Explanatory Memorandum to COM(2017)142 - Proposal for a directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2017)142 - Proposal for a directive to empower the competition authorities of the Member States to be more effective enforcers and to ...
source COM(2017)142 EN
date 22-03-2017


1. CONTEXT OF THE PROPOSAL

Contents

1.

General Context


The EU Member States are essential partners of the European Commission for enforcing the EU competition rules. Since 2004, the national competition authorities of the EU Member States (NCAs) are empowered by Council Regulation (EC) No 1/2003 1 to apply the EU competition rules alongside the Commission. Indeed, the NCAs are obliged to apply the EU competition rules to agreements or practices that are capable of having an effect on trade between Member States. For more than a decade both the Commission and the NCAs have enforced the EU competition rules in close cooperation in the European Competition Network (ECN). The ECN was created in 2004 expressly for this purpose.

Enforcement of the EU competition rules by both the Commission and the NCAs is an essential building block for the creation of an open, competitive and innovative internal market and is crucial for creating jobs and growth in important sectors of the economy, in particular, the energy, telecoms, digital and transport sectors.

The EU competition rules are one of the defining features of the internal market: where competition is distorted, the internal market cannot deliver on its full potential and create the right conditions for sustained economic growth. A key aspect of making the internal market deeper and fairer is ensuring that the internal market rules are effectively enforced so that they deliver close to the citizen. Enforcement of the EU competition rules is now taking place on a scale which the Commission could never have achieved on its own. Since 2004, the Commission and the NCAs took over 1000 enforcement decisions, with the NCAs being responsible for 85%. Action by a multiplicity of enforcers is a much stronger, more effective and better deterrent for companies that may be tempted to breach the EU competition rules. The Commission typically investigates anticompetitive practices or agreements that have effects on competition in three or more Member States or where it is useful to set a Europe-wide precedent. The NCAs are usually well placed to act where competition is substantially affected in their territory. NCAs have the expertise on how markets work in their own Member State. That knowledge is of great value when enforcing the competition rules. Action at national level promotes support by society at large for competition enforcement.

2.

Reasons for and objectives of the proposal


There is untapped potential for more effective enforcement of the EU competition rules by the NCAs. Regulation (EC) No 1/2003 did not address the means and instruments by which NCAs apply the EU competition rules and many do not have all the means and instruments they need to effectively enforce Articles 101 and 102 TFEU:

1. Some NCAs do not have enforceable guarantees that they can apply the EU competition rules independently without taking instructions from public or private entities. A number of authorities struggle with insufficient human and financial resources. This may have an impact on their ability to effectively enforce. For example, some NCAs are not able to carry out simultaneous inspections of all members of a suspected cartel, giving the others valuable time to destroy evidence and escape detection. Others lack the appropriate forensic IT tools to find evidence of infringements.

2. Many NCAs do not have all the tools they need to effectively detect and tackle competition law infringements. Some NCAs do not have key investigative powers such as to gather evidence stored on mobile phones, laptops, tablets etc. - a key drawback in the digital age. Their investigative powers are often without force because they are not backed up by effective sanctions if companies do not comply with them.

3. Not all NCAs can impose effective fines: In some Member States, national law prevents NCAs imposing effective fines for breaches of EU competition law, e.g. in some Member States companies can restructure to escape paying fines. In some Member States, there are little or no fines imposed for infringements of Articles 101 and 102 TFEU. The level of fines imposed varies greatly: the penalty for the same offence can be much higher in one Member State than another without that difference being justified by objective circumstances.

4. Leniency programmes are a key tool for detecting cartels. They encourage companies to provide valuable information about cartels in which they participated in exchange for full or partial immunity from fines. Companies considering applying for leniency need a sufficient degree of legal certainty to be incentivised to cooperate with authorities. That is particularly so when companies apply for leniency in different Member States because the cartel affects a number of jurisdictions. However, divergences in leniency programmes across Europe discourage companies from coming clean and providing evidence of these anti-competitive practices.

5. Gaps and limitations in NCAs’ tools and guarantees also undermine the system of parallel powers for the enforcement of Articles 101 and 102 TFEU based on close cooperation within the ECN. This system depends on authorities being able to rely on each other to carry out fact-finding measures on each other's behalf. However it does not work well when there are still NCAs that do not have adequate fact-finding tools. Other gaps in NCAs' ability to provide mutual assistance also undermine the European system of competition enforcement which is designed to work as a cohesive whole. For example, administrative NCAs cannot request the enforcement of their fines cross-border if the infringer has no legal presence in their territory. In the digital era, many companies sell over the internet to potentially numerous countries but may only have a legal presence in e.g. one Member State. Such companies currently have a safe haven from paying the fine.

These gaps and limitations in NCAs’ tools and guarantees mean that companies engaging in anti-competitive practices can face very different outcomes of proceedings depending on the Member States in which they are active: they may be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement, for example, because evidence of anti-competitive practices cannot be collected or because undertakings can escape liability for fines. Uneven enforcement of the EU competition rules distorts competition in the internal market and it undermines the system of decentralised enforcement that was put in place by Regulation (EC) No 1/2003.

A legislative proposal is therefore needed to empower the NCAs to be more effective enforcers of the EU competition rules to ensure that NCAs have the necessary guarantees of independence and resources and enforcement and fining powers. Removing national obstacles which prevent NCAs from enforcing effectively will help remove distortions to competition in the internal market and stop consumers and businesses, including SMEs, being put at a disadvantage and suffering detriment from such measures. Moreover, enabling NCAs to effectively provide each other with mutual assistance will ensure a more level playing field and safeguard close cooperation within the ECN.

