On 22 March 2017, the Commission put forward a 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 (“Directive”).
An initiative on this topic was expected since, in November 2015, the Commission launched a public consultation on the strengthening of national competition authorities’ (“NCAs”) enforcement powers. Also, back in September 2016, the EU Competition Commissioner (“Competition Commissioner”) Margrethe Vestager noted that “each authority has its own national traditions. So the best type of legislation may be a directive, not a regulation”. Accordingly, the Commission had already hinted on the type of tool it would prefer to empower NCAs to be more effective enforcers of EU competition rules. (For further information, please see here our publication of November 2016). The Directive intends to tackle enforcement gaps and shortcomings identified in the NCAs’ investigative powers by providing a “minimum common toolkit” for NCAs which would ensure a “genuine common competition enforcement area in the Single Market”.
According to the Commission, the proposed new rules will ensure independence and impartiality of NCAs, as well as sufficient financial and human resources. They will also strengthen NCAs’ investigative powers (e.g. right to search mobile phones, laptops and tablets), provide adequate tools to impose proportionate and deterrent sanctions (e.g. rules on parental liability and succession) and enforce the payment of fines, in particular when companies are not present on their territory, and make sure there is coordination of NCAs’ leniency programs. The proposal also stresses the importance of safeguards for the respect of companies’ fundamental rights. The Competition Commissioner noted in this regard that “[…] with great power comes great responsibility. All competition authorities must use their authority appropriately, fully respecting companies' rights of defence. Companies have the right to know the case against them, and to have a chance to respond. Today's proposal therefore emphasises the fact that competition authorities must respect these rights, in line with the EU Charter of Fundamental Rights”.
The Commission has sent its proposal to the European Parliament and the Council of the EU for adoption. Once adopted, Member States will need to transpose it to their national laws.