2017/0063(COD) | [ParlTrack]

Proposal for a directive
Recital 1

(1) Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure more open competitive markets in Europe, where companies compete more on their merits and without company erected barriers to market entry~~, enabling them to generate wealth and create jobs. It protects consumers from~~. Effective enforcement of competition law protects consumers from the risk that States may stabilise business practices that keep the prices of goods and services artificially high ~~and enhances~~or limit their choice of ~~innovative~~ goods and services.

Amendment 23 #

Proposal for a directive
Recital 4

(4) Moreover, providing NCAs with the power to obtain all information related to the undertaking subject to the investigation in digital form irrespective of the medium on which it is stored, should also affect the scope of the NCAs’ powers when, at the early stages of proceedings, they take the relevant investigative measure also on the basis ofThe investigative powers of the NCAs depend whether only the national competition law provisions are applied ~~in parallel to~~or whether in addition Articles 101 and 102 TFEU. Providing NCAs with inspection powers of a different scope depending on whether they will ultimately apply only national competition law provisions or also Articles 101 and 102 TFEU in parallel would hamper the effectiveness of competition law enforcement in the internal market. Accordingly, the scope of the Directive should cover both the application of Articles 101 and 102 TFEU on a stand-alone basis and the application of national competition law applied in parallel to the same cas are applied. Only where national competition law conflicts with the competition law of the Union should the NCAs exercise the investigative powers provided for by this Directive. This is with the exception of the protection of leniency statements and settlement submissions, which ~~also~~ extends ~~to national competition law applied on a stand-alone basis~~directly to the application of national competition law.

Amendment 24 #

Proposal for a directive
Recital 5

(5) National law prevents many NCAs from having the necessary guarantees of independence and enforcement and fining powers to be able to enforce these rules effectively. This undermines their ability to effectively apply Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU as appropriate. For example, under national law many NCAs do not have effective tools to find evidence of infringements of Articles 101 and 102 TFEU, or to fine companies which break the law ~~or do not have the resources they need to effectively apply Articles 101 and 102 TFEU~~. This can prevent them from taking action at all or results in them limiting their enforcement action. The lack of operational tools and guarantees of many NCAs to effectively apply Articles 101 and 102 TFEU means that undertakings engaging in anti-competitive practices can face very different outcomes of proceedings depending on the Member States in which they are active: they may be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement. For example, in some Member States, undertakings can escape liability for fines simply by restructuring. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU results in missed opportunities to remove barriers to market entry and to create more open competitive markets throughout the European Union where undertakings compete on their merits. Undertakings and consumers particularly suffer in those Member States where NCAs are less-equipped to be effective enforcers. Undertakings cannot compete on their merits where there are safe havens for anti-competitive practices, for example, because evidence of anti- competitive practices cannot be collected or because undertakings can escape liability for fines. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU throughout Europe thus distorts competition in the internal market and undermines its proper functioning.

Amendment 25 #

Proposal for a directive
Recital 7

(7) In order to ensure a truly common competition enforcement area in Europe that provides a more even level playing field for undertakings operating in the internal market and reduces unequal conditions for consumers there is a need to put in place minimum guarantees of independence and ~~resources and~~ core enforcement and fining powers when applying Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU so that NCAs can be fully effective.

Amendment 26 #

Proposal for a directive
Recital 8

(8) It is appropriate to base this Directive on the dual legal basis of Articles 103 and 114 TFEU. This is because this Directive covers not only the application of Articles 101 and 102 TFEU ~~and the application of national competition law provisions in parallel to these Articles,~~ but also the gaps and limitations in NCAs’ tools and guarantees to apply Articles 101 and 102 TFEU, which negatively affect both competition and the proper functioning of the internal market.

Amendment 27 #

Proposal for a directive
Recital 9

(9) Putting in place minimum guarantees to ensure that NCAs apply Articles 101 and 102 TFEU in the same way and effectively is without prejudice to the ability of Member States to maintain or introduce more extensive guarantees of independence and resources for NCAs and more detailed rules on the enforcement and fining powers of these authorities. In particular, Member States may endow NCAs with additional powers beyond the core set provided for in this Directive to further enhance their effectiveness.

Amendment 28 #

Proposal for a directive
Recital 10

(10) Conversely, detailed rules are necessary in the area of conditions for granting leniency for secret cartels. Companies will only come clean about ~~secret~~State-supported cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. The marked differences between the leniency programmes applicable in the Member States lead to legal uncertainty for potential leniency applicants, which may weaken their incentives to apply for leniency. If Member States could implement or apply either less or more restrictive rules for leniency in the area covered by this Directive, this would not only go counter to the objective of maintaining incentives for applicants in order to render competition enforcement in the Union as effective as possible, but would also risk jeopardising the level playing field for undertakings operating in the internal market. This does not prevent Member States from applying leniency programmes that do not only cover secret cartels, but also other infringements of Articles 101 and 102 TFEU ~~and equivalent national provisions~~.

Amendment 29 #

Maria GRAPINI, Marlene MIZZI, Nicola DANTI, Pina PICIERNO, Virginie ROZIÈRE

Proposal for a directive
Recital 12

(12) The exercise of the powers conferred on NCAs should be subject to appropriate safeguards which at least meet the standards of general principles of EU law and the Charter of Fundamental Rights of the European Union. These safeguards include the right to good administration and the respect of undertakings̕ rights of defence, an essential component of which is the right to be heard. In particular, NCAs should inform the parties under investigation of the preliminary objections raised against them under Article 101 or Article 102 TFEU prior to taking a decision which adversely affects their interests and those parties should have an opportunity to effectively make their views known on these objections before such a decision is taken. Parties to whom preliminary objections about an alleged infringement of Article 101 or Article 102 TFEU have been notified should have the right to access the relevant case file of NCAs to be able to effectively exercise their rights of defence This is subject to the legitimate interest of undertakings in the protection of their business secrets and does not extend to confidential information and internal documents of, and correspondence between, the NCAs and the Commission. Moreover, the addressees of final decisions of NCAs applying Article 101 or Article 102 TFEU should have the right to an effective remedy before a tribunal, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union. Such final decisions of NCAs should be reasoned so as to allow addressees of such decisions to ascertain the reasons for the decision and to exercise their right to an effective remedy. The design of these safeguards should strike a balance between respecting the fundamental rights of undertakings and the duty to ensure that Articles 101 and 102 TFEU are effectively enforced. In addition, effective protection is needed especially on protecting individuals who report or disclose information about violations of EU competition law.

Amendment 30 #

Proposal for a directive
Recital 15

(15) To ensure the independence of NCAs, their staff and members of the decision-making body should act with integrity and refrain from any action which is incompatible with the performance of their duties. The need to prevent the independent assessment of staff or members of the decision-making body being jeopardised entails that during their employment and term of office and for a reasonable period thereafter, they should refrain from any ~~incompatible occu~~occupation which could give rise to a conflict of interests or be otherwise incompationble, whether gainful or not. Furthermore, this also entails that during their employment and their term of office, they should not have an interest in any businesses or organisations which have dealings with a NCA to the extent that this has the potential to compromise their independence. The staff and the members of the decision-making body should declare any interest or asset which might create a conflict of interests in the performance of their duties. They should be required to inform the decision-making body, the other members thereof or, in the case of NCAs in which the decision- making power rests with only one person, their appointing authority, if, in the performance of their duties, they are called upon to decide on a matter in which they have an interest which might impair their impartiality.

Amendment 31 #

Proposal for a directive
Recital 18

(18) NCAs should have the necessary resources, in terms of staff, expertise~~, financial means~~ and technical equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. ~~In case their duties and powers under national law are extended, the resources that are necessary to perform those tasks should still be sufficient.~~

Amendment 32 #

Proposal for a directive
Recital 18

(18) NCAs should have adequate laws and enforcement tools such as the necessary resources, in terms in terms of staff, expertise, financial means for effective enforcement of competition policy, including to carry out specific activities and permanent training for staff and technical equipment, to ensure they can effectively and independently perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are necessary to perform those tasks should still be sufficient.

Amendment 33 #

Proposal for a directive
Recital 18

Amendment 34 #

Eva MAYDELL

Proposal for a directive
Recital 18 a (new)

(18a) The independence of NCAs will be enhanced if they are able to administer independently the budgets allocated to them. Such freedom of management of the allocated budgets should be implemented in the framework of national budgetary rules and procedures.

Amendment 35 #

Proposal for a directive
Recital 26

(26) NCAs should have effective powers to require information to be supplied as is necessary to detect any agreement, decision or concerted practice prohibited by Article 101 TFEU or any abuse prohibited by Article 102 TFEU. This should include the right to require information irrespective of where it is stored, provided it is accessible to the addressee of the request for information. Experience shows that information provided on a voluntary basis by third parties, such as competitors, customers and consumers in the market, can also be a valuable source of information for informed and robust enforcement and NCAs should encourage this.

Amendment 36 #

Maria GRAPINI, Nicola DANTI, Pina PICIERNO

Proposal for a directive
Recital 32

(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size ~~and economic power~~ of the undertaking, as they reflect the influence the undertaking was able to exert on the market. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU.

Amendment 37 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at a level of not less than 104% of the total world wide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine. Decisions of NCAs to sanction an undertaking should be applicable throughout the whole Union territory, irrespective of the jurisdiction of the Member State in which they operate.

Amendment 38 #

Proposal for a directive
Recital 35

(35) Leniency programmes are a key tool for the detection of secret cartels and thus contribute to the efficient prosecution of, and the imposition of penalties for, the most serious infringements of competition law. However, there are currently marked differences between the leniency programmes applicable in the Member States. Those differences lead to legal uncertainty on the part of infringing undertakings concerning the conditions under which they can apply for leniency ~~as well as their immunity status~~ under the respective leniency programme(s). Such uncertainty may weaken incentives for potential leniency applicants to apply for leniency. This in turn can lead to less effective competition enforcement in the Union, as fewer secret cartels are uncovered.

Amendment 39 #

Nicola DANTI, Maria GRAPINI, Sergio Gaetano COFFERATI, Virginie ROZIÈRE

Proposal for a directive
Recital 39

(39) Applicants which have applied for leniency to the European Commission in relation to an alleged secret cartel should be able to file summary applications in relation to the same cartel to the NCAs that they deem appropriate. Applicants should be able to benefit from leniency at EU and national level in relation to the same cartel. However, to maintain the effectiveness of leniency programmes it should not be possible for multiple undertakings from the same cartel to benefit from immunity across EU and national level leniency programmes. NCAs should accept summary applications that contain a minimum set of information in relation to the alleged cartel and not request additional information beyond this minimum set before they intend to act on the case. However, the onus is on applicants to inform the NCAs to which they have submitted summary applications if the scope of their leniency application with the Commission changes. NCAs should provide applicants with an acknowledgement stating the date and time of receipt, and inform the applicant whether they have already received a previous summary or leniency application in relation to the same cartel. Once the Commission has decided not to act on the case in whole or partially, applicants should have the opportunity to submit full leniency applications to the NCAs to which they have submitted summary applications.