The proposal is part of the Commission Work Programme 2017 2 and is based on enforcement experience in the ECN since 2004.

3.

Consistency with existing policy provisions in the policy area


The proposal will complement Regulation (EC) No 1/2003, as empowering the NCAs to be effective enforcers will mean that the full potential of the decentralised system of enforcement put in place by this instrument is realised. In particular, it will give substance to the requirement in Article 35 of Regulation (EC) No 1/2003 that Member States should designate NCAs in such a way that the provisions of the Regulation are effectively complied with. Ensuring that the NCAs have effective decision-making and fining powers will mean that the requirements of Article 5 of Regulation (EC) No 1/2003 (which confers on the NCAs the right to adopt decisions and fines when applying Articles 101 and 102 TFEU) are fully respected and elaborated on. Giving NCAs effective fact-finding powers will mean that full effect is given to the obligation in Article 22 of Regulation (EC) No 1/2003, which requires that NCAs are able to carry out such measures on behalf of their fellow ECN members. In its 2016 Communication on EU law: Better results through better application, 3 the Commission underlines the importance of having a robust, efficient and effective enforcement system to ensure that Member States fully apply, implement and enforce EU law. It highlights that enforcing EU law remains a challenge and calls for a stronger focus on enforcement to serve the general interest.

4.

Consistency with other Union policies


The proposal is fully consistent and compatible with existing Union policies in other areas, in particular those which give the NCAs or the ECN a specific consultative, cooperation, monitoring, reporting or decision-making role. 4

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

5.

Legal basis


The current proposal is based on both Articles 103 and 114 TFEU because it pursues a number of goals which are inextricably linked, namely to: i give effect to the principles set out in Articles 101 and 102 TFEU by empowering NCAs to be more effective enforcers; (2) ensure that competition in the internal market is not distorted and consumers and undertakings are not put at a disadvantage by national laws and measures which prevent NCAs from being effective enforcers; (3) ensure that the same guarantees and instruments are in place for national competition law when it is applied in parallel to Articles 101 and 102 TFEU to ensure legal certainty and a level playing; and i put in place effective rules on mutual assistance to safeguard the smooth functioning of the internal market and the system of close cooperation within the ECN.

Ensuring that the NCAs have the means and instrument to be more effective enforcers of Articles 101 and 102 TFEU falls within the ambit of Article 103 i TFEU as it is conducive to ensuring the full effectiveness of the competition rules. Article 103 i empowers the Council to adopt regulations or directives 'to give effect to the principles set out in Articles 101 and 102'. In particular, such measures can be adopted pursuant to Article 103(2)(e) TFEU 'to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article' and to Article 103(2)(a) 'to ensure compliance with the prohibitions laid down in Article 101 i and Article 102 by making provision for fines and periodic penalty payments'.

However, this legal basis does not in itself suffice, because both the aim and the content of the proposed Directive transcend this legal basis. The proposed Directive has an independent objective of seeking to bolster the functioning of the internal market by: i tackling national rules which prevent NCAs from being effective enforcers thereby creating more equal protection of companies and consumers in Europe; (2) ensuring that the same guarantees and instruments are in place for national competition law when it is applied in parallel to Articles 101 and 102 TFEU to ensure legal certainty and a level playing field; and (3) putting in place effective rules on mutual assistance to safeguard the smooth functioning of the internal market and the system of close cooperation within the ECN.

In some Member States, national law prevents NCAs from imposing effective fines on companies for infringements of the EU competition rules. Infringing companies present in Member States where NCAs lack effective fining powers are thus sheltered from sanctions and have little incentive to act in compliance with EU competition rules. This reinforces market distortions through-out Europe and undermines the internal market. Moreover, the differences between the Member States in the core principles for leniency programmes mean that companies can be treated differently depending on which authority acts. Only action at EU level can ensure that there are common core principles for granting leniency, thus providing a more level playing field for businesses.

Similarly, limitations or gaps in national laws may prevent NCAs from effectively gathering evidence. Measures taken to undermine the independence of the NCAs or to limit their resources necessarily emanate from the Member States themselves. For example, restrictions on independence can be motivated by the desire to exercise greater control over decision-making by the authority. A government's ability to apply influence or pressure on a NCA may result in political considerations prevailing over sound competition enforcement based on legal and economic arguments, to the detriment of companies operating in the internal market.

These gaps and limitations in NCAs’ tools and guarantees mean that companies engaging in anti-competitive practices can be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement, for example, because evidence of anti-competitive practices cannot be collected or because undertakings can escape liability for fines. Companies cannot compete on their merits where there are safe havens for anti-competitive practices. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement against anti-competitive practices which keep prices for goods and services artificially high. Uneven enforcement of Articles 101 and 102 TFEU throughout Europe thus distorts competition in the internal market and undermines its proper functioning.

