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

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   EUROPEAN COMMISSION  Brussels, 22.3.2017  COM(2017) 142 final 2017/0063 (COD)   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 (Text with EEA relevance) {SWD(2017) 114} {SWD(2017) 115} {SWD(2017) 116}  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

General Context 

The EU Member States are essential partners of the European Commission for enforcing the 
EU  competition  rules.  Since  2004,  the  national  competition  authorities  of  the  EU  Member 
States  (NCAs)  are  empowered  by  Council  Regulation  (EC)  No  1/20031  to  apply  the  EU 
competition rules alongside the Commission. Indeed, the NCAs are obliged to apply the EU 
competition  rules  to  agreements  or  practices  that  are  capable  of  having  an  effect  on  trade 
between  Member  States.  For  more  than  a  decade  both  the Commission  and  the  NCAs  have 
enforced the EU competition rules in close cooperation in the European Competition Network 
(ECN). The ECN was created in 2004 expressly for this purpose. 

Enforcement  of  the  EU  competition  rules  by  both  the  Commission  and  the  NCAs  is  an 
essential  building  block  for  the  creation  of  an  open,  competitive  and  innovative  internal 
market  and  is  crucial  for  creating  jobs  and  growth  in  important  sectors  of  the  economy,  in 
particular, the energy, telecoms, digital and transport sectors.  

The  EU  competition  rules  are  one  of  the  defining  features  of  the  internal  market:  where 
competition is distorted, the internal market cannot deliver on its full potential and create the 
right conditions for sustained economic growth. A key aspect of making the internal market 
deeper and fairer is ensuring that the internal market rules are effectively enforced so that they 
deliver close to the citizen. Enforcement of the EU competition rules is now taking place on a 
scale  which  the  Commission  could  never  have  achieved  on  its  own.  Since  2004,  the 
Commission  and  the  NCAs  took  over  1000  enforcement  decisions,  with  the  NCAs  being 
responsible for 85%. Action by a multiplicity of enforcers is a much stronger, more effective 
and better deterrent for companies that may be tempted to breach the EU competition rules. 
The  Commission  typically  investigates  anticompetitive  practices  or  agreements  that  have 
effects on competition in three or more Member States or where it is useful to set a Europe-
wide precedent. The NCAs are usually well placed to act where competition is substantially 
affected  in  their  territory.  NCAs  have  the  expertise  on  how  markets  work  in  their  own 
Member State. That knowledge is of great value when enforcing the competition rules. Action 
at national level promotes support by society at large for competition enforcement. 

Reasons for and objectives of the proposal 

There is untapped potential for more effective enforcement of the EU competition rules by the 
NCAs.  Regulation  (EC)  No  1/2003  did  not  address  the  means  and  instruments  by  which 
NCAs apply the EU competition rules and many do not have all the means and instruments 
they need to effectively enforce Articles 101 and 102 TFEU: 

1.  Some  NCAs  do  not  have  enforceable  guarantees  that  they  can  apply  the  EU 
competition  rules  independently  without  taking  instructions  from  public  or  private 
entities.  A  number  of  authorities  struggle  with  insufficient  human  and  financial 
resources.  This  may  have  an  impact  on  their  ability  to  effectively  enforce.  For 
example,  some  NCAs  are  not  able  to  carry  out  simultaneous  inspections  of  all 
members  of  a  suspected  cartel,  giving  the  others  valuable  time  to  destroy  evidence 

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Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty (OJ 2003, L 1, p.1). 

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and escape detection. Others lack the appropriate forensic IT tools to find evidence 
of infringements.  

2.  Many  NCAs  do  not  have  all  the  tools  they  need  to  effectively  detect  and  tackle 
competition  law  infringements.  Some  NCAs  do  not  have  key  investigative  powers 
such  as  to  gather  evidence  stored  on  mobile  phones,  laptops,  tablets  etc.  -  a  key 
drawback  in  the  digital  age.  Their  investigative  powers  are  often  without  force 
because  they  are  not  backed  up  by  effective  sanctions  if  companies  do  not  comply 
with them.  

3.  Not  all  NCAs  can  impose  effective  fines:  In  some  Member  States,  national  law 
prevents NCAs imposing effective fines for breaches of EU competition law, e.g. in 
some  Member  States  companies  can  restructure  to  escape  paying  fines.  In  some 
Member States, there are little or no fines imposed for infringements of Articles 101 
and 102 TFEU. The level of  fines imposed varies greatly: the penalty for the same 
offence  can  be  much  higher  in  one  Member  State  than  another  without  that 
difference being justified by objective circumstances. 

4.  Leniency  programmes  are  a  key  tool  for  detecting  cartels.  They  encourage 
companies to provide valuable information about cartels in which they participated in 
exchange  for  full  or  partial  immunity  from  fines.  Companies  considering  applying 
for leniency need a sufficient degree of legal certainty to be incentivised to cooperate 
with  authorities.  That  is  particularly  so  when  companies  apply  for  leniency  in 
different  Member  States  because  the  cartel  affects  a  number  of  jurisdictions. 
However, divergences in leniency programmes across Europe discourage companies 
from coming clean and providing evidence of these anti-competitive practices. 

5. Gaps and limitations in NCAs’ tools and guarantees also undermine the system of 
parallel  powers  for  the  enforcement  of  Articles  101  and  102  TFEU  based  on  close 
cooperation within the  ECN.  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. Other gaps  in  NCAs' ability  to  provide mutual  assistance  also undermine the 
European  system  of  competition  enforcement  which  is  designed  to  work  as  a 
cohesive whole. For example, administrative NCAs cannot request the enforcement 
of their fines cross-border if the infringer has no legal presence in their territory. In 
the  digital  era,  many  companies  sell  over  the  internet  to  potentially  numerous 
countries  but  may  only  have  a  legal  presence  in  e.g.  one  Member  State.  Such 
companies currently have a safe haven from paying the fine. 

These gaps and limitations in NCAs’ tools and guarantees mean that companies 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,  because  evidence  of 
anti-competitive practices cannot be collected or because undertakings can escape liability for 
fines.  Uneven  enforcement  of  the  EU  competition  rules  distorts  competition  in  the  internal 
market  and  it  undermines  the  system  of  decentralised  enforcement  that  was  put  in  place  by 
Regulation (EC) No 1/2003. 

A  legislative  proposal  is  therefore  needed  to  empower  the  NCAs  to  be  more  effective 
enforcers of the EU competition rules to ensure that NCAs have the necessary guarantees of 
independence and resources and enforcement and fining powers. Removing national obstacles 
which prevent NCAs from enforcing effectively will help remove distortions to competition 

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in  the  internal  market  and  stop  consumers  and  businesses,  including  SMEs,  being  put  at  a 
disadvantage  and  suffering  detriment  from  such  measures.  Moreover,  enabling  NCAs  to 
effectively  provide  each  other  with  mutual  assistance  will ensure a  more  level  playing  field 
and safeguard close cooperation within the ECN.  
The proposal is part of the Commission Work Programme 20172 and is based on enforcement 
experience in the ECN since 2004. 

Consistency with existing policy provisions in the policy area 

The proposal will complement Regulation (EC) No 1/2003, as empowering the NCAs to be 
effective enforcers will mean that the full potential of the decentralised system of enforcement 
put  in  place  by  this  instrument  is  realised.  In  particular,  it  will  give  substance  to  the 
requirement in Article 35 of Regulation (EC) No 1/2003 that Member States should designate 
NCAs  in  such  a  way  that  the  provisions  of  the  Regulation  are  effectively  complied  with. 
Ensuring that the NCAs have effective decision-making and fining powers will mean that the 
requirements of Article 5 of Regulation (EC) No 1/2003 (which confers on the NCAs the right 
to adopt decisions and fines when applying Articles 101 and 102 TFEU) are fully respected 
and  elaborated  on.  Giving  NCAs  effective  fact-finding  powers  will  mean  that  full  effect  is 
given to the obligation in Article 22 of Regulation (EC) No 1/2003, which requires that NCAs 
are  able  to  carry  out  such  measures  on  behalf  of  their  fellow  ECN  members.  In  its  2016 
Communication  on  EU  law:  Better  results  through  better  application,3  the  Commission 
underlines  the  importance  of  having  a  robust,  efficient  and  effective  enforcement  system  to 
ensure  that  Member  States  fully  apply,  implement  and  enforce  EU  law.  It  highlights  that 
enforcing EU law remains a challenge and calls for a stronger focus on enforcement to serve 
the general interest.  

Consistency with other Union policies 

The proposal is fully consistent and compatible with existing Union policies in other areas, in 
particular  those  which  give  the  NCAs  or  the  ECN  a  specific  consultative,  cooperation, 
monitoring, reporting or decision-making role.4  

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COM(2016) 710 final. 
Communication from the Commission - EU law: Better results through better application, C/2016/8600, 
(OJ C 18, 19.1.2017, p.10). 
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory  framework  for  electronic  communications  networks  and  services  (OJ  2002,  L  108,  p.33); 
Directive  2009/72/EC  of  the  European  Parliament  and  of  the  Council  of  13  July  2009  concerning 
common  rules  for  the  internal  market  in  electricity  and  repealing  Directive  2003/54/EC  (OJ  2009,  L 
211,  p.55);  Regulation  (EC)  No  1211/2009  of  the  European  Parliament  and  of  the  Council  of  25 
November  2009  establishing  the  Body  of  European  Regulators  for  Electronic  Communications 
(BEREC)  and  the  Office  (OJ  2009,  L  337,  p.1);  Regulation  (EU)  No  1227/2011  of  the  European 
Parliament and of the Council of 25 October 2011 on wholesale energy integrity and transparency (OJ 
2011,  L  326,  p.1);  Directive  2012/34/EU  of  the  European  Parliament  and  of  the  Council  of  21 
November 2012 establishing a single European railway area (OJ 2012, L 343, p.32); Regulation (EU) 
No  1308/2013  of  the  European  Parliament  and  of  the  Council  of  17  December  2013  establishing  a 
common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 
No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013, L 347, p.671); 
Regulation  (EU)  No  537/2014  of  the  European  Parliament  and  of  the  Council  of  16  April  2014  on 
specific  requirements  regarding  statutory  audit  of  public-interest  entities  and  repealing  Commission 
Decision 2005/909/EC (OJ 2014, L 158, p.77).  

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2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  current  proposal  is  based  on  both  Articles  103  and  114  TFEU  because  it  pursues  a 
number of goals which are inextricably linked, namely to: (1) give effect to the principles set 
out in Articles 101 and 102 TFEU by empowering NCAs to be more effective enforcers; (2) 
ensure 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 NCAs from being 
effective  enforcers;  (3)  ensure  that  the  same  guarantees  and  instruments  are  in  place  for 
national  competition  law  when  it  is  applied  in  parallel  to  Articles  101  and  102  TFEU  to 
ensure  legal  certainty  and  a  level  playing;  and  (4)  put  in  place  effective  rules  on  mutual 
assistance to safeguard the smooth functioning of the internal market and the system of close 
cooperation within the ECN. 

Ensuring  that  the  NCAs  have  the  means  and  instrument  to  be  more  effective  enforcers  of 
Articles 101 and 102 TFEU falls within the ambit of Article 103(1) TFEU as it is conducive 
to  ensuring  the  full  effectiveness  of  the  competition  rules.  Article  103(1)  empowers  the 
Council to adopt regulations or directives "to give effect to the principles set out in Articles 
101  and  102".  In  particular,  such  measures  can  be  adopted  pursuant  to  Article  103(2)(e) 
TFEU  "to  determine  the  relationship  between  national  laws  and  the  provisions  contained  in 
this  Section  or  adopted  pursuant  to  this  Article"  and  to  Article  103(2)(a)  "to  ensure 
compliance  with  the  prohibitions  laid  down  in  Article  101(1)  and  Article  102  by  making 
provision for fines and periodic penalty payments". 

However, this legal basis does not in itself suffice, because both the aim and the content of the 
proposed  Directive  transcend  this  legal  basis.  The  proposed  Directive  has  an  independent 
objective of seeking to bolster the functioning of the internal market by: (1) tackling national 
rules  which  prevent  NCAs  from  being  effective  enforcers  thereby  creating  more  equal 
protection of companies and consumers in Europe; (2) ensuring that the same guarantees and 
instruments are in place for national competition law when it is applied in parallel to Articles 
101 and 102 TFEU to ensure legal certainty and a level playing field; and (3) putting in place 
effective rules on mutual assistance to safeguard the smooth functioning of the internal market 
and the system of close cooperation within the ECN.  

In  some  Member  States,  national  law  prevents  NCAs  from  imposing  effective  fines  on 
companies  for  infringements  of  the  EU  competition  rules.  Infringing  companies  present  in 
Member  States  where  NCAs  lack  effective  fining  powers  are  thus  sheltered  from  sanctions 
and  have  little  incentive  to  act  in  compliance  with  EU  competition  rules.  This  reinforces 
market  distortions  through-out  Europe  and  undermines  the  internal  market.  Moreover,  the 
differences between the Member States in the core principles for leniency programmes mean 
that  companies can  be treated differently depending  on which authority acts. Only action  at 
EU  level  can  ensure  that  there  are  common  core  principles  for  granting  leniency,  thus 
providing a more level playing field for businesses.  

Similarly, limitations or gaps in national laws may prevent NCAs from effectively gathering 
evidence.  Measures  taken  to  undermine  the  independence  of  the  NCAs  or  to  limit  their 
resources necessarily emanate from the Member States themselves. For example, restrictions 
on  independence  can  be  motivated  by  the  desire  to  exercise  greater  control  over  decision-
making by the authority. A government's ability to apply influence or pressure on a NCA may 
result  in  political  considerations  prevailing  over  sound  competition  enforcement  based  on 
legal and economic arguments, to the detriment of companies operating in the internal market. 

