The European Commission recently launched a public consultation on whether the EU’s national competition authorities should be given additional tools to enforce the EU antitrust rules. The consultation follows up on a 2014 Commission review that assessed the effectiveness of the cooperated enforcement. A number of action points were identified to further strengthen the national enforcement powers. For instance, national competition authorities should be independent in the exercise of their tasks and have effective investigative and decision-making tools, as well as tools for imposing deterrent and proportionate fines. The EU’s commissioner for competition, Margrethe Vestager, recently indicated that not all national competition authorities have the same enforcement powers. This is why the Commission is looking for feedback on a number of potential improvements. Interested parties have until 12 February 2016 to submit their views.
National competition authorities (NCAs) and courts are empowered to apply the EU competition rules within their jurisdictions on the basis of Regulation 1/2003. To ensure the consistent application of these rules, the European Commission and the 28 national competition authorities of the EU cooperate with each other in the European Competition Network. In 2014, the Commission assessed the effectiveness of cooperated enforcement in its Communication on ten years of antitrust enforcement under Regulation 1/2003. It identified a number of action points to further strengthen the enforcement powers of NCAs, including actions guaranteeing that they:
- are independent in the exercise of their tasks and have sufficient resources
- have a complete set of effective investigative and decision-making tools
- have effective tools for imposing deterrent and proportionate fines and well-designed leniency programmes.
In a speech of 20 November 2015, the EU’s commissioner for competition, Margrethe Vestager, elaborated on these action points. She mentioned that not all NCAs currently have the same enforcement powers. Some NCAs do not have the authority to gather evidence stored on digital devices, such as smartphones or laptops, during a dawn raid. In addition, because most NCAs have their own leniency programme, a company applying for leniency cannot always be sure it is the first to approach every single relevant NCA. And a penalty for the same offence can be as much as 25 times higher in one EU country compared to another because different principles apply in different member states. Furthermore, cartel members may have time to destroy evidence, because not all NCAs have sufficient resources to carry out simultaneous raids at all cartel members. Other NCAs cannot afford to purchase tools to extract hidden data from a company’s computer system.
It is for these reasons that the Commission has launched its public consultation on how to fix this. The Commission is considering a number of improvements regarding:
- the resources and independence of NCAs
- the enforcement toolbox of the NCAs
- the sanctioning powers of the NCAs
- leniency programmes