Another way that the approximation of national laws is addressed by the proposed Directive is because its scope covers the application of national competition rules. In practice most NCAs apply national competition law provisions in parallel to Articles 101 and 102 TFEU in the same case. The proposed Directive will inevitably have an impact on national competition law provisions applied in parallel by NCAs. Moreover, when a NCA takes investigative measures at an early stage of a case, it is often difficult to know whether there is an effect on trade triggering the application of EU competition law. Accordingly, the NCA has to assume that both may apply. This means that when NCAs use the power foreseen by the proposal to collect digital evidence, they would do so potentially for the application of both EU and national law. It is therefore difficult, if not impossible, to dissociate such parallel application of national law and Articles 101 and 102 TFEU. If the same guarantees and instruments were not in place for national law when it is applied in parallel to Articles 101 and 102 TFEU, this would cause legal uncertainty and risk undermining the level playing field. Furthermore, in order for the protection of leniency and settlement material to be meaningful, it must apply not just while proceedings before NCAs for the application of the Articles 101 and 102 TFEU are on-going, but also for the stand alone application of the equivalent national law provisions.

Gaps and limitations in NCAs’ ability to provide mutual assistance also undermine the European system of competition enforcement which is designed to work as a cohesive whole. For example, the majority of NCAs cannot notify key enforcement measures or request the enforcement of their fines cross-border if the infringer has no legal presence in their territory. Such companies currently have a safe haven from paying the fine. The resulting ineffective enforcement distorts competition for law-abiding undertakings and undermines consumer confidence in the internal market, particularly in the digital environment. Addressing these divergences by providing for a system for the cross-border notification of preliminary objections to alleged infringements of Articles 101 and 102 TFEU and decisions applying these Articles, as well as the cross-border enforcement of fines imposed by administrative NCAs, is a key aspect to ensuring a level playing field in Europe and to preventing distortions of competition. Similarly, in order to safeguard the smooth functioning of the system of parallel powers in the ECN, national rules on limitation periods should be suspended for the duration of proceedings before NCAs of another Member State or the Commission.

Approximating national laws with these specific aims, which are reflected in full in the text of the proposed Directive, goes beyond giving effect to Articles 101 and 102 TFEU and rather concerns the proper functioning of the internal market.

In conclusion, the proposal for a Directive, both in its aim and its content, pursues a two-fold policy, one relating to the effective application of EU competition policy and the other to the proper functioning of the internal market. These components are inextricably linked: ensuring that NCAs are empowered to be effective enforcers necessarily means legislating to remove obstacles in national laws that result in uneven enforcement, thereby distorting competition in the internal market. Consumers and businesses will not be put at a disadvantage by national laws and measures which prevent NCAs from being effective enforcers. The same guarantees and instruments for NCAs must be in place for the application of national competition law provisions when they are applied in parallel to Articles 101 and 102 TFEU, because of the need for legal certainty and a level playing field. Finally, providing for effective cross-border mechanisms on mutual assistance is necessary to ensure a more level playing field and safeguard the system of parallel powers within the ECN. These interdependent, though distinct aims, cannot be pursued separately through the adoption of two different instruments. For instance, it is not feasible to spilt the proposed Directive into a first instrument, based on Article 103 TFEU which provides NCAs with the means and instruments they need to apply Articles 101 and 102 TFEU, and a second, based on Article 114 TFEU, that requires Member States to provide for the same rules for the application of national competition law when it is applied in parallel to the EU competition rules. For these reasons, the proposal is also based on Article 114 TFEU.

6.

Subsidiarity


Regulation (EC) No 1/2003 set up a decentralised system of competition enforcement, however the full potential of this system has still to be realised. The proposed Directive would ensure that competition enforcement effectively delivers at national level by giving NCAs the guarantees and instruments they need to be effective enforcers.

7.

NCAs are applying rules with a cross-border dimension


The EU should take action to address the problems identified because the NCAs are applying EU rules which have a cross-border dimension. Enforcement action by the NCA of one Member State may impact on competition, businesses and consumers in other Member States, e.g. a national-wide cartel typically excludes competitors from other Member States. If NCAs do not have the necessary means and instruments to enforce (e.g. they lack resources), this may have direct negative consequences for consumers and business not only in the Member State of the NCA concerned but also in other Member States, as well as on the ability of NCAs to cooperate throughout Europe. Member State Y cannot address the lack of means and instruments of a NCA in Member State X, thus only EU action can tackle this problem.

8.

Ensuring that cross-border cooperation works effectively


Only action at EU level can ensure that the system of cooperation set up by Regulation (EC) No 1/2003 works sufficiently. One of the main elements of Regulation (EC) No 1/2003 is that it provides for cooperation mechanisms that allow NCAs to investigate alleged infringements beyond the borders of their Member State. One NCA can ask another NCA to carry out investigative measures on its behalf to gather evidence located in another jurisdiction. As noted above, this mechanism does not work well if not all NCAs have effective powers to carry out inspections or to request information. Again, it is difficult to tackle this issue at national level. For example, if the NCA in Member State A needs the NCA in Member State B to gather evidence from companies located in its territory, but the NCA in Member State B does not have effective powers to gather this evidence, there is little that Member State A can do about this.


9.

Interlinkage between competition authorities' leniency programmes in Europe


Leniency programmes are interlinked because companies regularly file applications to a number of EU jurisdictions and need guarantees of cross-border legal certainty. The experience of the last decade has shown that such cross-border legal certainty cannot be sufficiently achieved by Member States individually. Divergences in leniency programmes still lead to different outcomes for leniency applicants in terms of whether they benefit from immunity from fines or even from fines reductions at all. Companies which are considering reporting cartel behaviour to a number of jurisdictions in return for more lenient treatment lack the certainty they need about whether and to what extent they will benefit from this. EU action is needed to ensure that a leniency system is available and applied in a similar way in all Member States.

