57 Amendments of Lucy ANDERSON related to 2017/0087(COD)
Amendment 59 #
Proposal for a regulation
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 43(2), 91, 100, 114, 192, 194(2) and 337 thereof,
Amendment 65 #
Proposal for a regulation
Recital 1
Recital 1
(1) In accordance with Article 3(3) of Treaty on European Union (TEU), the establishment of an internal market is one of the main objectives to be reached by the Union in cooperationjointly with the Member States. Pursuant to Article 26(1) of the Treaty on the Functioning of the European Union (TFEU), the Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market. Under Article 26(2) TFEU, the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. The internal market has generated new opportunities and economies of scale for European undertakings, has created jobs, has offered greater choice at lower prices for consumers and has enabled European citizens to live, study and work in the Union. Despite all the progress made, significant difficulties in the establishment and functioning of the internal market remain and European citizens and undertakings are unable to reap the full benefits of the internal market. In certain cases, suboptimal information affecting the action by the CommissEuropean Union on the application of Union law in the area of the internal market increases the risk of the emergence of difficulties to trade in the internal market resulting from uncoordinated national enforcement activities or multifarious development of national regulatory solutions to those problems.
Amendment 66 #
Proposal for a regulation
Recital 2
Recital 2
Amendment 72 #
Proposal for a regulation
Recital 3
Recital 3
(3) Articles 4 and 17 TEU assign certain roles to the Commission and the Member States. Articles 258 and 279 TFEU provide for procedures for the enforcement by the Union institutions of obligations arising under the Treaties. Detecting and, where appropriate, addressing such difficulties in the establishment and functioning of the internal market in an efficient and effective manner requires timely access to comprehensive, accurate and reliable quantitative and qualitative market information. This is particularly the case whenre the Commission acts as guardian of the Treaties, pursuant to Article 17(1) TEU, which entrusts the Commission with the tasks tof ensureing the application of the Treaties, and of the measures adopted by the institutions pursuant to them, and tof overseeing the application of Union law. As established by the Court of Justice on numerous occasions in the context of infringement proceedings under Article 258 TFEU, it is the Commission’s responsibility to place before the Court of Justice all the relevant factual information to prove the existence of an infringement. Such information may include in certain instances market information, needed to enable the Court of Justice to establish whether the Union law has been breached.
Amendment 76 #
Proposal for a regulation
Recital 4
Recital 4
(4) The Commission does not have general investigative powers of its own to help it enforce Union law in the area of the internal marketAs regard its role of the Guardian of the Treaties laid down by Article17 TEU and its prominent role in the procedure for failure to comply laid down by Article 258 TFEU, the Commission has general powers of its own to help it enforce Union law in the area of the internal market. As provided by Article 4of the TEU, Member States are extensively bound by duties to cooperate loyally with the European Union and to assist the European institutions in the accomplishment of their missions. The existing investigative powers related to the competition rules, as prescribed by Council Regulation (EC) No 1/2003,26 Council Regulation (EC) No 139/200427 and Council Regulation (EU) 2015/1589,28 are limited by their legal basis to defined areas and do not allow the collection and use of the gathered information for other internal market- related policy purposes. __________________ 26 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1). 27 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 32, 5.2.2004, p. 1). 28 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9).
Amendment 79 #
Proposal for a regulation
Recital 5
Recital 5
(5) As recognised by the Court of Justice, when enforcing Union law, the Commission, whereas it may rely on indicia, is largely reliant on the information provided by complainants, by public and private bodies, and by the Member States concerned. Pursuant to Article 4(3) TEU, Member States are under the duty, as recalled several times by the Court of Justice, to facilitate the Commission’s tasks, including in particular its role as guardian of the Treaties. However, Member States may not always have access to the relevant market information that the Commission would need to perform its tasks or their national rules on information collection may prevent them from disclosing the information collected.
Amendment 87 #
Proposal for a regulation
Recital 10
Recital 10
(10) Such empowerment does not aim at creating new enforcement powers for the Commission such as, in particular, the powers to pursue infringements of Union law in the internal market area against individual market participants. Its purpose is rather to provide the Commission with additional fact-finding ability where this is strictly required for performing the task entrusted to the Commission by the TFEU to ensure the application of Union law in relation to the aim of establishing and ensuring the functioning of the internal market. In the interest of the establishment of a fully functioning internal market, it is appropriate to clarify that such empowerment covers also those economic sectors within the internal market for which TFEU has foreseen common policies: agriculture and fisheries (excluding the conservation of marine biological resources), transport, environment and energy.
