Activities of Michel REIMON related to 2017/0063(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market PDF (820 KB) DOC (122 KB)
Amendments (54)
Amendment 56 #
Proposal for a directive
Recital 1
Recital 1
(1) Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure more openfairer competitive markets in Europe, where companies compete more on their merits and without company erected barriers to market entry, enabling them to generate wealth and create jobs. It protects consumers from business practices that keep the prices of goods and services artificially high and enhances their choice of innovative goods and services.
Amendment 60 #
Proposal for a directive
Recital 5
Recital 5
(5) National law prevents many NCAs from having the necessary guarantees of independence and enforcement and fining powers to be able to enforce these rules effectively. This undermines their ability to effectively apply Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU as appropriate. For example, under national law many NCAs do not have effective tools to find evidence of infringements of Articles 101 and 102 TFEU, to fine companies which break the law or do not have the resources they need to effectively apply Articles 101 and 102 TFEUadequate human and financial resources and the budgetary autonomy they need to effectively apply Articles 101 and 102 TFEU. Over the last years, several NCAs have seen their budget and staffing being reduced, threatening the proper functioning of NCAs and the fulfilment of their missions. This can prevent them from taking action at all or results in them limiting their enforcement action. The lack of operational tools and guarantees of many NCAs to effectively apply Articles 101 and 102 TFEU means that undertakings engaging in anti-competitive practices can face very different outcomes of proceedings depending on the Member States in which they are active: they may be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement. For example, in some Member States, undertakings can escape liability for fines simply by restructuring. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU results in missed opportunities to remove barriers to market entry and to create more openfairer competitive markets throughout the European Union where undertakings compete on their merits. Undertakings and consumers particularly suffer in those Member States where NCAs are less-equipped to be effective enforcers. Undertakings cannot compete on their merits where there are safe havens for anti- competitive practices, for example, because evidence of anti- competitive practices cannot be collected or because undertakings can escape liability for fines. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU throughout Europethe Union thus distorts competition in the internal market and undermines its proper functioning.
Amendment 62 #
Proposal for a directive
Recital 6
Recital 6
(6) Gaps and limitations in NCAs' tools and guarantees undermine the system of parallel powers for the enforcement of Articles 101 and 102 TFEU which is designed to work as a cohesive whole based on close cooperation within the European Competition Network. This system depends on authorities being able to rely on each other to carry out fact-finding measures on each other's behalf in order to foster Member States’ cooperation and mutual assistance. However it does not work well when there are still NCAs that do not have adequate fact- finding tools. In other key respects, NCAs are not able to provide each other with mutual assistance. For example, in the majority of Member States, undertakings operating cross-border are able to evade paying fines simply by not having a legal presence in some of the territories of Member States in which they are active. This reduces incentives to comply with Articles 101 and 102 TFEU. The resulting ineffective enforcement distorts competition for law-abiding undertakings and undermines consumer confidence in the internal market, particularly in the digital environment.
Amendment 65 #
Proposal for a directive
Recital 10
Recital 10
(10) Conversely, detailed rules are necessary in the area of conditions for granting leniency for secret cartels. Companies will only come clean about secret cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. The marked differences between the leniency programmes applicable in the Member States lead to legal uncertainty for potential leniency applicants, which may weaken their incentives to apply for leniency. Marked differences could also potentially lead to several members of a secret-cartel attempting to seek benefit from leniency programmes in different Member States. If Member States could implement or apply either less or more restrictiveclearer and harmonised rules for leniency in the area covered by this Directive, this would not only go counter togo towards the objective of maintaining incentives for applicants in order to render competition enforcement in the Union as effective as possible, butand would also risk jeopardising theguarantee a level playing field for undertakings operating in the internal market. This does not prevent Member States from applying leniency programmes that do not only cover secret cartels, but also other infringements of Articles 101 and 102 TFEU and equivalent national provisions.
Amendment 70 #
Proposal for a directive
Recital 14
Recital 14
(14) The independence of NCAs should be strengthened in order to ensure the effective and uniform application of Articles 101 and 102 TFEU. To this end, express provision should be made in national law to ensure that when applying Articles 101 and 102 TFEU NCAs are protected against external intervention or political pressure liable to jeopardise their independent assessment of matters coming before them. For that purpose, rules should be laid down in advance regarding the grounds for the dismissal of the members of the decision-making body of the NCAs in order to remove any reasonable doubt as to the impartiality of that body and its imperviousness to external factors. In addition, budgetary independence of NCAs should be guaranteed in national law.
