On 22 March 2017 the European Commission published a proposal for a Directive (the so-called “ECN+ Directive”) to further empower the national competition authorities (NCAs) of EU Member States and ensure consistency and effectiveness in their enforcement of EU antitrust rules.
Council Regulation (EC) No 1/20031, which came into force in May 2004, has contributed to stronger enforcement of EU antitrust rules generally and enabled NCAs and national courts to make a more significant contribution in this area. It also established the European Competition Network (ECN), through which the Commission and NCAs co-ordinate the application of EU competition law. The Commission published a communication 10 years on from the coming into force of the Regulation which identified several potential areas of action to boost the enforcement powers of NCAs. A public consultation held between November 2015 and February 2016 confirmed the Commission’s view that there is “untapped potential” for more effective enforcement of the EU antitrust rules by NCAs.
The proposed ECN+ Directive therefore aims to fully realise the potential of the decentralised system provided for by the Regulation by establishing a set of minimum guarantees, including in the following areas:
(i) Independence and resources: ensuring that NCAs have the necessary human, financial and technical resources and that they act independently and in a fully impartial manner, without political or other external influence;
(ii) Powers: providing a set of core minimum powers to investigate (including by inspecting premises and issuing requests for information) and to take decisions (including by adopting prohibition decisions, imposing behavioural or structural remedies and imposing interim measures), as well as providing effective sanctions for non-compliance;
(iii) Sanctions: ensuring that NCAs can impose effective, proportionate and deterrent fines for breach of EU antitrust rules. The proposal includes setting a common legal maximum for fines of not less than 10% of total worldwide turnover and rules on parental and successor liability;
(iv) Leniency: setting common leniency rules (based on the ECN Model Leniency Programme) that enable NCAs to grant immunity from or a reduction in fines, thereby increasing legal certainty for infringing companies and maintaining their incentives to co-operate with the authorities;
(v) Mutual assistance: allowing one NCA to carry out inspections on behalf of another NCA (including giving the requesting NCA the right to assist with the inspections) and to enforce decisions imposing fines at the request of another NCA against companies that do not have a legal presence or sufficient assets in the requesting NCA’s territory.
The choice of a directive as the instrument for the reform will allow Member States to set higher standards than those prescribed and adapt the rules to fit with national specificities. The Directive will now have to pass through the European Parliament and Council before it can be adopted. Once it has entered into force, Member States will have two years to transpose its provisions into national law.