BETA

41 Amendments of Dennis de JONG related to 2017/0087(COD)

Proposal for a regulation
Recital 8

(8) Where detailed, comparable, up-to- date, and often confidential market information could only be obtained from market players in a timely manner, it appears therefore appropriate, as a last resort, to empower the Commission, within the limits and under the conditions laid down in this Regulation, to ~~reques~~publish a call for information directed at undertakings and associations of undertakings to directly provide it, in a timely manner, with comprehensive, accurate and reliable quantitative and qualitative market information where other sources of information have proven unavailable, insufficient or inadequate. To this effect, the Commission should first adopt a decision stating why other means to obtain the necessary information have proven ineffective. It is understood that the notion of undertaking has the same meaning as in other areas of EU law, in particular competition law.

2018/03/28
Committee: IMCO

Proposal for a regulation
Recital 11

(11) For this ~~investigative~~ 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.

2018/03/28
Committee: IMCO

Proposal for a regulation
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 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.

2018/03/28
Committee: IMCO

Proposal for a regulation
Recital 15

(15) 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. 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.deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
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 should take due account of the legitimate interests of undertakings, in particular the protection of their ~~business~~trade secrets. To ensure that ~~business~~trade secrets and other confidential information provided to the Commission 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 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.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 1 – point a

(a) the conditions under which the Commission may ~~reques~~publish a call for information directed at 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;

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 1 – point b

(b) the procedure to be followed ~~for requesting such information~~by the Commission for publishing such a call.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 1 – point b a (new)

(ba) the procedure to be followed by undertakings and associations of undertakings for answering to such a call for information.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 4 – title

~~Power to request~~Call for information from undertakings and associations of undertakings

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 4 – paragraph 1

WThere 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 undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of addressing the above- mentioned difficulty Commission may publish an open call for information from undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of addressing serious problems with the functioning of the internal market by means of an infringement procedure pursuant to Article 258 TFEU.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 1 – introductory part

1. The Commission shall only ~~use the power to request~~publish a call for information from undertakings and associations of undertakings provided for in Article 4 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:

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 1 – point b

(b) the information has not been provided by a Member State upon request by the Commission; orand

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 1

Prior to ~~requesting~~publishing the call for information in accordance with Article 64, the Commission shall adopt a decision stating its intention to ~~use the power to request information from undertakings or associations of undertakings under this Regulation~~do so.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 – point e

~~(e) the criteria for selecting the addressees of the requests for information.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 3 – subparagraph 1

~~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.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
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.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1

In the cases provided for in Article 4 and under the conditions laid down in Article 5, the Commission may~~, by simple request or by decision, requir~~ invite undertakings and associations of undertakings via an open call to provide information.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2

~~When selecting the recipients of the requests for~~For this purpose, the Commission shall publish its decision as mentioned in Article 5 in the Official Journal of the European Union, together with information, on the ~~Commission shall aim at ensuring that such requests are only add~~periods within which interessted to undertakings ~~and~~or associations of undertakings ~~that are capable of providing relevant~~may make themselves known to the Commission and may present their intention to provide information.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 3

The Commission shall not issue requests for information in accordance with this Regulation to micro-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.deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 2

2. The ~~simple request~~call 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.~~

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 1

The decision referred to in paragraph 1 shall state the legal basis, the purpose of the request, specify what information is required and prescribe a proportionate time limit within which the information is to be provided. It shall also indicate the fines provided for in Article 9(1) and the periodic penalties payments provided for in Article 9(2), as appropriate.deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 2

~~In addition, it shall indicate the right of the undertaking or association of undertakings to have the decision reviewed by the Court of Justice of the European Union.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 3

~~The undertaking and association of undertakings concerned may request an extension of the time-limit, in accordance with Article 14.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1

The Commission shall simultaneously provide a copy of the ~~simple request or of the decision~~call referred to in this Article to the Member State ~~in whose territory the registered seat of the undertaking or association of undertakings is situat~~(s) concerned.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 2

Where the Commission has launched a formal infringement procedure pursuant to Article 258 TFEU, the Commission shall provide the Member State concerned by the procedure with a copy of all ~~simple request~~calls for ~~decis~~informations referred to in this Article issued in the context of that procedure~~, irrespective of where the registered seat of the undertaking or association of undertakings is situated~~.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 6 – paragraph 5

~~5. The decisions referred to in paragraph 1 shall be addressed to the undertaking or association of undertakings concerned. The Commission shall notify the decision to the addressee without delay.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – title

Answers to ~~request~~calls for information and protection of confidential information

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 1

1. The undertakings or associations of undertakings providing information following a Commission’s ~~request~~call for information based on Article 5 shall submit their answers to the Commission in a clear, complete and accurate manner.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 1

The Commission shall give the ~~addressee~~respondents to the call the opportunity to indicate which information it considers to be covered by the obligation of professional secrecy.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 2

The undertaking or association of undertakings submitting information pursuant to Articles 5 and 6 shall clearly indicate which information it considers to be confidential, stating the reasons for such confidentiality claim, and provide the Commission 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.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 1

The Commission ~~shall verify whether the confidentiality claim of the information transmitted made by the respondent~~and Member States, including their officials, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been claimed, without the specific permission from the undertakings or associations of undertakings ~~under subparagraph 2 of paragraph 2 is well-founded and proportionate~~concerned.