Amendment 72 #
Proposal for a directive
Recital 15
Recital 15
(15) To ensure the independence of NCAs, their staff and members of the decision-making body should act with integrity and refrain from any action which is incompatible with the performance of their duties. The need to prevent the independent assessment of staff or members of the decision-making body being jeopardised entails that during their employment and term of office and for a reasonable period thereafter, they should refrain from any incompatible occupation, whether gainful or not. They should also declare any potential incompatible occupation of their close relatives. Furthermore, this also entails that during their employment and their term of office, they should not have an interest in any businesses or organisations which have dealings with a NCA to the extent that this has the potential to compromise their independence. The staff and the members of the decision-making body should declare any interest or asset which might create a conflict of interests in the performance of their duties, including any such interest of asset of their close relatives. They should be required to inform the decision-making body, the other members thereof or, in the case of NCAs in which the decision- making power rests with only one person, their appointing authority, if, in the performance of their duties, they are called upon to decide on a matter in which they or their close relatives have an interest which might impair their impartiality. In addition, Member States should ensure that a cooling off period exists for members of the decision-making body for a certain time after they leave the NCA.
Amendment 76 #
Proposal for a directive
Recital 17
Recital 17
(17) NCAs should be able to prioritise their proceedings and their budget spending for the enforcement of Articles 101 and 102 TFEU to make effective use of their resources, and to allow them to focus on preventing and bringing to an end anti-competitive behaviour that distorts competition in the internal market. To this end, they should be able to reject complaints on the grounds that they are not a priority. This should be without prejudice to the power of NCAs to reject complaints on other grounds, such as lack of competence or to decide there are no grounds for action on their part. The power of NCAs to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.
Amendment 82 #
Proposal for a directive
Recital 18
Recital 18
(18) NCAs should have the necessaryadequate resources, in terms of staff, expertise, financial means and technical equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are necessaryeded to perform those tasks should still be sufficient.
Amendment 86 #
Proposal for a directive
Recital 26
Recital 26
(26) NCAs should have effective powers to require information to be supplied as is necessaryrelevant to detect any agreement, decision or concerted practice prohibited by Article 101 TFEU or any abuse prohibited by Article 102 TFEU. This should include the right to require information irrespective of where it is stored, provided it is accessible to the addressee of the request for information. Experience shows that information provided on a voluntary basis by third parties, such as competitors, customers and consumers in the market, can also be a valuable source of information for informed and robust enforcement and NCAs should encourage this.
Amendment 88 #
Proposal for a directive
Recital 27
Recital 27
(27) NCAs should have effective means to restore competition on the market by imposing proportionate structural and behavioural remedies. Interim measures constitute a very useful tool for NCAs to guarantee, before the end of an investigation, that competition rules are respected and that investigated infringements are not perpetuating anti- competitive behaviours by undertakings. Interim measures should remain in place as long as a final decision on the case has been adopted.
Amendment 89 #
Proposal for a directive
Recital 28
Recital 28
(28) Where in the course of proceedings which may lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these authorities should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings concerned, except in cases of secret cartels. Such commitment decisions should find that there are no longer grounds for action by the NCAs without concluding as to whether or not there has been an infringement of Article 101 TFEU or Article 102 TFEU. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding of an infringement and decide upon a case. NCAs should have the effective means to monitor compliance by undertakings with commitments and to impose sanctions in case of non- compliance.
Amendment 96 #
Proposal for a directive
Recital 32
Recital 32
(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size and economic power of the undertaking, as they reflect the influence the undertaking was able to exert on the market. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU. Under no circumstances can compensation paid by an undertaking as a result of a settlement be deducted from the amount of the fine.
Amendment 101 #
Proposal for a directive
Recital 34
Recital 34
(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at least at a level of not less than 10% of the total worldwide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.
Amendment 108 #
Proposal for a directive
Recital 37
Recital 37
(37) NCAs should grant undertakings immunity from, and reductions of, fines if certain conditions are met. Undertakings should be deemed to have provided a national competition authority or the Commission with evidence in respect of a secret cartel which enables the finding of an infringement of Article 101 TFEU if that national competition authority did not have sufficient evidence to find an infringement of Article 101 TFEU in connection with the same cartel at the time of the submission by the undertaking of such evidence.
Amendment 109 #
Proposal for a directive
Recital 38
Recital 38
(38) Applicants should have the possibility to apply for leniency in writing or, where appropriate, by other means that do not result in the production of documents, information, or other materials in the applicant's possession, custody, or control. To that effect, NCAs should have a system in place that enables them to accept leniency statements either orally or by other means, including in digital form. In order to facilitate the application to leniency programmes by undertakings, Member States shall ensure that leniency applications can be accepted by national competition authorities in any of the working languages of the Union.