10.

National laws can prevent NCAs from being more effective enforcers


As explained above in the section on the legal basis, national law can prevent NCAs from being sufficiently independent and having effective tools to detect infringements and impose effective fines on companies for infringements of the EU competition rules. In order to address this issue, measures need to be taken at EU level.

11.

Experience shows that in absence of EU legislation NCAs are unlikely to get all the necessary tools


Soft action has been used extensively to prompt voluntary action at national level, however, several NCAs still lack the guarantees and instruments to be effective enforcers. After more than a decade, the changes needed to make the decentralised enforcement system of Regulation (EC) No 1/2003 work better and empower the NCAs to be more effective enforcers, are unlikely to ensue. This means that many NCAs will continue to miss certain key tools to detect and sanction infringements or lack sufficient resources, to the detriment of the proper functioning of the decentralized system put in place by Regulation (EC) No 1/2003.

In sum, existing national competition frameworks will not by themselves allow the NCAs to enforce the EU competition rules more effectively across the EU. Moreover, the Commission cannot enforce any EU requirements regarding the investigation and sanctioning tools, resources and institutional structure of NCAs when enforcing the EU competition rules as long as such requirements do not exist. Accordingly, only an initiative at the EU level can empower the NCAs to be more effective enforcers by ensuring that they have more effective means and instruments to apply the EU competition rules.

12.

Proportionality


For most aspects the proposal will set minimum standards to empower NCAs to effectively enforce EU competition rules. This ensures an appropriate balance between meeting the general and specific objectives of the proposal whilst not unduly interfering in national traditions. Member States will still be able to set higher standards and adapt their rules to national specificities. For example, Member States will remain free to design, organise and fund their national competition authorities as they see fit, provided their effectiveness is ensured. Moreover the proposed Directive also ensures that the choice of those Member States which have opted for a judicial model of competition enforcement is fully respected.

It is only in the area of conditions for granting leniency for secret cartels that more detailed rules are required to reap added value in terms of competition enforcement. Companies will only come clean about secret cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. The marked differences between the leniency programmes applicable in the Member States lead to legal uncertainty for potential leniency applicants, which may weaken their incentives to apply for leniency. If Member States could implement or apply either less or more restrictive rules for leniency in the area covered by this Directive, this would not only go counter to the objective of maintaining incentives for potential applicants in order to render competition enforcement in the Union as effective as possible, but would also risk jeopardising the level playing field for undertakings operating in the internal market.

This approach taken in the proposal maximises the increase in effectiveness of the NCAs with a minimum of interference in national specificities by limiting the most detailed rules to where this is strictly necessary to boost effective enforcement.

Such a calibrated approach will not be a radical departure from, but a logical evolution of, general EU law requirement that Member States must provide for effective procedures and sanctions for the enforcement of EU rules. According to the Court of Justice of the Europe Union, national law must ensure that EU competition law is fully effective. 5 The Court has also held that detailed national procedural rules for the functioning of NCAs must not jeopardise the attainment of the objective of Regulation (EC) No 1/2003, which is to ensure that Articles 101 and 102 TFEU are applied effectively by those authorities. 6

13.

Choice of the instrument


The aim of the proposal for a Directive is to enhance the effectiveness of the NCAs, while not imposing one size fits all so as to allow taking into account Member States’ legal traditions and institutional specificities. Accordingly, a directive is the best way of ensuring that NCAs have the guarantees they need to be more effective enforcers, without unduly interfering in national specificities and traditions. In contrast to a regulation, it will leave Member States the choice of the most appropriate means of implementing the measures in the Directive. Moreover, a directive is a flexible tool for ensuring that NCAs have the necessary guarantees of independence and resources and enforcement and fining powers, while leaving room for Member States to go further if they so wish.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

14.

Ex-post evaluations/fitness checks of existing legislation


In 2013/2014, the Commission conducted an assessment of the functioning of the Council Regulation (EC) No 1/2003. Based on the results of this analysis, the 2014 Commission's Communication on Ten Years of Council Regulation 1/2003 found that there is scope for the NCAs to be more effective enforcers and identified a number of areas for action to boost effective enforcement by the NCAs, namely to guarantee that NCAs: i have adequate resources and are sufficiently independent (2) have an effective toolbox; (3) can impose effective fines; and i have effective leniency programmes. 7

The 2014 Communication built on the Report of Five Years of Regulation 1/2003, which found that empowering the NCAs to co-enforce the EU competition rules has positively contributed to stronger enforcement. 8 However, it concluded that there is room for improvement, in particular, to ensure that NCAs have effective enforcement powers and fining tools.

15.

Stakeholder consultations


From 4 November 2015 until 12 February 2016, the Commission held a public consultation in the form of an EU Survey which was split into two parts, a first one with general questions seeking input from non-specialised stakeholders, and a second one for stakeholders with a deeper knowledge/experience of competition matters.

The consultation followed up the Commission's Communication on Ten Years of Regulation 1/2003 which identified a number of areas of action to boost the powers of NCAs to enforce the EU competition rules. Accordingly, the second part of the consultation addressed four key issues: (i) resources and independence of the NCAs; (ii) enforcement toolbox of the NCAs; (iii) powers of NCAs to fine undertakings; and (iv) leniency programmes.