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These gaps and limitations in NCAs’ tools and guarantees mean that companies engaging in 
anti-competitive practices can be subject to no enforcement at all under  Articles 101 or 102 
TFEU  or  to  ineffective  enforcement,  for  example,  because  evidence  of  anti-competitive 
practices  cannot  be  collected  or  because  undertakings  can  escape  liability  for  fines. 
Companies cannot compete on their merits where there are safe havens for anti-competitive 
practices. 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 
against anti-competitive practices which keep prices for goods and services artificially high. 
Uneven  enforcement  of  Articles  101  and  102  TFEU  throughout  Europe  thus  distorts 
competition in the internal market and undermines its proper functioning.  

Another way that the approximation of national laws is addressed by the proposed Directive is 
because its scope covers the application of national competition rules. In practice most NCAs 
apply  national  competition  law  provisions  in  parallel  to  Articles  101  and  102  TFEU  in  the 
same case. The proposed Directive will inevitably have an impact on national competition law 
provisions applied in parallel by NCAs. Moreover, when a NCA takes investigative measures 
at  an  early  stage  of  a  case,  it  is  often  difficult  to  know  whether  there  is  an  effect  on  trade 
triggering the application of EU competition law. Accordingly, the NCA has to assume that 
both  may  apply.  This  means  that  when  NCAs  use  the  power  foreseen  by  the  proposal  to 
collect  digital  evidence,  they  would  do  so  potentially  for  the  application  of  both  EU  and 
national law. It is therefore difficult, if not impossible, to dissociate such parallel application 
of national law and Articles 101 and 102 TFEU. If the same guarantees and instruments were 
not in place for national law when it is applied in parallel to Articles 101 and 102 TFEU, this 
would  cause  legal  uncertainty  and  risk  undermining  the  level  playing  field.  Furthermore,  in 
order  for the  protection  of  leniency  and  settlement  material  to  be  meaningful,  it  must  apply 
not just while proceedings before NCAs for the application of the Articles 101 and 102 TFEU 
are  on-going,  but  also  for  the  stand  alone  application  of  the  equivalent  national  law 
provisions. 

Gaps  and  limitations  in  NCAs’  ability  to  provide  mutual  assistance  also  undermine  the 
European system of competition enforcement which is designed to work as a cohesive whole. 
For  example,  the  majority  of  NCAs  cannot  notify  key  enforcement  measures  or  request  the 
enforcement of their fines cross-border if the infringer has no legal presence in their territory. 
Such companies currently have  a safe haven  from paying  the fine. The resulting  ineffective 
enforcement  distorts  competition  for  law-abiding  undertakings  and  undermines  consumer 
confidence  in  the  internal  market,  particularly  in  the  digital  environment.  Addressing  these 
divergences  by  providing  for  a  system  for  the  cross-border  notification  of  preliminary 
objections  to  alleged  infringements  of  Articles  101  and  102  TFEU  and  decisions  applying 
these  Articles,  as  well  as  the  cross-border  enforcement  of  fines  imposed  by  administrative 
NCAs, is a key aspect to ensuring a level playing field in Europe and to preventing distortions 
of  competition.  Similarly,  in  order  to  safeguard  the  smooth  functioning  of  the  system  of 
parallel powers in the ECN, national rules on limitation periods should be suspended for the 
duration of proceedings before NCAs of another Member State or the Commission. 

Approximating national laws with these specific aims, which are reflected in full in the text of 
the proposed Directive, goes beyond giving effect to Articles 101 and 102 TFEU and rather 
concerns the proper functioning of the internal market.  

In conclusion, the proposal for a Directive, both in its aim and its content, pursues a two-fold 
policy, one relating to the effective application of EU competition policy and the other to the 

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proper functioning of the internal market. These components are inextricably linked: ensuring 
that NCAs are empowered to be effective enforcers necessarily means legislating to remove 
obstacles in national laws that result in uneven enforcement, thereby distorting competition in 
the internal market. Consumers and businesses will not be put at a disadvantage by national 
laws and measures which prevent NCAs from being effective enforcers. The same guarantees 
and  instruments  for  NCAs  must  be  in  place  for  the  application  of  national  competition  law 
provisions  when  they  are  applied  in  parallel  to  Articles  101  and  102  TFEU,  because  of  the 
need for legal certainty and a level playing field. Finally, providing for effective cross-border 
mechanisms  on  mutual  assistance  is  necessary  to  ensure  a  more  level  playing  field  and 
safeguard  the  system  of  parallel  powers  within  the  ECN.  These  interdependent,  though 
distinct aims, cannot be pursued separately through the adoption of two different instruments. 
For instance, it is not feasible to spilt the proposed Directive into a first instrument, based on 
Article 103 TFEU which provides NCAs with the means and instruments they need to apply 
Articles 101 and 102 TFEU, and a second, based on Article 114 TFEU, that requires Member 
States to provide for the same rules for the application of national competition law when it is 
applied in parallel to the EU competition rules. For these reasons, the proposal is also based 
on Article 114 TFEU.   

Subsidiarity 

Regulation  (EC)  No  1/2003  set  up  a  decentralised  system  of  competition  enforcement, 
however the full potential of this system has still to be realised. The proposed Directive would 
ensure that competition enforcement effectively delivers at national level by giving NCAs the 
guarantees and instruments they need to be effective enforcers. 

NCAs are applying rules with a cross-border dimension 

The EU should take action to address the problems identified because the NCAs are applying 
EU  rules  which  have  a  cross-border  dimension.  Enforcement  action  by  the  NCA  of  one 
Member State may impact on competition, businesses and consumers in other Member States, 
e.g. a national-wide cartel typically excludes competitors from other Member States. If NCAs 
do  not  have  the  necessary  means  and  instruments  to  enforce  (e.g.  they  lack  resources),  this 
may have direct negative consequences for consumers and business not only in the Member 
State  of  the  NCA  concerned  but  also  in  other  Member  States,  as  well  as  on  the  ability  of 
NCAs to cooperate throughout Europe. Member State Y cannot address the lack of means and 
instruments of a NCA in Member State X, thus only EU action can tackle this problem. 

Ensuring that cross-border cooperation works effectively 

Only action at EU level can ensure that the system of cooperation set up by Regulation (EC) 
No 1/2003 works sufficiently. One of the main elements of Regulation (EC) No 1/2003 is that 
it provides for cooperation mechanisms that allow NCAs to investigate alleged infringements 
beyond  the  borders  of  their  Member  State.  One  NCA  can  ask  another  NCA  to  carry  out 
investigative  measures  on  its  behalf  to  gather  evidence  located  in  another  jurisdiction.  As 
noted  above,  this  mechanism  does  not  work  well  if  not  all  NCAs  have  effective  powers  to 
carry  out  inspections  or  to  request  information.  Again,  it  is  difficult  to  tackle  this  issue  at 
national level. For example, if the NCA in Member State A needs the NCA in Member State 
B to gather evidence from companies located in its territory, but the NCA in Member State B 
does not have effective powers to gather this evidence, there is little that Member State A can 
do about this. 

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Interlinkage between competition authorities' leniency programmes in Europe 

Leniency  programmes  are  interlinked  because  companies  regularly  file  applications  to  a 
number  of  EU  jurisdictions  and  need  guarantees  of  cross-border  legal  certainty.  The 
experience  of  the  last  decade  has  shown  that  such  cross-border  legal  certainty  cannot  be 
sufficiently  achieved  by  Member  States  individually.  Divergences  in  leniency  programmes 
still lead to different outcomes for leniency applicants in terms of whether they benefit from 
immunity from fines or even from fines reductions at all. Companies which are considering 
reporting  cartel  behaviour  to  a  number  of  jurisdictions  in  return  for  more  lenient  treatment 
lack the certainty they need about whether and to what extent they will benefit from this. EU 
action is needed to ensure that a leniency system is available and applied in a similar way in 
all Member States. 

National laws can prevent NCAs from being more effective enforcers  

As  explained  above  in  the  section  on  the  legal  basis,  national  law  can  prevent  NCAs  from 
being sufficiently independent and having effective tools to detect infringements and impose 
effective  fines  on  companies  for  infringements  of  the  EU  competition  rules.  In  order  to 
address this issue, measures need to be taken at EU level. 

Experience shows that in absence of EU legislation NCAs are unlikely to get all the necessary 
tools 

Soft action has been used extensively to prompt voluntary action at national level, however, 
several NCAs still lack the guarantees and instruments to be effective enforcers. After more 
than  a  decade,  the  changes  needed  to  make  the  decentralised  enforcement  system  of 
Regulation  (EC)  No  1/2003  work  better  and  empower  the  NCAs  to  be  more  effective 
enforcers,  are  unlikely  to  ensue.  This  means  that  many  NCAs  will  continue  to  miss  certain 
key tools to detect and sanction infringements or lack sufficient resources, to the detriment of 
the  proper  functioning  of  the  decentralized  system  put  in  place  by  Regulation  (EC)  No 
1/2003.  

In sum, existing national competition frameworks will not by themselves allow the NCAs to 
enforce the EU competition rules more effectively across the EU. Moreover, the Commission 
cannot  enforce  any  EU  requirements  regarding  the  investigation  and  sanctioning  tools, 
resources  and  institutional  structure  of  NCAs  when  enforcing  the  EU  competition  rules  as 
long  as  such  requirements  do  not  exist.  Accordingly,  only  an  initiative  at  the  EU  level  can 
empower the NCAs to be more effective enforcers by ensuring that they have more effective 
means and instruments to apply the EU competition rules.  

Proportionality 

For most  aspects the proposal will set minimum standards to  empower  NCAs to  effectively 
enforce  EU  competition  rules.  This  ensures  an  appropriate  balance  between  meeting  the 
general  and  specific  objectives  of  the  proposal  whilst  not  unduly  interfering  in  national 
traditions.  Member  States  will  still  be  able  to  set  higher  standards  and  adapt  their  rules  to 
national  specificities.  For  example,  Member  States  will  remain  free  to  design,  organise  and 
fund  their  national  competition  authorities  as  they  see  fit,  provided  their  effectiveness  is 
ensured.  Moreover  the  proposed  Directive  also  ensures  that  the  choice  of  those  Member 
States which have opted for a judicial model of competition enforcement is fully respected.  

It is only in the area of conditions for granting leniency for secret cartels that more detailed 
rules are required to reap added value in terms of competition enforcement.  Companies will 

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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 potential 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 approach taken in the proposal maximises the increase in effectiveness of the NCAs with 
a  minimum  of  interference  in  national  specificities  by  limiting  the  most  detailed  rules  to 
where this is strictly necessary to boost effective enforcement.  

Such  a  calibrated  approach  will  not  be  a  radical  departure  from,  but  a  logical  evolution  of, 
general  EU  law  requirement  that  Member  States  must  provide  for  effective  procedures  and 
sanctions  for  the  enforcement  of  EU  rules.  According  to  the  Court  of  Justice  of  the  Europe 
Union,  national  law  must  ensure  that  EU  competition  law  is  fully  effective.5  The  Court  has 
also  held  that  detailed  national  procedural  rules  for  the  functioning  of  NCAs  must  not 
jeopardise the attainment of the objective of Regulation (EC) No 1/2003,  which is to ensure 
that Articles 101 and 102 TFEU are applied effectively by those authorities.6 

Choice of the instrument 

The aim of the proposal for a Directive is to enhance the effectiveness of the NCAs, while not 
imposing one size fits all so as to allow taking into account Member States’ legal traditions 
and institutional specificities. Accordingly, a directive is the best way of ensuring that NCAs 
have  the  guarantees  they  need  to  be  more  effective  enforcers,  without  unduly  interfering  in 
national specificities and traditions. In contrast to a regulation, it will leave Member States the 
choice  of  the  most  appropriate  means  of  implementing  the  measures  in  the  Directive. 
Moreover, a directive is a flexible tool for ensuring that NCAs have the necessary guarantees 
of  independence  and  resources  and  enforcement  and  fining  powers,  while  leaving  room  for 
Member States to go further if they so wish.  

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

In  2013/2014,  the  Commission  conducted  an  assessment  of  the  functioning  of  the  Council 
Regulation  (EC)  No  1/2003.  Based  on  the  results  of  this  analysis,  the  2014  Commission's 
Communication on Ten Years of Council Regulation 1/2003 found that there is scope for the 
NCAs  to  be  more  effective  enforcers  and  identified  a  number  of  areas  for  action  to  boost 
effective  enforcement  by  the  NCAs,  namely  to  guarantee  that  NCAs:  (1)  have  adequate 

5 
6 

Case C-557/12, Kone AG v. ÖBB-Infrastruktur AG, EU:C:2014:1317, para. 32. 
Case  C-439/08,  Vlaamse  federatie  van  verenigingen  van  Brood-  en  Banketbakkers,  Ijsbereiders  en 
Chocoladebewerkers (VEBIC) VZW, EU:C.2010:739, paras 56 and 57. 

EN 

9 

   EN 

                                                 
resources  and  are  sufficiently  independent  (2)  have  an  effective  toolbox;  (3)  can  impose 
effective fines; and (4) have effective leniency programmes.7  

The  2014  Communication  built  on  the  Report  of  Five  Years  of  Regulation  1/2003,  which 
found  that  empowering  the  NCAs  to  co-enforce  the  EU  competition  rules  has  positively 
contributed  to  stronger  enforcement.8  However,  it  concluded  that  there  is  room  for 
improvement,  in  particular,  to  ensure  that  NCAs  have  effective  enforcement  powers  and 
fining tools. 

Stakeholder consultations 

From 4 November 2015 until 12 February 2016, the Commission held a public consultation in 
the form of an EU Survey which was split into two parts, a first one with general questions 
seeking  input  from  non-specialised  stakeholders,  and  a  second  one  for  stakeholders  with  a 
deeper knowledge/experience of competition matters. 

