Companies should brace themselves, as 2017 is likely to see
better and more effective competition enforcement in the EU.
National competition authorities will be further empowered and the
number of antitrust damages actions is likely to rise as a result
of the implementation of the antitrust damages directive into
national law and the upcoming measures to facilitate collective
redress at EU and national level. Also, more merger transactions
may have to be notified to the European Commission due to upcoming
changes in the EU Merger Regulation. Finally, recent statements by
Competition Commissioner Vestager imply a greater focus on social
aspects when enforcing the competition rules, signifying a possible
shift that companies should take to heart. All in all, it promises
to be an interesting year in competition enforcement, with plenty
of new changes.
Empowering national competition authorities
National competition authorities (NCAs) and courts are empowered
to apply the EU competition rules within their jurisdictions on the
basis of Regulation 1/2003. To ensure the consistent
application of these rules, the European Commission and the 28
national competition authorities of the EU work together in the European Competition Network; however, as EU
commissioner for competition Margrethe Vestager has emphasised, not all
NCAs currently have the same enforcement powers. Some NCAs do not
have the authority to gather evidence stored on digital devices,
such as smartphones or laptops, during a dawn raid. Other NCAs
cannot afford to purchase the tools necessary to extract hidden
data from a company's computer system. In addition, because
most NCAs have their own leniency programme, a company applying for
leniency cannot always be sure it is the first to approach every
single relevant NCA. The European Commission will try to fix this
with the introduction of - most likely - a directive
empowering national competition authorities to become more
effective enforcers in the second quarter of 2017.
Anticipated rise in number of antitrust damages actions
There is likely to be an increase in antitrust damages actions
in the EU overall and in the Netherlands specifically due to a
number of new legislative initiatives. Firstly, the due date for
implementation of the directive on antitrust damages actions into
the national legal systems of the EU member states was set at 27
December 2016 and the bill implementing the directive is
likely to be rubber-stamped by the First Chamber of the Dutch
Parliament soon. Secondly, the Dutch government is contemplating a bill dealing with civil
damages actions in respect of purely national competition law
infringements. Finally, a bill introducing class actions in the
Netherlands was submitted to the Second Chamber of the Dutch
Parliament late 2016. This is a big step forward and in line with
the European Commission's recommendation on collective redress. The
Commission is set to assess how to implement the recommendation and
what further measures are needed by 26 July 2017.
More EU merger control filings?
As part of its evaluation of the effectiveness of the EU
merger control regime, the European Commission launched a public
consultation on the functioning of the EU Merger Regulation in October 2016. The
consultation focuses on:
the effectiveness of purely
turnover-based thresholds in the EU Merger Regulation;
the treatment of cases that typically
do not raise competition concerns; and
the referral mechanisms between
member states and the Commission.
The evaluation is scheduled to be completed in the autumn of
2017.The outcome could result in more merger transactions having to
be notified at EU level, since the Commission is exploring whether
companies should notify mergers if they meet a certain transaction
or data set value, even when they do not reach the turnover
thresholds. This addition to the current, purely turnover-based
threshold is of particular significance to certain industries,
where an acquired company may have achieved little turnover as yet,
but holds commercially valuable data, or has considerable market
potential through innovation. This is one of the reasons why
Germany plans to introduce a similar transaction test
by early 2017.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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