Amendment 40 #

Proposal for a directive
Recital 40 a (new)

(40a) To ensure the effective functioning of the leniency programmes, it is of paramount importance that the NCAs have in place effective means to protect individuals who report or disclose information about violations of EU competition law from retaliation, for example disciplinary measures by their employers.

Amendment 41 #

Proposal for a directive
Recital 48

(48) Since the objectives of this Directive, namely to ensure that NCAs have the necessary guarantees of independence and resources and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU and ~~national competition law in parallel to Articles 101 and 102 TFEU and~~ to ensure the effective functioning of the internal market and the European Competition Network, cannot be sufficiently achieved by the Member States alone, and this objective can by reason of the requisite effectiveness and uniformity in the application of Articles 101 and 102 TFEU be better achieved by the Union ~~alone~~, in particular in view of its territorial scope, the Union may adopt measures in accordance with the principle of subsidiarity as set out on Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve this objective.

Amendment 42 #

Proposal for a directive
Article 1 – paragraph 1

1.(1) This Directive sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence and resources and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and consumers and undertakings are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers. The scope of the Directive covers the application of Articles 101 and 102 TFEU and ~~national competition law provisions applied in parallel to Articles 101 and 102 TFEU to the same case, with the exception~~ of Article 29(2), which also extends to the application of national competition law ~~applied exclusively~~.

Amendment 43 #

Proposal for a directive
Article 2 – paragraph 1 – point 9

(9) ~~̔secret~~ ‘cartel̕’ means an agreement ~~and/~~or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market ~~and/~~or influencing the relevant parameters of competition through practices such as ~~the fixing~~, but not limited to, the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights, the allocation of production or sales quotas, the sharing of markets and customers, including bid- rigging, restrictions of imports or exports ~~and/~~or anti- competitive actions against other competitors~~, which is not, partially or fully, known except to the participants~~;

Amendment 44 #

Proposal for a directive
Article 3 – paragraph 1

The exercise of the powers referred to in this Directive by national competition authorities shall be subject to appropriate safeguards, including respect of undertakings̕ rights of defence, right to good administration, right to a fair trial and the right to an effective remedy before a tribunal, in accordance with general principles of Union law and the Charter of Fundamental Rights of the European Union.

Amendment 45 #

Proposal for a directive
Article 4 – paragraph 2 – point c a (new)

(ca) The staff and the members of the decision-making body of national administrative competition authorities are prevented, for a reasonable period after leaving office, from accepting employment, gainful or otherwise, that could give rise to conflicts of interest. The duration of this period shall take into account the specificities of the position and shall be proportionate to the threat posed by the potential conflicts of interest;

Amendment 46 #

Maria GRAPINI, Pina PICIERNO, Marlene MIZZI

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. Member States shall ensure that the NCA is granted autonomy in the implementation of the allocated budget. This budgetary autonomy shall be exercised without prejudice to national budgetary rules and procedures.

Amendment 47 #

Maria GRAPINI, Nicola DANTI, Pina PICIERNO, Marlene MIZZI

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective and independent performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2.

Amendment 48 #

Eva MAYDELL

Proposal for a directive
Article 5 – paragraph 1 a (new)

1a. Member States shall ensure that the NCA has separate budget allocations, and while respecting national budgetary rules, is able to manage the allocated budgets independently for the purpose of prioritising investigations on specific cases.

Amendment 49 #

Proposal for a directive
Article 12 – paragraph 3 a (new)

3a. Decisions of NCAs to sanction an undertaking are applicable throughout the whole Union territory, irrespective of the jurisdiction of the Member State in which they operate.

Amendment 50 #

Maria GRAPINI, Pina PICIERNO, Nicola DANTI

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level below 104% of its total worldwide turnover in the business year preceding the decision.

Amendment 51 #

Maria GRAPINI, Nicola DANTI, Pina PICIERNO

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU ~~should not be se~~is set at least at a level ~~below~~of 10% of its total worldwide turnover in the business year preceding the decision. This should not prevent Member States from maintaining or introducing a higher maximum level for the fine.

Amendment 52 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 104 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 53 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall ~~not~~ be set at least at a level ~~below~~of 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 54 #

Proposal for a directive
Article 16 – paragraph 3

3. Member States shall ensure that all undertakings are eligible for immunity from fines, with the exception of: (a) undertakings that have taken steps to coerce other undertakings to participate in a secret cartel; (b) undertakings whose participation in a secret cartel has been alleged to the Commission by another participant in the cartel.

Amendment 55 #

Proposal for a directive
Article 16 – paragraph 3 a (new)

3a. Undertakings granted leniency under a national authority's leniency programme shall remain eligible for leniency under the Commission's leniency programme for proceedings concerning participation in the same secret cartel.

Amendment 56 #

Nicola DANTI, Maria GRAPINI

Proposal for a directive
Article 21 – paragraph 1

1. Member States shall ensure that applicants that have applied for leniency, either by applying for a market or by submitting a full application, to the Commission or to a better placed NCA in relation to an alleged secret cartel can file summary applications in relation to the same cartel with the national competition authorities which the applicant considers well placed to deal with the case.

Amendment 57 #

Proposal for a directive
Article 21 – paragraph 6

6. Member States shall ensure that applicants have the opportunity to submit full leniency applications, perfecting the summary applications referred to in paragraph 1, to the national competition authorities concerned~~, once the Commission has informed those authorities that it does not intend to act on the case in whole or in part~~. Member States shall ensure that national competition authorities have the power to specify a reasonable period of time within which the applicant must submit the full application together with the corresponding evidence and information.

Amendment 58 #

Maria GRAPINI, Pina PICIERNO, Marlene MIZZI

Proposal for a directive
Article 22 – paragraph 1

Member States shall ensure that current and former employees and directors of applicants for immunity from fines to competition authorities are protected from any criminal and administrative sanctions and from sanctions imposed in non- criminal judicial proceedings for their involvement in the secret cartel covered by the application, if these employees and directors actively cooperate with the competition authorities concerned and the immunity application predates the ~~start~~time when the employees and directors were made aware by the competent authorities of the Member States of the criminal proceedings.

Amendment 59 #

Proposal for a directive
Article 29 – paragraph 1

1. Information collected on the basis of the provisions referred to in this Directive should only be used for the purpose for which it was acquired. It should not be used in evidence for the imposition of sanctions on natural persons. Where the criminal liability of the individual is concerned, the competition authorities may transmit data from the case file to the court or to the prosecutor's office.

source: 610.652

2017/11/06 ECON 215 amendments...

Amendment 100 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at a level of not ~~less~~more than 10 % of the total worldwide turnover of the undertaking concerned. ~~This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.~~

Amendment 101 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the ~~maximum~~ amount of the fine should be set at least at a level of ~~not less than~~ 10% of the total worldwide turnover of the undertaking concerned. ~~This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.~~

Amendment 102 #

Dariusz ROSATI

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at a level of not less than 10% of the total worldwide turnover of the undertaking concerned. ~~This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.~~

Amendment 103 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at a level of not less than 102% of the total worldwide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.

Amendment 104 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at least at a level of ~~not less than~~ 10% of the total worldwide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.

Amendment 105 #

Proposal for a directive
Recital 34

(34) The deterrent effect of fines differs widely across Europe and in some Member States the maximum amount of the fine that can be set is very low. To ensure NCAs can set deterrent fines, the maximum amount of the fine should be set at ~~a level of not less than~~least at 10% of the total worldwide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.

Amendment 106 #

Proposal for a directive
Recital 36

(36) The differences between leniency programmes at Member State level ~~also~~can in some cases jeopardise the level playing field for undertakings operating in the internal market. It is therefore appropriate to increase legal certainty by reducing these differences.

Amendment 107 #

Proposal for a directive
Recital 36

(36) The differences between leniency programmes at Member State level also jeopardise the level playing field for undertakings operating in the internal market. It is therefore appropriate to increase legal certainty by ~~reducing these difference~~increased cooperation between NCAs.

Amendment 108 #

Proposal for a directive
Recital 37

(37) NCAs should grant undertakings immunity from, and reductions of, fines if certain conditions are met. Undertakings should be deemed to have provided a national competition authority or the Commission with evidence in respect of a secret cartel which enables the finding of an infringement of Article 101 TFEU if that national competition authority did not have sufficient evidence to find an infringement of Article 101 TFEU in connection with the same cartel at the time of the submission by the undertaking of such evidence.

Amendment 109 #

Proposal for a directive
Recital 38

(38) Applicants should have the possibility to apply for leniency in writing or, where appropriate, by other means that do not result in the production of documents, information, or other materials in the applicant's possession, custody, or control. To that effect, NCAs should have a system in place that enables them to accept leniency statements either orally or by other means, including in digital form. In order to facilitate the application to leniency programmes by undertakings, Member States shall ensure that leniency applications can be accepted by national competition authorities in any of the working languages of the Union.

Amendment 110 #

Proposal for a directive
Recital 39

(39) Applicants which have applied for leniency to the European Commission in relation to an alleged secret cartel should be able to file summary applications in relation to the same cartel to the NCAs that they deem appropriate. NCAs should accept summary applications that contain a minimum set of information in relation to the alleged cartel an. NCAs willing to investigate cases for which they receive summary applications should contact the European Commission and both institutions should agree on which takes the lead. If the NCA receiving the summary application does not manifest its willingness to investigate the case, it should not request additional information beyond thise minimum set before it~~hey~~ intends to act on the case. However, the onus is on applicants to inform the NCAs to which they have submitted summary applications if the scope of their leniency application with the Commission changes. NCAs should provide applicants with an acknowledgement stating the date and time of receipt, and inform the applicant whether they have already received a previous summary or leniency application in relation to the same cartel. ~~Onc~~In case the Commission has decided not to act on the case in whole or partially, applicants should have the opportunity to submit full leniency applications to the NCAs to which they have submitted summary applications.

Amendment 111 #

Proposal for a directive
Recital 40

(40) Legal uncertainty as to whether undertakings̕ employees are shielded from individual sanctions can prevent potential applicants from applying for leniency. Current and former employees and directors of undertakings that apply for immunity from fines to competition authorities should thus be protected from any sanctions imposed by public authorities for their involvement in the secret cartel covered by the application. Such protection should be dependent on these employees and directors actively cooperating with the NCAs concerned and the immunity application predating the start of the criminal proceedings. Under strict conditions, Member States may decide to shield employees from individual sanctions when the immunity application is made after the start of the criminal proceedings.

Amendment 112 #

Proposal for a directive
Recital 41

(41) In a system of parallel powers to apply Articles 101 and 102 TFEU, close cooperation is required between NCAs and between NCAs and the Commission. In particular when a NCA carries out an inspection on behalf of another NCA pursuant to Article 22(1) of Council Regulation (EC) No 1/2003, the presence and assistance of the officials from the requesting authority should be enabled to enhance the effectiveness of such inspections by providing additional resources, knowledge and technical expertise.

Amendment 113 #

Proposal for a directive
Recital 42

(42) Similarly, arrangements should be put in place to allow NCAs to request mutual assistance for the notification of preliminary objections and decisions and the enforcement of decisions imposing fines or period penalties when the undertaking concerned has no legal presence in their territory. This would ensure the effective enforcement of Articles 101 and 102 TFEU and contribute to the proper functioning of the internal market. In order to incentivise mutual assistance, the requested authorities should be able to claim the recovery of relevant costs for the notification and enforcement of such decisions.