The consultation followed up the Commission's Communication on Ten Years of Regulation 
1/2003 which identified a number of areas of action to boost the powers of NCAs to enforce 
the EU competition rules. Accordingly, the second part of the consultation addressed four key 
issues:  (i) resources and independence  of the NCAs;  (ii) enforcement toolbox of the NCAs; 
(iii) powers of NCAs to fine undertakings; and (iv) leniency programmes. 

There were 181 replies from various stakeholders, ranging from private individuals, law firms 
and consultancies, companies and industry associations, consumer organisations, academics, 
non-governmental organisations, think tanks and trade unions to public authorities, including 
a number of Ministries and NCAs, from within and outside the EU. 

76%  of  respondents  considered  that  NCAs  could  do  more  to  enforce  EU  competition  rules 
than  they  currently  do.  Moreover,  80%  supported  that  action  should  be  taken  to  boost 
enforcement by NCAs. By stakeholder category: 100% of the academic institutions, consumer 
organisations, trade unions and NCAs which participated in the public consultation supported 
that  action  should  be  taken;  86%  of  NGOs;  84%  of  consultancies/law  firms;  77%  of 
companies/SMEs/micro-enterprises/sole  traders;  67%  of  think  tanks  and  61%  of  industry 
associations.  64%  of  the  stakeholders  who  participated  in  the  public  consultation  supported 
that such action should preferably be a combination of EU and Member State action with the 
remaining preferences being 19% in favour of EU action only and 8% in favour of Member 
State action only.9 

In addition to the public consultation, on 19 April 2016, the European Parliament's Committee 
on  Economic  and  Monetary  Affairs  (ECON)  and  the  Commission  co-organised  a  public 
hearing  with  the  aim  to  provide  experts  and  stakeholders  with  an  additional  opportunity  to 
share  their  views  on  the  public  consultation.  The  hearing  was  followed  by  two  panel 

7 

8 

9 

Communication  from  the  Commission  to  the  European  Parliament  and  the  Council,  Ten  Years  of 
Antitrust  Enforcement  under  Regulation  1/2003:  Achievements  and  Future  Perspectives  COM(2014) 
453  and  the  accompanying  Staff  Working  Documents:  Ten  Years  of  Antitrust  Enforcement  under 
Regulation  1/2003  SWD(2014)  230  and  Enhancing  competition  enforcement  by  the  Member  States' 
231, 
procedural 
competition 
http://ec.europa.eu/competition/antitrust/legislation/regulations.html. 
Communication  from  the  Commission  to  the  European  Parliament  and  the  Council,  Report  on  the 
functioning  of  Regulation  1/2003  COM(2009)  206  final  and  the  accompanying  Staff  Working  Paper 
SEC(2009) 574 final, http://ec.europa.eu/competition/antitrust/legislation/regulations.html. 
The remaining 8% answered: "do not know/not applicable". 

SWD(2014) 

institutional 

authorities: 

issues 

and 

EN 

10 

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discussions  on  the  four  topics  covered  by  the  public  consultation.  The  participants  in  these 
discussions,  including  around  150  stakeholders  from  academia,  business  (large  and  small), 
consultancy, industry associations, law firms, press, private individuals and public authorities, 
widely agreed with and supported the objectives of the initiative. 

Finally, two meetings were held with relevant Ministries to get their preliminary feedback. On 
12 June 2015, Ministries were informed about the main issues that had been identified by the 
Commission. A second meeting with the Ministries and NCAs was held on 14 April 2016 in 
which they were informed about the results of the public consultation.  

The  results  of  the  public  consultation,  the  public  hearing  and  the  meetings  with  Ministries 
were taken into account in the proposal. 

Collection and use of expertise 

Extensive data collection was carried out by the Commission in cooperation with all NCAs to 
have a detailed picture of the status quo.  

Impact assessment 

The impact assessment report prepared by the Commission covers all main aspects related to 
this  proposal.  Four  policy  options  were  examined.  The  preferred  option,  which  is 
implemented in this proposal, is to take EU legislative action providing NCAs with minimum 
means  and  instruments  to  be  effective  enforcers,  complemented  by  both  soft  action  and 
detailed rules where appropriate. 

Regarding the other three policy options that were examined in the impact assessment report: 
(i)  The  baseline  scenario  of  taking  no  EU  action  is  highly  unlikely  to  achieve  the  policy 
objectives and would not be in line with stakeholders’ expectations; (ii) The option of taking 
exclusively soft action would not provide a sound legal basis to ensure that all NCAs have the 
necessary  means  and  instruments  to  be  effective  enforcers.  Moreover,  soft  measures  have 
been in place for a number of years, without achieving the aim of fully realising the potential 
of the decentralised system put in place by Regulation (EC) No 1/2003; (iii) Providing NCAs 
with  detailed  and  uniform  means  and  instruments  though  EU  legislative  action  would  bring 
limited additional benefits relative to the preferred option but at the same time entail greater 
interference in national legal systems and traditions. 

The  assessment  of  the  benefits  of  the  preferred  option,  both  in  qualitative  and  quantitative 
terms (for example the positive impact on Total Factor Productivity growth-a key ingredient 
of GDP),10 shows that the benefits will largely exceed the costs of implementation.  

The  Commission's  Regulatory  Scrutiny  Board  gave  its  comments  on  the  draft  Impact 
Assessment in September 2016 and in its favourable opinion in December 2016, which were 
duly taken into account.11 In view of these comments, the final Impact Assessment provides 
all  available anecdotal evidence  to  illustrate the problem  drivers, more details on the policy 
options that were considered, and a detailed analysis of the costs and benefits of the preferred 

10 

11 

EN 

of 

6.3 

Section 

See 
http://ec.europa.eu/transparency/regdoc/?fuseaction=ia. 
See  Opinions 
at: 
28 
http://ec.europa.eu/transparency/regdoc/?fuseaction=ia.  See  also  Annex  I  of  the  Impact  Assessment 
Report. 

9  December 

Assessment 

September 

available 

available 

Impact 

Report 

2016 

2016 

and 

the 

at: 

of 

11 

   EN 

                                                 
option, which illustrates how the benefits of the current proposal would significantly outweigh 
the associated costs. Moreover, the final Impact Assessment elaborates on the limitations and 
uncertainties  of  the  quantitative  estimates,  provides  a  clearer  presentation  of  stakeholders' 
views during the public consultation, and better demonstrates the compatibility of the options 
considered with the subsidiarity and proportionality principles. 

Who will be affected and how 

Empowering  the  NCAs  to  be  more  effective  enforcers  will  benefit  all  consumers  and 
companies,  both  large  and  small  including  SMEs,  by  boosting  effective  competition 
enforcement  and creating a  more level playing field.  There is  thus  no need  to  provide for a 
differentiated  scope,  e.g.  to  include  exemptions  or  to  apply  a  lighter  regime  as  regards 
measures towards SMEs. 

NCAs 

NCAs will be the prime beneficiaries of the initiative, and together with businesses, the most 
directly affected. Once implemented, the proposal will provide all NCAs with effective means 
and instruments to find evidence of infringements, to fine companies which break the law, to 
act  independently  when  enforcing  the  EU  competition  rules  and  to  have  the  resources  they 
need to perform their tasks, and to have at their disposal leniency programmes that are more 
effective. This will allow the NCAs to take effective enforcement action and enable them to 
cooperate better with other competition authorities in the EU leading to more competition on 
markets.  More  particularly,  it  will  ensure  that  the  system  of  cross-border  information 
gathering and exchange put  in  place by Regulation (EC)  No 1/2003  works  effectively. This 
might  create  some  additional  costs  for  some  public  authorities,  if  for  example  new  IT  tools 
need  to  be  provided,  but  these  costs  are  expected  to  be  negligible.  Not  all  NCAs  will  be 
affected in the same way, since the changes required will be dependent on the precise starting 
point of each national legal framework.  

Businesses 

Businesses  will  also  be  significantly  affected  by  the  initiative.  Firstly,  like  consumers, 
businesses suffer from the consequences of a sub-optimal level of competition enforcement, 
as they face the negative impact of higher prices from their suppliers and the lower levels of 
innovation and choice, as well as from attempts of competitors infringing competition rules to 
foreclose them from the market. The proposal will boost competition enforcement by NCAs 
in Europe and create a more level playing field in which a competition culture prevails to the 
benefit of all companies, both large and small, as it will enable them to compete more fairly 
on their merits and grow throughout the single market. This will also incentivise businesses to 
innovate and offer a better range of higher quality products and services that meet consumers' 
expectations.  

Secondly, the proposal will also to a certain extent benefit businesses subject to investigations 
for alleged infringements of EU competition rules. The introduction of core effective means 
and  instruments  for  NCAs  will  reduce  divergent  outcomes  for  companies,  making  the 
application of the EU competition rules more predictable and increasing legal certainty across 
the  EU.  Businesses  may  also  benefit  from  enhanced  procedural  rights  particularly  in  those 
jurisdictions  in  which  there  is  room  for  improvement,  as  well  as  more  legal  certainty  when 
applying for leniency. Businesses could face initial adaptation costs in terms of familiarisation 

EN 

12 

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with new procedural rules. However, overall, the costs for businesses involved in cross-border 
activities in the single market to adapt to different legal frameworks will likely be reduced. 

On  the  other  hand,  for  those  businesses  infringing  the  law  in  some  jurisdictions,  it  will 
become more difficult to conceal evidence or to escape fines, or to benefit from low fines.  

Consumers 

Consumers will benefit from the advantages that stronger competition brings to the market in 
terms of wider choice and better products. For consumers, the lack of means and instruments 
and capacity of NCAs to un-leash their full potential when enforcing the EU competition rules 
means  that  they  miss  out  on  the  advantages  of  competition  enforcement.  The  proposal  will 
ensure for consumers an equivalent level of protection across Europe from business practices 
that  keep  the  prices  of  goods  and  services  artificially  high,  enhancing  their  choice  of 
innovative goods and services at affordable prices. 

Fundamental rights 

The proposal ensures the protection of the fundamental rights of companies which are subject 
to competition proceedings, namely (but not exclusively), the right to conduct a business, the 
right to property, good administration and the right to an effective remedy before a tribunal 
(Articles 16, 17, 41 and 47 of the Charter of Fundamental Rights of the European Union). It 
will give NCAs effective powers to enforce the EU competition rules only to the extent that 
this  is  necessary  and  proportionate.  It  will  oblige  Member  States  to  provide  for  appropriate 
safeguards for the exercise of these powers which at least meet the standards of the Charter of 
Fundamental Rights of the European Union and are in accordance with general principles of 
EU law, including due respect of the data protection rights of natural persons. In particular, 
these safeguards should respect the rights of defence of companies subject to proceedings for 
the enforcement of Articles 101 and 102 TFEU, an essential component of which is the right 
to be heard. This includes the right to formal notification of the NCA's objections under EU 
competition law and effective right of access to the file so that companies can prepare their 
defence.  Moreover the  addresses  of final  decisions  of  NCAs  applying  Articles  101  and  102 
TFEU  should  have  the  right  to  an  effective  remedy  before  a  tribunal  to  challenge  these 
decisions.  

The  proposal  also  includes  specific  safeguards  for  the  respect  of  fundamental  rights.  For 
example,  inspections  of  non-business  premises  should  be  subject  to  the  authorisation  of  a 
judicial authority. Fundamental rights guarantees are also embedded in several provisions. For 
instance, fines, structural and behavioural remedies can only be imposed by NCAs provided 
they are "proportionate". NCAs will only be able to carry out inspections and issue requests 
for information, provided they meet a "necessity" test. 

4. 

BUDGETARY IMPLICATIONS 

Effective  and  efficient  cooperation  and  exchange  of  information  between  Member  States 
requires  secure  infrastructure.  The  ECN  relies  on  interoperability  for  its  functioning.  In  the 
current multiannual financial framework (MFF) these actions are mainly financed under the 
ISA2  programme12  subject 
the  programme’s  available  resources,  eligibility  and 

to 

12 

Decision  (EU)  2015/2240  of  the  European  Parliament  and  of  the  Council  of  25  November  2015 
establishing  a  programme  on  interoperability  solutions  and  common  frameworks  for  European  public 

EN 

13 

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prioritisation  criteria.  The  modalities  of  the  budgetary  impact  of  the  proposal  beyond  2020 
will be subject to the Commission's proposals on the next MFF and the final outcome of the 
negotiations  on  the  MFF  post  2020.  An  indicative  amount  of  1  million  EUR  per  year  is 
foreseen  to  maintain,  develop,  host,  operate  and  support  a  central  information  system 
(European Competition Network System) in compliance with the relevant confidentiality and 
data security standards. Other administrative costs incurred in connection with the functioning 
of  the  ECN,  e.g.  organisation  of  meetings,  developing  and  providing  training  programmes, 
issuing guidelines and common principles are estimated at 500 000 EUR per year. 

As regards staff, the legislative proposal is budget-neutral and does not require additional staff 
resources. Details are explained in the legislative financial statement annexed to this proposal. 

5. 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The Commission has prepared an Implementation Plan which identifies the main challenges 
that Member States are likely to face during the adoption and implementation of the Directive, 
and suggest a number of actions to address them. 

The Implementation Plan includes (i) a single contact point with the Commission through a 
functional mailbox that Member States can use for all issues related to the proposed Directive, 
and (ii) a number of actions to be carried out by the Commission and by the Member States to 
address the three main implementation challenges: (a) implementation within the time-frame, 
(b) the provision of training and support for NCAs, and (c) ensuring adequate information for 
the businesses community. 

The  Commission  will  monitor  the  transposition  and  implementation  of  the  Directive,  both 
during the period running up to the date for transposition and after transposition.  

An  ex-post  evaluation  of  the  Directive  will  be  carried  out  after  5  years  from  the  date  of  its 
transposition. 

