Antitrust Law Daily Wrap Up, ANTITRUST NEWS: EC seeks comments on additional antitrust enforcement tools for member states, (Nov 4, 2015)

By Michael Menzhuber, J.D., LL.M.

The European Commission (EC) is seeking comments on whether national competition authorities in European Union (EU) Member States should be given additional tools to enforce EU antitrust rules. The general public and stakeholders are invited to share their experience and provide feedback on potential EU legislative actions to further strengthen the enforcement and sanctioning tools of national competition authorities.

The competition enforcement landscape was transformed by the entry into force of Regulation 1/2003 in 2004, giving national competition authorities and national courts a key role in applying the EU rules on restrictive business practices and abuses of dominant market positions (Articles 101 and 102 of the Treaty on the Functioning of the European Union - TFEU). It is a significant contribution to a level playing field for companies operating in the Single Market and essential to drive economic growth, that EU competition rules are now being applied on a scale that the EC could never have achieved on its own.

Regulation 1/2003 did not, however, address the means and instruments by which national competition authorities apply EU antitrust rules, according to the EC. A number of concrete areas of action to boost enforcement powers of national competition authorities and address differences between national systems were identified by the 2014 Commission Communication on Ten Years of Regulation 1/2003. Where the same substantive rules are being applied, divergence in procedural rules should not undermine the level playing field.

Following further fact-finding and discussions with both national competition authorities and Member State ministries, the public consultation now invites a broad range of stakeholders to provide feedback on potential improvements:

• To ensure that all national competition authorities have the right tools to detect and sanction violations of EU competition rules;

• To ensure national competition authorities have effective leniency programs that encourage companies to come forward, possibly in several jurisdictions, with evidence of illegal cartels; and

• To safeguard the independence of national competition authorities when enforcing EU competition law, and ensure they have the resources and staff needed to do their work.

It also appears that national competition authorities may face difficulties relating to: (1) their powers of investigation (e.g. some national competitions authorities cannot gather evidence stored on digital devices when inspecting the premises of a suspected cartelist - laptops, tablets, etc.); or (2) their ability to impose effective fines for anticompetitive behavior (e.g. some national competitions authorities cannot fine cartelists for the full period of their participation in the cartel).

Responses to the public consultation may be submitted through February 12, 2016. All input will be carefully reviewed by the EC before deciding whether and to what extent it should take further action.

The public consultation is available here.

News: Antitrust