The European Commission's Communication on Ten Years of Council Regulation 1/2003 identified numerous potential scopes for action to make the national competition authorities even more effective enforcers. The proposal for new rules by the Commission dated on 22 March, 2017 follows the public consultation on empowering national competition authorities to be more effective, which the Commission launched in November 2015. (To allow national specificities to be respected the proposal for new rules takes the form of a Directive.)
The Commission in the Executive Summary of the Impact Assessment dated on 22 March, 2017 which accompanies the Proposal for the Directive detailed above highlighted the role of the Member States' competition authorities in the protection of the well-functioning Single Market and protection of the interests of the European consumers and businesses.
The Executive Summary stated that due to the malfunctions of the operation of law in each year losses of € 181- 320 billion accrue due to undiscovered cartels which typically increase prices by 17 to 30 %. The commission identified the following main problems causing the deficiency of the effective Member State law enforcement:
1. lack of effective tools;
2. lack of power to impose retentive fines;
3. divergences in leniency programmes between Member States;
4. lack of resources and independency.
The public consultation which closed on 12 February 2016 and in meetings with stakeholders confirmed that all categories of respondents (including companies and industry associations, law firms, consumer organisations and public authorities) agreed that actions should be taken to empower the Member States' competition authorities to be more effective enforcers.
According to the Press Release of the Commission on the proposed rules, the directive is intended to provide the national competition authorities with a ‘minimum common toolkit’ as follows:
1. total independency and impartiality;
2. proper financial and human resources;
3. powers to gather all relevant evidence (such as the right to search mobile phones, laptops and tablets);
4. adequate tools to impose proportionate and retentive sanctions;
5. develop coordinated leniency programmes which encourage companies to come forward with evidence of illegal cartels.
The above detailed ‘minimum common toolkit’ also enables the authorities to take united actions against escaping fines through corporate re-structuring.
In our opinion a coordinated practice of national enforcement actions may also increase the legal certainty and stability providing predictable judgments however we indubitably agree with the statement of the Executive Summary according to which it is indispensable to ensure the due respect for fundamental rights.
The Hungarian Competition Authority, with the active participation of the Hungarian and international legal experts, is organising a Forum in June, 2017, whereby, amongst others, the above topic will be discussed in more detail.
The summary of the legislative initiatives above is not by any means exhaustive and has a purely informative nature.
Riesz & Péteri - Attorneys at Laws
dr. Tamás Riesz / dr. Csaba Bíró
Budapest, 25 May, 2017