Explanatory documents 

The  proposed  Directive  sets  out  specific  measures  to  ensure  that:  (1)  NCAs  have  effective 
guarantees  of  independence  and  resources  and  enforcement  and  fining  powers;  (2)  that  the 
same  guarantees  and  instruments  are  in  place  when  NCAs  apply  national  law  in  parallel  to 
Articles  101  and  102  TFEU;  and  (3)  NCAs  can  provide  each  other  with  effective  mutual 
assistance  to  safeguard  the  system  of  close  cooperation  within  the  ECN.  There  are  several 
legal  obligations  stemming  from  the  proposed  Directive.  Its  effective  transposition  will 
therefore  require  that  specific  and  targeted  amendments  are  made  to  the  relevant  national 
rules. In order for the Commission to monitor the correct transposition, it is thus not sufficient 
for  Member  States  to  transmit  the  text  of  the  implementing  provisions,  as  an  overall 
assessment of  the  resulting  regime  under  national  law  may  be  necessary.  For  these  reasons, 
Member  States  should  also  transmit  to  the  Commission  explanatory  documents  showing 
which  existing  or  new  provisions  under  national  law  are  meant  to  implement  the  individual 
measures sets out in the proposed Directive.  

Detailed explanation of the specific provisions of the proposal 

administrations, businesses and citizens (ISA2 programme) as a means for modernising the public sector 
(OJ 2015, L 318. p. 1). 

EN 

14 

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The proposal consists of 10 chapters comprising 34 articles. 

Chapter I – Subject matter, scope and definitions 

This Chapter defines the scope and the main terms used in the proposal. The definitions used 
largely  reflect  those  used  in  Regulation  (EC)  No  1/2003  and  Directive  2014/104/EU  on 
damages for infringements of the competition rules.13 

Chapter II – Fundamental Rights 

The  proposal  will  ensure  that  Member  States  provide  for  appropriate  safeguards  for  the 
exercise  of  the  powers  provided  for  in  this  proposal.  These  safeguards  will  have  to  at  least 
meet the standards of the Charter of Fundamental Rights of the European Union and general 
principles of Union law.14 During the public consultation process, there was a clear demand 
from  lawyers,  business  and  business  organisations  for  ensuring  that  NCAs  have  effective 
enforcement powers to be counter-balanced by increased procedural guarantees. 

Chapter III – Independence and resources 

This  chapter  ensures  that  NCAs  enjoy  the  necessary  guarantees  of  independence.  In 
particular, it introduces guarantees aiming to protect the staff and management of NCAs from 
external  influence  when  enforcing  the  EU  competition  rules  by:  (i)  ensuring  that  they  can 
perform their duties and exercise their powers independently from political and other external 
influence; (ii) explicitly excluding instructions from any government or other public or private 
entity;  (iii)  ensuring  that  they  refrain  from  any  action  which  is  incompatible  with  the 
performance of their duties and exercise of their powers; (iv) prohibiting the dismissal of their 
management  for  reasons  related  to  decision-making  in  specific  cases;  (v)  ensuring  that  they 
have  the  power  to  set  their  priorities  in  individual  cases  including  the  power  to  reject 
complaints for priority reasons. Regarding this last aspect, the proposal does not interfere with 
Member States' prerogative to define general policy objectives. Most stakeholders during the 
public  consultation  process  supported  action  covering  all  these  aspects.  Notably,  businesses 
reported  that  the  lack  of  ability  of  NCAs  to  set  their  priorities  in  full  prevents  them  from 
focusing on infringements that cause the most harm to competition. 

In addition, this Chapter introduces an explicit requirement for Member States to ensure that 
NCAs have the human, financial and technical resources that are necessary to perform their 
core tasks under 101 and 102 TFEU. The relevant provision leaves room for Member States 
to deal with economic fluctuations without risking the effectiveness of NCAs. 

13 
14 

OJ L 349, 5.12.2014, p.1. 
According  to  the  case  law  of  the  Court  of  Justice  of  the  European  Union,  "the  requirements  flowing 
from  the  protection  of  fundamental  rights  in  the  [EU]  legal  order  are  also  binding  on  the  Member 
States  when  they  implement  [EU]  rules",  judgment  in  Karlsson  and  Others,  Case  C-292/97,  ECLI: 
EU:C:2000:202, para 37. See also the judgment in Eturas, Case C-74/14, ECLI:EU:C:2016:42, para 38, 
in  which  the  Court  of  Justice  of  the  European  Union  recalled  that  the  presumption  of  innocence 
constitutes a general principle of EU law, now enshrined in Article 48(1) of the Charter of Fundamental 
Rights of the European Union (see, to that effect, judgment in E.ON Energie v Commission, C 89/11 P, 
ECLI:  EU:C:2012:738,  para  72),  which  the  Member  States  are  required  to  observe  when  they 
implement  EU  competition  law.  See  also  to  that  effect,  judgment  in  VEBIC,  C439/08,  ECLI: 
EU:C:2010:739, para 63. 

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15 

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Chapter IV – Powers 

Investigation  and  decision-making  powers  and  procedures  are  the  main  working  tools  of 
competition  authorities.  However,  currently  there  is  a  patchwork  of  powers  across  Europe, 
with many NCAs not having all the powers they need. The scope of NCAs' investigative and 
decision-making  powers  varies  considerably,  which  can  significantly  impact  on  their 
effectiveness.  

To address this, the proposal provides for the core minimum effective powers to investigate 
(the power to inspect business and non-business premises, to issue requests for information) 
and to take decisions (the power to adopt prohibition decisions including the power to impose 
structural  and  behavioural  remedies,  commitment  decisions,  and  interim  measures).  Taking 
action  to  ensure  that  NCAs  have  such  effective  tools  was  widely  supported  in  the  public 
consultation.  For  example,  stakeholders,  particularly  businesses,  highlighted  that the  lack  of 
power  for  NCAs  to  impose  structural  remedies  was  particularly  problematic  for  companies 
damaged by the anticompetitive behaviour of the infringer. 

The proposal will also ensure that those tools have teeth by providing for effective sanctions 
for  non-compliance.  To  be  meaningful  they  will  be  calculated  in  proportion  to  the  total 
turnover of the undertaking concerned, but Member States will have flexibility in how this is 
implemented (e.g. specific percentages are not set for the level of the fine). 

Chapter V – Fines and periodic penalty payments 

The  ability  of  competition  authorities  to  fine  companies  which  breach  competition  law  is  a 
central enforcement tool. The purpose of fines is to punish companies which have infringed 
competition rules and to deter the same and other companies from engaging in or continuing 
illegal  behaviour.  In  2009,  the  Court  of  Justice  of  the  European  Union  ruled  that  "the 
effectiveness  of  the  penalties  imposed  by  NCAs  and  the  Commission  is  a  condition  for  the 
coherent application of the EU competition rules".15 However, there are a number of  issues 
that affect the level of enforcement of Articles 101 and 102 TFEU and mean that companies 
can  face  very  low  or  no  fines  at  all  depending  on  which  authority  acts,  undermining 
deterrence and the level-playing field.  

Firstly, the nature of the fines imposed by NCAs for the infringement of the EU competition 
rules varies across Member States. Fines can be imposed either in administrative proceedings 
(imposed  by  the  NCA),  in  non-criminal  judicial  proceedings  (imposed  by  courts)  or  in 
criminal  or quasi-criminal  proceedings (imposed  mainly  by courts  or, in some cases,  by the 
NCA  but  according  to  quasi-criminal  (misdemeanour)  procedures).  In  the  majority  of 
Members States fines are administrative. Civil fines16 are imposed in three Member States. In 
five Member States fines are imposed in (quasi) criminal proceedings. In most Member States 
in which fines are primarily imposed in (quasi) criminal proceedings, EU competition law is 
under-enforced or, even if enforced, sanctions were seldom imposed in the period 2004-2013. 
Most stakeholders stated in the public consultation that criminal systems are less suited for the 
effective  enforcement  of  the  EU  competition  rules.  To  address  these  problems  of  "under-
enforcement" and whilst maintaining flexibility for Member States, the proposal will ensure 
that  in  those  Member  States  where  the  administrative  NCA  cannot  today  adopt  fining 
decisions,  powers  will  either  have  to  be  given  to  NCAs  to  adopt  such  decisions  directly  or 

15 
16 

Judgment in Inspecteur van de Belastingdienst v X BV, C-429/07, ECLI: EU:C:2009:359, paras 36-39.  
The term “civil fines” is used to denote fines imposed in non-criminal judicial proceedings. 

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Member States will have to ensure that such decisions can be taken by a court in non-criminal 
judicial proceedings. The need for change will thus be kept to a minimum.  

Secondly,  there  are  differences  in  the  methodologies  for  calculating  fines  that  can  have  a 
significant impact on the level of fines imposed by NCAs. These differences mainly concern: 
(1)  the  maximum  fine  that  can  be  set  (the  legal  maximum)  and  (2)  the  parameters  for 
calculating  the  fine.  Such  differences  partly  explain  how  fines  today  can  vary  by  up  to  25 
times  depending  on  which  authority  acts.  Very  low  fines  may  be  imposed  for  the  same 
infringement,  meaning  that  the  deterrent  effect  of  fines  differs  widely  across  Europe  which 
was  an  issue  flagged  during  the  public  consultation.  The  fines  imposed  may  not  reflect  the 
harm  caused  to  competition  by  the  anti-competitive  behaviour.  To  ensure  NCAs  can  set 
deterrent  fines  on  the  basis  of  a  common  set  of  core  parameters:first,  there  should  be  a 
common  legal  maximum  of  no  less  than  10%  of  the  worldwide  turnover  and  second,  when 
setting the fine, NCAs should  have regard to the core factors of gravity and duration of the 
infringement.  

The  third  aspect  concerns  limitations  regarding  who  can  be  held  liable  for  paying  the  fine. 
The  concept  of  "undertaking"  in  EU  competition  law  is  established  by  the  case  law  of  the 
European  Court  of  Justice.  It  means  that  different  legal  entities  belonging  to  one 
"undertaking"  can  be  held  jointly  and  severally  liable  for  any  fines  imposed  on  such 
"undertaking".17  This  sends  a  clear  signal  to  the  entire  corporate  group  that  the  absence  of 
good corporate governance and compliance with competition law will not remain unpunished. 
It also allows the fine to reflect the overall strength of the corporate group and not only that of 
the  subsidiary,  making  it  more  meaningful  and  deterrent.  However,  several  NCAs  cannot 
today  hold  parent  companies  liable  for  infringements  committed  by  subsidiaries  under  their 
control.  Also,  several  NCAs  cannot  hold  legal  successors  of  an  infringer  and  economic 
successors of an  infringer liable for fines  or there is uncertainty about this,  despite the long 
established case law of the European Court of Justice. This means that companies can escape 
fines simply by merging with other companies or through corporate restructuring. To address 
this,  the  proposal  provides  that  the  notion  of  undertaking  is  applied  for  the  purpose  of 
imposing fines on parent companies and legal and economic successors of undertakings.  

Chapter VI – Leniency 

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. This 
Chapter aims to increase legal certainty for companies that wish to apply for leniency and thus 
to maintain their incentives to cooperate with the Commission and the NCAs by reducing the 
current  differences  between  the  leniency  programmes  applicable  in  the  Member  States.  To 
achieve  this,  the  proposal  transposes  the  main  principles  of  the  ECN  Model  Leniency 
Programme  into  law,  thus  ensuring  that  all  NCAs  can  grant  immunity  and  reduction  from 
fines and accept summary applications under the same conditions. In the public consultation, 
61%  of  stakeholders  found  the  lack  of  implementation  of  the  ECN  Model  Leniency 
Programme by Member States to be problematic. 

Furthermore, this Chapter ensures that applicants will have the benefit of five working days to 
file  summary  applications  and  clarifies  that  they  should  not  be  confronted  with  parallel 
resource intensive requests from NCAs while the Commission is investigating the case. It also 

17 

Judgment in  AkzoNobel NV v Commission, C-97/08 P, ECLI:EU:C:2009:536. It has to be shown that 
the parent company exercises decisive influence over the subsidiary that committed the infringement. 

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clarifies  that,  once  the  Commission  has  decided  not  to  act  on  a  case,  summary  applicants 
should have the opportunity to submit full leniency applications to the relevant NCAs. 

Finally, this Chapter ensures that employees and directors of companies that file for immunity 
are protected from individual sanctions, where they exist, provided that they cooperate with 
the  authorities.  This  is  important  in  order to  maintain  incentives  for  companies  to  apply  for 
leniency  because  their  leniency  applications  often  depend  on  their  employees  cooperating 
fully, without fear of incurring sanctions.  

Similarly, individuals who have knowledge of the existence or functioning of a cartel or other 
types of antitrust violations should be encouraged to provide that information, e.g. including 
through the establishment of reliable and confidential reporting channels. To that end, many 
NCAs  have  in  place,  or  are  considering  the  introduction  of,  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.  For  example,  the 
Commission introduced an anonymous whistleblower tool for competition cases on 16 March 
2017.18  The  Commission  has  underlined  the  importance  of  the  protection  of  whistleblowers 
and is looking into the possibility of horizontal or further sectoral action at EU level.19 

Chapter VII – Mutual Assistance 

This  Chapter  ensures  that  when  one  NCAs  requests  another  NCA  to  carry  out  investigative 
measures  on  its  behalf  to  gather  evidence  located  in  another  jurisdiction,  officials  from  the 
requesting NCA have the right to attend and actively assist in that inspection. This will make 
the conduct of such inspections more efficient and effective.   

