Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL setting out the conditions and procedure by which the Commission may request undertakings and associations of undertakings to provide information in relation to the internal market and related areas
Date: 2017-05-02
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: EU competence, EU initiative, administrative cooperation, application of EU law, cross-frontier data flow, data collection, exchange of information, single market, trade information, type of business

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   EUROPEAN COMMISSION  Brussels, 2.5.2017  COM(2017) 257 final 2017/0087 (COD)   Compliance Package Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL setting out the conditions and procedure by which the Commission may request undertakings and associations of undertakings to provide information in relation to the internal market and related areas {SWD(2017) 215 final} {SWD(2017) 216 final} {SWD(2017) 217 final}  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
Europe  is  home  to  the  world’s  largest  single  market1  where  citizens  and  businesses  benefit 
from  the  right  to  work,  study,  travel,  establish  a  business,  and  provide  goods  and  services 
across  borders.  All  this  comes  with  the  guarantees  of  health,  safety,  and  environmental  and 
consumer  protection  granted  by  EU  legislation.  For  citizens  and  businesses  to  fully  enjoy 
these rights and to ensure they retain confidence in the single market, it is essential that EU 
rules  are  complied  with.  Therefore,  in  its  Communication  ‘Upgrading  the  Single  Market: 
more opportunities for people and business’ the Commission announced that it would set up a 
smart enforcement strategy. This strategy pursues ‘a holistic approach, covering all stages of 
policy-making  from  policy  design,  implementation,  to  information,  in  line  with  the  Better 
Regulation approach. This includes better integration of evaluation and enforcement aspects 
in  policy  design,  better  assistance  and  guidance  to  Member  States  in  the  implementation  of 
Single  Market  rules  and  a  more  consistent  and  efficient  enforcement  policy  aimed  at 
improving overall compliance with Single Market rules and EU law in general’2.  

One  of  the  difficulties  encountered  in  ensuring  internal  market  rules  are  complied  with  is 
timely access to reliable data. For this reason, the Commission announced that ‘it will propose 
a regulatory initiative allowing it to collect reliable information directly from selected market 
players, with a view to safeguarding and improving the functioning of the Single Market’3. 

In the same line, in its communication ‘EU Law: Better Results through Better Application’, 
the Commission highlighted the importance of a robust and efficient enforcement system and 
outlined  that  enforcement  supports  and  complements  the  delivery  of  policy  priorities.  It 
explained that its ‘current enforcement policy involves monitoring how EU law is applied and 
implemented, solving problems with Member States so as to remedy any possible breaches of 
the  law,  and  taking  infringement  action  when  appropriate’4.  However,  ensuring  the  correct 
and full application of EU law remains a challenge. Therefore the Commission has proposed a 
series of measures to strengthen the enforcement system to benefit citizens and businesses and 
ensure their rights in the single market are respected. ‘Effective enforcement of EU rules […] 
matters to Europeans and affects their daily lives’. 

In  certain  specific  instances,  access  to  reliable  information  about  the  conduct  of  market 
participants  is  needed  to  enforce  internal  market  rules,  in  particular  market  information 
concerning private firms. This proposal does not aim at creating new enforcement powers for 
the  Commission  such  as  the  powers  to  pursue  infringements  of  Union  law  in  the  internal 
market  area  against  individual  market  participants.  This  Regulation  aims  to  help  the 
Commission  monitor  and  enforce  internal  market  rules  by  enabling  it  to  timely  obtain 
comprehensive  and  reliable  quantitative  and  qualitative  information  from  selected  market 
players  through  narrowly  targeted  information  requests.  The  proposed  Regulation  will  help 
the Commission ensure that the single market rights of citizens and businesses are respected, 
and will help strengthen cooperation with Member States. It will also ‘help the Commission to 
propose improvements where evaluation shows that enforcement deficits are due to flaws in 

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4 

In  this  Explanatory  Memorandum  the  expressions  'single  market'  and  'internal  market'  are  used 
interchangeably. 
COM(2015)550, 28.10.2015, p. 16 
Ibid., p. 17. 
C(2016)8600, OJ C18, 19.1.2017, p.10. 

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the relevant sectoral legislation’5. The proposed Regulation is intended for specific instances 
where  the  benefits  of  quick  and  precise  enforcement  clearly  outweigh  the  burden  and  costs 
imposed on the undertakings or associations of undertakings involved. 

This  new tool will be  used  in  areas where  the EU can  deliver  tangible results that are most 
important  to  citizens  and  businesses.  With  more  efficient  enforcement  tools  the  EU  will  be 
able to act and ensure full compliance more quickly and more effectively in its chosen priority 
areas. 

• 

Consistency with existing policy provisions in the policy area 

The proposal is consistent with Article 3(3) of the Treaty on European Union (TEU), which 
sets  out  the  establishment  of  an  internal  market  as  one  of  the  EU’s  main  objectives,  in 
cooperation  with  the  Member  States.  It  is  also  consistent  with  Article  26  TEU,  which 
empowers  the  EU  to  adopt  measures  to  ensure  the  internal  market  functions  properly,  and 
with Article 17 TEU, which entrusts the Commission with ensuring that Treaty rules and EU 
secondary  legislation  are  applied  and  with  overseeing  the  application  of  EU  law.  This 
proposal does not aim to create a new procedure for enforcing EU law. Rather, the proposed 
information  tool  may  be  used  in  the  context  of  the  existing  procedures,  such  as  the 
infringement  procedure  envisaged  by  Article  258  of  the  Treaty  on  the  Functioning  of  the 
European Union (TFEU). 