Amendment 114 #

Proposal for a directive
Recital 45

(45) The risk of self-incriminating material being disclosed outside the context of the investigation for the purposes of which it was provided can weaken the incentives for potential leniency applicants to cooperate with competition authorities. As a consequence, regardless of the form in which leniency statements are submitted, information in leniency statements obtained through access to the file should be used only where necessary for the exercise of rights of defence in proceedings before the courts of the Member States in certain very limited cases which are directly related to the case in which access has been granted. This should not prevent competition authorities from publishing their decisions in accordance with the applicable Union or national law.deleted

Amendment 115 #

Proposal for a directive
Article 1 – paragraph 1

1. This Directive sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence and resources and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and consumers and undertakings, especially small and medium-sized enterprises, are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers. The scope of the Directive covers the application of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU to the same case, with the exception of Article 29(2) which also extends to national competition law applied exclusively.

Amendment 116 #

Proposal for a directive
Article 2 – paragraph 1 – point 10 a (new)

(10a) 'independent lawyer' means an external lawyer who is not bound to the client by a relationship of employment;

Amendment 117 #

Proposal for a directive
Article 3 – paragraph 1

The exercise of the powers referred to in this Directive by national competition authorities shall be subject to appropriate safeguards, including respect of undertakings̕ rights of defence and the right to an effective remedy before a tribunal, in accordance with general principles of Union law and the Charter of Fundamental Rights of the European Union and article 6 of the European Convention on Human Rights. Tribunals shall be empowered to review the decisions of national competition authorities. This review shall not be limited to legality control but shall also address the merits of the case, including the reasoning relating to the anticompetitive practice and the assessment of the proportionality of the sanction.

Amendment 118 #

Proposal for a directive
Article 3 – paragraph 1

The exercise of the powers referred to in this Directive by national competition authorities shall be consistent with the general principles of Union law and the Charter of Fundamental Rights of the European Union. In particular, Member States shall ensure that the exercise of those powers is subject to appropriate safeguards, in~~cluding~~ respect of undertakings̕' rights of defence ~~and the right to an effective remedy before a tribunal, in accordance with general principles of Union law and the Charter of Fundamental Rights of the European Union~~, such as the right to access the file, the right to be heard, the right to an effective remedy before a tribunal and the right to a fair trial.

Amendment 119 #

Proposal for a directive
Article 3 – paragraph 1

Amendment 120 #

Proposal for a directive
Article 3 – paragraph 1 a (new)

Member States shall ensure that national competition authorities respect at least the confidentiality of written communications between clients and their lawyers, which includes both external lawyers and in- house counsel, provided that such communications are made for the purposes, and in the interest, of the client's rights of defence in proceedings for the enforcement of Articles 101 and 102 TFEU and that the communications emanate from independent lawyers.

Amendment 121 #

Proposal for a directive
Article 3 – paragraph 1 a (new)

Without prejudice of the duty to ensure the enforcement of Articles 101 and 102 TFEU by the NCA, Member States shall ensure that undertakings have the right of appeal from a final decision taken by the NCA, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union.

Amendment 122 #

Judiciaries must be empowered to scrutinise the decisions of national competition authorities by instituting effective remedy procedures.

Amendment 123 #

Proposal for a directive
Article 3 – paragraph 1 b (new)

During the period of investigation of an alleged infringement and prior to the taking of a decision by the NCA, Member States shall ensure that undertakings are given the sufficient legal certainty to continue their business activities.

Amendment 124 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) The staff and the members of the decision-making body of national administrative competition authorities can perform their duties and exercise their powers for the application of Articles 101 and 102 TFEU independently from political and other external influence. In particular, members of the decision- making body of national administrative competition authorities shall not be appointed by a political authority;

Amendment 125 #

Proposal for a directive
Article 4 – paragraph 2 – point a

(a) The director, staff and the members of the decision-making body of national administrative competition authorities can perform their duties and exercise their powers for the application of Articles 101 and 102 TFEU independently from political and other external influence;

Amendment 126 #

Proposal for a directive
Article 4 – paragraph 2 – point b

(b) The staff and the members of the decision-making body of national administrative competition authorities neither seek nor take any instructions from any government or other public or private entity when recruiting staff, carrying out their duties and exercising their powers for the application of Articles 101 and 102 TFEU;

Amendment 127 #

Proposal for a directive
Article 4 – paragraph 2 – point b

(b) The director, staff and the members of the decision-making body of national administrative competition authorities neither seek nor take any instructions from any government or other public or private entity when carrying out their duties and exercising their powers for the application of Articles 101 and 102 TFEU;

Amendment 128 #

Proposal for a directive
Article 4 – paragraph 2 – point c

(c) The director, the staff and the members of the decision-making body of national administrative competition authorities refrain from any action which is incompatible with the performance of their duties and exercise of their powers for the application of Articles 101 and 102 TFEU;

Amendment 129 #

Proposal for a directive
Article 4 – paragraph 2 – point d

(d) ~~The~~Appointments to the management and board of the decision-making body of national administrative competition authorities should be made on merit, backed by clear and transparent appointment procedures. The director, members of the decision- making body of national administrative competition authorities may be dismissed only if they no longer fulfil the conditions required for the performance of their duties or have been guilty of serious misconduct under national law. The grounds for dismissal should be laid down in advance in national law. They shall not be dismissed for reasons related to the proper performance of their duties and exercise of their powers in the application of Articles 101 and 102 TFEU as defined in Article 5(2);

Amendment 130 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law. If a formally filed complaint is rejected, the complainant shall have the right to have this decision reviewed by the administrative courts.

Amendment 131 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law. The complaints rejected by the NCA on the grounds that they are not a priority should be kept by the NCA in a well-organised data base for ease of reference and eventual future action.

Amendment 132 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law. Complainants must be able to request a judicial review of decisions taken by national competition authorities to reject a complaint.

Amendment 133 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law. Complainants shall be able to request the judicial review of national competition authorities’ decisions to reject a complaint.

Amendment 134 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). When setting the priorities, national administrative competition authorities should focus on strategic sectors of the economy. To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law.

Amendment 135 #

Pervenche BERÈS

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints, excluding complaints emanating from other public authorities, on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law.

Amendment 136 #

Proposal for a directive
Article 4 – paragraph 2 – point e

(e) National administrative competition authorities have the power to set their priorities and request external expertise and research, if needed, for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative competition authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law.

Amendment 137 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) National administrative competition authorities have the power to hire, within the limits of their budget and without prejudice to the applicable law on staff rules and contracts, the staff they need, and the power to use their budget without any prior authorisation other than a verification of the availability of a sufficient budget.

Amendment 138 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) The members of the decision- making body of national administrative competition authorities are subject to a one year cooling off period after they leave their functions, during which they cannot be working for undertakings which have been investigated by their respective authority over the last five years. All staff and members of the decision-making body shall when being recruited, and every year after, fill in a form to disclose any potential conflict of interests that they or their close relatives could have with a case. National competition authorities shall have procedures in place to ensure that staff can recuse themselves in case a conflict of interests arises at the start or during an investigation.

Amendment 139 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) Member States shall ensure that NCAs publish a Code of Conduct that, without prejudice to the application of stricter national rules, covers at least rules avoiding conflict of interests, including provisions on cooling-off periods and the acceptance of invitations, as well as rules regarding activities undertaken in a personal capacity.

Amendment 140 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) The staff and the members of the decision-making body of national administrative competition authorities shall not seek an employment in an undertaking that is or was investigated within the next 2 years following the end of their labour relation with the authority when they had a direct relation with the file.

Amendment 141 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

(ea) The leadership and the members of the decision-making body of national competition authorities are selected and appointed according to clear and transparent rules and procedures laid down in advance.

Amendment 142 #

Proposal for a directive
Article 4 – paragraph 2 – point e a (new)

Amendment 143 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. Member States shall also ensure that NCAs are responsible for the use of their own budgets and for decisions on the qualifications their staff must have. This budgetary autonomy shall be exercised without prejudice to national budgetary rules and procedures.

Amendment 144 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. Member States shall ensure that NCAs are able to administer the budgets allocated to it independently. Such freedom of management of their budgets should be implemented within the framework of national budgetary rules and procedures.

Amendment 145 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. Without prejudice to national budgetary rules and procedures, Member States shall ensure that national competition authorities are granted independence in the application of the allocated budget.

Amendment 146 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have thadequate and stable human, financial and technical resources, including premises and infrastructures that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. Member States shall ensure that national competition authorities have a separate annual budget and have autonomy in using their resources.

Amendment 147 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. This includes the right of national competition authorities to decide independently on the allocation of their resources and the required qualification of their staff.

Amendment 148 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2. The Commission should provide the needed technical assistance upon the request of the respective NCA.

Amendment 149 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the human, financial, technical and technological resources that are necessary for the effective performance of their duties, including their consultative role, and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2.

Amendment 150 #

Proposal for a directive
Article 5 – paragraph 1

1. Member States shall ensure that national competition authorities have the sufficient human, financial and technical resources that ~~are necessary~~their disposition for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2.

Amendment 151 #

Proposal for a directive
Article 5 – paragraph 1 a (new)

1a. Member States shall guarantee the budgetary autonomy of national competition authorities, including the full autonomy on the allocation of their budget and the capacity to identify budget priorities, as well as the guarantee that their yearly allocated budgets cannot be decreased during the financial year of allocation.

Amendment 152 #

Proposal for a directive
Article 5 – paragraph 2 a (new)

2a. Member States shall ensure that national competition authorities submit publicly available periodic reports on their activities to a governmental or parliamentary body. Member States shall ensure that such reports include information about the appointments and dismissals of members of the decision making body, the amount of resources that were allocated in the relevant year and any changes in this amount compared to previous years. Member States should also send these reports to the European Parliament.

Amendment 153 #

Proposal for a directive
Article 5 – paragraph 2 a (new)

2a. Member States shall ensure that National Competition Authorities submit annual reports on their activities and on their resources to a governmental or parliamentary body. These reports shall be publicly available. The Commission is empowered to initiate on a case by case basis infringement procedures against Member States which would not guarantee adequate resources and budgetary autonomy to NCAs to perform their tasks.

Amendment 154 #

Proposal for a directive
Article 5 – paragraph 2 a (new)

2a. The Commission and Member States shall ensure that all expenditures used for complying with this Article shall be considered to be in compliance with the Stability and Growth Pact (SGP) as laid out in Articles 121 and 126 of the Treaty on the Functioning of the European Union (TFEU) and shall not trigger any actions under the preventive or corrective arm of the SGP.

Amendment 155 #

Proposal for a directive
Article 5 – paragraph 2 a (new)

2a. Member States shall ensure that national competition authorities submit periodic reports on their activities to a governmental or parliamentary body.