Moreover, this Chapter ensures that there are arrangements in place to allow NCAs to request 
and provide mutual assistance for the notification of decisions and enforcement of fines when 
companies have no legal presence in the territory of the requesting NCA or they do not have 
sufficient assets for the fine to be enforced against in that territory. Such mutual assistance is 
designed  to  minimise  intrusion  into  national  law  and  would  incorporate  key  safeguards:  (i) 
notification and enforcement will be carried out in accordance with the laws of the requested 
Member State; (ii) decisions imposing fines can only be enforced once they are final and can 
no longer be appealed by ordinary means; (iii) limitation periods will be governed by the law 
of  the  applicant  Member  State;  (iv)  the  requested  authority  is  not  obliged  to  enforce  fining 
decisions  if  this  is  manifestly  contrary  to  the  public  policy  of  that  Member  State;  and  (v) 
disputes  concerning  the  lawfulness  of  a  measure  will  fall  within  the  competence  of  the 
applicant Member State, while disputes concerning the notification or enforcement measures 
taken in the requested Member State will fall within the competence of the requested Member 
State. 

Mutual  assistance  is  a  core  aspect  of  this  proposal  because  it  is  indispensable  to  close 
cooperation  within  the  ECN  and,  therefore,  to  the  success  of  the  decentralised  system  on 
which  the  effective  application  of  EU  competition  law  depends.  Without  effective  mutual 
assistance there cannot be a level playing field for companies with activities in more than one 
Member  State,  and  the  proper  functioning  of  the  internal  market  is  hampered  as  a 
consequence. 

18 
19 

http://ec.europa.eu/competition/cartels/whistleblower/index.html. 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54254. 

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Chapter VIII – Limitation periods 

This Chapter ensures that if proceedings are on-going before a NCA or the Commission, the 
limitation periods applicable for other NCAs that may bring proceedings regarding the same 
agreement, decision of an association of undertakings or concerted practice are suspended for 
the duration of these proceedings. This will ensure that the system of parallel powers within 
the ECN works effectively and other NCAs are not prevented from subsequently acting as a 
result  of  their  proceedings  being  time-barred.  Member  States  remain  free  to  determine  the 
duration of limitation periods in their system or to introduce absolute limits provided that they 
do  not  render  the  effective  enforcement  of  EU  competition  law  practically  impossible  or 
excessively difficult. 

Chapter IX – General provisions 

This  Chapter  ensures  that  administrative  NCAs,  which  are  best  placed  to  explain  their 
decisions, have of their own right the power to bring and/or defend their cases before courts.20 
This will prevent the duplication of costs and effort inherent in another body defending these 
cases. 

This  Chapter  also  provides  a  key  safeguard  that  information  collected  pursuant  to  the 
proposed Directive can only  be  used for the purpose for which  it is acquired  and cannot be 
used for the imposition of sanctions on natural persons. 

Finally, this Chapter ensures that evidence is admissible irrespective of the medium on which 
the relevant information is stored, to ensure that the relevant procedural rules are digital proof.  

20 

The  European  Court  of  Justice  has  ruled  that  Article  35  of  Regulation  (EC)  No  1/2003  must  be 
interpreted  as  precluding  national  rules  which  do  not  allow  a  NCA  to  participate,  as  a  defendant  or 
respondent, in judicial proceedings brought against a decision that the authority itself has taken, VEBIC, 
Case C-439/08, ECLI:EU:C:2010:739, para 64. 

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19 

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2017/0063 (COD) 

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 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 103 and 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

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 business practices that keep the prices of goods and services 
artificially high and enhances their choice of innovative goods and services. 

The public enforcement of Articles 101 and 102 TFEU is carried out by the national 
competition  authorities  (NCAs)  of  the  Member  States  in  parallel  to  the  Commission 
pursuant to Council Regulation (EC) No 1/2003 (2). The NCAs and the Commission 
form  together  a  network  of  public  authorities  applying  the  EU  competition  rules  in 
close cooperation (the European Competition Network).  

Article 3(1) of Regulation (EC) No 1/2003 obliges NCAs and national courts to apply 
Articles  101  and  102  TFEU  to  agreements  or  conduct  capable  of  affecting  trade 
between  Member  States.  In  practice,  most  NCAs  apply  national  competition  law 
provisions  in  parallel  to  Articles  101  and  102  TFEU.  Therefore,  this  Directive,  the 
objective  of  which  is  to  ensure  that  NCAs  have  the  necessary  guarantees  of 
independence and enforcement and fining powers to be able to apply Articles 101 and 
102  TFEU  effectively,  will  inevitably  have  an  impact  on  national  competition  law 
provisions applied in parallel by NCAs. 

1 
2 

OJ C , , p. . 
Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  of 
competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p.1). 

EN 

20 

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(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. 

(5) 

(6) 

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. 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.  

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. 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 

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(7) 

(8) 

(9) 

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.   

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.  

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. 

Putting in place minimum guarantees to ensure that NCAs apply Articles 101 and 102 
TFEU 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. 

(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. 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. 

(11)  This  Directive  does  not  apply  to  national  laws  in  so  far  as  they  provide  for  the 
imposition  of  criminal  sanctions  on  natural  persons,  with  the  exception  of  the  rules 
governing  the  interplay  of  leniency  programmes  with  the  imposition  of  sanctions  on 
natural persons. 

(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 

EN 

22 

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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. 

(13)  Empowering  NCAs  to  apply  Articles  101  and  102  TFEU  impartially  and  in  the 
common  interest  of  the  effective  enforcement  of  European  competition  rules  is  an 
essential component of the effective and uniform application of these rules.  

(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. 

(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. 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.   

(16)  The independence of NCAs does not preclude either judicial review or parliamentary 
supervision  in  accordance  with  the  laws  of  the  Member  States.  Accountability 
requirements  also  contribute  to  ensuring  the  credibility  and  the  legitimacy  of  the 
actions of NCAs. Proportionate accountability requirements include the publication by 

EN 

23 

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NCAs of periodic reports on their activities to a governmental or parliamentary body. 
NCAs  may  also  be  subject  to  control  or  monitoring  of  their  financial  expenditure, 
provided this does not affect their independence.  

(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. 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. 

(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. 

(19)  NCAs require a minimum set of common investigative and decision-making powers to 

be able to effectively enforce Articles 101 and 102 TFEU. 

(20)  NCAs  authorities  should  be  empowered  to  have  effective  powers  of  investigation  to 
detect any agreement, decision or concerted practice prohibited by Article 101 TFEU 
or any abuse of dominant position prohibited by Article 102 TFEU at any stage of the 
proceedings before them. 

(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. 

(22)  National  administrative  competition  authorities  should  be  empowered  to  inspect  the 
premises of both undertakings and associations of undertakings which are the subject 
of  proceedings  for  the  application  of  Articles  101  and  102  TFEU,  as  well  as  other 
market  players  which  may  be  in  possession  of  information  which  is  of  relevance  to 
such  proceedings.  National  administrative  competition  authorities  should  be  able  to 
carry out such inspections when there are at least reasonable grounds for suspecting an 
infringement of Article 101 or Article 102 TFEU. 

(23)  To be effective, the power of national administrative competition authorities to carry 
out  inspections  should  enable  them  to  access  information  that  is  accessible  to  the 
undertaking  or  association  of  undertakings  or  person  subject  to  the  inspection  and 
which is related to the undertaking under investigation. 

(24)  To  minimise  the  unnecessary  prolongation  of  inspections,  national  administrative 
competition authorities should have the power to continue making searches of copies 
or  extracts  of  books  and  records  related  to  the  business  of  the  undertaking  or 
association  of  undertakings  being  inspected  at  the  authority’s  premises  or  at  other 
designated premises. 

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(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. 

(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.  

(27)  NCAs should have effective means to restore competition on the market by imposing 

proportionate structural and behavioural remedies. 

(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  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. 

(29)  To  ensure  the  effective  and  uniform  enforcement  of  Articles  101  and  102  TFEU, 
national  administrative  competition  authorities  should  have  the  power  to  impose 
effective,  proportionate  and  dissuasive  fines  on  undertakings  and  associations  of 
undertakings  for  infringements  of  Articles  101  or  102  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  sanctions  by  courts  in  criminal  proceedings  for  the 
infringement of Articles 101 and 102 TFEU. 

(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 

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proportion  to  the  total  turnover  of  the  undertakings  and  associations  of  undertakings 
concerned 

(31)  To  ensure  the  effective  and  uniform  application  of  Articles  101  and  102  TFEU,  the 
notion of undertaking, as contained in Articles 101 and 102 TFEU, should be applied 
in  accordance  with  the  case  law  of  the  Court  of  Justice  of  the  European  Union  as 
designating  an  economic  unit,  even  if  it  consists  of  several  legal  or  natural  persons. 
Accordingly, NCAs should be able to apply the notion of undertaking to find a parent 
company liable, and impose fines on it, for the conduct of one of its subsidiaries where 
such  a  parent  company  and  its  subsidiary  form  a  single  economic  unit.  To  prevent 
undertakings  escaping  liability  for  fines  for  infringements  of  Articles  101  and  102 
TFEU through legal or organisational changes, NCAs should be able to find legal or 
economic  successors  of  the  undertaking  liable,  and  to  impose  fines  on  them,  for  an 
infringement  of  Articles  101  and  102  TFEU  in  accordance  with  the  case  law  of  the 
Court of Justice of the European Union.  

(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.  

(33)  Experience  has  shown  that  associations  of  undertakings  regularly  play  a  role  in 
competition  infringements  and  NCAs  should  be  able  to  effectively  fine  such 
associations. When assessing the gravity of the infringement in order to determine the 
amount of the fine in proceedings brought against associations of undertakings where 
the  infringement  relates  to  the activities  of  its members,  regard  should  be  had  to  the 
sum of the sales by the undertakings that are members of the association of goods and 
services  to  which  the  infringement  directly  or  indirectly  relates.  In  order  to  ensure 
effective recovery of fines imposed on associations of undertakings for infringements 
that they have committed, it is necessary to lay down the conditions on which NCAs 
may  require  payment  of  the  fine  from  the  members  of  the  association  where  the 
association is not solvent. In doing so, NCAs should have regard to the relative size of 
the undertakings belonging to the association and in particular to the situation of small 
and medium-sized enterprises. Payment of the fine by one or several members of an 

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association  is  without  prejudice  to  rules  of  national  law  that  provide  for  recovery  of 
the amount paid from other members of the association. 

(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.  

(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.  

(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 differences.  

(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  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.  

(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. 

(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 
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.  

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(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. 

(41) 

In a system of parallel powers to apply Articles 101 and 102 TFEU, close cooperation 
is  required  between  NCAs.  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. 

(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.  

(43)  To ensure the effective enforcement of Articles 101 and 102 TFEU by NCAs there is a 
need to provide for workable rules on suspension of limitation periods. In particular, in 
a  system  of  parallel  powers,  national  limitation  periods  should  be  suspended  for  the 
duration  of  proceedings  before  NCAs  of  another  Member  State  or  the  Commission. 
This  does  not  prevent  Member  States  from  maintaining  or  introducing  absolute 
limitation  periods,  provided  that  the  duration  of  such  absolute  time  periods  does  not 
render the effective enforcement of Articles 101 and 102 TFEU practically impossible 
or excessively difficult. 

(44)  To  ensure  that  cases  are  dealt  with  efficiently  and  effectively  within  the  European 
Competition  Network,  in  those  Member  States  where  a  national  administrative 
competition authority is competent to investigate infringements of Articles 101 or 102 
TFEU  and  a  national  judicial  competition  authority  is  competent  for  adopting  a 
decision  finding  the  infringement  and/or  imposing  the  fine,  national  administrative 
competition authorities should be able to bring directly the action before the national 
judicial  competition  authority.  In  addition,  to  the  extent  that  national  courts  act  as 
review courts in proceedings brought against enforcement decisions of NCAs applying 
Articles 101 or 102, national administrative competition authorities should be of their 
own right fully entitled to participate as a prosecutor, defendant or respondent in those 
proceedings, and enjoy the same rights of such a party to those proceedings. 

(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 

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authorities from publishing their decisions in accordance with the applicable Union or 
national law. 

(46)  Evidence is an important element in the enforcement of Articles 101 and 102 TFEU. 
NCAs should able to consider relevant evidence irrespective of whether it is made in 
writing,  orally  or  in  a  recorded  form,  including  covert  recordings  made  by  legal  or 
natural  persons  provided  this  is  not  the  sole  source  of  evidence.  This  is  without 
prejudice to the right to be heard. 

in  compliance  with 

(47)  To underpin close cooperation in the European Competition Network, the Commission 
should  maintain,  develop,  host,  operate  and  support  a  central  information  system 
(European  Competition  Network  System) 
the  relevant 
confidentiality, data protection and data security standards. The European Competition 
Network  relies  on  interoperability  for  its  effective  and  efficient  functioning.  The 
general  budget  of  the  Union  should  bear  the  costs  of  maintenance,  development, 
hosting, user support and operation of the central information system as well as other 
administrative  costs  incurred  in  connection  with  the  functioning  of  the  European 
Competition  Network,  in  particular the  costs  related  to  the organisation  of  meetings. 
Until 2020 the costs for the European Competition Network System are foreseen to be 
covered by the programme on interoperability solutions and common frameworks for 
European  public  administrations  (ISA2  programme),  subject  to  the  programme's 
available resources, eligibility and prioritisation criteria. 

(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. 

(49) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents,3  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

3 

OJ C 369, 17.12.2011, p. 14. 

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HAVE ADOPTED THIS DIRECTIVE: 

CHAPTER I 

SUBJECT MATTER, SCOPE AND DEFINITIONS 

Article 1 

Subject matter and scope 

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 national competition law applied 
exclusively. 

2. 

This  Directive  sets  out  certain  rules  on  mutual  assistance  to  safeguard  the  smooth 
functioning  of  the  internal  market  and  the  system  of  close  cooperation  within  the 
European Competition Network. 