There were 181 replies from various stakeholders, ranging from private individuals, law firms and consultancies, companies and industry associations, consumer organisations, academics, non-governmental organisations, think tanks and trade unions to public authorities, including a number of Ministries and NCAs, from within and outside the EU.

76% of respondents considered that NCAs could do more to enforce EU competition rules than they currently do. Moreover, 80% supported that action should be taken to boost enforcement by NCAs. By stakeholder category: 100% of the academic institutions, consumer organisations, trade unions and NCAs which participated in the public consultation supported that action should be taken; 86% of NGOs; 84% of consultancies/law firms; 77% of companies/SMEs/micro-enterprises/sole traders; 67% of think tanks and 61% of industry associations. 64% of the stakeholders who participated in the public consultation supported that such action should preferably be a combination of EU and Member State action with the remaining preferences being 19% in favour of EU action only and 8% in favour of Member State action only. 9

In addition to the public consultation, on 19 April 2016, the European Parliament's Committee on Economic and Monetary Affairs (ECON) and the Commission co-organised a public hearing with the aim to provide experts and stakeholders with an additional opportunity to share their views on the public consultation. The hearing was followed by two panel discussions on the four topics covered by the public consultation. The participants in these discussions, including around 150 stakeholders from academia, business (large and small), consultancy, industry associations, law firms, press, private individuals and public authorities, widely agreed with and supported the objectives of the initiative.

Finally, two meetings were held with relevant Ministries to get their preliminary feedback. On 12 June 2015, Ministries were informed about the main issues that had been identified by the Commission. A second meeting with the Ministries and NCAs was held on 14 April 2016 in which they were informed about the results of the public consultation.

The results of the public consultation, the public hearing and the meetings with Ministries were taken into account in the proposal.

16.

Collection and use of expertise


Extensive data collection was carried out by the Commission in cooperation with all NCAs to have a detailed picture of the status quo.

17.

Impact assessment


The impact assessment report prepared by the Commission covers all main aspects related to this proposal. Four policy options were examined. The preferred option, which is implemented in this proposal, is to take EU legislative action providing NCAs with minimum means and instruments to be effective enforcers, complemented by both soft action and detailed rules where appropriate.

Regarding the other three policy options that were examined in the impact assessment report: (i) The baseline scenario of taking no EU action is highly unlikely to achieve the policy objectives and would not be in line with stakeholders’ expectations; (ii) The option of taking exclusively soft action would not provide a sound legal basis to ensure that all NCAs have the necessary means and instruments to be effective enforcers. Moreover, soft measures have been in place for a number of years, without achieving the aim of fully realising the potential of the decentralised system put in place by Regulation (EC) No 1/2003; (iii) Providing NCAs with detailed and uniform means and instruments though EU legislative action would bring limited additional benefits relative to the preferred option but at the same time entail greater interference in national legal systems and traditions.

The assessment of the benefits of the preferred option, both in qualitative and quantitative terms (for example the positive impact on Total Factor Productivity growth-a key ingredient of GDP), 10 shows that the benefits will largely exceed the costs of implementation.

The Commission's Regulatory Scrutiny Board gave its comments on the draft Impact Assessment in September 2016 and in its favourable opinion in December 2016, which were duly taken into account. 11 In view of these comments, the final Impact Assessment provides all available anecdotal evidence to illustrate the problem drivers, more details on the policy options that were considered, and a detailed analysis of the costs and benefits of the preferred option, which illustrates how the benefits of the current proposal would significantly outweigh the associated costs. Moreover, the final Impact Assessment elaborates on the limitations and uncertainties of the quantitative estimates, provides a clearer presentation of stakeholders' views during the public consultation, and better demonstrates the compatibility of the options considered with the subsidiarity and proportionality principles.

18.

Who will be affected and how


Empowering the NCAs to be more effective enforcers will benefit all consumers and companies, both large and small including SMEs, by boosting effective competition enforcement and creating a more level playing field. There is thus no need to provide for a differentiated scope, e.g. to include exemptions or to apply a lighter regime as regards measures towards SMEs.

19.

NCAs


NCAs will be the prime beneficiaries of the initiative, and together with businesses, the most directly affected. Once implemented, the proposal will provide all NCAs with effective means and instruments to find evidence of infringements, to fine companies which break the law, to act independently when enforcing the EU competition rules and to have the resources they need to perform their tasks, and to have at their disposal leniency programmes that are more effective. This will allow the NCAs to take effective enforcement action and enable them to cooperate better with other competition authorities in the EU leading to more competition on markets. More particularly, it will ensure that the system of cross-border information gathering and exchange put in place by Regulation (EC) No 1/2003 works effectively. This might create some additional costs for some public authorities, if for example new IT tools need to be provided, but these costs are expected to be negligible. Not all NCAs will be affected in the same way, since the changes required will be dependent on the precise starting point of each national legal framework.

20.

Businesses


Businesses will also be significantly affected by the initiative. Firstly, like consumers, businesses suffer from the consequences of a sub-optimal level of competition enforcement, as they face the negative impact of higher prices from their suppliers and the lower levels of innovation and choice, as well as from attempts of competitors infringing competition rules to foreclose them from the market. The proposal will boost competition enforcement by NCAs in Europe and create a more level playing field in which a competition culture prevails to the benefit of all companies, both large and small, as it will enable them to compete more fairly on their merits and grow throughout the single market. This will also incentivise businesses to innovate and offer a better range of higher quality products and services that meet consumers' expectations.

