COMMISSION STAFF WORKING DOCUMENT IMPLEMENTATION PLAN Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market
Date: 2017-03-22
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, cartel, competition, competition law, dominant position, economic sector, infringement of EU law, single market

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 22.3.2017  SWD(2017) 116 final   COMMISSION STAFF WORKING DOCUMENT IMPLEMENTATION PLAN Accompanying the document Proposal for a   DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market {COM(2017) 142 final} {SWD(2017) 114 final} {SWD(2017) 115 final}  
 
 
COMMISSION STAFF WORKING DOCUMENT 

IMPLEMENTATION PLAN 

Accompanying the document 

Proposal for a  

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

to empower the competition authorities of the Member States to be more effective 
enforcers and to ensure the proper functioning of the internal market 

1.  INTRODUCTION 

The  proposed  Directive to  empower  the  competition  authorities  of  the Member  States  to  be 
more  effective  enforcers  and  to  ensure  the  proper  functioning  of  the  internal  market  
(hereinafter: "the Directive") pursues the objective of achieving  an effective enforcement of 
the EU competition rules, which are applied through a system of parallel competences by the 
Commission  and  the  national  competition  authorities  (NCAs).  In  order  to  achieve  this 
objective,  the  proposed  Directive  sets  out  specific  measures  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.  These  measures  will  also  enable 
them  to  effectively  provide  each  other  with  mutual  assistance  in  order  to  safeguard  close 
cooperation within the European Competition Network.  

The  proper  and  timely  transposition  of  such  measures  may  raise  some  implementation 
challenges, concerning not only the smooth incorporation of antitrust specific rules in national 
legal  orders,  but  also  the  prompt  and  coherent  application  of  those  rules  by  NCAs.  The 
practical  effect  of  the  provisions  of  the  proposed  Directive  may  also  rest  on  the  extent  to 
which information can be successfully disseminated among stakeholders. 

The  Commission’s  services  have  thus  laid  down  the  present  Implementation  Plan,  which 
identifies  implementation  challenges  and  suggests  a  set  of  actions  aimed  at  targeting  them. 
The  measures,  which  are  summarised  in  explanatory  tables  annexed  to  the  present  plan, 
encompass both actions by the Commission and actions by the Member States. The timeframe 
of the actions is structured depending on the specific needs that may arise at different stages 
of the transposition process and even beyond it. The actions envisaged for Member States are 
meant  to  foster  cooperation  with  the  Commission  in  view  of  easing  transposition  tasks  and 
foster better compliance with their obligations. The actions envisaged by the Commission are 
meant  to  loyally  assist  and  support  the  Member  States  in  the  fulfilment  of  their  tasks,  to 
monitor the implementation process, and to ensure the adequate dissemination of information 
to stakeholders. 

This Implementation Plan is provided for information purposes only. It does not legally bind 
the  Commission  on  whether  the  identified  actions  will  be  pursued  or  on  the  form  in  which 
they will be pursued. As regards Member State actions, the present Implementation Plan does 

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not create further legal obligations on the Member States other than those stemming from the 
proposed  Directive,  in  accordance  with  the  Treaties.  It  should  be  noted  that  possible 
adjustments  and  modifications  of  the  present  Implementation  Plan  could  be  necessary  to 
reflect future developments in the implementation of the proposed Directive. 

2.  CONTACT POINT 

The contact point for information and cooperation as regards the Implementation Plan is the 
Commission's Directorate-General for Competition - Unit A4 European Competition Network 
and Private Enforcement. In order to ensure prompt support and a unified port of call for all 
issues arising from the proposed Directive, the following functional mailbox has already been 
activated: 

COMP-ECNPLUS@ec.europa.eu 

3.  DELIVERABLES AND IMPLEMENTATION CHALLENGES  

Four  main  challenges  arising  from  the  implementation  of  the  proposed  Directive  have  been 
identified. These challenges are explained below alongside suggested support actions by the 
Commission and the Member States. 

3.1. Providing full implementation within the time-frame 

Member States have to ensure that national rules governing the enforcement of Articles 101 
and  102  TFEU  by  the  NCAs  comply  with  the  proposed  Directive.  In  order  to  comply  with 
their obligation, Member States may need to amend existing rules within their legal system or 
lay down new specific rules. 

The review by the Member States of existing national rules and the clear understanding of the 
obligations  stemming  from  the  proposed  Directive  are  crucial  for  a  full  and  timely 
implementation.  Firstly,  this  will  help  Member  States  understand  which  existing  rules  are 
already in line with the requirements of the proposed Directive. Secondly, they will facilitate 
the assessment of further amendments that will be necessary to ensure full compliance with 
the  Directive.  Following  this  assessment,  an  adequate  planning  for  the  adoption  of  the 
required measures should also be foreseen. 