• 

Consistency with other Union policies 

The  Commission  already  has  investigative  powers  to  enforce  the  EU  competition  rules 
necessary for the functioning of the internal market. The use of these powers has proven very 
effective  in  ensuring  that  those  rules  are  applied:  for  instance,  in  the  field  of  State  aid,  the 
Commission was able to directly collect vital firm-level information in two high impact cases, 
resulting in the recovery of unpaid taxes consisting of unlawful State aid6. 

In addition, this proposal is consistent with other EU legal instruments that grant EU bodies or 
national  authorities  the  power  to  collect  firm-level  information  and  share  it  with  the 
Commission  in  specific  areas  related  to  the  internal  market  (e.g.  consumer  protection, 
financial  services,  market  surveillance,  network  industries).  The  Commission  will  only  use 
the proposed Regulation as a last resort if other means to obtain essential information fail. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This proposal is based on Articles 43(2), 91, 100, 114, 192, 194(2) and 337 TFEU. 

Article  337  TFEU  provides  for  the  Commission's  power,  within  the  limits  and  under  the 
conditions  which  the  Council  may  lay  down  acting  by  a  simple  majority,  collect  any 
information required for the performance of the tasks entrusted to it. The Court of Justice of 
the European Union (CJEU) has already held that this Article may be used as a legal basis for 
secondary legislation concerning the general activity of collecting information carried out by 
the Commission, without requiring that such collection be needed to achieve the objectives of 
a  given  EU  policy7.  However,  the  CJEU  has  also  said  that  an  EU  act  does  not  fall  under 
Article  337  TFEU  solely  because  it  aims  to  establish  a  system  to  collect  information8.  It  is 

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COM(2015)550, p. 16. 
Cf. Commission press release of 21 October 2015.  
Judgements in cases C-426/93, §22 and C-490/10, §64. 
C-490/10, §68. 

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therefore  necessary  to  examine  whether  this  initiative,  as  regards  its  aim  and  content,  is 
needed to achieve the objectives specifically assigned to an EU policy. This initiative aims to 
improve the Commission’s access to market information necessary to carry out its tasks under 
Article 17 TEU, in orders to address serious problems with the application of internal market 
rules.  This  can  only  help  to  improve  the  Commission’s  work  in  ensuring  the  application  of 
EU law in that area. Therefore, this initiative is needed to achieve the objective of ensuring 
the  functioning  of  the  internal  market  as  referred  to  in  Article  26  TFEU.  For  this  reason, 
Article  337  TFEU  must  be  supplemented  by  an  internal  market  legal  basis,  such  as  Article 
114 TFEU which provides for the adoption of measures necessary for the smooth functioning 
of the internal market. Improved Commission’s work in that context would help prevent the 
emergence of obstacles to the functioning of the internal market9, which is one of the policy 
objectives  envisaged  by  Article  114  TFEU10.  Therefore,  choosing  Article  114  TFEU  to 
supplement  Article  337  TFEU  is  justified.  Beyond  Article  114  TFEU,  the  use  of  other 
Articles of TFEU as additional specific legal base is appropriate in order to cover the internal 
market  fields  that  rely  on  specific  articles  in  TFEU  for  legislative  action:  i.e.  Articles  43 
(agricultural  goods),  91  and  100  (transport)  or  194  (energy);  or  areas  related  to  the  internal 
market: Article 192 (environment). 

Articles  114  and  337  TFEU  have  been  jointly  used  as  the  legal  basis  in  a  previous  EU 
legislative act entrusting the Commission with  information  collection powers  in  the internal 
market area: Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 
September  2015  laying  down  a  procedure  for  the  provision  of  information  in  the  field  of 
technical regulations and of rules on Information Society services11. 

• 

Subsidiarity (for non-exclusive competence)  

EU action is needed to strengthen the Commission’s access to market information necessary 
to addressing serious problems with applying EU law in the area of the internal market when 
carrying out its tasks under Article 17 TEU. The information tool established by this initiative 
is a last resort measure when all other means to obtain information have failed. Thus, it will 
be used only for those cases where national intervention would not be successful, due to their 
scale or effects, and the EU would be better placed to act. In particular, the information tool 
will  be  used  when  those  problems  have  impacts  beyond  one  Member  State  and  addressing 
them  requires  collecting  information  uniformly  and  consistently  from  selected  market 
operators  in  more  than  one  Member  State.  Such  EU  action  would  fulfil  the  necessity 
requirement  and  would  only  strengthen  the  Commission’s  ability  to  ensure  EU  law  is 
respected in the internal market area. 