Amendment 95 #
Proposal for a regulation
Recital 11
Recital 11
(11) For this investigformative tool to be effective, the information sought should relate to the application of relevant Union law. This may consist, for example, of factual market data, including cost structure, pricing policy, products or services characteristics or geographical distribution of customers and suppliers. It may also consist of undertakings’ or associations of undertakings’ fact-based analysis of the functioning of the internal market, such as in relation to perceived regulatory and entry barriers or to costs of cross-border operations. In order to minimise costs of replying to requests for information, such requests should only cover information that is likely to be at the disposal of the undertaking or association of undertakings concerned.
Amendment 102 #
Proposal for a regulation
Recital 12
Recital 12
(12) When issuing requests for information to Member States relative to undertakings and associations of undertakings, the Commission is required to undertake a careful selection of addressees of the requests, so that requests are only addressed to undertakings and associations of undertakings that are capable of providing sufficiently relevant information, notably larger undertakings in the relevant Member States. These requests for information are aimed at solving a presumed, i.e. based on the available information, serious problem with the application of Union law in the areas of the internal market, agriculture and fisheries (excluding the conservation of marine biological resources), transport, environment and energy. Their aim is not to prosecute undertakings for the underpinning behaviour, if any. Accordingly, sanctions provided for in the instrument are designed to address exclusively two instances. They only cover an intentional or through gross negligence lack of a response to a request for information and an intentionally or through gross negligence incorrect, incomplete, or misleading reply. The collected information, if relevant, could also be used to provide insight into situations where undertakings find it difficult to comply with the legislation, with a view to improving the proper application of the internal market rules. Their aim is not to prosecute undertakings for the underpinning behaviour, if any. With a view to avoid disproportionate administrative burden for micro- undertakings, which are anyway unlikely to be in a position to provide sufficiently relevant information, the Commission should be precluded from issuing requests for information to this category of undertakings. When issuing requests for information to small and medium-sized undertakings, the Commission should take due account of the principle of proportionality. While SMEs are unlikely to operate at a larger scale enabling them to significantly affect market outcomes, the information gathered from SMEs could prove valuable in informing the Commission on difficulties in establishment and functioning of the internal market. Information readily available to SMEs might be of anecdotal nature but it could still alert the Commission about single market difficulties SMEs might suffer from. SMEs would normally not and should not incur any significant additional costs of data gathering in response to this tool. Given their relatively weaker bargaining position in value chains, SMEs might be more forthcoming with information when granted a procedure duly respecting confidentiality and anonymity. Resolving a difficulty in the single market establishment and functioning could in particular benefit SMEs as it is often the small innovative firms which face the greatest barriers when trying to start up and scale up across the single market. For reasons of consistency and legal certainty, the definitions of ‘micro-undertaking’, ‘small undertaking’ and ‘medium-sized undertaking’ of Directive 2013/34/EU of the European Parliament and of the Council29 should apply. __________________ 29 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p.19).
Amendment 107 #
Proposal for a regulation
Recital 13
Recital 13
(13) In the interest of the consistency in the application of Union law in the area of the internal market as well as agriculture, fisheries (excluding the conservation of marine biological resources), transport, environment and energy, it is necessary to establish mechanisms for the sharing of information between the Commission and the Member States in relation to the requests for information and, where appropriate, to the replies to such requests, without prejudice to professional secrecy obligations.
Amendment 111 #
Proposal for a regulation
Recital 14
Recital 14
(14) The investigformative tool provided for in this Regulation is particularly useful for ensuring the application of Union law in the area of the internal market by the Commission. It is also useful, for any subsequent enforcement action by the Member States concerned that would require the use of the relevant information collected using this power and disclosed by the Commission to the Member States concerned. Moreover, where difficulties in the application of existing rules are experienced, including situations where undertakings are not able to comply with the legislation due to lack of legal clarity, this investigative tool could also be useful after the use of other tools and sources of relevant information have proven inadequate, for contributing to the conception or design of regulatory solutions. It is also appropriate not to allow the use of such information for other purposes, in particular the application of the competition rules of the TFEU, without prejudice to the reuse of information made public.
Amendment 116 #
Proposal for a regulation
Recital 15
Recital 15
(15) The CommissionMember States should be able to enforce compliance with the requests for information it addressesd by the Commission to any undertaking or association of undertakings, as appropriate, by means of proportionate fines and periodic penalty payments imposed by way of decisionin conformity with their national law. In setting the amounts of fines and periodic penalty payments, the CommissionMember States should take due account of the principle of proportionality (including the aspects of appropriateness), in particular as regards small and medium- sized undertakings that should be excluded from such penalties. The rights of the parties requested to provide information should be safeguarded by giving them the opportunity to make known their views before any decision imposing fines or periodic penalty payments is taken.