Amendment 156 #

Proposal for a directive
Article 6 – paragraph 1 – introductory part

1. Member States shall ensure that national administrative competition authorities can conduct all necessary unannounced inspections of undertakings and associations of undertakings for the application of Articles 101 and 102 TFEU. This Directive does not prevent Member States from requiring prior authorisation by a judicial authority for such inspections. Member States shall ensure that the officials and other accompanying persons authorised by national competition authorities to conduct an inspection are at minimum empowered:

Amendment 157 #

Proposal for a directive
Article 6 – paragraph 1 – introductory part

1. Member States shall ensure that national administrative competition authorities can conduct all necessary unannounced inspections of undertakings and associations of undertakings for the application of Articles 101 and 102 TFEU in accordance with national law. Member States shall ensure that the officials and other accompanying persons authorised by national competition authorities to conduct an inspection are at minimum empowered:

Amendment 158 #

Proposal for a directive
Article 6 – paragraph 1 – point e

(e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answer, carefully respecting workers' rights.

Amendment 159 #

Proposal for a directive
Article 6 – paragraph 2

2. Member States shall ensure that undertakings and associations of undertakings are required to submit to inspections conducted by national administrative competition authorities. In line with national legislation, inspections cannot be carried out without a prior authorisation by the national judicial authority. Where an undertaking or association of undertakings opposes an inspection ordered by a national administrative competition authority or authorised by a national judicial authority, national competition authorities can obtain the necessary assistance of the police or of an equivalent enforcement agency so as to enable them to conduct the inspection. Such assistance may also be obtained as a precautionary measure.

Amendment 160 #

Proposal for a directive
Article 6 – paragraph 2

2. Member States shall ensure that undertakings and associations of undertakings are required to submit to inspections conducted by national administrative competition authorities. Where an undertaking or association of undertakings opposes an inspection ordered by a national administrative competition authority or authorised by a national judicial authority, national competition authorities can obtain the necessary assistance of the police or of an equivalent enforcement agency so as to enable them to conduct the inspection, always with a prior authorisation of a national judicial authority. Such assistance may also be obtained as a precautionary measure.

Amendment 161 #

Proposal for a directive
Article 7 – paragraph 1

1. Member States shall ensure that if a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection which may be relevant to prove a serious violation of Article 101 or Article 102 TFEU are being kept in any premises other than those referred to in Article 6, land or means or transport, including the homes of directors, managers, and other members of staff of undertakings and associations of undertakings, national administrative competition authorities may conduct unannounced inspections in such premises, land and means of transport. Such a reasonable suspicion must be based on substantive and consistent evidence expressly referred to in the decision of the judicial authority.

Amendment 162 #

Proposal for a directive
Article 7 – paragraph 1

1. Member States shall ensure that if a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection which may be relevant to prove a ~~serious~~ violation of Article 101 or Article 102 TFEU are being kept in any premises other than those referred to in Article 6, land or means or transport, including the homes of directors, managers, and other members of staff of undertakings and associations of undertakings, national administrative competition authorities may conduct unannounced inspections in such premises, land and means of transport.

Amendment 163 #

Proposal for a directive
Article 7 – paragraph 1

1. Member States shall ensure that if a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection which may be relevant to prove a ~~serious~~ violation of Article 101 or Article 102 TFEU are being kept in any premises other than those referred to in Article 6, land or means or transport, including the homes of directors, managers, and other members of staff of undertakings and associations of undertakings, national administrative competition authorities may conduct unannounced inspections in such premises, land and means of transport.

Amendment 164 #

Proposal for a directive
Article 7 – paragraph 2

2. Such inspections ~~can~~shall not be carried out without the prior authorisation of a national judicial authority.

Amendment 165 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified ~~time limit~~and reasonable time limit and insofar as the addressee of the decision does not as a result incriminate itself in respect of an infringement of Articles 101 and 102TFEU.. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 166 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a ~~specified~~n appropriate time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings. In that connection, requests for information made by national administrative competition authorities shall be specific and appropriate in scope.

Amendment 167 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a ~~specified~~reasonable time limit. This obligation shall cover information (also including e-mails, instant messaging system messages) which is accessible to the undertaking and association of undertakings.

Amendment 168 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified time limit, which must be reasonable and compatible with the requirement. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 169 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a ~~specified~~reasonable time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 170 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may by decision require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified time limit. This obligation shall cover information which is ~~accessible to~~in the possession of the undertaking and association of undertakings.

Amendment 171 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may ~~by decision~~ require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 172 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may ~~by decision~~ require undertakings and associations of undertakings to provide all ~~necessary~~ information for the application of Articles 101 and 102 TFEU within a specified time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 173 #

Proposal for a directive
Article 8 – paragraph 1

Member States shall ensure that national administrative competition authorities may ~~by decision require~~demand undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified time limit. This obligation shall cover information which is accessible to the undertaking and association of undertakings.

Amendment 174 #

Proposal for a directive
Article 9 – paragraph 1

Member States shall ensure that where national competition authorities find that there is an infringement of Article 101 or 102 TFEU, they may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For that purpose, they may impose any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy.

Amendment 175 #

Proposal for a directive
Article 10 – paragraph 1

Member States shall ensure that national administrative competition authorities acting on their own initiative may by decision order the imposition of interim measures on undertakings at least in cases where there is urgency due to the risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall apply for a specific, reasonable period of time and may be renewed in so far that is necessary and appropriate. Undertakings or associations of undertakings shall be authorised to appeal to a national judicial authority against decisions on interim measures under an urgent procedure.

Amendment 176 #

Proposal for a directive
Article 10 – paragraph 1

Member States shall ensure that national administrative competition authorities acting on their own initiative may by decision order the imposition of interim measures on undertakings ~~at least~~ in cases where there is urgency due to the pending risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall be proportionate and reasoned and shall apply for a specific reasonable period of time and may be renewed in so far that is necessary and appropriate. Undertakings shall be allowed to appeal interim measures decisions before a national judicial authority under an emergency procedure.

Amendment 177 #

Proposal for a directive
Article 10 – paragraph 1

Member States shall ensure that national administrative competition authorities acting on their own initiative may by decision order the imposition of interim measures on undertakings ~~at least~~including in cases where there is urgency due to the risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall apply ~~for a specific per~~until a final decisiodn ofn t~~ime~~he case is adopted and may be renewed in so far that is necessary and appropriate. Such a decision may continue to apply even in cases when the Commission has decided to open a case, and until a final decision is adopted.

Amendment 178 #

Proposal for a directive
Article 10 – paragraph 1

Member States shall ensure that national administrative competition authorities acting on their own initiative may ~~by decision~~ order the imposition of interim measures on undertakings at least in cases where there is urgency due to the risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall apply for a specific period of time and may be renewed in so far that is necessary and appropriate. The European Competition Network is to be duly informed of such measures and their progress.

Amendment 179 #

Proposal for a directive
Article 10 – paragraph 1

Member States shall ensure that national administrative competition authorities acting on their own initiative may by decision order the imposition of interim measures on undertakings at least in cases where there is urgency due to the risk of serious and irreparable harm to competition and on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall apply either for a specific period of time ~~and may be renewed in so far that is necessary and appropriate~~, with the possibility to be renewed, or until the final decision is taken.

Amendment 180 #

Proposal for a directive
Article 10 – paragraph 1 a (new)

Member States should ensure that the undertakings concerned can have the appropriateness of the temporary measures imposed by national administrative competition authorities reviewed by the administrative courts in a fast-track procedure.

Amendment 181 #

Proposal for a directive
Article 11 – paragraph 1

Member States shall ensure that in proceedings initiated with a view to a decision requiring that an infringement of Article 101 or Article 102 TFEU be brought to an end, national competition authorities may by decision make binding commitments offered by undertakings to meet the concerns expressed by these authorities. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the national competition authority concerned. Member States shall ensure that national competition authorities are sufficiently empowered to monitor the proper implementation of such commitments.

Amendment 182 #

Proposal for a directive
Article 11 – paragraph 1

Member States shall ensure that in proceedings initiated with a view to a decision requiring that an infringement of Article 101 or Article 102 TFEU be brought to an end, national competition authorities may, after seeking the views of market participants, by decision make binding commitments offered by undertakings to meet the concerns expressed by these authorities. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the national competition authority concerned.

Amendment 183 #

Proposal for a directive
Article 11 – paragraph 1

Member States shall ensure that in proceedings initiated with a view to a decision requiring that an infringement of Article 101 or Article 102 TFEU be brought to an end, national competition authorities may after seeking the views of market participants by decision make binding commitments offered by undertakings to meet the concerns expressed by these authorities. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the national competition authority concerned.

Amendment 184 #

Proposal for a directive
Article 11 – paragraph 1 a (new)

Member States shall ensure that national competition authorities have at their disposal effective powers to monitor the implementation of commitment decisions.

Amendment 185 #

Proposal for a directive
Article 12 – paragraph 1

1. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose ~~by decision~~ in administrative proceedings, or request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings and associations of undertakings when, either intentionally or negligently, they infringe Articles 101 or 102 TFEU.

Amendment 186 #

Proposal for a directive
Article 12 – paragraph 1

1. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose by decision in ~~administrative~~independent proceedings, or request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings and associations of undertakings when, either intentionally or negligently, they infringe Articles 101 or 102 TFEU.

Amendment 187 #

Proposal for a directive
Article 12 – paragraph 2 – introductory part

2. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose by decision in administrative proceedings, or, request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings or associations of undertakings which are determined in proportion to their total worldwide turnover, where intentionally or negligently:

Amendment 188 #

Proposal for a directive
Article 12 – paragraph 2 – introductory part

2. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose by decision in ~~administrative~~independent proceedings, or, request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings or associations of undertakings which are determined in proportion to their total turnover, where intentionally or negligently:

Amendment 189 #

Proposal for a directive
Article 12 – paragraph 2 – introductory part

2. Without prejudice to national laws of the Member States which provide for the imposition of sanctions in criminal judicial proceedings, Member States shall ensure that national administrative competition authorities may either impose ~~by decision~~ in administrative proceedings, or, request in non-criminal judicial proceedings the imposition of effective, proportionate and deterrent pecuniary fines on undertakings or associations of undertakings which are determined in proportion to their total turnover, where intentionally or negligently:

Amendment 190 #

Proposal for a directive
Article 12 – paragraph 2 – point d

(d) they supply incorrect, incomplete or misleading information in response to a request ~~made by a decision~~ referred to byin Article 8 or do not supply information within the specified time-limit;

Amendment 191 #

Proposal for a directive
Article 12 – paragraph 2 – point e

(e) they fail to comply with a decision referred to in Articles 9, 10 and 11.

Amendment 192 #

Proposal for a directive
Article 12 – paragraph 3

3. In order to reduce the risk that fines can be avoided by corporate re- structuring, Member States shall ensure that the notion of undertaking is applied for the purpose of imposing fines on parent companies and legal and economic successors of undertakings.

Amendment 193 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States shall ensure that when national competition authorities determine the amount of the fine for an infringement of Article 101 or Article 102 TFEU regard is had both to the gravity ~~and to the duration of the infringement~~, the duration of the infringement and the repetition of the prohibited conduct. Member States shall ensure that compensation payments disbursed by an undertaking as a result of a settlement cannot be deducted from the amount of the fine.