Amendment 110 #
Proposal for a directive
Recital 39
Recital 39
(39) Applicants which have applied for leniency to the European Commission in relation to an alleged secret cartel should be able to file summary applications in relation to the same cartel to the NCAs that they deem appropriate. NCAs should accept summary applications that contain a minimum set of information in relation to the alleged cartel an. NCAs willing to investigate cases for which they receive summary applications should contact the European Commission and both institutions should agree on which takes the lead. If the NCA receiving the summary application does not manifest its willingness to investigate the case, it should not request additional information beyond thise minimum set before ithey intends to act on the case. However, the onus is on applicants to inform the NCAs to which they have submitted summary applications if the scope of their leniency application with the Commission changes. NCAs should provide applicants with an acknowledgement stating the date and time of receipt, and inform the applicant whether they have already received a previous summary or leniency application in relation to the same cartel. OncIn case the Commission has decided not to act on the case in whole or partially, applicants should have the opportunity to submit full leniency applications to the NCAs to which they have submitted summary applications.
Amendment 111 #
Proposal for a directive
Recital 40
Recital 40
(40) Legal uncertainty as to whether undertakings̕ employees are shielded from individual sanctions can prevent potential applicants from applying for leniency. Current and former employees and directors of undertakings that apply for immunity from fines to competition authorities should thus be protected from any sanctions imposed by public authorities for their involvement in the secret cartel covered by the application. Such protection should be dependent on these employees and directors actively cooperating with the NCAs concerned and the immunity application predating the start of the criminal proceedings. Under strict conditions, Member States may decide to shield employees from individual sanctions when the immunity application is made after the start of the criminal proceedings.
Amendment 112 #
Proposal for a directive
Recital 41
Recital 41
(41) In a system of parallel powers to apply Articles 101 and 102 TFEU, close cooperation is required between NCAs and between NCAs and the Commission. In particular when a NCA carries out an inspection on behalf of another NCA pursuant to Article 22(1) of Council Regulation (EC) No 1/2003, the presence and assistance of the officials from the requesting authority should be enabled to enhance the effectiveness of such inspections by providing additional resources, knowledge and technical expertise.
Amendment 113 #
Proposal for a directive
Recital 42
Recital 42
(42) Similarly, arrangements should be put in place to allow NCAs to request mutual assistance for the notification of preliminary objections and decisions and the enforcement of decisions imposing fines or period penalties when the undertaking concerned has no legal presence in their territory. This would ensure the effective enforcement of Articles 101 and 102 TFEU and contribute to the proper functioning of the internal market. In order to incentivise mutual assistance, the requested authorities should be able to claim the recovery of relevant costs for the notification and enforcement of such decisions.
Amendment 114 #
Proposal for a directive
Recital 45
Recital 45
Amendment 115 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence and resources and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and consumers and undertakings, especially small and medium-sized enterprises, are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers. The scope of the Directive covers the application of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU to the same case, with the exception of Article 29(2) which also extends to national competition law applied exclusively.
Amendment 124 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) The staff and the members of the decision-making body of national administrative competition authorities can perform their duties and exercise their powers for the application of Articles 101 and 102 TFEU independently from political and other external influence. In particular, members of the decision- making body of national administrative competition authorities shall not be appointed by a political authority;
Amendment 126 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) The staff and the members of the decision-making body of national administrative competition authorities neither seek nor take any instructions from any government or other public or private entity when recruiting staff, carrying out their duties and exercising their powers for the application of Articles 101 and 102 TFEU;
Amendment 136 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) National administrative competition authorities have the power to set their priorities and request external expertise and research, if needed, for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law.
Amendment 138 #
Proposal for a directive
Article 4 – paragraph 2 – point e a (new)
Article 4 – paragraph 2 – point e a (new)
(ea) The members of the decision- making body of national administrative competition authorities are subject to a one year cooling off period after they leave their functions, during which they cannot be working for undertakings which have been investigated by their respective authority over the last five years. All staff and members of the decision-making body shall when being recruited, and every year after, fill in a form to disclose any potential conflict of interests that they or their close relatives could have with a case. National competition authorities shall have procedures in place to ensure that staff can recuse themselves in case a conflict of interests arises at the start or during an investigation.
Amendment 150 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that national competition authorities have the sufficient human, financial and technical resources that are necessarytheir disposition for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2.
Amendment 151 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. Member States shall guarantee the budgetary autonomy of national competition authorities, including the full autonomy on the allocation of their budget and the capacity to identify budget priorities, as well as the guarantee that their yearly allocated budgets cannot be decreased during the financial year of allocation.
