Memories of a former official Helmuth Schröter The history of the Directorate-General for Competition can not be dissociated from the history of the European Commission. As one of the four institutions of the then European Economic Community – i.e, the Council of Ministers, the European Commission, the Parliamentary Assembly (later to become the European Parliament) and the Court of Justice – DG Competition was set up shortly after the coming into force of the EEC Treaty on the 11th of April 1958. At the same time the Commission got its initial structure, which remained unchanged until the Merger Treaty entered into force on July 1st 1967 and the three European executives – the European Coal and Steel Community, the European Economic Community and Euratom – merged. The initial College of Commissioners was towards the establishment of lasting composed of nine members. France, national positions within the College was Germany and Italy nominated two certainly present in the Commission's early Commissioners each; the Benelux years. Fortunately it soon disappeared. The countries had one Commissioner each. The German Hans von der Groeben was in Commission's activities were entrusted to charge of competition policy from 1958 to nine Directorates-General identified by 1967. He was followed in this function by Roman numerals: DG I - external relations; eleven successors of different DG II - economy and finance; DG III - nationalities, namely the Dutchman common market and industrial policy; DG Emanuel Sassen (1968-1971), Albert IV- competition; DG V - social policy; DG VI Borschette and Raymond Vouel from - agriculture; DG VII - transport, DG VIII - Luxembourg (1972-1980), the Dutchman associated third countries; DG IX - Frans Andriessen (1981-1984), the administration. Each Commissioner was in Irishman Peter Sutherland (1985-1988), charge of one Directorate-General and its Sir Leon Brittan from the United Kingdom related policy area. (1989-1993), the Belgian Karel van Miert (1994-1999), the Italian Mario Monti The distribution of policies between the (1999-2004); the Dutch Nelly Kroes Commissioners often corresponded to the (2005-2009), the Spaniard Joaquín political focus of their respective Member Almunia (2010-2014) and the Danish States. So it was not by chance that Margarethe Vestager (since 2015). competition policy became – and for a long time remained – a German remit; In contrast, the post of Director-General while economy and finance as well as for Competition was occupied by fewer association of third countries (which officials generally serving over longer included former colonies) were entrusted periods of time. After the Dutch Pieter to French Commissioners, and agriculture VerLoren van Themaat (1958-1967), DG to the Dutch Commissioner. A trend IV/DG Competition) was headed by six COMP@60 | Helmuth Schröter 1 60 years of EU Competition Policy German Directors-General, namely Ernst man like me. However, it was frustrating Albrecht (1967-1970), Willy Schlieder to realise that our work was given a low (1971-1980), Manfred Caspari (1980- priority. The Commission proposals we 1990), Claus Dieter Ehlermann (1990- drafted in 1966 were adopted by the 1995) and Alexander Schaub (1996- Council almost unchanged, but only ten 2002). Their presence and activities years later. This led me to look for a reflected the German concept of social permanent position in another DG. market economy, which dominated both My favourite was DG IV (now DG the interpretation and the application of Competition), mainly because of its powers competition rules until the end of the 20th of direct intervention vis-à-vis century, thereby giving the Commission's undertakings and Member States, which competition policy a high degree of made this DG particularly attractive for continuity and stability. In the new century, newcomers. However, it was not easy to the Directorate-General was headed by get one of the few posts published from the British Sir Philip Lowe (2002-2010), time to time. Each applicant had to go the Dutch Alexander Italianer (2010- through a concours sur titres which 2015), and the German Johannes included a long and intensive interview. Laitenberger (since 2015). There were several hundred contractual I joined DG Competition in January 1967. employees who wished to become Over the preceding 18 months I had permanent Commission staff. Therefore worked under civil servant’s contract in DG competition between the many applicants III-industrial policy and common market, for each post was rather keen. I applied to where I dealt with problems relating to the several posts in DG IV and had the good medical and paramedical sector. My role luck to win one of the concours. A few consisted essentially in the preparation days later, I was appointed administrator and drafting of Commission prroposals for and assigned to Directorate IV/A-general Council directives having as their object competition policy, where I spent most of the removal of various restrictions which the 36 years as a Commission official. I hindered nationals of a Member State in was assigned