Amendment 194 #

Proposal for a directive
Article 13 – paragraph 1

Amendment 195 #

Proposal for a directive
Article 13 – paragraph 1 a (new)

1a. When determining the amount of the fine for an infringement, national competition authorities may take into account any compensation paid as a result of a consensual settlement in accordance with Article 18(3) of Directive 2014/104/EU.

Amendment 196 #

Proposal for a directive
Article 13 – paragraph 2

2. Member States shall ensure that, when a fine is imposed on an association of undertakings taking account of the turnover of its members and the association is not solvent, the association is obliged to call for contributions from its members to cover the amount of the fine. Where necessary to ensure the full payment of the fine, Member States shall ensure that national competition authorities are entitled to require the payment of the outstanding amount of the fine by any of the undertakings whose representatives were members of the decision-making bodies of the association. To the extent that it is still necessary, national competition authorities shall also be entitled to require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment shall not be required from those members of the association that did not implement the infringement and either were not aware of it or have actively distanced themselves from it before the investigation started.deleted

Amendment 197 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2

Where necessary to ensure the full payment of the fine, Member States shall ensure that national competition authorities are entitled to require the payment of the outstanding amount of the fine by any of the undertakings whose representatives were members of the decision-making bodies of the association. To the extent that it is still necessary, national competition authorities shall also be entitled to require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment shall not be required from those members of the association that did not implement the infringement and either were not aware of it or have actively distanced themselves from it before the investigation started.

Amendment 198 #

Where necessary to ensure the full payment of the fine, Member States shall ensure that national competition authorities are entitled to require the payment of the outstanding amount of the fine by any of the undertakings whose representatives were members of the decision-making bodies of the association. To the extent that it is still necessary, national competition authorities shall also be entitled to require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment ~~shall~~may not be required from those members of the association that did not implement the infringement and either were not aware of it or have actively distanced themselves from it before the investigation started.

Amendment 199 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2

Where necessary to ensure the full payment of the fine, Member States shall ensure that national competition authorities are entitled to require the payment of the outstanding amount of the fine by any of the undertakings whose representatives were members of the decision-making bodies of the association. To the extent that it is still necessary, national competition authorities shall also be entitled to require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment shall not be required from those members of the association that did not implement the infringement and ~~either were not aware of it or~~ have actively distanced themselves from it before the investigation started.

Amendment 200 #

Proposal for a directive
Article 13 – paragraph 2 a (new)

2a. Member States shall ensure that national competition authorities shall not take into account any compensation paid as a result of a consensual statement in accordance with Article 18(3) of Directive 2014/104/EU when determining the amount of the fine for an infringement.

Amendment 201 #

Proposal for a directive
Article 14 – title

~~Maximum a~~Amount of the fine

Amendment 202 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level below 102% of its total worldwide turnover in the business year preceding the decision. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.

Amendment 203 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU ~~should not be se~~is set at least at a level ~~below~~of 10% of its total worldwide turnover in the business year preceding the decision. This should not prevent Member States from maintaining or introducing a higher maximum level for the fine.

Amendment 204 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should ~~not~~ be set at ~~a level below 10% of its total worldwide turnover i~~10% of its relevant turnover in the Member State where the infringement took place based on the business year preceding the decision.

Amendment 205 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should ~~not~~ be set at ~~a level below~~ 10 % of its total worldwide turnover in the business year preceding the decision.

Amendment 206 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should ~~not~~ be set at a level ~~below~~not above 10% of its total ~~worldwide~~ turnover in the business year preceding the decision.

Amendment 207 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the ~~maximum~~ amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU ~~should not be~~is at least set at a level ~~below~~of 10% of its total worldwide turnover in the business year preceding the decision.

Amendment 208 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level ~~below~~above 10 % of its total worldwide turnover in the business year preceding the decision.

Amendment 209 #

Proposal for a directive
Article 14 – paragraph 1

1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not ~~be set at a level below~~exceed 10% of its total worldwide turnover in the business year preceding the decision.

Amendment 210 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.deleted

Amendment 211 #

Proposal for a directive
Article 14 – paragraph 2

Amendment 212 #

Proposal for a directive
Article 14 – paragraph 2

Amendment 213 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 102 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1. This should not prevent Member States from maintaining or introducing a higher maximum amount of the fine.

Amendment 214 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall ~~not~~ be set at ~~a level below~~least at 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 215 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level ~~below~~above 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 216 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall ~~not~~ be set at ~~a level below~~ 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 217 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the ~~maximum~~ amount of the fine shall ~~not~~ be set at least at a level ~~below~~of 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the ~~maximum~~ amount set in accordance with paragraph 1.

Amendment 218 #

Proposal for a directive
Article 14 – paragraph 2

2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not ~~be set at a level below~~exceed 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Amendment 219 #

Proposal for a directive
Article 15 – paragraph 1 a (new)

Member States shall ensure that national administrative competition authorities have the capacity and the provisions to collect the fines imposed to an undertaking or an association of undertakings.

Amendment 220 #

Proposal for a directive
Article 16 – paragraph 2 – introductory part

2. Member States shall aim at ensureing that immunity can be granted only if the undertaking

Amendment 221 #

Proposal for a directive
Article 16 – paragraph 2 – introductory part

2. Member States shall ensure that immunity can be granted ~~only~~ if the undertaking

Amendment 222 #

Proposal for a directive
Article 16 – paragraph 2 – introductory part

2. Member States shall ensure that immunity can be granted ~~only~~ if the undertaking

Amendment 223 #

Proposal for a directive
Article 16 – paragraph 2 – point c – point i

i. at the time the national competition authority receives the application, enables it to carry out a targeted inspection in connection with the secret cartel, provided that the national competition authority did not yet have in its possession evidence to carry out an inspection in connection with the secret cartel ~~or had not already carried out such an inspection~~; or

Amendment 224 #

Proposal for a directive
Article 16 – paragraph 2 – point c – point i

Amendment 225 #

Proposal for a directive
Article 16 – paragraph 2 – point c – point ii

ii. in the national competition authority's view, enables the finding of an infringement of competition law, provided that the national competition authority did not yet have in its possession evidence to find such an infringement and that no other undertaking previously qualified for immunity at the European or national levels under paragraph 2(c)(i) in relation to the same cartel.

Amendment 226 #

Proposal for a directive
Article 17 – paragraph 2

2. Member States shall ensure that a reduction of fines is granted ~~only if~~when the conditions laid down in Article 18 are fulfilled and the applicant discloses its participation in a secret cartel and provides the national competition authority with evidence of the alleged secret cartel which represents significant added value for the purpose of proving an infringement of Article 101 TFEU or a corresponding provision under national law, relative to the evidence already in the national competition authority’s possession at the time of the application.

Amendment 227 #

Proposal for a directive
Article 18 – paragraph 1 – point a

(a) it ended its involvement in the alleged secret cartel immediately following its application, or made clear its plans to end its involvement, except for what would, in the competent national competition authority’s view, be reasonably necessary to preserve the integrity of its investigation;

Amendment 228 #

Proposal for a directive
Article 18 – paragraph 1 – point b – point i

i. providing the national competition authority promptly with all relevant information and evidence relating to the alleged secret cartel that comes into its possession or is available to it; , including: – the name and address of the legal entity submitting the immunity application, – the names of all other undertakings that participate or participated in the alleged secret cartel, – a detailed description of the alleged cartel, including the affected products, the affected territories, the duration and the nature of the alleged cartel conduct, – evidence of the alleged cartel accessible to the applicant, – information on any past or possible future leniency applications made to any other national competition authority or to the Commission in relation to the alleged cartel.

Amendment 229 #

Proposal for a directive
Article 19 – paragraph 1

Member States shall ensure that applicants can apply for leniency in writing and that national competition authorities have a system in place that enables them to accept leniency statements either orally or by other means that do not result in the production of documents, information, or other materials in the applicant’s possession, custody, or control. Any application for the leniency programme shall however result in the production of an acknowledgment stating the date and time of receipt.

Amendment 230 #

Proposal for a directive
Article 19 – paragraph 1 a (new)

A collaboration system between the NCAs, the ECN, and the Commission’s translation department should be established where assistance in the translation of documents and correspondence in such situations is needed

Amendment 231 #

Proposal for a directive
Article 19 – paragraph 1 a (new)

Member States shall ensure that applications for leniency may be submitted in any of the official languages of the Union.

Amendment 232 #

Proposal for a directive
Article 20 – paragraph 1 a (new)

1a. A collaboration system between the NCAs, the ECN, and the Commission’s translation department should be established where assistance in the translation of documents and correspondence in such situations is needed

Amendment 233 #

Proposal for a directive
Article 20 – paragraph 2

2. Member States shall ensure that national competition authorities have discretion whether or not to grant a marker. A marker maybe granted only if the undertaking provides the national competition authority with the following cumulative information: i. the name and address of the applicant; ii. the basis for the concern which resulted in the leniency application; iii. the names of all other undertakings participating or having participated in the alleged secret cartel; iv. the affected products and territories; v. the duration and the nature of the alleged cartel conduct; vi. information on any past or possible future leniency applications made to any other competition authority in relation to the alleged secret cartel.

Amendment 234 #

Proposal for a directive
Article 21 – paragraph 3

3. Member States shall ensure that national competition authorities refrain from requesting from the applicant any information related to the alleged infringement covered by the summary application beyond the items set out in paragraph 2 before they require the submission of a full application pursuant to paragraph 6.deleted

Amendment 235 #

Proposal for a directive
Article 21 – paragraph 3

3. Member States shall ensure that if a national competition authorities refrain from requesting from the applicant any information related to the alleged infringement covered by the summary application beyond the items set out in paragraph 2 before they require the submission of a full applicy is willing to investigate the case mentioned in a summary application, it shall inform the Commission in written within a deadline of 30 working days after receiving the summary application. The Commission and the national competition authority shall agree on who takes the lead on the investigation pursuant to ~~paragraph 6~~Article 22c.

Amendment 236 #

Proposal for a directive
Article 21 – paragraph 6

6. Member States shall ensure that applicants have the opportunity to submit full leniency applications, perfecting the summary applications referred to in paragraph 1, to the national competition authorities concerned, once the Commission has informed those authorities that it does not intend to act on the case in whole or in part. The Commission will keep the national competition authorities concerned informed on a regular basis about the state of play and come to the aforementioned decision without undue delay. Member States shall ensure that national competition authorities have the power to specify a reasonable period of time within which the applicant must submit the full application together with the corresponding evidence and information.

Amendment 237 #

Proposal for a directive
Article 21 – paragraph 6

6. In cases others than those referred in paragraph 3, Member States shall ensure that applicants have the opportunity to submit full leniency applications, perfecting the summary applications referred to in paragraph 1, to the national competition authorities concerned, once the Commission has informed those authorities that it does not intend to act on the case in whole or in part. Member States shall ensure that national competition authorities have the power to specify a reasonable period of time within which the applicant must submit the full application together with the corresponding evidence and information.

Amendment 238 #

Proposal for a directive
Article 21 – paragraph 7

7. Member States shall ensure that if the applicant submits the full application in accordance with paragraph 6, within the period specified by the national competition authority, the information contained therein will be deemed to have been submitted at the date and time of the summary application. If the applicant had submitted the summary application no later than 5 working days after filing the leniency application to the Commission, the summary application will be deemed to have been submitted at the date and time of the leniency application submitted to the Commission.