Amendment 153 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Member States shall ensure that National Competition Authorities submit annual reports on their activities and on their resources to a governmental or parliamentary body. These reports shall be publicly available. The Commission is empowered to initiate on a case by case basis infringement procedures against Member States which would not guarantee adequate resources and budgetary autonomy to NCAs to perform their tasks.
Amendment 171 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings.
Amendment 177 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
Member States shall ensure that national administrative competition authorities acting on their own initiative may by decision order the imposition of interim measures on undertakings at leastincluding in cases where there is urgency due to the risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall apply for a specific peruntil a final decisiodn ofn timehe case is adopted and may be renewed in so far that is necessary and appropriate. Such a decision may continue to apply even in cases when the Commission has decided to open a case, and until a final decision is adopted.
Amendment 181 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Member States shall ensure that in proceedings initiated with a view to a decision requiring that an infringement of Article 101 or Article 102 TFEU be brought to an end, national competition authorities may by decision make binding commitments offered by undertakings to meet the concerns expressed by these authorities. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the national competition authority concerned. Member States shall ensure that national competition authorities are sufficiently empowered to monitor the proper implementation of such commitments.
Amendment 185 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose by decision in administrative proceedings, or request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings and associations of undertakings when, either intentionally or negligently, they infringe Articles 101 or 102 TFEU.
Amendment 189 #
Proposal for a directive
Article 12 – paragraph 2 – introductory part
Article 12 – paragraph 2 – introductory part
2. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose by decision in administrative proceedings, or, request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings or associations of undertakings which are determined in proportion to their total turnover, where intentionally or negligently:
Amendment 193 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that when national competition authorities determine the amount of the fine for an infringement of Article 101 or Article 102 TFEU regard is had both to the gravity and to the duration of the infringement, the duration of the infringement and the repetition of the prohibited conduct. Member States shall ensure that compensation payments disbursed by an undertaking as a result of a settlement cannot be deducted from the amount of the fine.
Amendment 198 #
Where necessary to ensure the full payment of the fine, Member States shall ensure that national competition authorities are entitled to require the payment of the outstanding amount of the fine by any of the undertakings whose representatives were members of the decision-making bodies of the association. To the extent that it is still necessary, national competition authorities shall also be entitled to require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment shallmay not be required from those members of the association that did not implement the infringement and either were not aware of it or have actively distanced themselves from it before the investigation started.
Amendment 201 #
Proposal for a directive
Article 14 – title
Article 14 – title
Amendment 207 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not beis at least set at a level belowof 10% of its total worldwide turnover in the business year preceding the decision.
Amendment 217 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at least at a level belowof 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.
Amendment 225 #
Proposal for a directive
Article 16 – paragraph 2 – point c – point ii
Article 16 – paragraph 2 – point c – point ii
ii. in the national competition authority's view, enables the finding of an infringement of competition law, provided that the national competition authority did not yet have in its possession evidence to find such an infringement and that no other undertaking previously qualified for immunity at the European or national levels under paragraph 2(c)(i) in relation to the same cartel.
Amendment 228 #
Proposal for a directive
Article 18 – paragraph 1 – point b – point i
Article 18 – paragraph 1 – point b – point i
i. providing the national competition authority promptly with all relevant information and evidence relating to the alleged secret cartel that comes into its possession or is available to it; , including: – the name and address of the legal entity submitting the immunity application, – the names of all other undertakings that participate or participated in the alleged secret cartel, – a detailed description of the alleged cartel, including the affected products, the affected territories, the duration and the nature of the alleged cartel conduct, – evidence of the alleged cartel accessible to the applicant, – information on any past or possible future leniency applications made to any other national competition authority or to the Commission in relation to the alleged cartel.
Amendment 229 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Member States shall ensure that applicants can apply for leniency in writing and that national competition authorities have a system in place that enables them to accept leniency statements either orally or by other means that do not result in the production of documents, information, or other materials in the applicant’s possession, custody, or control. Any application for the leniency programme shall however result in the production of an acknowledgment stating the date and time of receipt.
Amendment 231 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
Member States shall ensure that applications for leniency may be submitted in any of the official languages of the Union.
Amendment 233 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
2. Member States shall ensure that national competition authorities have discretion whether or not to grant a marker. A marker maybe granted only if the undertaking provides the national competition authority with the following cumulative information: i. the name and address of the applicant; ii. the basis for the concern which resulted in the leniency application; iii. the names of all other undertakings participating or having participated in the alleged secret cartel; iv. the affected products and territories; v. the duration and the nature of the alleged cartel conduct; vi. information on any past or possible future leniency applications made to any other competition authority in relation to the alleged secret cartel.
