Activities of Barbara KAPPEL 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 (12)
Amendment 59 #
Proposal for a directive
Recital 4
Recital 4
(4) Moreover, providing NCAs with the power to obtain all information related to the undertaking subject to the investigation in digital form irrespective of the medium on which it is stored, should also affect the scope of the NCAs’ powers when, at the early stages of proceedings, they take the relevant investigative measure also on the basis of the national competition law provisions applied in parallel to Articles 101 and 102 TFEU. Providing NCAs with inspection powers of a different scope depending on whether they will ultimately apply only national competition law provisions or also Articles 101 and 102 TFEU in parallel would hamper the effectiveness of competition law enforcement in the internal market. Accordingly, the scope of the Directive should cover both the application of Articles 101 and 102 TFEU on a stand- alone basis and the application of national competition law applied in parallel to the same case. This is with the exception of the protection of leniency statements and settlement submissions which also extends to national competition law applied on a stand-alone basis.
Amendment 61 #
Proposal for a directive
Recital 5
Recital 5
(5) NCertain shortcomings in national law could 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 TFEU. 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 open 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 Europe thus distorts competition in the internal market and undermines its proper functioning.
Amendment 63 #
Proposal for a directive
Recital 6
Recital 6
(6) GCertain gaps and limitations in NCAs' tools and guarantees could potentially 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. 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 66 #
Proposal for a directive
Recital 10
Recital 10
(10) Conversely, detailedclear and comprehensive 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. If Member States could implement or apply either less or more restrictive rules for leniency in the area covered by this Directive, this would not only go counter to the objective of maintaining incentives for applicants in order to render competition enforcement in the Union as effective as possible, but would also risk jeopardising the 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 107 #
Proposal for a directive
Recital 36
Recital 36
(36) The differences between leniency programmes at Member State level also jeopardise the level playing field for undertakings operating in the internal market. It is therefore appropriate to increase legal certainty by reducing these differenceincreased cooperation between NCAs.
Amendment 147 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. This includes the right of national competition authorities to decide independently on the allocation of their resources and the required qualification of their staff.
Amendment 222 #
Proposal for a directive
Article 16 – paragraph 2 – introductory part
Article 16 – paragraph 2 – introductory part
2. Member States shall ensure that immunity can be granted only if the undertaking
Amendment 224 #
Proposal for a directive
Article 16 – paragraph 2 – point c – point i
Article 16 – paragraph 2 – point c – point i
i. at the time the national competition authority receives the application, enables it to carry out a targeted inspection in connection with the secret cartel, provided that the national competition authority did not yet have in its possession evidence to carry out an inspection in connection with the secret cartel or had not already carried out such an inspection; or
Amendment 234 #
Proposal for a directive
Article 21 – paragraph 3
Article 21 – paragraph 3
Amendment 236 #
Proposal for a directive
Article 21 – paragraph 6
Article 21 – paragraph 6
6. 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. The Commission will keep the national competition authorities concerned informed on a regular basis about the state of play and come to the aforementioned decision without undue delay. 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 240 #
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 256 #
Proposal for a directive
Article 29 – paragraph 1
Article 29 – paragraph 1
1. IWithout prejudice to obligations to inform the public prosecutor of criminal offences as foreseen under national law, information collected on the basis of the provisions referred to in this Directive should only be used for the purpose for which it was acquired. It should not be used in evidence for the imposition of sanctions on natural persons.