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 2

After giving the undertaking or association of undertakings concerned the opportunity of making known its views, the Commission 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. That period shall not be less than 1 month.deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 3

~~That decision shall be notified to the undertaking or association of undertakings concerned without delay.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 8 – paragraph 2 – point c

(c) where the disclosure of such information to a Member State is necessary to substantiate an infringement of Union law within the scope of this Regulation provided that the respondent has had the opportunity to make his views known before a decision is taken and to make use of available judicial remedies before disclosure.deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
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.~~deleted

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 9

Fines and periodic penalty payments 1. 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: (a) supply incorrect or misleading information in response to a request made pursuant to Article 6(2); (b) supply incorrect, incomplete or misleading information in response to a decision adopted pursuant to Article 6(3) or do not supply the information within the prescribed time limit. 2. The Commission may, by decision, impose on undertakings or associations of undertakings periodic penalty payments where an undertaking fails to supply complete, accurate and not misleading information within the prescribed deadline as requested by the Commission by a decision adopted pursuant to Article 6(3). The periodic penalty payments shall not exceed 5 % of the average daily turnover of the undertaking or association concerned in the preceding business year for each working day of delay, calculated from the date established in the decision, until it supplies the information requested or required by the Commission. 3. Where the undertaking or association of undertakings provides no or incomplete information, the Commission shall prior the imposition of a fine or penalty, set a final deadline of two weeks to receive the missing information. 4. 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. 5. associations of undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may reduce or waive the amount of the periodic penalty payment. 6. accordance with paragraph 1 or 2, the Commission shall give the concerned undertakings or associations of undertakings the opportunity of making known their views.Article 9 deleted The Commission may, by decision, The Commission shall take into Where the undertakings or Before adopting any decision in

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 10

Limitation period for the imposition of fines and periodic penalty payments 1. Commission by Article 9 shall be subject to a limitation period of three years. 2. paragraph 1 shall start on the day on which the infringement referred to in Article 9 is committed. However, in the case of continuing or repeated breaches of Article 6(1), the period shall begin on the day on which the breach ceases. 3. Commission 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. 4. 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 Commission 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. 5. imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.Article 10 deleted The powers conferred on the The period provided for in Any action taken by the After each interruption, the The limitation period for the

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 11

Limitation period for the enforcement of fines and periodic penalty payments 1. enforce decisions adopted pursuant to Article 9 shall be subject to a limitation period of five years. 2. paragraph 1 shall start on the day on which the decision taken pursuant to Article 9 becomes final. 3. in paragraph 1 shall be interrupted: (a) modifying the original amount of the fine or periodic penalty payment or refusing an application for modification; (b) acting at the request of the Commission, or of the Commission, intended to enforce payment of the fine or periodic penalty payment. 4. limitation period shall start running afresh. 5. The limitation period provided for in paragraph 1 shall be suspended for so long as: (a) pay; (b) the enforcement of payment is suArticle 11 deleted The powers of the Commission to The period provided for in The limitation period provided for by notification of a decision by any action of a Member State, After each interruption, the the respeonde~~d pursuant to a decision of the Court of Justice of the European Union.~~nt is allowed time to

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 12

The decisions taken pursuant to Article 9(1) and (2) shall be addressed to the undertaking or association of undertakings concerned. The Commission shall notify the decision to the addressee without delay.Article 12 deleted Addressees of decisions

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 13

The Court of Justice of the European Union shall have unlimited jurisdiction within the meaning of Article 261 TFEU to review fines or periodic penalty payments imposed by the Commission. It may cancel, reduce or increase the fine or periodic penalty payment imposed.Article 13 deleted Review by the Court of Justice

2018/03/28
Committee: IMCO

Proposal for a regulation
Article 15

1. the Official Journal of the European Union a summary notice of the decisions which it takes pursuant to Article 5(2). The summary notice shall state that a copy of the decision may be obtained in the authentic language version or versions. 2. the Official Journal of the European UnioArticle 15 deleted Publication of decisions The Commission shall publish in tThe ~~decisions which it takes pursuant to Article 9(1) and (2).~~Commission shall publish in

2018/03/28
Committee: IMCO