Amendment 235 #
Proposal for a directive
Article 21 – paragraph 3
Article 21 – paragraph 3
3. Member States shall ensure that if a national competition authorities refrain from requesting from the applicant any information related to the alleged infringement covered by the summary application beyond the items set out in paragraph 2 before they require the submission of a full applicy is willing to investigate the case mentioned in a summary application, it shall inform the Commission in written within a deadline of 30 working days after receiving the summary application. The Commission and the national competition authority shall agree on who takes the lead on the investigation pursuant to paragraph 6Article 22c.
Amendment 237 #
Proposal for a directive
Article 21 – paragraph 6
Article 21 – paragraph 6
6. In cases others than those referred in paragraph 3, Member States shall ensure that applicants have the opportunity to submit full leniency applications, perfecting the summary applications referred to in paragraph 1, to the national competition authorities concerned, once the Commission has informed those authorities that it does not intend to act on the case in whole or in part. Member States shall ensure that national competition authorities have the power to specify a reasonable period of time within which the applicant must submit the full application together with the corresponding evidence and information.
Amendment 239 #
Proposal for a directive
Article 21 – paragraph 7
Article 21 – paragraph 7
7. Member States shall ensure that if the applicant submits the full application in accordance with paragraph 6, within the period specified by the national competition authority, the information contained therein will be deemed to have been submitted at the date and time of the summary application. If the applicant had submitted the summary application no later than 5 working days after filing the leniency application to the Commission, the summary application will be deemed to have been submitted at the date and time of the leniency application submitted to the Commission.
Amendment 243 #
Proposal for a directive
Article 22 – paragraph 1 a (new)
Article 22 – paragraph 1 a (new)
In cases where the immunity application is filled by an undertaking after the start of investigations by the national competition authorities but presents new facts and a significant added value for the purpose of proving an infringement of Article 101 TFEU or a corresponding provision under national law, Member States may adopt provisions allowing former employees of applicants for immunity a protection from any criminal and administrative sanctions, if these employees actively cooperate with the competition authorities concerned.
Amendment 244 #
Proposal for a directive
Article 22 a (new)
Article 22 a (new)
Article 22a Interplay between leniency programmes in different Member States In order to prevent cases of double immunity, Member States shall ensure that when several undertakings participating to the same secret cartel have filled different leniency applications with different national competition authorities or the Commission, only the first leniency application is considered admissible.
Amendment 245 #
Proposal for a directive
Article 22 b (new)
Article 22 b (new)
Article 22b Incentive to report secret cartels and other anti-competitive practices Member States are strongly encouraged to ensure that their national competition authorities put in place an online tool to make it easier for individuals to alert about secret cartels and other anti- competitive practices while maintaining their anonymity.
Amendment 246 #
Proposal for a directive
Article -23 (new)
Article -23 (new)
Article -23 Cooperation between national competition authorities and the Commission 1. Member States shall ensure that in cases of secret cartels covering at least three Member States, the Commission services are automatically competent to open an investigation and national competition authorities shall refer them such cases. 2. In cases referred to in Article 21 paragraph 3, and without prejudice to the paragraph above, national competition authorities and the Commission shall enter into dialogue on which institution is best placed to start an investigation. Unless the need for a pan-European investigation is demonstrated or in cases where no agreement has been found within 30 working days, the national competition authority is deemed to have priority to open a case. If the Commission takes the lead in opening an investigation, the national competition authorities shall refrain from requesting from the applicant any information related to the alleged infringement covered by the summary application beyond the items set out in Article 21 paragraph 2 before they require the submission of a full application pursuant to Article 21 paragraph 6.
Amendment 248 #
Proposal for a directive
Article 23 – paragraph 1 a (new)
Article 23 – paragraph 1 a (new)
In case of positive conflict of jurisdictions for investigation between two or more national competition authorities and where no agreement is found on who takes the lead to investigate, the Commission shall be tasked to nominate the national competition authorities deemed best placed to open a case.
Amendment 255 #
Proposal for a directive
Article 29 – paragraph 1
Article 29 – paragraph 1
Amendment 264 #
Proposal for a directive
Article 31 – title
Article 31 – title
Amendment 266 #
Proposal for a directive
Article 31 – paragraph 1 a (new)
Article 31 – paragraph 1 a (new)
The European Competition Network shall publish as often as necessary and useful recommendations and best practices from different national competition authorities regarding independence, resources, powers, fines and assistance programmes.