The new EU directive of 11 December 2018 to empower the competition authorities of the Member States (“ECN+ directive”) was published on 14 January 2019 in the Official Journal. It will enter into force on 4 February 2019 and will have to be transposed in national legislation at the latest by 4 February 2021.
The national competition authorities were under current law already incentivized to actively collaborate, in the context of the European Competition Network (“ECN”), with the European Commission and between them with a view to apply the prohibition laid down in Articles 101 (restrictive practices) and 102 (abuse of dominant position) TFEU. The ECN+ directive’s main objective is to further strengthen this cooperative enforcement by obliging the Member States to ensure that their national authorities are provided with the necessary guarantees of independence, resources and enforcement and fining powers to apply Articles 101 and 102 TFEU. The directive (only) applies to cases where the NCAs apply Articles 101 and 102 TFEU or where they apply these provisions in parallel with national competition law.
By way of illustration, the directive harmonizes the rules applicable to the power of the NCAs, such the power to inspect business and other premises, to request information, to interview, to apply interim measures and accept commitments. The directive also harmonizes the rules on fines and periodic penalty payments, by providing minimum rules on the application of fines and the maximum amount of the fine. On this last element, the directive will cause a major change for many EU countries since the maximum fine to be applied in case of infringement of Article 101 or 102 TFEU cannot be less than 10% of the worldwide turnover of the undertaking. Finally, the directive also harmonizes the rules on leniency and provides some new rules to facilitate paneuropean leniency applications and cooperation between NCAs.
For further information on this directive and/or for general legal advice relating to competition law issues, please contact Pierre de Bandt.