Amendment 239 #

Proposal for a directive
Article 21 – paragraph 7

Amendment 240 #

Proposal for a directive
Article 21 – paragraph 7

Amendment 241 #

Proposal for a directive
Article 22 – paragraph 1

Amendment 242 #

Proposal for a directive
Article 22 – paragraph 1

Member States shall ensure that current and former employees and directors of applicants for immunity from fines to competition authorities are protected from any criminal and administrative sanctions and from sanctions imposed in non- criminal judicial proceedings for their involvement in the secret cartel covered by the application, including in cross-border cases, if these employees and directors actively cooperate with the competition authorities concerned and the immunity application predates the start of the criminal proceedings.

Amendment 243 #

Proposal for a directive
Article 22 – paragraph 1 a (new)

In cases where the immunity application is filled by an undertaking after the start of investigations by the national competition authorities but presents new facts and a significant added value for the purpose of proving an infringement of Article 101 TFEU or a corresponding provision under national law, Member States may adopt provisions allowing former employees of applicants for immunity a protection from any criminal and administrative sanctions, if these employees actively cooperate with the competition authorities concerned.

Amendment 244 #

Proposal for a directive
Article 22 a (new)

Article 22a Interplay between leniency programmes in different Member States In order to prevent cases of double immunity, Member States shall ensure that when several undertakings participating to the same secret cartel have filled different leniency applications with different national competition authorities or the Commission, only the first leniency application is considered admissible.

Amendment 245 #

Proposal for a directive
Article 22 b (new)

Article 22b Incentive to report secret cartels and other anti-competitive practices Member States are strongly encouraged to ensure that their national competition authorities put in place an online tool to make it easier for individuals to alert about secret cartels and other anti- competitive practices while maintaining their anonymity.

Amendment 246 #

Proposal for a directive
Article -23 (new)

Article -23 Cooperation between national competition authorities and the Commission 1. Member States shall ensure that in cases of secret cartels covering at least three Member States, the Commission services are automatically competent to open an investigation and national competition authorities shall refer them such cases. 2. In cases referred to in Article 21 paragraph 3, and without prejudice to the paragraph above, national competition authorities and the Commission shall enter into dialogue on which institution is best placed to start an investigation. Unless the need for a pan-European investigation is demonstrated or in cases where no agreement has been found within 30 working days, the national competition authority is deemed to have priority to open a case. If the Commission takes the lead in opening an investigation, the national competition authorities shall refrain from requesting from the applicant any information related to the alleged infringement covered by the summary application beyond the items set out in Article 21 paragraph 2 before they require the submission of a full application pursuant to Article 21 paragraph 6.

Amendment 247 #

Proposal for a directive
Article 23 – paragraph 1

Member States shall ensure that when national administrative competition authorities carry out an inspection on behalf of and for the account of other national competition authorities pursuant to Article 22 of Council Regulation (EC) No 1/2003, officials and other accompanying persons authorised by the requesting national competition authority shall be permitted to attend ~~and actively assist~~the inspection by the requested national competition authority ~~in the inspection by~~ exercising the powers referred to in Articles 6 and 7.

Amendment 248 #

Proposal for a directive
Article 23 – paragraph 1 a (new)

In case of positive conflict of jurisdictions for investigation between two or more national competition authorities and where no agreement is found on who takes the lead to investigate, the Commission shall be tasked to nominate the national competition authorities deemed best placed to open a case.

Amendment 249 #

Proposal for a directive
Article 25 – paragraph 5

5. The requested authority shall ~~not be obliged to~~ enforce decisions pursuant to paragraph 1 ifunless it is able to demonstrate reasonable grounds to the applicant authority showing how this would be manifestly contrary to public policy in the Member State in which enforcement is sought.

Amendment 250 #

Proposal for a directive
Article 25 – paragraph 5 a (new)

5a. Where an applicant authority disagrees with the refusal of the requested authority to enforce a decision in accordance with paragraph 5, the Commission may, upon the request of the Member State of the applicant authority, issue a binding decision, within three months of the refusal, determining whether the refusal is justified on public policy grounds. If the Commission finds the requested authority's refusal to be unjustified, the requested authority shall enforce the decision pursuant to paragraph 1.

Amendment 251 #

Proposal for a directive
Article 26 a (new)

Article 26a Cost sharing between national competition authorities Member States shall ensure that the national administrative competition authorities requesting assistance shall, upon the request of the requested authority: (a) in relation to action taken pursuant to Articles 23 and 24, bear all reasonable additional costs, including translation and administrative costs; (b) in relation to action taken pursuant to Article 25, allow the requested authority to recover all reasonable administrative costs from a collected fine or penalty payment.

Amendment 252 #

Proposal for a directive
Article 27 – paragraph 1 a (new)

1a. Member States shall ensure that national competition authorities can initiate an inquiry into the infringements referred to in Articles 101 and 102 TFEU only within four years from the end of the infringement.

Amendment 253 #

Proposal for a directive
Article 27 – paragraph 2 a (new)

2a. The Commission shall ensure that the notification of the start of a formal investigative measure received from a national competition authority under Article 11(3) of Regulation 1/2003 is made available to the national competition authorities of the other Member States within the European Competition Network System.

Amendment 254 #

Proposal for a directive
Article 27 a (new)

Article 27a Limitation periods for investigations Member States shall ensure that national competition authorities can start an investigation on infringements of Articles 101 and 102 TFEU only for ...* years from the end of the infringement. ______________ *To be determined as an average of national practices.

Amendment 255 #

Proposal for a directive
Article 29 – paragraph 1

Amendment 256 #

Proposal for a directive
Article 29 – paragraph 1

1. IWithout prejudice to obligations to inform the public prosecutor of criminal offences as foreseen under national law, information collected on the basis of the provisions referred to in this Directive should only be used for the purpose for which it was acquired. ~~It should not be used in evidence for the imposition of sanctions on natural persons.~~

Amendment 257 #

Proposal for a directive
Article 29 – paragraph 1 a (new)

1a. Without prejudice to obligations under national law to inform the public prosecutor about possible offences, information collected on the basis of the provisions of this Directive should only be used for the purpose for which it was acquired.

Amendment 258 #

Proposal for a directive
Article 29 – paragraph 1 a (new)

1a. Member States shall ensure that business secrets are adequately protected throughout the procedure. All agents of national competition authorities shall comply with this requirement.

Amendment 259 #

Proposal for a directive
Article 29 – paragraph 1 a (new)

1a. Member States shall ensure that business secrets are adequately protected during the whole proceedings. All agents of national competition authorities should comply with this requirement.

Amendment 260 #

Proposal for a directive
Article 29 – paragraph 1 a (new)

1a. Member States shall ensure that business secrets are properly protected at every stage of the procedure.

Amendment 261 #

Proposal for a directive
Article 29 – paragraph 5

5. When a competition authority transmits information provided voluntarily by an applicant pursuant to Article 12 of Regulation (EC) No 1/2003 without the consent of the applicant, Member States shall ensure that receiving national competition authorities ~~are able to provide the commitment~~meet the criteria referred to in paragraph 4(c).

Amendment 262 #

Proposal for a directive
Article 29 – paragraph 5

5. When a competition authority transmits information provided voluntarily by an applicant pursuant to Article 12 of Regulation (EC) No 1/2003 without the consent of the applicant, Member States shall ensure that receiving national competition authorities ~~are able to~~ provide the commitment referred to in paragraph 4(c).

Amendment 263 #

Proposal for a directive
Article 29 – paragraph 6 a (new)

6a. Paragraph1 shall be without prejudice to the requirements of national criminal law.

Amendment 264 #

Proposal for a directive
Article 31 – title

~~Costs of t~~The European Competition Network System

Amendment 265 #

Proposal for a directive
Article 31 – paragraph 1

The costs incurred by the Commission in connection with the maintenance and the development of the European Competition Network System and cooperation within the European Competition Network shall be borne by the general budget of the Union ~~within the limit of the available appropriations~~.

Amendment 266 #

Proposal for a directive
Article 31 – paragraph 1 a (new)

The European Competition Network shall publish as often as necessary and useful recommendations and best practices from different national competition authorities regarding independence, resources, powers, fines and assistance programmes.

Amendment 267 #

Proposal for a directive
Article 32 a (new)

Article 32a Review By ... [five years after the entry into force of this Directive] the Commission shall present a report to the European Parliament and the Council on the implementation of this Directive, accompanied, if necessary, by appropriate legislative proposals.

Amendment 53 #

Draft legislative resolution
Citation 5 a (new)

– having regard to the report of the Committee on Economic and Monetary Affairs of the European Parliament (A8- 0001/2017) on the annual report on EU competition policy and especially of the points 151-159 of the mentioned report,

Amendment 54 #

Pirkko RUOHONEN-LERNER

Proposal for a directive
Recital 1

(1) Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure more open competitive markets in Europe, where companies compete more on their merits and without company erected barriers to market entry, enabling them to generate wealth and create jobs. ItCompetition is an important incentive for innovation. Europe’s small, segmented markets typically suffer more from the lack of it. Competition protects consumers from business practices that keep the prices of goods and services artificially high and enhances their choice of innovative goods and services.

Amendment 55 #

Proposal for a directive
Recital 1

(1) Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure more open competitive markets in Europe, where companies compete more on their merits and without company erected barriers to market entry, enabling them to generate wealth and create jobs. It protects consumers and undertakings active on the internal market from business practices that keep the prices of goods and services artificially high and enhances their choice of innovative goods and services.

Amendment 56 #

Proposal for a directive
Recital 1

(1) Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure ~~more open~~fairer competitive markets in Europe, where companies compete more on their merits and without company erected barriers to market entry, enabling them to generate wealth and create jobs. It protects consumers from business practices that keep the prices of goods and services artificially high and enhances their choice of innovative goods and services.

Amendment 57 #

Proposal for a directive
Recital 2 a (new)

(2a) Member States shall ensure that national competition authorities submit publicly available periodic reports on their activities to a governmental or parliamentary body. Member States shall ensure that such reports include information about the appointments and dismissals of members of the decision making body, the amount of resources that were allocated in the relevant year and any changes in this amount compared to previous years.

Amendment 58 #

Proposal for a directive
Recital 2 a (new)

(2a) In order to forestall the introduction of unnecessary new procedures in the Member States, existing allocations of decision-making and investigative powers between NCAs in a Member State which have proven their effectiveness should not be called into question by this Directive.

Amendment 59 #

Proposal for a directive
Recital 4

(4) Moreover, providing NCAs with the power to obtain ~~all~~ information related to the undertaking subject to the investigation in digital form irrespective of the medium on which it is stored, should also affect the scope of the NCAs’ powers when, at the early stages of proceedings, they take the relevant investigative measure also on the basis of the national competition law provisions applied in parallel to Articles 101 and 102 TFEU. Providing NCAs with inspection powers of a different scope depending on whether they will ultimately apply only national competition law provisions or also Articles 101 and 102 TFEU in parallel would hamper the effectiveness of competition law enforcement in the internal market. Accordingly, the scope of the Directive should cover both the application of Articles 101 and 102 TFEU on a stand- alone basis and the application of national competition law applied in parallel to the same case. This is with the exception of the protection of leniency statements and settlement submissions which also extends to national competition law applied on a stand-alone basis.

