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C 155 E/10 Official Journal of the European Union EN 3.7.

2003

3. The German Monopoly Commission, by weighing up the severe restrictions on competition with the
public interest arguments put forward by E.ON, reached the conclusion that ministerial approval should
not be granted. In the context of its opinion, the German Monopoly Commission also discussed possible
remedies such as unbundling and a divestiture of Thüga AG, a subsidiary of E.ON, which holds stakes in
130 local and regional utility companies.

4. The Commission is not in a position to comment on the underlying reasons for the ministerial
approval.

5. The ministerial approval was granted for a specific merger case. Future mergers in the energy sector
have to judged on the basis of the merits of each case.

6. The procedure in this case was based on German Cartel Law and carried out by the German
authorities in the framework of their own policy. The Commission has no indication that this case had
(has) Community dimension within the meaning of the European Merger Regulation (1) and that it had
thus jurisdiction to deal with it.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between
undertakings  OJ L 395, 30.12.1989 (whole text republished in OJ L 257, 21.9.1990).

(2003/C 155 E/010) WRITTEN QUESTION E-2315/02


by Ole Krarup (GUE/NGL) to the Council

(26 July 2002)

Subject: Legal basis of the framework decision on combating racism

Could the Council please state its view of the legal basis selected for the proposal for a framework decision
on combating racism and xenophobia (1), in particular in the light of Article 31(e), because this provision
does not mention ‘racism and xenophobia’ as a subject for legislation pursuant to that article.

Article 31(e) relates solely to ‘organised crime, terrorism and illicit drug trafficking’. Has the Council’s Legal
Service given an opinion on this issue? Please attach any such opinions to your answer.

(1) COM(2001) 664  OJ C 75 E, 26.3.2002, p. 269.

Reply

(4 March 2003)

The Council informs the Honourable Member of the European Parliament that the framework decision on
combating racism and xenophobia, for which the Commission proposes Article 31(e) TEU as the legal
basis, is still being discussed within the Council.

(2003/C 155 E/011) WRITTEN QUESTION E-2317/02


by Ole Krarup (GUE/NGL) to the Council

(26 July 2002)

Subject: Framework decisions and freedom of choice

In the light of current proposals for ‘framework decisions’  in particular the proposal for a framework
decision on the European arrest warrant (1), and the proposal for a framework decision on combatting
racism and xenophobia (2), I would be glad if the Council could explain how it understands the detailed
conditions for the use of ‘framework decisions’.
3.7.2003 EN Official Journal of the European Union C 155 E/11

This question relates in particular to the freedom of choice as regards methods, which is accorded to
Member States by Article 34(2)(b) of the Treaty on European Union for Member States. On the one hand
the Treaty on European Union states that the Member States have freedom of choice; on the other hand
the two cases in point seem in the broad sense to rule out such freedom. What is the minimum level of
freedom of choice which the Council considers to be necessary in order for legislation to be issued in the
form of a framework decision pursuant to Article 34(2)(b) (as opposed to a directive or regulation)? Has
the Council’s Legal Service given an opinion on this matter? Please attach any such opinions to your
answer.

(1) COM(2001) 522  OJ C 332 E, 27.11.2001, p. 305.


(2) COM(2001) 664  OJ C 75 E, 26.3.2002, p. 269.

Reply
(4 March 2003)

Article 34(2) of the Treaty of European Union does provide no other criteria for the choice between
decisions or framework decisions than the requirement that framework decisions should serve the purpose
of approximation of the laws and regulations of the Member States and that decisions cannot be used for
that purpose. The two instruments referred to by the Honourable Member of European parliament aim at
an approximation of the legislation of the Member States, in particular with respect to procedures to be
applied for the execution of European arrest warrants, and with regard to the definition of certain conduct
to be dealt with as criminal offences in all Member States.

Since these instruments do not serve any objective set out in the EC Treaty, the choice for the instrument
of a framework decisions based on Article 34(2) TEU is justified.

(2003/C 155 E/012) WRITTEN QUESTION E-2318/02


by Ole Krarup (GUE/NGL) to the Commission
(26 July 2002)

Subject: Framework decisions and freedom of choice

In the light of current proposals for ‘framework decisions’  in particular the proposal for a framework
decision on the European arrest warrant (1), and the proposal for a framework decision on combatting
racism and xenophobia (2), I would be glad if the Commission could explain how it understands the
specific conditions for the application of ‘framework decisions’.

This question relates in particular to the freedom of choice as regards methods, which is accorded to
Member States by Article 34(2)(b) of the Treaty on European Union for Member States. On the one hand
the Treaty on European Union states that the Member States have freedom of choice; on the other hand
the two cases in point seem in the broad sense to rule out such freedom. What is the minimum level of
freedom of choice which the Commission considers to be necessary in order for legislation to be issued in
the form of a framework decision pursuant to Article 34(2)(b) (as opposed to a directive or regulation)?
Has the Commission’s Legal Service given an opinion on this matter? Please attach any such opinions to
your answer.

(1) COM(2001) 522  OJ C 332 E, 27.11.2001, p. 305.


(2) COM(2001) 664  OJ C 75 E, 26.3.2002, p. 269.

Answer given by Mr Vitorino on behalf of the Commission


(31 October 2002)

Article 34(2)(b) of the Treaty on the European Union (TEU) refers to Framework Decisions as the
instrument to be used for the purpose of approximation of the laws and regulations of the Member States
in the areas referred to in Title VI of the TEU. Framework decisions shall be binding upon the Member
States ‘as to the result to be achieved but shall leave to the national authorities the choice of the form and
methods’.