The  Commission  should  loyally  cooperate  with  the  Member  States  to  help  solve  specific 
problems  and  technical  issues  that  may  arise.  Member  States  should  also  assist  the 
Commission  by  transmitting  information  on  the  implementation  measures  undertaken,  thus 
enabling  it  to  monitor  the  progress  of  the  transposition  process  within  the  time-frame.  The 
Commission  should  ensure  adequate  exchange  with  Member  States  of  best  practices/ 
technical solutions to the implementation challenges that may arise.  

3.2. Ensuring adequate training and support for NCAs on the exercise of their enforcement 
and fining powers 

The Directive ensures that NCAs have a minimum set of core powers to investigate and take 
decisions,  impose  deterrent  fines  and  have  in  place  effective  leniency  programmes  which 
incentivise companies to cooperate. Practical questions may arise about the actual exercise of 
such  powers.  The  Commission  should  ensure  adequate  availability  to  provide  clarifications 

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and,  where  necessary,  training,  in  order  to  allow  a  better  understanding  by  NCAs  of  the 
exercise of such powers. 

3.3. Ensuring adequate information to businesses 

Together  with  the  implementation  of  the  proposed  Directive  by  Member  States,  actions 
should  be  put  in  place  in  order  to  raise  awareness  amongst  the  business  community  of  the 
main changes introduced by the Directive. Increased awareness may produce benefits in terms 
of  compliance  by  undertakings,  while  improved  legal  certainty,  e.g.  regarding  leniency 
programmes, could increase cooperation by infringers with competition authorities. 

4.  SUPPORT ACTIONS 

4.1. Commission's Actions 

a) Providing full implementation within the time-frame 

  Upon request by the relevant services within the Member States, the Commission will 
offer advice on technical issues arisen. To this end, the Commission has identified in 
section  2  a  functional  mailbox  which  will  be  the  single  contact  point  within  its 
services. The Commission services will also be available to respond to such requests 
in bilateral meetings. 

  The Commission will facilitate the exchange of best practices/technical solutions with 

Member States to the implementation challenges that may arise. 

 

If  significant  transposition  issues  would  arise  in  several  Member  States,  the 
Commission may consider issuing interpretative guidance. 

b)  Ensuring  adequate  training  and  support  for  NCAs  related  to  the  practical 
implementation of the directive 

  The Commission may be available to provide training on issues related to the practical 

implementation of the directive to the NCAs that so request. 

c) Ensuring adequate information to businesses 

  The  Commission  will  intensify  its  advocacy  effort  by  participating  in  stakeholder 
events aimed at increasing awareness of the main changes introduced by the Directive. 

4.2. Member States' Actions 

a) Providing full implementation within the time-frame 

  Member  States  may  at  any  moment  inform  the  Commission's  services  of  specific 
technical challenges encountered and questions arising during the transposition, so as 
to  allow  the  Commission  to  offer  the  available  information  and  assistance  that  they 
may  require.  Member  States  may  also  informally  consult  the  Commission's  services 
on draft transposition measures. 

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 

In  order  to  make  it  possible  for  the  Commission  to  monitor  the  transposition  efforts 
made  and  the  progress  in  the  transposition  of  the  Directive  within  the  time-frame, 
Member States  should communicate to  the Commission  the text  of laws, regulations 
and administrative provisions adopted to comply with the Directive (Article 32 of the 
proposed Directive), or the text of already existing provisions that they consider to be 
in  line  with  it.  Such  provisions  should  contain  a  reference  to  the  Directive  or  be 
accompanied  by  a  reference  to  it  on  the  occasion  of  their  official  publication,  in  the 
form chosen by the Member States. 

  Member States should transmit explanatory documents showing which existing or new 

provisions implement the individual measures set out in the proposed Directive. 

  Where  efficient  solutions  are  already  in  place  under  national  law  or  have  been 
introduced within the transposition of the proposed Directive, Member States should 
inform the Commission so as to allow it to offer specific examples to other Member 
States that may be facing similar issues. 

b)  Ensuring  adequate  training  and  support  for  NCAs  on  the  exercise  of  its  decision-
making and investigation powers 

  Where the Member States consider it to be necessary, they will have the possibility to 
ask the Commission to provide training to their NCAs on issues related to the practical 
implementation of the new provisions introduced in their national legal framework as 
a result of the implementation of the Directive. 

c) Ensuring adequate information to businesses 

  Member States and NCAs should update their information sources so that they reflect 
the  changes  introduced  in  the  national  legislation  resulting  from  the  Directive.  They 
should also complement the updated information with additional explanations on the 
practical consequences of such changes for the business community, including small 
and medium-sized enterprises (SMEs). 