Amendment 60 #

Proposal for a directive
Recital 5

(5) National law prevents many NCAs from having the necessary guarantees of independence and enforcement and fining powers to be able to enforce these rules effectively. This undermines their ability to effectively apply Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU as appropriate. For example, under national law many NCAs do not have effective tools to find evidence of infringements of Articles 101 and 102 TFEU, to fine companies which break the law or do not have the ~~resources they need to effectively apply Articles 101 and 102 TFEU~~adequate human and financial resources and the budgetary autonomy they need to effectively apply Articles 101 and 102 TFEU. Over the last years, several NCAs have seen their budget and staffing being reduced, threatening the proper functioning of NCAs and the fulfilment of their missions. This can prevent them from taking action at all or results in them limiting their enforcement action. The lack of operational tools and guarantees of many NCAs to effectively apply Articles 101 and 102 TFEU means that undertakings engaging in anti-competitive practices can face very different outcomes of proceedings depending on the Member States in which they are active: they may be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement. For example, in some Member States, undertakings can escape liability for fines simply by restructuring. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU results in missed opportunities to remove barriers to market entry and to create ~~more open~~fairer competitive markets throughout the ~~European~~ Union where undertakings compete on their merits. Undertakings and consumers particularly suffer in those Member States where NCAs are less-equipped to be effective enforcers. Undertakings cannot compete on their merits where there are safe havens for anti- competitive practices, for example, because evidence of anti- competitive practices cannot be collected or because undertakings can escape liability for fines. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU throughout ~~Europe~~the Union thus distorts competition in the internal market and undermines its proper functioning.

Amendment 61 #

Proposal for a directive
Recital 5

(5) NCertain shortcomings in national law could prevent~~s many~~ NCAs from having the necessary guarantees of independence and enforcement and fining powers to be able to enforce these rules effectively. This undermines their ability to effectively apply Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU as appropriate. For example, under national law many NCAs do not have effective tools to find evidence of infringements of Articles 101 and 102 TFEU, to fine companies which break the law or do not have the resources they need to effectively apply Articles 101 and 102 TFEU. This can prevent them from taking action at all or results in them limiting their enforcement action. The lack of operational tools and guarantees of many NCAs to effectively apply Articles 101 and 102 TFEU means that undertakings engaging in anti-competitive practices can face very different outcomes of proceedings depending on the Member States in which they are active: they may be subject to no enforcement at all under Articles 101 or 102 TFEU or to ineffective enforcement. For example, in some Member States, undertakings can escape liability for fines simply by restructuring. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU results in missed opportunities to remove barriers to market entry and to create more open competitive markets throughout the European Union where undertakings compete on their merits. Undertakings and consumers particularly suffer in those Member States where NCAs are less-equipped to be effective enforcers. Undertakings cannot compete on their merits where there are safe havens for anti-competitive practices, for example, because evidence of anti- competitive practices cannot be collected or because undertakings can escape liability for fines. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement. Uneven enforcement of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU throughout Europe thus distorts competition in the internal market and undermines its proper functioning.

Amendment 62 #

Proposal for a directive
Recital 6

(6) Gaps and limitations in NCAs' tools and guarantees undermine the system of parallel powers for the enforcement of Articles 101 and 102 TFEU which is designed to work as a cohesive whole based on close cooperation within the European Competition Network. This system depends on authorities being able to rely on each other to carry out fact-finding measures on each other's behalf in order to foster Member States’ cooperation and mutual assistance. However it does not work well when there are still NCAs that do not have adequate fact- finding tools. In other key respects, NCAs are not able to provide each other with mutual assistance. For example, in the majority of Member States, undertakings operating cross-border are able to evade paying fines simply by not having a legal presence in some of the territories of Member States in which they are active. This reduces incentives to comply with Articles 101 and 102 TFEU. The resulting ineffective enforcement distorts competition for law-abiding undertakings and undermines consumer confidence in the internal market, particularly in the digital environment.

Amendment 63 #

Proposal for a directive
Recital 6

(6) GCertain gaps and limitations in NCAs' tools and guarantees could potentially undermine the system of parallel powers for the enforcement of Articles 101 and 102 TFEU which is designed to work as a cohesive whole based on close cooperation within the European Competition Network. This system depends on authorities being able to rely on each other to carry out fact-finding measures on each other's behalf. However it does not work well when there are still NCAs that do not have adequate fact- finding tools. In other key respects, NCAs are not able to provide each other with mutual assistance. For example, in the majority of Member States, undertakings operating cross-border are able to evade paying fines simply by not having a legal presence in some of the territories of Member States in which they are active. This reduces incentives to comply with Articles 101 and 102 TFEU. The resulting ineffective enforcement distorts competition for law-abiding undertakings and undermines consumer confidence in the internal market, particularly in the digital environment.

Amendment 64 #

Proposal for a directive
Recital 7

(7) In order to ensure a truly common competition enforcement area in Europe that provides a more even level playing field for undertakings operating in the internal market and reduces unequal conditions for consumers there is a need to put in place minimum guarantees of independence ~~and~~, adequate financial, human and technological resources and core enforcement and fining powers when applying Articles 101 and 102 TFEU and national competition law provisions in parallel to Articles 101 and 102 TFEU so that NCAs can be fully effective.

Amendment 65 #

Proposal for a directive
Recital 10

(10) Conversely, detailed rules are necessary in the area of conditions for granting leniency for secret cartels. Companies will only come clean about secret cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. The marked differences between the leniency programmes applicable in the Member States lead to legal uncertainty for potential leniency applicants, which may weaken their incentives to apply for leniency. Marked differences could also potentially lead to several members of a secret-cartel attempting to seek benefit from leniency programmes in different Member States. If Member States could implement or apply ~~either less or more restrictive~~clearer and harmonised rules for leniency in the area covered by this Directive, this would ~~not only go counter to~~go towards the objective of maintaining incentives for applicants in order to render competition enforcement in the Union as effective as possible, ~~but~~and would ~~also risk jeopardising the~~guarantee a level playing field for undertakings operating in the internal market. This does not prevent Member States from applying leniency programmes that do not only cover secret cartels, but also other infringements of Articles 101 and 102 TFEU and equivalent national provisions.

Amendment 66 #

Proposal for a directive
Recital 10

(10) Conversely, ~~detailed~~clear and comprehensive rules are necessary in the area of conditions for granting leniency for secret cartels. Companies will only come clean about secret cartels in which they have participated if they have sufficient legal certainty about whether they will benefit from immunity from fines. The marked differences between the leniency programmes applicable in the Member States lead to legal uncertainty for potential leniency applicants, which may weaken their incentives to apply for leniency. If Member States could implement or apply either less or more restrictive rules for leniency in the area covered by this Directive, this would not only go counter to the objective of maintaining incentives for applicants in order to render competition enforcement in the Union as effective as possible, but would also risk jeopardising the level playing field for undertakings operating in the internal market. This does not prevent Member States from applying leniency programmes that do not only cover secret cartels, but also other infringements of Articles 101 and 102 TFEU and equivalent national provisions.

Amendment 67 #

Proposal for a directive
Recital 12 a (new)

(12a) The protection of the confidentiality of communications between lawyers, which includes both external lawyers and in-house counsel, and clients is an essential corollary to the full exercise of rights of defence, as established by the case law of the Court of Justice of the European Union. Therefore, NCAs should at least respect the confidentiality of written communications between lawyers and clients, provided that such communications are made for the purposes, and in the interest, of the client's rights of defence in competition proceedings and that they emanate from independent lawyers. Such confidentiality obligation should not prevent a client from disclosing written communications between lawyer and client if the client considers that it is in its interest to do so.

Amendment 68 #

Proposal for a directive
Recital 12 a (new)

(12a) Since the case law of the CJEU states that protecting the confidentiality of lawyer-client communication is essential if the full exercise of the rights of the defence is to be guaranteed, Member States should ensure that NCAs at least safeguard the confidentiality of written communications between a client and its lawyer, provided that such communications are made for the purposes, and in the interest, of the client's rights of defence in proceedings to enforce Articles 101 and 102 TFEU and that they emanate from independent lawyers.

Amendment 69 #

Proposal for a directive
Recital 14

(14) The independence of NCAs should be strengthened in order to ensure the effective and uniform application of Articles 101 and 102 TFEU. To this end, express provision should be made in national law to ensure that when applying Articles 101 and 102 TFEU NCAs are protected against external intervention or political pressure liable to jeopardise their independent assessment of matters coming before them. For that purpose, rules should be laid down in advance regarding the grounds for the dismissal of the members of the decision-making body of the NCAs in order to remove any reasonable doubt as to the impartiality of that body and its imperviousness to external factors. Moreover, to underpin their impartiality, the fines they impose should not be used to finance them directly.

Amendment 70 #

Proposal for a directive
Recital 14

(14) The independence of NCAs should be strengthened in order to ensure the effective and uniform application of Articles 101 and 102 TFEU. To this end, express provision should be made in national law to ensure that when applying Articles 101 and 102 TFEU NCAs are protected against external intervention or political pressure liable to jeopardise their independent assessment of matters coming before them. For that purpose, rules should be laid down in advance regarding the grounds for the dismissal of the members of the decision-making body of the NCAs in order to remove any reasonable doubt as to the impartiality of that body and its imperviousness to external factors. In addition, budgetary independence of NCAs should be guaranteed in national law.

Amendment 71 #

Proposal for a directive
Recital 14 a (new)

(14a) State-owned undertakings are subject to the competition rules of the Treaties to the extent that they engage in an economic activity. Member States should refrain from taking any measures that could undermine the independent assessment of matters coming before the NCAs when they concern such undertakings.

Amendment 72 #

Proposal for a directive
Recital 15

(15) To ensure the independence of NCAs, their staff and members of the decision-making body should act with integrity and refrain from any action which is incompatible with the performance of their duties. The need to prevent the independent assessment of staff or members of the decision-making body being jeopardised entails that during their employment and term of office and for a reasonable period thereafter, they should refrain from any incompatible occupation, whether gainful or not. They should also declare any potential incompatible occupation of their close relatives. Furthermore, this also entails that during their employment and their term of office, they should not have an interest in any businesses or organisations which have dealings with a NCA to the extent that this has the potential to compromise their independence. The staff and the members of the decision-making body should declare any interest or asset which might create a conflict of interests in the performance of their duties, including any such interest of asset of their close relatives. They should be required to inform the decision-making body, the other members thereof or, in the case of NCAs in which the decision- making power rests with only one person, their appointing authority, if, in the performance of their duties, they are called upon to decide on a matter in which they or their close relatives have an interest which might impair their impartiality. In addition, Member States should ensure that a cooling off period exists for members of the decision-making body for a certain time after they leave the NCA.