Secondly, the proposal will also to a certain extent benefit businesses subject to investigations for alleged infringements of EU competition rules. The introduction of core effective means and instruments for NCAs will reduce divergent outcomes for companies, making the application of the EU competition rules more predictable and increasing legal certainty across the EU. Businesses may also benefit from enhanced procedural rights particularly in those jurisdictions in which there is room for improvement, as well as more legal certainty when applying for leniency. Businesses could face initial adaptation costs in terms of familiarisation with new procedural rules. However, overall, the costs for businesses involved in cross-border activities in the single market to adapt to different legal frameworks will likely be reduced.

On the other hand, for those businesses infringing the law in some jurisdictions, it will become more difficult to conceal evidence or to escape fines, or to benefit from low fines.

21.

Consumers


Consumers will benefit from the advantages that stronger competition brings to the market in terms of wider choice and better products. For consumers, the lack of means and instruments and capacity of NCAs to un-leash their full potential when enforcing the EU competition rules means that they miss out on the advantages of competition enforcement. The proposal will ensure for consumers an equivalent level of protection across Europe from business practices that keep the prices of goods and services artificially high, enhancing their choice of innovative goods and services at affordable prices.

22.

Fundamental rights


The proposal ensures the protection of the fundamental rights of companies which are subject to competition proceedings, namely (but not exclusively), the right to conduct a business, the right to property, good administration and the right to an effective remedy before a tribunal (Articles 16, 17, 41 and 47 of the Charter of Fundamental Rights of the European Union). It will give NCAs effective powers to enforce the EU competition rules only to the extent that this is necessary and proportionate. It will oblige Member States to provide for appropriate safeguards for the exercise of these powers which at least meet the standards of the Charter of Fundamental Rights of the European Union and are in accordance with general principles of EU law, including due respect of the data protection rights of natural persons. In particular, these safeguards should respect the rights of defence of companies subject to proceedings for the enforcement of Articles 101 and 102 TFEU, an essential component of which is the right to be heard. This includes the right to formal notification of the NCA's objections under EU competition law and effective right of access to the file so that companies can prepare their defence. Moreover the addresses of final decisions of NCAs applying Articles 101 and 102 TFEU should have the right to an effective remedy before a tribunal to challenge these decisions.

The proposal also includes specific safeguards for the respect of fundamental rights. For example, inspections of non-business premises should be subject to the authorisation of a judicial authority. Fundamental rights guarantees are also embedded in several provisions. For instance, fines, structural and behavioural remedies can only be imposed by NCAs provided they are 'proportionate'. NCAs will only be able to carry out inspections and issue requests for information, provided they meet a 'necessity' test.

4. BUDGETARY IMPLICATIONS

Effective and efficient cooperation and exchange of information between Member States requires secure infrastructure. The ECN relies on interoperability for its functioning. In the current multiannual financial framework (MFF) these actions are mainly financed under the ISA2 programme 12 subject to the programme’s available resources, eligibility and prioritisation criteria. The modalities of the budgetary impact of the proposal beyond 2020 will be subject to the Commission's proposals on the next MFF and the final outcome of the negotiations on the MFF post 2020. An indicative amount of 1 million EUR per year is foreseen to maintain, develop, host, operate and support a central information system (European Competition Network System) in compliance with the relevant confidentiality and data security standards. Other administrative costs incurred in connection with the functioning of the ECN, e.g. organisation of meetings, developing and providing training programmes, issuing guidelines and common principles are estimated at 500 000 EUR per year.

As regards staff, the legislative proposal is budget-neutral and does not require additional staff resources. Details are explained in the legislative financial statement annexed to this proposal.

5. OTHER ELEMENTS

23.

Implementation plans and monitoring, evaluation and reporting arrangements


The Commission has prepared an Implementation Plan which identifies the main challenges that Member States are likely to face during the adoption and implementation of the Directive, and suggest a number of actions to address them.

The Implementation Plan includes (i) a single contact point with the Commission through a functional mailbox that Member States can use for all issues related to the proposed Directive, and (ii) a number of actions to be carried out by the Commission and by the Member States to address the three main implementation challenges: (a) implementation within the time-frame, (b) the provision of training and support for NCAs, and (c) ensuring adequate information for the businesses community.

The Commission will monitor the transposition and implementation of the Directive, both during the period running up to the date for transposition and after transposition.

An ex-post evaluation of the Directive will be carried out after 5 years from the date of its transposition.

24.

Explanatory documents


The proposed Directive sets out specific measures to ensure that: i NCAs have effective guarantees of independence and resources and enforcement and fining powers; (2) that the same guarantees and instruments are in place when NCAs apply national law in parallel to Articles 101 and 102 TFEU; and (3) NCAs can provide each other with effective mutual assistance to safeguard the system of close cooperation within the ECN. There are several legal obligations stemming from the proposed Directive. Its effective transposition will therefore require that specific and targeted amendments are made to the relevant national rules. In order for the Commission to monitor the correct transposition, it is thus not sufficient for Member States to transmit the text of the implementing provisions, as an overall assessment of the resulting regime under national law may be necessary. For these reasons, Member States should also transmit to the Commission explanatory documents showing which existing or new provisions under national law are meant to implement the individual measures sets out in the proposed Directive.

25.

Detailed explanation of the specific provisions of the proposal


The proposal consists of 10 chapters comprising 34 articles.

