21 Amendments of Igor ŠOLTES related to 2017/0087(COD)
Amendment 69 #
Proposal for a regulation
Recital 2
Recital 2
(2) Article 337 TFEU provides for the Commission's power, within the limits and under the conditions which the Council may lay down acting by a simple majority, to collect any information required for the performance of its tasks. However, in Case C-490/10 European Parliament v Council, the Court has clarified that where the collection of information contributes directly to the achievement of the objectives of a given European Union policy, the act laying down the conditions for such collection must be based on the legal basis which relates to that policy. This Regulation provides not only for a framework in which the Commission can collect information from undertakings and associations of undertakings, but also for measures to enforce the requests for information. Therefore, while taking fully into account the fact that the Commission derives its power to collect information directly from the Treaty, this Regulation should be based, in addition to Article 337 TFEU, on the provisions of Articles 43(2), 91, 100, 192 and 194(2) TFEU and also of Article 114 TFEU, which provides for the adoption of measures necessary for the establishment and functioning of the internal market, including where differences between national rules are such as to obstruct the fundamental freedoms or where it is necessary to prevent the emergence of difficulties in the establishment and functioning of the internal market and address possible breaches of the EU rights of citizens and businesses.
Amendment 73 #
Proposal for a regulation
Recital 3
Recital 3
(3) Detecting and, where appropriate, addressing such difficulties in an efficient and effective manner requires timely access to comprehensive, accurate and reliable quantitative and qualitative market information at the appropriate level. This is particularly the case when the Commission acts as guardian of the Treaties, pursuant to Article 17(1) TEU which entrusts the Commission with the tasks to ensure the application of the Treaties, and of the measures adopted by the institutions pursuant to them, and to oversee 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, such as hidden costs, business strategies based on data on investments and demands, pricing policy, needed to enable the Court of Justice to establish whether the Union law has been breached.
Amendment 104 #
Proposal for a regulation
Recital 12
Recital 12
(12) When issuing requests for information 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 or preventing a presumed, i.e. based on the available information, difficulty or 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 instrumentis Regulation 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. 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. Taking this into account, SMEs should be subject only to 'simple requests' for information which foresees a lighter regime of sanctions for non-compliance. SMEs would normally not and should not incur any significant additional costs of data gathering in response to this tool'simple requests' for information. 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 110 #
Proposal for a regulation
Recital 14
Recital 14
(14) The investigative 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 afterwhen the use of other tools and sources of relevant information have proven inadequate, for contributing to the conception or design of regulatory solutionand enforcement measures. 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 117 #
Proposal for a regulation
Recital 15
Recital 15
(15) To ensure the effectiveness of the tool, the Commission should be able to enforce compliance with the requests for information it addresses to any undertaking or association of undertakings, as appropriate, by means of proportionate fines and periodic penalty payments imposed by way of decision. In setting the amounts of fines and periodic penalty payments, the Commission should take due account of the principle of proportionality (including the aspects of appropriateness), in particular as regards small and medium- sized undertakings which should only be subject to 'simple requests'. 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 133 #
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, i.e. its disclosure will be significantly detrimental to its economic interests. Therefore, the Commission 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 to ensure that confidential information provided to the Commission are treated in compliance with Article 339 TFEU,. For this purpose 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 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 Commission 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 Commission 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.
Amendment 139 #
Proposal for a regulation
Recital 22
Recital 22
(22) Where the measures provided for in this Regulation entail the processing of personal data, they should be carried out in accordance with Union law on the protection of personal data, in particular Directive 95/46/EC30 Regulation (EU) 2016/679. With regard to the processing of persona data by the Commission and within the framework of this Regulation, it shall comply with the provisions of Regulation (EC) No 45/2001 of the European Parliament and of the Council31 . __________________ 30Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, (OJ L 281, 23.11.1995). 31 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, (OJ L 8, 12.1.2001, p. 1).
Amendment 185 #
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 as defined in Article 3(3) of the TEU, or acting on the basis of information supplied by third-parties, the Commission may request information from undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of addressing the above- mentioned difficulty.
Amendment 198 #
Proposal for a regulation
Article 5 – paragraph 1 – point a a (new)
Article 5 – paragraph 1 – point a a (new)
(aa) the information has not been provided by the existing mechanisms at the disposal of the Commission
Amendment 214 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 a (new)
Article 5 – paragraph 2 – subparagraph 2 a (new)
When drafting the summary descriptions, reasoned explanations and criteria, the Commission shall take all appropriate measures to protect the identities of any individuals who have supplied information.
Amendment 227 #
Proposal for a regulation
Article 5 – paragraph 3 – subparagraph 2
Article 5 – paragraph 3 – subparagraph 2
The Commission shall take due account of the principle of proportionality, in particular with regard to small and medium-sized undertakings in order to avoid significant additional costs and administrative burdens as a result of the requests for information.
Amendment 237 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1 a (new)
Article 6 – paragraph 1 – subparagraph 1 a (new)
In the cases provided for in Article 4 and under the conditions laid down in Article 5, the Commission may, by simple request only, require small-and-medium enterprises to provide information.
Amendment 254 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The simple request 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 or do not supply information within the prescribed time limit.
Amendment 257 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1 a (new)
Article 6 – paragraph 2 – subparagraph 1 a (new)
A recipient of a request for information shall have the possibility to request an extension of the time limit pursuant to Article 14.
Amendment 290 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. The Commission shall give the addressee the opportunity to make their views known within a period of one month from the adoption of a decision or request pursuant to Article 6(1). This period shall not be taken into consideration for the calculation of deadlines for submission of responses.
Amendment 299 #
Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 1
Article 7 – paragraph 4 – subparagraph 1
The Commission shall verify whether the confidentiality claim of the information transmitted made by the respondent undertakings or associations of undertakings under subparagraph 2 of paragraph 2 is well-founded and proportionate based on an assessment whether the disclosure of such information would cause significant harm to the economic interests of the undertakings or association of undertakings.
Amendment 319 #
Proposal for a regulation
Article 8 – paragraph 2 – point c a (new)
Article 8 – paragraph 2 – point c a (new)
(ca) where such information has lost its commercial importance, for instance due to the passage of time, and can no longer be considered as confidential.
Amendment 324 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
The information that has already been made public may be used by the Commission for a purpose other than the one set out in this Regulation such as law enforcement of Union Single Market rules and policy development.
Amendment 336 #
Proposal for a regulation
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) supply incorrect or misleading information in response to a request made pursuant to Article 6(2) or do not supply the information within the prescribed time limit;
Amendment 384 #
Proposal for a regulation
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
Any request for extension of a deadline may only be requested once by the recipient of a request for information.
Amendment 389 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
With regard to the processing of personal data within the framework of this Regulation, Member States shall carry out their tasks for the purposes of this Regulation in accordance with the national laws, regulations or administrative provisions transposing Directive 95/46/ECRegulation (EU) 2016/679. With regard to the processing of personal data by the Commission within the framework of this Regulation, it shall comply with the provisions of Regulation (EC) No 45/2001.