41 Amendments of Philippe JUVIN related to 2017/0087(COD)
Amendment 82 #
Proposal for a regulation
Recital 8
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 request 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. It includes all undertakings regardless of the source of their financing, whether they are governed by public law or private law, and whether or not they are active as a matter of course on the market.
Amendment 93 #
Proposal for a regulation
Recital 11
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, but that does not concern business secrets.
Amendment 105 #
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 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 very 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 serious difficulties in establishment and functioning of the internal market. Information readily available to SMEs might be of an anecdotal nature but it could still alert the Commission about serious 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 serious 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’, ‘large undertaking’ and ‘large group’ 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 124 #
Proposal for a regulation
Recital 17
Recital 17
(17) The Court of Justice should, in accordance with Article 261 TFEU, have unlimited jurisdiction in respect of decisions by which the Commission imposes fines or periodic penalty payments under this Regulation, which means that it may cancel, reduce or increase the fine or periodic penalty payment imposed by the Commission.
Amendment 125 #
Proposal for a regulation
Recital 18
Recital 18
(18) IConversely, and in the interests of transparency and legal certainty, i, the European Commission is under an obligation to justify its request not to apply the provisions of this Regulation when its attention has been drawn to serious or repeated facts which jeopardise the proper functioning of the internal market. It is appropriate to give public information on Commission decisions. The Commission, when publishing and handling such information, should respect the rules on professional secrecy, including the protection of all confidential information, in accordance with Article 339 TFEU.
Amendment 131 #
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 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 are treated in compliance with Article 339 TFEU, any undertaking or association of undertakings 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. As regards the protection of business secrets, undertakings and associations of undertakings may refuse to provide the Commission with strictly confidential information in order to protect their legitimate interests. In such cases, the burden of proof rests with the Commission, which must show that the information requested does not relate to business secrets.
Amendment 149 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1a. This Regulation shall be applied in such a way as to maintain the proportionality of the administrative and financial burdens imposed on undertakings or associations of undertakings.
Amendment 175 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 a (new)
Article 3 – paragraph 1 – point 3 a (new)
(3a) ‘large undertaking’ means an undertaking as defined in Article 3(4) of Directive 2013/34/EU.
Amendment 176 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 b (new)
Article 3 – paragraph 1 – point 3 b (new)
(3b) ‘large group’ means a group as defined in Article 3(7) of Directive 2013/34/EU.
Amendment 189 #
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 objectiveproper functioning of the internal market as referred to in Article 26(2) TFEU, 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 serious difficulty.
Amendment 192 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
Where contracting authorities as defined in Directive 2014/24/EU or Members of a national Parliamentary Assembly or the European Parliament draw the Commission’s attention to facts which seriously or repeatedly jeopardise the proper functioning of the internal market as referred to in Article 26(2) TFEU, it may request information in relation to the internal market and related fields.
Amendment 193 #
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 undertakings and associations of undertakings provided for in Article 4 where theas a measure of last resort, after having consulted the channels to which it already has access to obtain information, available to the Commissionnd after having established that the information at its disposal, 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 208 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 – point a
Article 5 – paragraph 2 – subparagraph 2 – point a
(a) a summaryprecise description of the alleged serious difficulty of a cross-border dimension with the application of Union law and why such serious difficulty risks undermining the attainment of an important Union policy objectivefunctioning of the internal market as referred to in Article 26(2) TFEU;
Amendment 209 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 – point b
Article 5 – paragraph 2 – subparagraph 2 – point b
(b) a summaryprecise description of the information to be requested;
Amendment 210 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 – point c
Article 5 – paragraph 2 – subparagraph 2 – point c
(c) a duly justified and reasoned explanation of why such information is necessary for the purposes referred to in Article 4;
Amendment 211 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 2 – point d
Article 5 – paragraph 2 – subparagraph 2 – point d
(d) a duly justified and 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. The explanation shall contain a list of institutions, organisations, instruments and sources of information consulted to which the Commission already has access;
Amendment 219 #
Proposal for a regulation
Article 5 – paragraph 3 – subparagraph 1
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, with the exception of information containing business secrets.
Amendment 241 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 3
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 aonly to large groups of undertakings which qualifies at least as small group as defined in Article 6(53(7) of Directive 2013/34/EU.
Amendment 248 #
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. On no account may the time limit be less than 3 months, unless there is a compelling and duly substantiated need. It shall also refer to the fineperiodic penalty payments provided for in Article 9(12) for deliberately supplying incorrectmplete or misleading information.
Amendment 266 #
Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 1
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) andOn no account may the time limit be less than 3 months, unless there is a compelling and duly substantiated need. It shall also indicate the periodic penalties payments provided for in Article 9(2), as appropriate.
Amendment 281 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6a The request for information from undertakings and associations of undertakings must not generate a disproportionate administrative or financial burden.
Amendment 310 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 321 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 325 #
Proposal for a regulation
Article 8 a (new)
Article 8 a (new)
Amendment 326 #
Proposal for a regulation
Chapter 3 – title
Chapter 3 – title
Amendment 331 #
Proposal for a regulation
Article 9 – title
Article 9 – title
Amendment 332 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
Amendment 339 #
Proposal for a regulation
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Amendment 342 #
Proposal for a regulation
Article 9 – paragraph 2 – subparagraph 2
Article 9 – paragraph 2 – subparagraph 2
The periodic penalty payments shall not exceed 53 % 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 or completes the information requested or required by the Commission.
Amendment 346 #
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 Commission shall prior the imposition of a fine or penalty, set a final deadline of two weeks to receive the missing information.
Amendment 348 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The Commission shall take into account the absolute necessity leading to the imposition of the periodic penalty payment, and 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 355 #
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 Commission shall give the concerned undertakings or associations of undertakings the opportunity of making known their views.
Amendment 359 #
Proposal for a regulation
Article 10 – title
Article 10 – title
Limitation period for the imposition of fines and periodic penalty payments
Amendment 362 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Any action taken by the 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.
Amendment 364 #
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 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.
Amendment 365 #
Proposal for a regulation
Article 10 – paragraph 5
Article 10 – paragraph 5
5. The limitation period for the 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.
Amendment 369 #
Proposal for a regulation
Article 11 – title
Article 11 – title
Limitation period for the enforcement of fines and periodic penalty payments
Amendment 371 #
Proposal for a regulation
Article 11 – paragraph 3 – point a
Article 11 – paragraph 3 – point a
(a) by notification of a decision modifying the original amount of the fine or periodic penalty payment or refusing an application for modification;
Amendment 372 #
Proposal for a regulation
Article 11 – paragraph 3 – point b
Article 11 – paragraph 3 – point b
(b) by any action of a Member State, acting at the request of the Commission, or of the Commission, intended to enforce payment of the fine or periodic penalty payment.
Amendment 378 #
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 undertakings concerned. The Commission shall notify the decision to the addressee without delay.
Amendment 383 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
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.