Amendment 120 #
Proposal for a regulation
Recital 16
Recital 16
Amendment 123 #
Proposal for a regulation
Recital 17
Recital 17
Amendment 130 #
Proposal for a regulation
Recital 19
Recital 19
(19) The disclosure of information about an undertaking’s business activity could result in a serious harm to the same undertaking. Therefore, the Commission and the Member States should take due account of the legitimate interests of undertakings, in particular the protection of their business secrets. To ensure that business secrets and other confidential information provided to the Commission and the Member States are treated in compliance with Article 339 TFEU, any undertaking or association of undertaking submitting information should clearly identify which information it considers to be confidential and why it is confidential. The Commission and Member States should not be able to disclose confidential information provided by such respondents to the Member State concerned by the request unless it has previously obtained their agreement to disclose that information to that effect. The respondent concerned should be required to provide the CommissionMember States with a separate non-confidential version of the information that could be disclosed to the relevant Member State. In cases where information marked as confidential does not seem to be covered by obligations of professional secrecy, it is appropriate to have a mechanism in place according to which the CommissionMember States can decide the extent to which such information can be disclosed. Any such decision to reject a claim that a piece of information is confidential should indicate a period at the end of which it may be disclosed, so that the respondent can make use of any judicial protection available to it, including any interim measure. The rights of the respondent should be safeguarded by giving it the opportunity to make known its views before any decision to reject the confidentiality claim is taken in accordance with their national laws.
Amendment 141 #
Proposal for a regulation
Recital 23
Recital 23
(23) Since the objectives of this Regulation, namely facilitating the Commission’s accesaccess of the Commission and the Member States to market information necessary for carrying out its tasks in order to achieve a smooth- functioning of the internal market cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
Amendment 142 #
Proposal for a regulation
Recital 24
Recital 24
(24) This Regulation should not affectbe based on the investigative powers of the Member States. This Regulation does not aim to amend, restrict or annul the investigative powers that the Commission or bodies, offices or agencies of the Union have already received pursuant to other Union legal instruments. In particular, this Regulation should not affect the investigative powers of the Commission related to the application of the competition rules necessary for the functioning of the internal market.
Amendment 145 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) the conditions under which the Commission may request Member States to require undertakings and associations of undertakings to provide information required for the performance of tasks entrusted to the Commission in relation to the areas referred to in Article 2;
Amendment 157 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Amendment 162 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
Amendment 167 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Amendment 172 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Amendment 177 #
Proposal for a regulation
Article 4 – title
Article 4 – title
Power to request information from Member States regarding undertakings and associations of undertakings
Amendment 190 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
Where a serious difficulty with the application of Union law risks undermining the attainment of an important Union policy objective, the Commission may request information from Member States relating to undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of addressing the above- mentioned difficulty.
Amendment 194 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. The Commission shall only use the power to request information from Member States relating to undertakings and associations of undertakings provided for in Article 4 when an infringement procedure under Article 258 TFEU has been launched and where the information available to the Commission, required for the purpose referred to in Article 4, is not sufficient or adequate and cannot be obtained in a timely manner due to the following reasons:
Amendment 199 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
Amendment 203 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 216 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
Amendment 229 #
Proposal for a regulation
Article 6 – title
Article 6 – title
Amendment 231 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
Amendment 246 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1a. In the cases provided for in Article 4 and under the conditions laid down in Article 5, the Commission may adopt a decision requesting Member States to require undertakings and associations of undertakings to provide information. This decision shall include the following: (a) a description of the alleged serious difficulty of a cross-border dimension with the application of Union law and why such difficulty risks undermining the attainment of an important Union policy objective; (b) a description of the information to be requested; (c) a reasoned explanation of why such information is necessary for the purposes referred to in Article 4; (d) a reasoned explanation of why other means to obtain such information have proven insufficient or inadequate or cannot be obtained in a timely manner to date; (e) the criteria for selecting the addressees of the requests for information. When selecting the recipients of the requests for information, the Commission shall aim at ensuring that such requests are only addressed to undertakings and associations of undertakings that are capable of providing relevant information. The decision shall be addressed to the undertaking or associations of undertakings concerned. The Commission shall notify the undertaking or associations of undertakings concerned without delay. The Commission shall not issue decision for information in accordance with this Regulation to micro-undertakings and small undertakings, unless they are part of a group of undertakings which qualifies at least as small group as defined in Article 6(5) of Directive 2013/34/EU.