Chapter I – Subject matter, scope and definitions

This Chapter defines the scope and the main terms used in the proposal. The definitions used largely reflect those used in Regulation (EC) No 1/2003 and Directive 2014/104/EU on damages for infringements of the competition rules. 13

Chapter II – Fundamental Rights

The proposal will ensure that Member States provide for appropriate safeguards for the exercise of the powers provided for in this proposal. These safeguards will have to at least meet the standards of the Charter of Fundamental Rights of the European Union and general principles of Union law. 14 During the public consultation process, there was a clear demand from lawyers, business and business organisations for ensuring that NCAs have effective enforcement powers to be counter-balanced by increased procedural guarantees.

Chapter III – Independence and resources

This chapter ensures that NCAs enjoy the necessary guarantees of independence. In particular, it introduces guarantees aiming to protect the staff and management of NCAs from external influence when enforcing the EU competition rules by: (i) ensuring that they can perform their duties and exercise their powers independently from political and other external influence; (ii) explicitly excluding instructions from any government or other public or private entity; (iii) ensuring that they refrain from any action which is incompatible with the performance of their duties and exercise of their powers; (iv) prohibiting the dismissal of their management for reasons related to decision-making in specific cases; (v) ensuring that they have the power to set their priorities in individual cases including the power to reject complaints for priority reasons. Regarding this last aspect, the proposal does not interfere with Member States' prerogative to define general policy objectives. Most stakeholders during the public consultation process supported action covering all these aspects. Notably, businesses reported that the lack of ability of NCAs to set their priorities in full prevents them from focusing on infringements that cause the most harm to competition.

In addition, this Chapter introduces an explicit requirement for Member States to ensure that NCAs have the human, financial and technical resources that are necessary to perform their core tasks under 101 and 102 TFEU. The relevant provision leaves room for Member States to deal with economic fluctuations without risking the effectiveness of NCAs.


Chapter IV – Powers

Investigation and decision-making powers and procedures are the main working tools of competition authorities. However, currently there is a patchwork of powers across Europe, with many NCAs not having all the powers they need. The scope of NCAs' investigative and decision-making powers varies considerably, which can significantly impact on their effectiveness.

To address this, the proposal provides for the core minimum effective powers to investigate (the power to inspect business and non-business premises, to issue requests for information) and to take decisions (the power to adopt prohibition decisions including the power to impose structural and behavioural remedies, commitment decisions, and interim measures). Taking action to ensure that NCAs have such effective tools was widely supported in the public consultation. For example, stakeholders, particularly businesses, highlighted that the lack of power for NCAs to impose structural remedies was particularly problematic for companies damaged by the anticompetitive behaviour of the infringer.

The proposal will also ensure that those tools have teeth by providing for effective sanctions for non-compliance. To be meaningful they will be calculated in proportion to the total turnover of the undertaking concerned, but Member States will have flexibility in how this is implemented (e.g. specific percentages are not set for the level of the fine).

Chapter V – Fines and periodic penalty payments

The ability of competition authorities to fine companies which breach competition law is a central enforcement tool. The purpose of fines is to punish companies which have infringed competition rules and to deter the same and other companies from engaging in or continuing illegal behaviour. In 2009, the Court of Justice of the European Union ruled that 'the effectiveness of the penalties imposed by NCAs and the Commission is a condition for the coherent application of the EU competition rules'. 15 However, there are a number of issues that affect the level of enforcement of Articles 101 and 102 TFEU and mean that companies can face very low or no fines at all depending on which authority acts, undermining deterrence and the level-playing field.

Firstly, the nature of the fines imposed by NCAs for the infringement of the EU competition rules varies across Member States. Fines can be imposed either in administrative proceedings (imposed by the NCA), in non-criminal judicial proceedings (imposed by courts) or in criminal or quasi-criminal proceedings (imposed mainly by courts or, in some cases, by the NCA but according to quasi-criminal (misdemeanour) procedures). In the majority of Members States fines are administrative. Civil fines 16 are imposed in three Member States. In five Member States fines are imposed in (quasi) criminal proceedings. In most Member States in which fines are primarily imposed in (quasi) criminal proceedings, EU competition law is under-enforced or, even if enforced, sanctions were seldom imposed in the period 2004-2013. Most stakeholders stated in the public consultation that criminal systems are less suited for the effective enforcement of the EU competition rules. To address these problems of 'under-enforcement' and whilst maintaining flexibility for Member States, the proposal will ensure that in those Member States where the administrative NCA cannot today adopt fining decisions, powers will either have to be given to NCAs to adopt such decisions directly or Member States will have to ensure that such decisions can be taken by a court in non-criminal judicial proceedings. The need for change will thus be kept to a minimum.

Secondly, there are differences in the methodologies for calculating fines that can have a significant impact on the level of fines imposed by NCAs. These differences mainly concern: i the maximum fine that can be set (the legal maximum) and (2) the parameters for calculating the fine. Such differences partly explain how fines today can vary by up to 25 times depending on which authority acts. Very low fines may be imposed for the same infringement, meaning that the deterrent effect of fines differs widely across Europe which was an issue flagged during the public consultation. The fines imposed may not reflect the harm caused to competition by the anti-competitive behaviour. To ensure NCAs can set deterrent fines on the basis of a common set of core parameters:first, there should be a common legal maximum of no less than 10% of the worldwide turnover and second, when setting the fine, NCAs should have regard to the core factors of gravity and duration of the infringement.

