil service.

The Commission's spokesman told The Times the Commission had already informed the GRTU that "it is up to the member states to decide which authority they entrust with applying articles 81 and 82 of the EC Treaty (EU competition rules) and that Regulation 1/2003 foresees important safeguards in order for national competition authorities to ensure a proper and adequate application of EC competition law".

The spokesman explained that the regulations underpinning the EU competition legislation expressly provide that it is the role of the member states to designate the authorities responsible for the application of the EC rules in this area. However, he added that the same rules contain important checks and balances.

"In fact, national competition authorities must inform the European Competition Network about pending cases involving the application of the EC competition rules in order to establish which authority is well placed to deal with it."

The European Competition Network is an instrument set up to facilitate close cooperation among national competition authorities and the European Commission and to ensure an effective and consistent application of EU competion rules. All national fair competion offices form part of this network.

"Furthermore, the national competition authorities must consult the Network prior to taking a decision under articles 81 and 82 of the treaty. If there is a real risk that EC competition law would be improperly or inadequately applied, the Commission has the right to relieve the national competition authority concerned of the competence to deal with the case," the spokesman said.

According to the Commission, to date, the European Competition Network has worked well and all the issues of coherent enforcement which have arisen have been resolved through frank and open dialogue.