Article 2 

Definitions 

For the purposes of this Directive, the following definitions apply: 

(1) 

(2) 

(3) 

(4) 

 ̔national  competition  authority̕  means  an  authority  designated  by  a  Member  State 
pursuant to Article 35 of Regulation (EC) 1/2003 as responsible for the application of 
Articles  101  and  102  TFEU.  Member  States  may  designate  one  or  more 
administrative authorities (̔national administrative competition authority̕), as well as 
judicial  authorities  (̔national  judicial  competition  authority̕)  to  carry  out  these 
functions; 

 ̔competition authority̕ means a national competition authority or the Commission or 
both, as the context may require; 
 ̔European Competition Network̕ means the Network of public authorities formed by 
the  national  competition  authorities  and  the  Commission  to  provide  a  forum  for 
discussion  and  cooperation  in  the  application  and  enforcement  of  Articles  101  and 
102 TFEU; 

̔national  competition  law  provisions̕  means  provisions  of  national  law  that 
predominantly pursue the same objective as Articles 101 and 102 TFEU and that are 
applied  to  the  same  case  and  in  parallel  to  Union  antitrust  law  pursuant  to  Article 
3(1)  of  Regulation  (EC)  No  1/2003  with  the  exception  of  the  use  of  information 
taken from leniency statements and settlement submissions as referred to in Article 
29(2) and excluding provisions of national law which impose  criminal  penalties  on 
natural persons. 

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(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

 ̔national court̕ means a national court or tribunal within the meaning of Article 267 
TFEU; 
 ̔review court̕ means a national court that is empowered by ordinary means of appeal 
to  review  decisions  of  a  national  competition  authority  or  to  review  judgments 
pronouncing on these decisions, irrespective of whether the court itself has the power 
to find an infringement of competition law; 

 ̔proceedings̕  means  the  proceedings  before  a  national  competition  authority  for  the 
application of Article 101 or Article 102 TFEU, until that authority has closed these 
proceedings  by  taking  a  decision  referred  to  in  Article  9  or  Article  11  or  has 
concluded that there are no grounds for further action on its part, or in the case of the 
Commission,  means  proceedings  before  it  for  the  application  of  Article  101  or 
Article 102 TFEU until it has closed these proceedings by taking a decision pursuant 
to Articles 7, 9 or 10 of Regulation (EC) No 1/2003 or has concluded that there are 
no grounds for further action on its part; 

 ̔undertaking̕ as contained in Articles 101 and 102 TFEU, means any entity engaged 
in  an  economic  activity,  regardless  of  its  legal  status  and  the  way  in  which  it  is 
financed  in  accordance  with  the  case  law  of  the  Court  of  Justice  of  the  European 
Union; 
 ̔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  of  purchase  or  selling  prices  or  other  trading  conditions,  the  allocation  of 
production or sales quotas, the sharing of markets 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; 

 ̔immunity  from  fines̕  means  that  no  fine  is  imposed  on  an  undertaking  for  its 
participation  in  a  secret  cartel  as  a  reward  for  its  cooperation  with  a  competition 
authority in the framework of a leniency programme; 

 ̔reduction  of  fines̕  means  that  a  reduced  fine  is  imposed  as  compared  to  the  fines 
which would otherwise be imposed on an undertaking for its participation in a secret 
cartel as a reward for its cooperation with a competition authority in the framework 
of a leniency programme; 

 ̔leniency̕ means both immunity from fines and reduction of fines; 

 ̔leniency programme̕ means a programme concerning the application of Article 101 
TFEU  or  national  competition  law  on  the  basis  of  which  a  participant  in  a  secret 
cartel, independently of the other undertakings involved in the cartel, cooperates with 
an investigation of the competition authority, by voluntarily providing presentations 
regarding that participant’s knowledge of, and role in, the cartel in return for which 
that  participant  receives,  by  decision  or  by  a  discontinuation  of  proceedings, 
immunity from, or a reduction in, fines for its involvement in the cartel;  
 ̔leniency statement̕ means an oral or written presentation voluntarily provided by, or 
on behalf of, an undertaking or a natural person to a competition authority or a record 
thereof,  describing  the  knowledge  of  that  undertaking  or  natural  person  of  a  secret 
cartel  and  describing  its  role  therein,  which  presentation  was  drawn  up  specifically 
for submission to the competition authority with a view to obtaining immunity or a 
reduction  of  fines  under  a  leniency  programme,  not  including  pre-existing 
information;  

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(15) 

(16) 

(17) 

(18) 

(19) 

 ̔pre-existing information̕ means evidence that exists irrespective of the proceedings 
of  a  competition  authority,  whether  or  not  such  information  is  in  the  file  of  a 
competition authority; 

a 

to 

authority 

competition 

 ̔settlement  submission̕  means  a  voluntary  presentation  by,  or  on  behalf  of,  an 
undertaking’s 
undertaking 
acknowledgement  of,  or  its  renunciation  to  dispute,  its  participation  in  an 
infringement of Article 101 TFEU or national competition law and its responsibility 
for  that  infringement,  which  was  drawn  up  specifically  to  enable  the  competition 
authority to apply a simplified or expedited procedure; 
 ̔applicant̕  means  an  undertaking  that  applies  for  immunity  or  reduction  from  fines 
under a leniency programme;  

describing 

the 

 ̔applicant  authority̕  means  a  national  competition  authority  which  makes  a  request 
for mutual assistance as referred to in Articles 23, 24 or 25; 

 ̔requested authority̕ means a national competition authority which receives a request 
for mutual assistance and in the case of a request for assistance referred to in Articles 
24 and 25 may mean the competent public office, authority or department which has 
principal  responsibility  for  the  enforcement  of  such  decisions  under  national  laws, 
regulations and administrative practice. 

All references to the application, and infringements, of Articles 101 and 102 TFEU shall be 
understood as including the parallel application of the national competition law provisions to 
the same case. 

CHAPTER II 

FUNDAMENTAL RIGHTS 

Article 3 

Safeguards 

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. 

CHAPTER III 

INDEPENDENCE AND RESOURCES 

Article 4 

Independence 

1. 

To  guarantee  the  independence  of  national  administrative  competition  authorities 
when  applying  Articles  101  and  102  TFEU,  Member  States  shall  ensure  that  they 
perform their duties and exercise their powers impartially and in the interests of the 
effective  and  uniform  enforcement  of  these  provisions,  subject  to  proportionate 

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accountability  requirements  and  without  prejudice  to  close  cooperation  between 
competition authorities in the European Competition Network. 

2. 

In particular, Member States shall ensure that: 

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; 

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 carrying out their 
duties and exercising their powers for the application of Articles 101 and 102 
TFEU;  

c)   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; 

d)   The  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); 

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. 

Article 5 

Resources 

1. 

2. 

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  application  of  Articles  101  and  102  TFEU  by  national  competition  authorities 
shall include: conducting investigations with a view to applying Articles 101 and 102 
TFEU;  taking  decisions  applying  these  provisions  on  the  basis  of  Article  5  of 
Regulation  1/2003;  and  cooperating  closely  in  the  European  Competition  Network 
with a view to ensuring the effective and uniform application of Articles 101 and 102 
TFEU. 

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CHAPTER IV 

POWERS 

Article 6 

Power to inspect business premises 

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. Member States shall 
ensure  that  the  officials  and  other  accompanying  persons  authorised  by  national 
competition authorities to conduct an inspection are at minimum empowered: 

a)  

b)  

c)  

d)  

e)  

to  enter  any  premises,  land,  and  means  of  transport  of  undertakings  and 
associations of undertakings;  

to examine the books and other records related to the business irrespective of 
the medium on which they are stored, including the right to access information 
which is accessible to the entity subject to the inspection;  

to take or obtain in any form copies or extracts from such books or records and 
where they consider it necessary to continue making searches of these copies or 
extracts at their premises or other designated premises; 

to  seal  any  business  premises  and  books  or  records  for  the  period  and  to  the 
extent necessary for the inspection; 

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. 

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.  Such  assistance  may  also  be  obtained  as  a 
precautionary measure. 

Article 7 

Power to inspect other premises 

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. 

2. 

1. 

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2. 

3. 

Such inspections cannot be carried out without the prior authorisation of a national 
judicial authority. 

Member  States  shall  ensure  that  the  officials  and  other  accompanying  persons 
authorised  by  the  national  courts  to  conduct  an  inspection  in  accordance  with 
paragraph 1 of this Article have at least the powers set out in Article 6(1)(a)(b) and 
(c) and Article 6(2).  

Article 8 

Requests for information  

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.  

Article 9 

Finding and termination of infringement 

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.  

Article 10 

Interim measures 

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. 

Article 11 

Commitments 

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. 

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CHAPTER V 

FINES AND PERIODIC PENALTY PAYMENTS 

Article 12 

Fines on undertakings and associations of undertakings  

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.  

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: 

a) 

b) 

c) 

d) 

they fail to comply with an inspection referred to Article 6(2);  

seals  fixed  by  officials  or  other  accompanying  persons  authorised  by  the 
national  competition  authorities  as  referred  to  by  Article  6(1)(d)  have  been 
broken; 

in response to a question referred to by Article 6(1)(e), they give an incorrect, 
misleading  answer,  fail  or  refuse  to  provide  a  complete  answer,  or  fail  to 
rectify  within  a  time-limit  set  by  the  national  competition  authority  an 
incorrect, misleading or incomplete answer given by a member of staff; 

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

e) 

they fail to comply with a decision referred to in Articles 10 and 11. 

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. 

Article 13 

Calculation of the fines 

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. 

1. 

2. 

3. 

1. 

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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.  

Article 14 

Maximum amount of the fine 

1. 

2. 

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.  

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. 

Article 15 

Periodic penalty payments 

Member  States  shall  ensure  that  national  administrative  competition  authorities  may  by 
decision  impose  effective,  proportionate  and  deterrent  periodic  penalty  payments  on 
undertakings  and  associations  of  undertakings  which  are  determined  in  proportion  to  their 
daily total turnover in order to compel them: 

a) 

b)  

c)  

to submit to an inspection referred to in Article 6(2), 

to supply complete and correct information as referred to in Article 8,  

to comply with a decision referred to in Articles 9, 10 and 11. 

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CHAPTER VI 

LENIENCY 

Article 16 

Immunity from fines 

1. 

2. 

3. 

1. 

2. 

3. 

Member  States  shall  ensure  that  national  competition  authorities  have  in  place 
leniency programmes that enable them to grant immunity from fines to undertakings. 

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

a) 

b) 

c) 

fulfils the conditions laid down in Article 18; 

discloses its participation in a secret cartel; and 

is the first to submit evidence which: 

i. 

ii. 

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 

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 under paragraph 2(c)(i) in relation to the same cartel.  

Member  States  shall  ensure  that  all  undertakings  are  eligible  for  immunity  from 
fines,  with  the  exception  of  undertakings  that  have  taken  steps  to  coerce  other 
undertakings to participate in a secret cartel. 

Article 17 

Reduction of fines 

Member  States  shall  ensure  that  national  competition  authorities  have  in  place 
leniency programmes that enable them to grant a reduction of fines to undertakings 
which do not qualify for immunity. 
Member States shall ensure that a reduction of fines is granted only if 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. 

Member States shall ensure that national competition authorities are able to grant an 
additional  reduction  of  fines  if  the  applicant  submits  evidence  which  the  national 
competition  authority  uses,  without  the  need  for  further  corroboration,  to  prove 
additional facts which lead to an increase in fines as compared to the fines that would 

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otherwise have been imposed on the participants in the secret cartel. The reduction of 
fines for the applicant shall be proportionate to such increase in fines.  

Article 18 

General conditions for leniency 

Member States shall ensure that, in order to qualify for leniency, the applicant must satisfy the 
following cumulative conditions: 

a) 

b) 

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

it  cooperates  genuinely,  fully,  on  a  continuous  basis  and  expeditiously  with  the 
national competition authority from the time of its application until the authority has 
closed its proceedings against all parties under investigation by adopting a decision 
or has otherwise terminated its proceedings. This includes:  

i. 

ii. 

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; 

remaining  at  the  national  competition  authority’s  disposal  to  answer  any 
request that may contribute to the establishment of the facts; 

iii.  making current (and, if possible, former) employees and directors available for 

interviews with the national competition authority;  

iv. 

not destroying, falsifying or concealing relevant information or evidence; and 

v. 

not  disclosing  the  fact  of,  or  any  of  the  content  of,  its  application  before  the 
national competition authority has issued objections in the proceedings before 
it, unless otherwise agreed; and 

c) 

when  contemplating  making  an  application  to  the  national  competition  authority  it 
must not have: 

i. 

ii. 

destroyed, falsified or concealed evidence of the alleged secret cartel; or 

disclosed the fact or any of the content of its contemplated application, except 
to other competition authorities. 

Article 19 

Form of leniency applications 

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.  

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1. 

2. 

3. 

1. 

2. 

Article 20 

Marker for a formal application for immunity 

Member States shall ensure that an undertaking wishing to make an application for 
immunity  can  initially  apply  for  a  marker  to  national  competition  authorities.  The 
marker  grants  the  applicant  a  place  in  the  queue  for  a  period  to  be  specified  on  a 
case-by-case basis by the national competition authority receiving the application for 
a marker. It allows the applicant to gather the necessary information and evidence in 
order to meet the relevant evidential threshold for immunity. 

Member  States  shall  ensure  that  national  competition  authorities  have  discretion 
whether or not to grant a marker. 

Member  States  shall  ensure  that  if  the  applicant  perfects  the  marker  within  the 
specified period, the information and evidence provided will be deemed to have been 
submitted at the time the marker was granted.  

Article 21 

Summary applications 

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  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.  