Amendment 250 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The simple requestdecision referred to in paragraph 1 shall state the legal basis and its purpose, specify what information is required and prescribe a proportionate time limit within which the information is to be provided. It shall also refer to the fines provided for in Article 9(1) for supplying incorrect or misleading information.
Amendment 258 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. The undertakings or association of undertakings concerned by the request as referred to in Article 4 are obliged to provide only information that is at their disposal.
Amendment 259 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 271 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 278 #
Proposal for a regulation
Article 6 – paragraph 5
Article 6 – paragraph 5
Amendment 282 #
Proposal for a regulation
Article 7 – title
Article 7 – title
Answers to decisions requests foring information and protection of confidential information
Amendment 287 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The undertakings or associations of undertakings providing information following a Commission’s requestdecision for information based on Article 5 shall submit their answers to the CommissionMember States in a clear, complete and accurate manner.
Amendment 293 #
Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
Amendment 295 #
Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 2
Article 7 – paragraph 2 – subparagraph 2
The undertaking or association of undertakings submitting information pursuant to Article 5 shall clearly indicate which information it considers to be confidential, stating the reasons for such confidentiality claim, and provide the Commission and provide Member States with a separate non- confidential version of the submission. When information is to be provided by a certain deadline, the same deadline shall apply for providing the non- confidential version.
Amendment 297 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 301 #
Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 1
Article 7 – paragraph 4 – subparagraph 1
Amendment 305 #
Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 2
Article 7 – paragraph 4 – subparagraph 2
After giving the undertaking or association of undertakings concerned the opportunity of making known its views, the CommissionMember States may take a decision finding that the information claimed to be confidential is not protected, and setting a date after which the information is to be disclosed in accordance with national rules. That period shall however not be less than 1 month.
Amendment 317 #
Proposal for a regulation
Article 8 – paragraph 2 – point c
Article 8 – paragraph 2 – point c
Amendment 334 #
Proposal for a regulation
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. The Commission may, by decisionMember States may, where deemed necessary and proportionate, impose on undertakings or association of undertakings fines not exceeding 1 % of their total turnover in the preceding business year where they intentionally or through gross negligence:
Amendment 341 #
Proposal for a regulation
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Amendment 345 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Where the undertaking or association of undertakings provides no or incomplete information, the CommissionMember States shall prior the imposition of a fine or penalty, set a final deadline of two weeks to receive the missing information.
Amendment 349 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The CommissionMember States shall take into account the nature, gravity and duration of the breach of Article 6(1), as well as the principle of proportionality in particular with regard to small and medium-sized undertakings when fixing the amount of the fine or periodic penalty payment.
Amendment 352 #
Proposal for a regulation
Article 9 – paragraph 5
Article 9 – paragraph 5
5. Where the undertakings or associations of undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the CommissionMember States may reduce or waive the amount of the periodic penalty payment.
Amendment 354 #
Proposal for a regulation
Article 9 – paragraph 6
Article 9 – paragraph 6
6. Before adopting any decision in accordance with paragraph 1 or 2, the CommissionMember States shall give the concerned undertakings or associations of undertakings the opportunity of making known their views.
Amendment 360 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. The powers conferred on the CommissionMember States by Article 9 shall be subject to a limitation period of three years.
Amendment 361 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Any action taken by the CommissionMember States for the purpose of investigating or pursuing a possible breach of Article 6(1) shall interrupt the limitation period for the imposition of fines or periodic penalty payments, with effect from the date on which the action is notified to the undertaking or association of undertakings concerned.
Amendment 363 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. After each interruption, the limitation period shall start running afresh. However, the limitation period shall expire at the latest on the day on which a period of six years has elapsed without the CommissionMember States having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which the limitation period is suspended in accordance with paragraph 5.
Amendment 370 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. The powers of the CommissionMember States to enforce decisions adopted pursuant to Article 9 shall be subject to a limitation period of five years.
Amendment 373 #
Proposal for a regulation
Article 11 – paragraph 5 – point b
Article 11 – paragraph 5 – point b
(b) the enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Uniona national court.
Amendment 377 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
The decisions taken pursuant to Article 9(1) and (2) shall be addressed to the undertaking or association of undertakingMember State or group of Member States concerned. The Commission shall notify the decision to the addressee without delay.
Amendment 381 #
Proposal for a regulation
Article 13
Article 13