to Division IV/A/2, a unit the exercise of their non-salaried charged with general legal questions and professional activities in another Member legislation. This included coordination State. This work of a legislative nature between the DG's different Directorates implied numerous meetings with national and cooperation with the Commission's authorities, in which we tried to overcome legal service. the reluctance of certain Member States. I Between 1963 and 1990, DG Competition very much enjoyed my stay in DG III. To had a relatively simple structure, initially work together with colleagues from other composed of five directorates (A, B, C, D Member States for the attainment of a and E). Directorate E’s task was applying European objective within a totally new the Treaty provisions on taxes. This supranational administration and in a function was later transferred to another foreign language (at that time, of course, Directorate-General. The role of French) was very stimulating for a young Directorate D was confined to the control 2 Helmuth Schröter | of State aid under both the EEC and ECSC Council Regulation 17 of 1962 had treaties’ rules. Directorate C, created after provided the legal basis for the exercise of the coming into force of the Treaty on the powers in this area of law and had marked merger of the European executives, was the starting point of a fast-growing field first charged with enforcing the of activities. Many decisions against competition rules of the ECSC Treaty, horizontal price, quota and market- which included provisions on cartels, partitioning cartels were adopted over the mergers and dominant positions. Its years since 1968. These decisions competence was later extended to the established a well-founded Commission application of the competition rules doctrine according to which agreements contained in special Council Regulations between undertakings, decisions by concerning transports by land, sea and air. associations of undertakings, and Neither type of sectorial rule is in force concerted practices of the today. Most of DG Competition’s workload abovementioned kind are prohibited and at the time was carried out by Directorate have no chance to be exempted. In B. Being entrusted with the application of contrast, agreements even between Articles 85 and 86 of the EEC Treaty (now competitors are to be looked at favourably Articles 101 and 102 of the Treaty on the if they have as their object cooperation in Functioning of the European Union) to all the production of goods or services or in industries, this Directorate investigated, the research, development and production established, and sanctioned infringements of new or improved goods and services, of the rules concerning restrictions of provided that the parties do not exceed a competition and abuses of dominant market share of 20% and 25 %, positions. In addition, it also decided on respectively. the applications submitted by undertakings seeking to have their The birth of Block Exemption restrictive contracts exempted from the Regulations general ban imposed on such agreements. The treatment of vertical agreements The enforcement of competition rules to under Article 85 (1) and (3) EEC was more the public sector including State difficult. Regulation 17 had created a monopolies (Articles 90 and 37 EEC, now system of prior control for almost all kinds Articles 106 and 37 TFEU) were reserved of restrictive agreements, be they to Directorate A. Through its initiatives, the horizontal or vertical in nature. For Commission has contributed to a large instance, to be granted an exemption for extent to open markets in this area, in distribution or licence contracts – the only particular for telecommunications and way to ensure their validity in civil law – postal services. the undertakings had to notify them to the After regulation 17, 1962 Commission and wait for its final decision. This procedure applied to restrictive When I joined DG Competition in 1967, the agreements which already existed before Commission had just begun to develop an Regulation 17 entered into force as well as active competition policy, focussing on the to those which were concluded thereafter. application of the rules to undertakings. Only few, narrowly defined categories of COMP@60 | Helmuth Schröter 3 60 years of EU Competition Policy agreements generally considered as less fixes the duration of the Regulation and dangerous for competition were dispensed decides on its renewal, modification or from prior notification. This legal system repeal. Within this legal frame, the first had unforeseen consequences. The group Exemption Regulation, (‘Regulation Commission was overloaded by waves of 67/67/EEC on the application of Article 85 notifications relating to old agreements. (3) of the Treaty to certain categories of Until the 1st of January 1967 – the last exclusive distribution agreements’) was deadline – DG Competition received about adopted. As one of the officials 38,000 notifications. Just about 700 of responsible for legislation, I have been them related to horizontal agreements.