The third aspect concerns limitations regarding who can be held liable for paying the fine. The concept of 'undertaking' in EU competition law is established by the case law of the European Court of Justice. It means that different legal entities belonging to one 'undertaking' can be held jointly and severally liable for any fines imposed on such 'undertaking'. 17 This sends a clear signal to the entire corporate group that the absence of good corporate governance and compliance with competition law will not remain unpunished. It also allows the fine to reflect the overall strength of the corporate group and not only that of the subsidiary, making it more meaningful and deterrent. However, several NCAs cannot today hold parent companies liable for infringements committed by subsidiaries under their control. Also, several NCAs cannot hold legal successors of an infringer and economic successors of an infringer liable for fines or there is uncertainty about this, despite the long established case law of the European Court of Justice. This means that companies can escape fines simply by merging with other companies or through corporate restructuring. To address this, the proposal provides that the notion of undertaking is applied for the purpose of imposing fines on parent companies and legal and economic successors of undertakings.

Chapter VI – Leniency

Companies will only come clean about secret cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. This Chapter aims to increase legal certainty for companies that wish to apply for leniency and thus to maintain their incentives to cooperate with the Commission and the NCAs by reducing the current differences between the leniency programmes applicable in the Member States. To achieve this, the proposal transposes the main principles of the ECN Model Leniency Programme into law, thus ensuring that all NCAs can grant immunity and reduction from fines and accept summary applications under the same conditions. In the public consultation, 61% of stakeholders found the lack of implementation of the ECN Model Leniency Programme by Member States to be problematic.

Furthermore, this Chapter ensures that applicants will have the benefit of five working days to file summary applications and clarifies that they should not be confronted with parallel resource intensive requests from NCAs while the Commission is investigating the case. It also clarifies that, once the Commission has decided not to act on a case, summary applicants should have the opportunity to submit full leniency applications to the relevant NCAs.

Finally, this Chapter ensures that employees and directors of companies that file for immunity are protected from individual sanctions, where they exist, provided that they cooperate with the authorities. This is important in order to maintain incentives for companies to apply for leniency because their leniency applications often depend on their employees cooperating fully, without fear of incurring sanctions.

Similarly, individuals who have knowledge of the existence or functioning of a cartel or other types of antitrust violations should be encouraged to provide that information, e.g. including through the establishment of reliable and confidential reporting channels. To that end, many NCAs have in place, or are considering the introduction of, effective means to protect individuals who report or disclose information about violations of EU competition law from retaliation, for example, disciplinary measures by their employers. For example, the Commission introduced an anonymous whistleblower tool for competition cases on 16 March 2017. 18 The Commission has underlined the importance of the protection of whistleblowers and is looking into the possibility of horizontal or further sectoral action at EU level. 19

Chapter VII – Mutual Assistance

This Chapter ensures that when one NCAs requests another NCA to carry out investigative measures on its behalf to gather evidence located in another jurisdiction, officials from the requesting NCA have the right to attend and actively assist in that inspection. This will make the conduct of such inspections more efficient and effective.

Moreover, this Chapter ensures that there are arrangements in place to allow NCAs to request and provide mutual assistance for the notification of decisions and enforcement of fines when companies have no legal presence in the territory of the requesting NCA or they do not have sufficient assets for the fine to be enforced against in that territory. Such mutual assistance is designed to minimise intrusion into national law and would incorporate key safeguards: (i) notification and enforcement will be carried out in accordance with the laws of the requested Member State; (ii) decisions imposing fines can only be enforced once they are final and can no longer be appealed by ordinary means; (iii) limitation periods will be governed by the law of the applicant Member State; (iv) the requested authority is not obliged to enforce fining decisions if this is manifestly contrary to the public policy of that Member State; and (v) disputes concerning the lawfulness of a measure will fall within the competence of the applicant Member State, while disputes concerning the notification or enforcement measures taken in the requested Member State will fall within the competence of the requested Member State.

Mutual assistance is a core aspect of this proposal because it is indispensable to close cooperation within the ECN and, therefore, to the success of the decentralised system on which the effective application of EU competition law depends. Without effective mutual assistance there cannot be a level playing field for companies with activities in more than one Member State, and the proper functioning of the internal market is hampered as a consequence.

Chapter VIII – Limitation periods

This Chapter ensures that if proceedings are on-going before a NCA or the Commission, the limitation periods applicable for other NCAs that may bring proceedings regarding the same agreement, decision of an association of undertakings or concerted practice are suspended for the duration of these proceedings. This will ensure that the system of parallel powers within the ECN works effectively and other NCAs are not prevented from subsequently acting as a result of their proceedings being time-barred. Member States remain free to determine the duration of limitation periods in their system or to introduce absolute limits provided that they do not render the effective enforcement of EU competition law practically impossible or excessively difficult.

Chapter IX – General provisions

This Chapter ensures that administrative NCAs, which are best placed to explain their decisions, have of their own right the power to bring and/or defend their cases before courts. 20 This will prevent the duplication of costs and effort inherent in another body defending these cases.

This Chapter also provides a key safeguard that information collected pursuant to the proposed Directive can only be used for the purpose for which it is acquired and cannot be used for the imposition of sanctions on natural persons.

Finally, this Chapter ensures that evidence is admissible irrespective of the medium on which the relevant information is stored, to ensure that the relevant procedural rules are digital proof.