Member  States  shall  ensure  that  national  competition  authorities  accept  summary 
applications provided  that they take one  of  the forms  stipulated in  Article  19, have 
the same product, geographic and durational scope as the leniency application filed 
with the Commission and include a short description of the following, in so far as it 
is known to the applicant at the time of the submission: 

a) 

b) 

c) 

d) 

e) 

f) 

g) 

h) 

the name and address of the applicant; 

the other parties to the alleged secret cartel; 

the affect product(s); 

the affected territory(ies); 

the duration; 

the nature of the alleged cartel conduct;  

the Member State(s) where the evidence is likely to be located; and 

information  on  the  applicant’s  other  past  or  possible  future  leniency 
applications in relation to the alleged secret cartel. 

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. 

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4. 

5. 

6. 

7. 

Member  States  shall  ensure  that  national  competition  authorities  which  receive  a 
summary application provide the applicant with an acknowledgement stating the date 
and time of receipt. 

Member  States  shall  ensure  that  national  competition  authorities  which  receive  a 
summary application verify whether they already had received a previous summary 
or leniency application in relation to the same alleged secret cartel at the time of its 
receipt and inform the applicant accordingly. 

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. 

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. 

Article 22 

Interplay between leniency programmes and sanctions on natural persons 

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 of the criminal proceedings. 

CHAPTER VII 

MUTUAL ASSISTANCE 

Article 23 

Cooperation between national competition authorities 

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  requested  national  competition  authority  in  the 
inspection by exercising the powers referred to in Articles 6 and 7. 

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Article 24 

1. 

2. 

Requests for the notification of preliminary objections and decisions 

Without prejudice to any other form of notification made by a national competition 
authority of the applicant Member State in accordance with the rules in force in that 
Member  State,  Member  States  shall  ensure  that  at  the  request  of  the  applicant 
authority,  the  requested  authority  shall  notify  to  the  addressee  on  behalf  of  the 
applicant authority preliminary objections to the alleged infringement of Articles 101 
or  102  TFEU  and  decisions  applying  those  Articles,  as  well  as  documents  which 
relate to the enforcement of decisions imposing fines or periodic penalty payments. 

The requested authority shall ensure that notification in the requested Member State 
is  effected  in  accordance  with  the  national  laws,  regulations  and  administrative 
practices in force in the requested Member State.  

Article 25 

Requests for the enforcement of decisions imposing fines or periodic penalty payments 

1. 

2. 

3. 

4. 

5. 

Member  States  shall  ensure  that  at  the  request  of  the  applicant  authority,  the 
requested  authority  shall  enforce  decisions  imposing  fines  or  periodic  penalty 
payments adopted in accordance with Articles 12 and 15 by the applicant authority. 
This shall apply only to the extent that: 

a) 

b)  

the  undertaking  against  which  the  fine  or  periodic  penalty  payment  is 
enforceable  does  not  have  a  legal  presence  in  the  Member  State  of  the 
applicant authority; or  

it  is  obvious  that  the  undertaking  against  which  the  fine  or  periodic  penalty 
payment can be enforced does not have sufficient assets in the Member State of 
the applicant authority.  

The requested authority shall ensure that enforcement in the requested Member State 
is  effected  in  accordance  with  the  national  laws,  regulations  and  administrative 
practices in force in the requested Member State. 

The applicant authority may only make a request for enforcement when the decision 
permitting its enforcement in the applicant Member State is final and can no longer 
be appealed by ordinary means. 

Questions regarding periods of limitation shall be governed by the laws in force of 
the applicant Member State. 

The  requested  authority  shall  not  be  obliged  to  enforce  decisions  pursuant  to 
paragraph 1 if this would be manifestly contrary to public policy in the Member State 
in which enforcement is sought. 

Article 26 

Disputes concerning requests for notification and for the enforcement of decisions 
imposing fines or penalty payments 

1. 

Disputes  concerning  the  lawfulness  of  a  measure  to  be  notified  or  a  decision 
imposing fines or periodic penalty payments in accordance with Articles 12 and 15 

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2. 

1. 

made  by  an  applicant  authority  shall  fall  within  the  competence  of  the  competent 
bodies of the applicant Member State and be governed by the national rules of that 
State. 

Disputes concerning the enforcement measures taken in the requested Member State 
or concerning the validity of a notification made by the requested authority shall fall 
within the competence of the competent bodies of the requested Member State and 
be governed by the rules in force of that State. 

CHAPTER VIII 

LIMITATION PERIODS 

Article 27 

Suspension of limitation periods for the imposition of penalties 

Member  States  shall  ensure  that  limitation  periods  for  the  imposition  of  fines  or 
periodic  penalty  payments  by  the  national  competition  authorities  pursuant  to 
Articles 12 and 15 shall be suspended for the duration of proceedings before national 
competition authorities of other Member States or the Commission in respect of an 
infringement concerning the same agreement, decision of an association or concerted 
practice.  The  suspension  shall  start  to  run  from  the  notification  of  the  first  formal 
investigative measure  to the undertaking  subject to  the proceedings. It shall end on 
the  day  the  authority  concerned  has  closed  its  proceedings  and  informed  the 
undertaking  thereof.  The  duration  of  this  suspension  period  is  without  prejudice  to 
absolute limitation periods provided for under national law. 

2. 

The limitation period for the imposition of fines or periodic penalty payments shall 
be suspended for as long as the decision of a competition authority is the subject of 
proceedings pending before a review court. 

CHAPTER IX 

GENERAL PROVISIONS 

Article 28 

Role of national administrative competition authorities before national courts 

1. 

2. 

Member States which designate both a national administrative competition authority, 
which is competent to investigate infringements of Articles 101 or 102 TFEU, and a 
national  judicial  competition  authority,  which  is  competent  for  adopting  a  decision 
finding the infringement and/or imposing the fine, shall ensure that the action before 
the  national  judicial  competition  authority  can  be  brought  directly  by  the  national 
administrative competition authority.  

To  the  extent  that  national  courts  act  in  proceedings  brought  against  enforcement 
decisions  of  national  competition  authorities  applying  Articles  101  or  102  TFEU, 
Member States shall ensure that the national administrative competition authority is 
of its own right fully entitled to participate as a prosecutor, defendant or respondent 

EN 

43 

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in  those  proceedings  and  to  enjoy  the  same  rights  as  such  public  parties  to  these 
proceedings. 

Article 29 

Limitations on the use of information 

1. 

2. 

3. 

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.  

Member  States  shall  ensure  that  access  will  be  granted  to  leniency  statements  or 
settlement  submissions  only  for  the  purposes  of  exercising  the  rights  of  defence  in 
proceedings before a national competition authority. Member States shall ensure that 
information taken from such leniency statements and settlement submissions may be 
used  by  the  party  having  obtained  access  to  the  file  only  where  necessary  for  the 
exercise  of  its  rights  of  defence  in  proceedings  before  the  courts  of  the  Member 
States in cases that are directly related to the case in which access has been granted, 
and which concern: 

a) 

b) 

the  allocation  between  cartel  participants  of  a  fine  imposed  jointly  and 
severally on them by a national competition authority; or 

the review of a decision by which a national competition authority has found 
an infringement of Article 101 TFEU or national competition law provisions. 

Member  States  shall  ensure  that  the  following  categories  of  information  obtained 
during  proceedings  before  a  national  competition  authority  shall  not  be  used  in 
proceedings before national courts until the national competition authority has closed 
its proceedings against all parties under investigation by adopting a decision referred 
to in Article 9 or Article 11 or otherwise has terminated its proceedings: 

a) 

b) 

Information that was prepared by other natural or legal persons specifically for 
the proceedings of the national competition authority; and 

Information  that  the  national  competition  authority  has  drawn  up  and  sent  to 
the parties in the course of its proceedings. 

4. 

Member States shall ensure that leniency statements will only be exchanged between 
national  competition  authorities  pursuant  to  Article  12  of  Regulation  (EC)  No 
1/2003:  

a)  with the consent of the applicant; or 

b)  where the receiving authority has also received a leniency application relating 
to the same infringement from the same applicant as the transmitting authority, 
provided  that  at  the  time  the  information  is  transmitted  it  is  not  open  to  the 
applicant to withdraw the information which it has submitted to that receiving 
authority; or  

c)  where the receiving authority has provided a written commitment that neither 
the  information  transmitted  to  it  nor  any  other  information  it  may  obtain 
following  the  date  and  time  of  transmission  as  noted  by  the  transmitting 
authority will be used by it or by any other authority to which the information 
is subsequently transmitted to impose sanctions on the applicant, on any other 
legal  or  natural  person  covered  by  the  favourable  treatment  offered  by  the 

EN 

44 

   EN 

transmitting authority as a result of the application made by the applicant under 
its leniency programme, or on any employee or former employee of any of the 
above mentioned persons; 

and provided that the protection against disclosure granted by the receiving national 
competition  authority  is  equivalent  to  that  conferred  by  the  transmitting  national 
competition authority. 

5. 

6. 

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). 

Paragraphs  2-5  apply  regardless  of  the  form  in  which  leniency  statements  are 
submitted pursuant to Article 19. 

Article 30 

Admissibility of evidence before national competition authorities 

Member States shall ensure that the types of proof admissible as evidence before a national 
competition  authority  include  documents,  oral  statements,  recordings  and  all  other  objects 
containing information, irrespective of the medium on which the information is stored.  

Article 31 

Costs of the European Competition Network System 

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. 

CHAPTER X 

FINAL PROVISIONS 

Article 32 

Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  [two  year  period  for 
transposition] at the latest. They shall forthwith communicate to the Commission the 
text of those provisions. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

EN 

45 

   EN 

Article 33 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 34 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President

EN 

46 

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LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1.  Title of the proposal/initiative  

1.2.  Policy area(s) concerned in the ABM/ABB structure 

1.3.  Nature of the proposal/initiative  

1.4.  Objective(s)  

1.5.  Grounds for the proposal/initiative  

1.6.  Duration and financial impact  

1.7.  Management mode(s) planned  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

2.2.  Management and control system  

2.3.  Measures to prevent fraud and irregularities  

3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1.  Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

3.2.  Estimated impact on expenditure  

3.2.1. Summary of estimated impact on expenditure  

3.2.2. Estimated impact on operational appropriations  

3.2.3. Estimated impact on appropriations of an administrative nature 

3.2.4. Compatibility with the current multiannual financial framework 

3.2.5. Third-party contributions  

3.3.  Estimated impact on revenue 

EN 

47 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative  

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. 
Policy area(s) concerned in the ABM/ABB structure1  

1.2. 

Policy area:   Title 03 – Competition policy. 

Activities:  03  02  –  Policy  coordination,  European  Competition  Network  and  international 

cooperation. 

03 05 – Cartels, anti-trust and liberalisation.    

1.3. 

Nature of the proposal/initiative  

The proposal/initiative relates to a new action.  

1.4. 

Objective(s) 

1.4.1.  The Commission's multiannual strategic objective(s) targeted by the proposal/initiative  

General Objective A: A New Boost for Jobs, Growth and Investment.  

1.4.2. 

Specific objective(s) and ABM/ABB activity(ies) concerned  

Specific objective No 2: Effective and coherent application of EU competition law by NCAs 
and by national courts. 

ABM/ABB  activity(ies)  concerned:  03  02  -  Policy  coordination,  European  Competition 
Network and international cooperation, and 03 05 - Cartels, anti-trust and liberalisation. 

1.4.3.  Expected result(s) and impact 

1.4.4.  The main impact of the initiative will be on NCAs, businesses and consumers, as explained in 

section 2 of the Explanatory Memorandum. Indicators of results and impact  

The table below shows possible indicators that could be used to measure results and impact. 

Objectives 

Core indicators 

Legislative action 

Ensuring all national competition 
authorities ("NCAs") have 
effective investigation and 
decision-making tools. 

1.  Availability  of  the  core  investigation  and 
decision-making tools per NCA. 

2.  Availability  of  the  key  procedural  guarantees 
per NCA. 

3. Use of new investigation tools per NCA. 

4. Number of enforcement decisions per type of 
decision 
commitments, 
prohibitions, 
interim measures). 

(e.g. 

1 

ABM: activity-based management; ABB: activity-based budgeting. 

EN 

48 

   EN 

                                                 
Soft action: 

1.  Application  by  NCAs  of  recommended 
practices/guidance,  when  applicable, 
to  be 
endorsed by the ECN. 

Legislative action: 

1. In Member States currently imposing fines on 
undertaking in criminal judicial proceedings: 

 -  Availability  of 
in  administrative 
fines 
proceedings / non-criminal judicial proceedings.  

 - Ability of NCAS to bring/defend cases before 
courts.  

 - Number of fines vs. number of cases compared 
to previous period when primarily fines imposed 
in criminal judicial proceedings were imposed. 

2. Application of the prescribed legal maximum 
for the level of fines per NCA. 

3. Changes in the level of fines compared to the 
situation  prior  to  the  entry  into  force  of  the 
Directive. 

4. Total amount of fines imposed. 

5.  Application/non-application  of  the  notion  of 
undertaking for the purpose of imposing fines on 
parent  companies  and 
legal  and  economic 
successors of undertakings.  

Soft action: 

1.  Application  by  NCAs  of  recommended 
practices/guidance,  when  applicable, 
to  be 
endorsed by the ECN. 

Legislative action: 

1.  Availability  per  NCA  of  effective  guarantees 
that leniency applicants can safeguard their place 
in the leniency queue. 

2.  Availability  per  NCA  of  rules  to  protect 
employees of leniency applicants from sanctions.  

3. Number of leniency applications per NCA.  

Soft action: 

1.  Application  by  NCAs  of  recommended 
practices/guidance,  when  applicable, 
to  be 
endorsed by the ECN.  

Ensuring that all NCAs are able to 
impose effective fines. 

Guaranteeing that all NCAs have 
a well-designed leniency 
programme in place which also 
facilitates applying for leniency in 
multiple jurisdictions. 

Ensuring that NCAs have 

Legislative action: 

EN 

49 

   EN 

 
sufficient resources and they can 
enforce the EU competition rules 
independently. 