  NCAs  may  follow  the  Commission's  practice  by  intensifying  their  advocacy  efforts, 
e.g. by participating at stakeholder events aimed at increasing awareness on the main 
changes introduced by the Directive and its consequences for the business community, 
including SMEs. 

4.3 Timing for Support Actions 

Planned  actions  to  achieve  the  objectives  outlined  above  should  take  place  progressively 
before,  during  and  after  the  implementation  period  foreseen  in  the  proposed  Directive.  The 
steps in which such actions should take place are described below: 

Step 1: Adoption of the proposed Directive 

Immediately  after  the  adoption,  the  Commission  will  offer  assistance  to  Member  States  on 
technical issues related to the implementation of the proposed Directive. 

Step 2: First six months of the transposition period 

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In  this  period,  the  Commission  will  continue  with  the  monitoring  effort  of  technical 
challenges  identified  by  Member  States  in  the  review  of  national  rules  that  fall  within  the 
scope  of  the  Directive.  Member  States  may  facilitate  this  process  by  informing  the 
Commission's services of questions arisen and how the main challenges have been resolved.  

The  Commission  actions  to  provide  support  to  Member  States,  as  well  as  its  awareness-
raising efforts among stakeholders should be intensified. 

Step 3: Last 18 months of the transposition period 

The monitoring action by the Commission should extend to the measures that Member States 
start  adopting  to  fulfil  the  obligations  stemming  from  the  Directive.  Member  States  shall 
publish  the  transposition  measures  adopted  and  inform  the  Commission  thereof.  The 
Commission should make available such information on its website. 

Step 4: After the expiry of the transposition period 

The  Commission  will  verify  the  completeness  and  conformity  of  the  implementation  of  the 
proposed directive by Member States.  

As to monitoring, the Commission should focus its efforts on issues related to the application 
of  the  Directive.  The  Commission  should  also  start  providing  training  to  NCAs  where 
necessary.  

The  Commission  will  perform  an  ex-post  evaluation  of  the  extent  to  which  the  proposed 
Directive has improved the effective enforcement of EU competition rules. 

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Annex 1 

DETAILED IMPLEMENTATION PLAN 

The  following  tables  summarise  the  Implementation  Plan,  providing  a  detailed  overview  of 
which actions are foreseen to achieve its objectives and the envisaged time-frame. 

The timing of the support actions envisaged is structured as follows: 

Step 1: Adoption of the proposed Directive; 

Step 2: First six months of the transposition period; 

Step 3: Last 18 months of the transposition period; 

Step 4: After the expiry of the transposition period. 

A. COMMISSION'S ACTIONS TO SUPPORT MEMBER STATES IN THE IMPLEMENTATION OF THE 
DIRECTIVE 

Implementation challenge 

Support action 

Timing 

Providing full 
implementation within the 
time-frame 

Provision of advice through 
the single contact 
point/bilateral meetings 

Issuing of interpretative 
guidance, if necessary 
Facilitate exchange with 
Member States of best 
practices/technical solutions  

Steps 1, 2 & 3 

Steps 2 & 3 

Steps 2 & 3 

Ensuring adequate training 
and support for NCAs on 
the exercise of its decision-
making and investigation 
powers 
Ensuring adequate 
information to businesses 

Provision of training to the 
NCAs 

Step 3 & 4 

Intensification of the 
advocacy effort 

Step 3 & 4 

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B. MEMBER STATES' ACTIONS TO ENSURE SMOOTH IMPLEMENTATION OF THE DIRECTIVE 

Implementation challenge 

Support action 

Timing 

Providing full 
implementation within the 
time-frame 

Ensuring adequate training 
and support for NCAs on 
the exercise of its decision-
making and investigation 
powers 

Ensuring adequate 
information to businesses 

Inform the Commission on 
specific technical 
challenges/questions. Consult 
the Commission on draft 
transposition measures. 
Communicate to the 
Commission the text of laws, 
regulations and 
administrative provisions 
already existing or adopted  
Transmit to the Commission 
explanatory documents on 
the existing or new 
provisions implementing the 
Directive 
Inform the Commission on 
efficient implementation 
solutions,   which can be 
useful examples for other 
Member States 

Steps 1, 2 & 3 

Steps 3 & 4 

Steps 3 & 4 

Steps 2 & 3 

Ask the Commission to 
provide training to the NCAs 

Steps 3 & 4 

Inform the business 
community by updating their 
information sources to reflect 
the legislative changes and 
providing additional 
explanations 
Intensify advocacy efforts to 
increase awareness amongst 
the business community 

Steps 2, 3 & 4 

Steps 3 & 4 

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