On 4 November 2015, the European Commission released a public consultation in the form of an online questionnaire designed to collect opinions on whether national competition authorities ("NCAs") should be given additional powers to enforce EU competition rules.

This public consultation follows the Commission Communication "Ten Years of Regulation 1/2003" (the "Communication"), published in July 2014, on the enforcement of EU competition law at both national and EU level during the past ten years. While the Communication highlighted the close and efficient cooperation between the Commission and the NCAs within the European Competition Network ("ECN"), it also noted a number of important areas where divergence still subsists, i.e., (i) the rules on the independence of NCAs and their resources; (ii) the range of enforcement, investigative and decision-making powers available to NCAs; (iii) the rules on the calculation of fines for the imposition of proportionate and effective fines; (iv) the introduction of a leniency programme in all member states; and (v) the interplay between corporate leniency programmes and criminal sanctions on individuals. In a speech delivered on 20 November 2015, Competition Commissioner Margarethe Vestager again pointed out these areas of divergence and highlighted issues such as authorities not having the power to properly collect evidence, to impose appropriate fines or to be completely impartial, which translate into concerns for both businesses and consumers.

The Commission now seeks to gather views from stakeholders on how the powers of NCAs should be enhanced in order to facilitate increased convergence of the national rules in the above areas.

An initial section of the online questionnaire deals with NCA resources and independence. The Commission underlines that there are notable differences between NCAs as far as financial and human resources are concerned, which have sometimes resulted in the NCA not conducting (or poorly conducting) certain enforcement activities. Another issue relating to the independence of NCAs is that they are not always safeguarded from the interference of national public and private bodies.

In a second section, the main issue pointed out by the Commission is that most NCAs do not have a comprehensive and effective set of investigation and decision-making powers. An illustration of this is the fact that some NCAs lack the power to reject complaints based on priority grounds, or to adopt commitment decisions and to inspect non-business premises. While most NCAs do have the power to inspect business premises, some NCAs still cannot gather digital evidence effectively. Additionally, fines may not always act as a very strong deterrent to undertakings, since fines are set at a very low level in some jurisdictions and NCAs may lack the power to impose periodic penalty payments to compel compliance.

A third section deals with the imposition of fines and, more particularly: (i) the nature of the fines imposed (civil, administrative or criminal); (ii) the persons who may be fined (the concept of "undertaking", the liability of parent companies, the liability of legal or economic successor); and (iii) the determination of the amount of the fines (legal ceiling, methodology and factors, aggravating and mitigating circumstances).

In a fourth section, the Commission deals with the leniency programmes adopted at national level and the impact that certain limitations in one jurisdiction may have in other EU jurisdictions. Despite the fact that the ECN's Model Leniency Programme has increased consistency between leniency programmes, there are still a number of remaining differences on issues such as who can benefit from leniency and under which conditions leniency may be obtained.

The deadline for taking part in the Commission's public consultation is 12 February 2016. Based on the answers received, the Commission will decide whether further action is needed in these areas. Commissioner Vestager emphasised that this is not about simply harmonising various laws, but also about empowering NCAs to work cooperatively towards achieving a more competitive Europe.

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