Amendment 73 #

Proposal for a directive
Recital 15

(15) To ensure the independence of NCAs, their staff and members of the decision-making body should act with integrity and refrain from any action which is incompatible with the performance of their duties. Th~~e need to prevent the independent assessment of staff or members of the decision-making body being jeopardised entails~~is means that that during their employment and term of office and for a reasonable period thereafter, they should refrain from any incompatible occupation, whether gainful or not that may give rise to a conflict of interests in a specific case. Furthermore, this also entails that in exercising their functions during their employment and their term of office, they should not have an interest in any businesses or organisations which ~~have dealings with a NCA~~are subject to proceedings for the enforcement of Articles 101 or 102 TFEU in which they take part to the extent that this has the potential to compromise their independence in the handling of the case concerned. The staff and ~~the~~ members of the decision-making body should declare any interest or asset which might create a conflict of interests in the performance of their duties. They should be required to ~~inform the decision-making body, the other members thereof or, in the case of NCAs in which~~abstain from any involvement in the decision- making p~~ower rests with only one person, their appointing authority, if, in the performance of their duties, they are called upon to decide~~rocess on a matter in which they have an interest which might impair their impartiality.

Amendment 74 #

Proposal for a directive
Recital 15 a (new)

(15a) Every NCA should publish a Code of Conduct that, without prejudice to the application of stricter national rules, covers at least rules avoiding conflict of interests, including provisions on cooling- off periods and the acceptance of invitations, as well as rules regarding activities undertaken in a personal capacity.

Amendment 75 #

Proposal for a directive
Recital 17

(17) NCAs should be able to prioritise their proceedings for the enforcement of Articles 101 and 102 TFEU to make effective use of their resources, and to allow them to focus on preventing and bringing to an end anti-competitive behaviour that distorts competition in the internal market. To this end, they should be able to reject complaints on the grounds that they are not a priority. This should be without prejudice to the power of NCAs to reject complaints on other grounds, such as lack of competence or to decide there are no grounds for action on their part. In case of rejection, the NCA should inform the complainant in due time with a justification. The power of NCAs to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.

Amendment 76 #

Proposal for a directive
Recital 17

(17) NCAs should be able to prioritise their proceedings and their budget spending for the enforcement of Articles 101 and 102 TFEU to make effective use of their resources, and to allow them to focus on preventing and bringing to an end anti-competitive behaviour that distorts competition in the internal market. To this end, they should be able to reject complaints on the grounds that they are not a priority. This should be without prejudice to the power of NCAs to reject complaints on other grounds, such as lack of competence or to decide there are no grounds for action on their part. The power of NCAs to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.

Amendment 77 #

Proposal for a directive
Recital 17 a (new)

(17a) The complaints rejected by the NCA on the grounds that they are not priority should be kept by the NCA in a well organised data base for ease of reference and eventual future action.

Amendment 78 #

Pirkko RUOHONEN-LERNER

Proposal for a directive
Recital 18

(18) NCAs should have the necessary resources, in terms of staff, expertise, financial means and technical equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are necessary to perform those tasks should still be sufficient. Competition authorities, in particular, must be given the capability and knowledge to maintain competition among goods in the digital economy whose value is dependent on network externalities. In the digital economy, network externality goods, such as payment cards, are more common than in the past. If they are successful, they become natural monopolies, as the number of customers increases the value of the product to other customers. The ability of the competition authorities to act and their knowledge and cooperation in the field of regulation of pricing or regulation of income distribution should be developed at European level in relation to network externality goods, in order to ensure that costs are properly allocated and that healthy competition, innovation, the digital economy and technological development are not stifled or the interests of consumers harmed.

Amendment 79 #

Proposal for a directive
Recital 18

Amendment 80 #

Proposal for a directive
Recital 18

Amendment 81 #

Proposal for a directive
Recital 18

Amendment 82 #

Proposal for a directive
Recital 18

(18) NCAs should have the ~~necessary~~adequate resources, in terms of staff, expertise, financial means and technical equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are ne~~cessary~~eded to perform those tasks should still be sufficient.

Amendment 83 #

Proposal for a directive
Recital 18

(18) NCAs should have the necessary resources, in terms of staff, expertise, financial means and technical and technological equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are necessary to perform those tasks should still be sufficient.

Amendment 84 #

Proposal for a directive
Recital 21

(21) The investigative powers of national administrative competition authorities need to be adequate to meet the enforcement challenges of the digital environment and should enable national competition authorities to obtain all information in digital form, including data obtained forensically, related to the undertaking or association of undertakings which is subject to the investigative measure, irrespective of the medium on which it is stored, such as on laptops, mobile phones ~~and~~, other mobile devices and cloud storage.

Amendment 85 #

Proposal for a directive
Recital 25

(25) Experience shows that business records may be kept in the homes of directors or other people working for an undertaking, especially with the increased use of more flexible working arrangements. In order to ensure that inspections are effective, national administrative competition authorities should have the power to enter any premises, including private homes, where there is a reasonable suspicion that business records are being kept which may be relevant to prove a ~~serious~~ violation of Article 101 or Article 102 TFEU. The exercise of this power should be subject to the prior authorisation of a judicial authority. This does not prevent Member States from entrusting the tasks of a national judicial authority to a national administrative competition authority acting as a judicial authority, in cases of extreme urgency.

Amendment 86 #

Proposal for a directive
Recital 26

(26) NCAs should have effective powers to require information to be supplied as is ~~necessary~~relevant to detect any agreement, decision or concerted practice prohibited by Article 101 TFEU or any abuse prohibited by Article 102 TFEU. This should include the right to require information irrespective of where it is stored, provided it is accessible to the addressee of the request for information. Experience shows that information provided on a voluntary basis by third parties, such as competitors, customers and consumers in the market, can also be a valuable source of information for informed and robust enforcement and NCAs should encourage this.

Amendment 87 #

Proposal for a directive
Recital 27

(27) NCAs should have effective means to restore competition on the market by imposing proportionate structural and behavioural remedies. In order to prevent irreparable damage to competition during ongoing proceedings, NCAs must be put in a position to impose temporary measures. Member States should ensure that the undertakings concerned can have the appropriateness of such temporary measures reviewed by the administrative courts in a fast-track procedure.

Amendment 88 #

Proposal for a directive
Recital 27

(27) NCAs should have effective means to restore competition on the market by imposing proportionate structural and behavioural remedies. Interim measures constitute a very useful tool for NCAs to guarantee, before the end of an investigation, that competition rules are respected and that investigated infringements are not perpetuating anti- competitive behaviours by undertakings. Interim measures should remain in place as long as a final decision on the case has been adopted.

Amendment 89 #

Proposal for a directive
Recital 28

(28) Where in the course of proceedings which may lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these authorities should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings concerned, except in cases of secret cartels. Such commitment decisions should find that there are no longer grounds for action by the NCAs without concluding as to whether or not there has been an infringement of Article 101 TFEU or Article 102 TFEU. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding of an infringement and decide upon a case. NCAs should have the effective means to monitor compliance by undertakings with commitments and to impose sanctions in case of non- compliance.

Amendment 90 #

Proposal for a directive
Recital 28

(28) Where in the course of proceedings which may lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these authorities should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings concerned. ~~Such c~~In principle, such commitment decisions are not appropriate in cases of secret cartels, in respect of which NCAs should impose a fine. Commitment decisions should find that there are no longer grounds for action by the NCAs without concluding as to whether or not there has been an infringement of Article 101 TFEU or Article 102 TFEU. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding of an infringement and decide upon a case.

Amendment 91 #

Proposal for a directive
Recital 28

(28) Where in the course of proceedings which may lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these authorities should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings concerned. ~~Such c~~In principle, such commitment decisions are not appropriate in cases of secret cartels, in respect of which NCAs should impose a fine. Commitment decisions should find that there are no longer grounds for action by the NCAs without concluding as to whether or not there has been an infringement of Article 101 TFEU or Article 102 TFEU. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding of an infringement and decide upon a case.

Amendment 92 #

Proposal for a directive
Recital 28

(28) Where in the course of proceedings which may lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these authorities should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings concerned. Such commitment decisions are not suited for secret cartels, for which NCAs should impose a fine. Commitment decisions should find that there are no longer grounds for action by the NCAs without concluding as to whether or not there has been an infringement of Article 101 TFEU or Article 102 TFEU. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding of an infringement and decide upon a case.

Amendment 93 #

Proposal for a directive
Recital 30

(30) To ensure that undertakings and associations of undertakings comply with the investigation and decision-making powers of the NCAs, national administrative competition authorities must be able to impose effective fines for non- compliance, and periodic penalty payments to compel compliance with these powers either directly themselves in administrative proceedings or to seek the imposition of fines in non-criminal judicial proceedings. This is without prejudice to national laws of the Member States which provide for the imposition of such fines by courts in criminal judicial proceedings. Moreover, this Directive affects neither national rules on the standard of proof nor obligations of NCAs to ascertain the facts of the relevant case, provided that such rules and obligations are compatible with general principles of Union law. The fines and periodic penalty payments should be determined in an appropriate proportion to the total turnover of the undertakings and associations of undertakings concerned

Amendment 94 #

Proposal for a directive
Recital 31 a (new)

(31a) During the period of investigation of an alleged infringement and prior to the taking of a decision by the NCA, undertakings should be given sufficient legal certainty to continue their business activities.

Amendment 95 #

Proposal for a directive
Recital 32

(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size and economic power of the undertaking - e.g. when it is a small or medium-sized enterprise with limited market power -, as they reflect the influence the undertaking was able to exert on the market. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU. In addition, NCAs may take account of any compensation paid as a result of a consensual settlement, in accordance with Article 18(3) of Directive 2014/104/EU of the European Parliament and of the Council.

Amendment 96 #

Proposal for a directive
Recital 32

(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size and economic power of the undertaking, as they reflect the influence the undertaking was able to exert on the market. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU. Under no circumstances can compensation paid by an undertaking as a result of a settlement be deducted from the amount of the fine.

Amendment 97 #

Proposal for a directive
Recital 32

(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size and economic power of the undertaking, as they reflect the influence the undertaking was able to exert on the market, such as whether it is a small and medium-sized enterprise (SME) with limited market power. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU.

Amendment 98 #

Proposal for a directive
Recital 32

(32) To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the case law of the Court of Justice of the European Union. In particular, as regards the assessment of the gravity of an infringement, the Court of Justice of the European Union has established that consideration must be given to the circumstances of the case, the context in which the infringement occurred and the deterrent effect of the fines. Factors that may form part of this assessment are the turnover for the goods and services in respect of which the infringement was committed and the size and economic power of the undertaking, in particular whether it is a small and medium sized enterprise (SME), as they reflect the influence the undertaking was able to exert on the market. Moreover, the existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication of the gravity of the conduct in question and accordingly of the need to increase the level of the penalty to achieve effective deterrence. When determining the fine to be imposed, NCAs should consider the value of the undertaking’s sales of goods and services to which the infringement directly or indirectly relates. Similarly, NCAs should be entitled to increase the fine to be imposed on an undertaking or association of undertakings that continues the same, or commits a similar, infringement after the Commission or a national competition authority has taken a decision finding that the same undertaking or association of undertakings has infringed Articles 101 or 102 TFEU.

Amendment 99 #