1.  Availability  per  NCA  of  rules  ensuring  that 
NCAs do not receive instructions from public or 
private bodies. 

2. Survey of whether NCAs have been subject to 
attempts to undermine their independence.  

3.  Survey  of  whether  NCAs  have  adequate 
human  and  financial  resources  to  perform  their 
tasks,  including  trend  and  comparison  of  levels 
of staff and budget. 

1.  Additional  costs  incurred  as  a  result  from 
enhanced powers (training, etc.) 

2.  Cost  of  NCAs'  antitrust  enforcement  activity 
(costs vs. amount of fines imposed). 

Extra costs for NCAs. 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term  

The  main  objective  of  this  legislative  initiative  is  to  make  sure  that the  full  potential  of  the 
decentralised system of enforcement of EU competition rules put in place by Regulation (EC) 
No  1/2003  is  realised,  by  empowering  the  NCAs  to  be  more  effective  enforcers.  This  will 
boost  effective  enforcement  of  the  EU  competition  rules.  It  will  also  underpin  close 
cooperation in the European Competition Network. 

This requires the achievement of the following specific objectives: 

1. 

2. 

3. 

4. 

ensuring all NCAs have effective investigation and decision-making tools; 

ensuring that all NCAs are able to impose effective deterrent fines; 

ensuring  that  all  NCAs  have  a  well-designed  leniency  programme  in  place  which 
facilitates applying for leniency in multiple jurisdictions; and 

ensuring that NCAs have sufficient resources and can enforce the EU competition rules 
independently. 

1.5.2.  Added value of EU involvement 

There  are  several  reasons  justifying  the  involvement  of  the  EU  to  achieve  the  objectives 
described  in  section  1.5.1  and  realise  the  full  potential  of  the  decentralised  system  of 
enforcement  of  EU  competition  rules,  as  explained  in  section  2  of  the  Explanatory 
Memorandum. 

1.5.3.  Lessons learned from similar experiences in the past 

Regulation (EC) No 1/2003 empowered NCAs to apply the EU competition rules. As a result, 
enforcement  of  the  EU  competition  rules  is  now  taking  place  on  a  scale  which  the 
Commission  could  never  have  achieved  on  its  own.  Since  2004,  the  Commission  and  the 
NCAs took over 1000 enforcement decisions, with the NCAs being responsible for 85%. The 
legislative proposal is based on the enforcement experience of the NCAs and additional fact 
finding since 2004. 

EN 

50 

   EN 

1.5.4.  Compatibility and possible synergy with other appropriate instruments 

The legislative proposal is compatible with Regulation (EC) No 1/2003 and it will have strong 
synergies  with  it,  as  it  will  allow  NCAs  to  achieve  their  full  potential  in  the  decentralised 
system of enforcement of EU competition rules provided for by this Regulation. 

1.6. 

Duration and financial impact  

Proposal/initiative of unlimited duration 

1.7.  Management mode(s) planned2  

Direct management by the Commission and its departments.  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

The  appropriations  will  serve  to  maintain,  develop,  host,  operate  and  support  a  central 
information system (European Competition Network System) in compliance with the relevant 
confidentiality  and  data  security  standards.  They  will  guarantee  close  cooperation  with 
between  the  NCAs  and  the  Commission  in  the  European  Competition  Network  through 
various means. The reporting rules of the Directorate-General will apply.  

2.2.  Management and control system  

2.2.1.  Risk(s) identified  

As  regards  IT;  risk  that  the  IT-systems  fail  to  effectively  support  the  operation  of  the 
European Competition Network. 

2.2.2. 

Information concerning the internal control system set up 

IT: Effective IT-governance processes, which actively involve the systems’ users. 

Expenditures: the internal control processes are aimed to ensure the adequate management of 
the risks relating to the legality and regularity of the underlying transactions, and the nature of 
payments.  Furthermore,  the  control  system  consists  of  different  building  blocks,  such  as 
reporting  to  senior  management,  ex-ante  verification  by  central  financial  team,  internal 
advisory  committee  for  procurements  and  contracts,  ex-post  controls  and  audits  from  the 
Internal Audit Service and the European Court of Auditors. 

2.2.3.  Estimate of the costs and benefits of the controls and assessment of the expected level of risk 

of error  

Expenditure: The costs of controls are estimated to be less than 3% of total expenditure. The 
benefits  of  controls  in  non-financial  terms  cover:  better  value  for  money,  deterrence, 
efficiency gains, system improvements and compliance with regulatory provisions. 

The risks are effectively mitigated by means of controls put in place, and the level of risk of 
error is estimated to less than 2%. 

2.3.  Measures to prevent fraud and irregularities  

The fraud risks are mitigated by specific controls. Activities and operations at a higher risk of 
fraud  are  subject  to  more  in-depth  monitoring  and  control.  The  above-mentioned  control 

2 

Details  of  management  modes  and  references  to  the  Financial  Regulation  may  be  found  on  the  website  of  the 
European Commission's Directorate General for Budget: http://ec.europa.eu/budget/index_en.cfm.  

EN 

51 

   EN 

                                                 
system and the nature of the expenditures under direct management mode allow assessing the 
probability of fraud as being low. 

All  transactions  are  subject  to  first  level  ex-ante  controls  in  accordance  with  our  financial 
circuits.  The  controls  are  both  operational  and  financial,  the  operational  initiation  and 
verification  is  performed  by  the  operational  directorate,  whereas  the  financial  initiation  and 
verification is performed by the financial cell in Unit COMP R2. 

The risk of fraud is assessed each year in the context of the risk management exercise. 

3. 

3.1. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget  line(s) 
affected  

Existing budget lines 

In  2016,  the  information  systems  supporting  the  operations  of  the  European  Competition 
Network were funded from the ISA2 program under the ABCDE action. Other costs incurred 
in  connection  with  the  functioning  of  the  European  Competition  Network  are  funded  under 
administrative  expenditures.  The  same  will  apply  in  2017  until  2020.  The  modalities  of  the 
budgetary impact of the proposal beyond 2020 will be subject to the Commission's proposals 
on the next MFF and to the final outcome of the negotiations on the MFF post 2020. 

Heading of 
multiannual 
financial 
framework 

Heading of 
multiannual 
financial 
framework 

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of 
expenditure 

Contribution  

Heading 1a 

Diff./Non-
diff. 3 

from EFTA 
countries4 

from 
candidate 
countries5 

from third 
countries 

within the meaning of 
Article 21(2)(b) of the 
Financial Regulation  

26.030100 

DIFF. 

YES 

YES 

NO 

NO 

Budget line 

Type of 
expenditure 

Contribution  

Heading 5  

Diff./Non-
diff. 

from EFTA 
countries 

from 
candidate 
countries 

from third 
countries 

within the meaning of 
Article 21(2)(b) of the 
Financial Regulation  

03.010211 

NON-
DIFF. 

NO 

NO 

NO 

NO 

3 
4 
5 

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations. 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidates from the Western Balkans. 

EN 

52 

   EN 

 
 
 
 
 
 
 
                                                 
3.2. 

Estimated impact on expenditure  

3.2.1. 

Summary of estimated impact on expenditure 

Heading of multiannual financial 
framework  

Number 1a 

'Competitiveness for growth and jobs' 

DG: COMP 

 Operational appropriations  

EUR million (to three decimal places) 

Year 
2018 

Year 
2019 

Year 
2020 

Subsequent 
years 
(payments) 

TOTAL 

Budget line 26.0301006 

Commitments 

Payments 

(1) 

(2) 

1,000 

0,700 

1,000 

1,000 

0,900 

1,000 

0,400 

Appropriations of an administrative nature financed 
from the envelope of specific programmes7  

TOTAL appropriations 
for DG COMP 

Commitments 

Payments 

  TOTAL 
appropriations  

operational 

Commitments 

Payments 

TOTAL 

 
an 
administrative  nature  financed  from  the 
envelope for specific programmes  

appropriations 

of 

=1+1a 
+3 

=2+2a+
3 

(4) 

(5) 

(6) 

1,000 

1,000 

1,000 

0,700 

0,900 

1,000 

0,400 

1,000 

0,700 

1,000 

1,000 

0,900 

1,000 

0 

0 

0 

Commitments 

=4+ 6 

1,000 

1,000 

1,000 

TOTAL appropriations  
under HEADING 1a 
of the multiannual 
financial framework 

3,000 

3,000 

3,000 

2,600 

3,000 

3,000 

0 

3,000 

Payments 

=5+ 6 

0,700 

0,900 

1,000 

0,400 

3,000 

6 

7 

These amounts are indicative, under reserve of the annual budgetary procedure and of the priorities set under the 
annual ISA² Work Programme. 
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes 
and/or actions (former ‘BA’ lines), indirect research, direct research. 

EN 

53 

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Heading of multiannual financial  
framework  

5 

‘Administrative expenditure’ 

EUR million (to three decimal places) 

Year 
N 

Year 
N+1 

Year 
N+2 

Subsequent 
years 
(payments) 

TOTAL 

DG: COMP 

 Human resources  

 Other administrative expenditure  

0,759 

0,500 

0,759 

0,550 

0,759 

0,550 

TOTAL DG COMP 

Appropriations  

1,259 

1,309 

1,309 

TOTAL appropriations 
under HEADING 5 
of the multiannual 
financial framework  

(Total commitments = 
Total payments) 

1,259 

1,309 

1,309 

2,277 

1,600 

3,877 

3,877 

EUR million (to three decimal places) 

Year 
N8 

Year 
N+1 

Year 
N+2 

Subsequent 
years 
(payments) 

TOTAL* 

TOTAL appropriations  
under HEADINGS 1 to 
5 
of the multiannual 
financial framework  

Commitments 

2,259 

2,309 

2,309 

6,877 

Payments 

1,959 

2,209 

2,309 

0,400 

6,877 

3.2.2.  Estimated impact on operational appropriations  

The proposal/initiative requires the use of operational appropriations, as explained below: 

It is not possible for DG Competition to provide an exhaustive list of outputs to be delivered 
by means of financial interventions, average cost and numbers as requested by this section as 
this is a new initiative and there is no previous statistical data to draw from. 

To  underpin  close  cooperation  in  the  European  Competition  Network  and  to  optimally 
achieve the objectives, we foresee among other things the following expenditures: 

 

 

to  maintain,  develop,  host,  operate  and  support  a  central  information  system 
(European  Competition  Network  System)  in  compliance  with  the  relevant 
confidentiality  and  data  security  standards.  The  European  Competition  Network 
relies on interoperability for its effective and efficient functioning. 

other  administrative  costs  incurred  in  connection  with  the  functioning  of  the 
European Competition Network, such as: 

8 

Year N is the year in which implementation of the proposal/initiative starts. 

EN 

54 

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 

 

 

 

 

costs related to the organisation of meetings; 

providing training for national competition authorities; 

printed material translated to all languages; 

issuing recommended practices/guidance translated into all languages; 

follow-up surveys/studies/evaluations. 

3.2.3.  Estimated impact on appropriations of an administrative nature 

3.2.3.1.  Summary  

The  proposal/initiative  does  not  require  the  use  of  additional  appropriations  of  an 
administrative nature. 

The human resources required will be met by staff from the DG who are already assigned to 
management of the action and/or have been redeployed within the DG, together if necessary 
with  any  additional  allocation  which  may  be  granted to  the  managing  DG  under  the  annual 
allocation  procedure  and  in  the  light  of  budgetary  constraints.  The  same  applies  for  the 
appropriations needed to cover other administrative expenditure. 

3.2.3.2.  Estimated requirements of human resources 

The proposal/initiative requires the use of human resources, as explained below: 

 Establishment plan posts (officials and temporary staff) 

XX 01 01 01 (Headquarters and Commission’s Representation 
Offices) 

XX 01 01 02 (Delegations) 

XX 01 05 01 (Indirect research) 

10 01 05 01 (Direct research) 

 External staff (in Full Time Equivalent unit: FTE)9 

XX 01 02 01 (AC, END, INT from the ‘global envelope’) 

XX 01 02 02 (AC, AL, END, INT and JED in the delegations) 

XX 01 04 yy 10 

- at Headquarters 

- in Delegations  

XX 01 05 02 (AC, END, INT - Indirect research) 

10 01 05 02 (AC, END, INT - Direct research) 

Other budget lines (specify) 

TOTAL 

Estimate to be expressed in full time equivalent units 

Year 
N 

Year 
N+1 

Year N+2 

Year N+3 

Unlimited 
duration 
(see point 1.6)  
(see point 1.6) 

5,5 

5,5 

5,5 

5,5 

5,5 

5,5 

5,5 

5,5 

5,5 

5,5 

9 

10 

AC=  Contract  Staff;  AL  =  Local  Staff;  END=  Seconded  National  Expert;  INT  =  agency  staff;  JED= Junior 
Experts in Delegations.  
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines). 

EN 

55 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
XX is the policy area or budget title concerned. 

The human resources required will be met by staff from the DG who are already assigned to management of the action and/or 
have  been  redeployed  within  the  DG,  together  if  necessary  with  any  additional  allocation  which  may  be  granted  to  the 
managing DG under the annual allocation procedure and in the light of budgetary constraints. 

Description of tasks to be carried out: 

Officials and temporary staff  AD – Monitoring, coordination European Competition Network 

AST  -  IT  project  manager  of  systems  supporting  the  operation  of  ECN  network,   
coordination European Competition Network meetings 

External staff 

N/A 

3.2.4.  Compatibility with the current multiannual financial framework  

The  proposal/initiative  is  compatible  with  the  current  multiannual  financial  framework  and 
the  present  financial  programming  of  the  ISA2  programme,  no  additional  resources  are 
necessary. 

3.2.5.  Third-party contributions  

The proposal/initiative does not provide for co-financing by third parties. 

3.3. 

Estimated impact on revenue  

The proposal/initiative has no financial impact on revenue. 

EN 

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   EN