In terms of added value, this tool will simplify coordination between the Commission and the 
Member  States  in  cases  with  a  strong  cross-border  dimension  when  information  is  needed 
from  market  participants  operating  in  more  than  one  Member  State.  Such  EU  action  would 
also  enable  timely  access  to  the  information,  ensure  that  the  cross-border  data  collected  is 

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The CJEU has recognised that, when enforcing EU law and in the absence of investigative powers of its 
own,  the  Commission  largely  relies  on  the  information  provided  by  complainants,  public  and  private 
bodies and the Member States. Under those conditions, enforcement action must rely on the existing, 
imperfect, legal framework for collecting information, resulting in uneven and insufficient collection of 
firm-level  information.  As  a  result,  such  enforcement  action  is  rendered  more  difficult  or,  in  some 
instances,  impossible,  which  may  result  in  obstacles  to  the  proper  functioning  of  the  internal  market 
being created and not properly addressed. 
See judgments of the CJEU in cases C-380/03, §§ 38 to 42 and 80; C-434/02, §§ 31-34; and C-376/98, 
§ 86. 
OJ L 241, 17.9.2015, p. 1. 

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comparable  and  result  in  more  efficient  enforcement,  thus  reducing  the  total  administrative 
burden on the firms and public authorities involved. 

This initiative, while respecting the Commission’s obligation as ‘guardian of the Treaties’ to 
oversee the application of  EU  law,  does  not  deprive  Member  States  of  their  important  role, 
alongside  the  Commission,  in  applying  rules  in  the  fields  of  the  internal  market  or  other 
related areas. They continue to have their own investigative powers and remain free to extend 
them.  Moreover,  the  operation  of  this  Regulation  will  involve  Member  States  in  different 
instances,  reflecting  the  principle  of  sincere  cooperation  between  the  Commission  and  the 
Member States. 

In  particular,  any  Commission  decision  stating  its  intention  to  use  the  power  to  request 
information  from  undertakings  or  associations  of  undertakings  under  this  initiative  will  be 
notified  to  the  Member  State  or  the  Member  States  concerned.  Furthermore,  this  initiative 
establishes  mechanisms  for  the  sharing  of  information  between  the  Commission  and  the 
Member  States  in  relation  to  the  requests  for  information  and  the  replies  to  such  requests, 
without prejudice to professional secrecy obligations. 

It  is  further  consistent  with  the  TFEU  in  so  far  as  it  expects  the  Commission  to  be  able  to 
collect  the  information  required  for  the  performance  of  the  tasks  entrusted  to  it,  under  the 
appropriate conditions fixed by the legislative power. 

• 

Proportionality 

This  proposal  is  proportionate  to  the  objectives  pursued  and  does  not  go  beyond  what  is 
necessary  to  achieve  them.  First,  there  would  need  to  be  a  serious  problem  with  the 
application  of  EU  law  in  the  areas  covered  by  the  scope  of  the  Regulation.  Second,  this 
investigative  tool  is  to  be  used  only  as  a  last  resort,  when  no  other  alternative  way  of 
obtaining information relevant for addressing such a problem is capable of delivering results. 
Third, the Commission will need to demonstrate, in a formal decision, that such information is 
necessary  to  tackle  the  problem,  that  the  information  is  likely  to  be  readily  available  to  the 
addressees of the requests and that other means to obtain the information have failed. Fourth, 
the  information  requests  would  be  narrowly  targeted,  both  as  regards  the  length  of 
information  requests  and  the  number  of  respondents.  The  Commission’s  compliance  with 
these  conditions  would  be  subject  to  judicial  review  before  the  CJEU.  Finally,  the  overall 
administrative  burden  is  minimised,  both  for  businesses  (by  excluding  micro-undertakings 
and minimising the impact on small and medium-sized enterprises (SMEs) – see below) and 
public authorities (by avoiding inefficient coordination mechanisms between the Commission 
and the Member States, while ensuring full transparency towards them). 

The proposal allows the Commission to impose penalties on undertakings or associations of 
undertakings  that  intentionally  or  through  gross  negligence  fail  to  comply  with  information 
requests  or  decisions  issued  under  the  proposed  Regulation.  Penalties  are  not  intended  to 
correct  any  underlying  market  behaviour  by  undertakings.  The  threat  of  penalties  is  an 
incentive to ensure that addressees of information requests reply on time and in a complete, 
accurate  and  non-misleading  manner.  The  proposal  establishes  the  maximum  level  of 
penalties that are modelled on the rules in the State aid field where they serve as a deterrent. 
However, the proposal does not require the Commission to automatically impose penalties on 
non-responding  undertakings,  nor  does  it  establish  a  minimum  penalty  amount,  as  the 
Commission needs to carry out a case-by-case assessment with due regard to proportionality, 
especially  in  the  case  of  SMEs.  Any  Commission  decision  imposing  penalties  would  be 
subject to judicial review.  

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• 

Choice of the instrument 

A regulation is an appropriate legal instrument for establishing the rules that aim to strengthen 
the Commission’s direct access to relevant information12. Indeed, both the procedure leading 
to  the  adoption  of  an  information  request  by  the  Commission  and  the  possibility  of  the 
obligations imposed on undertakings, including sanctions as the case may be, should be laid 
down in a Regulation. Compared with the possible harmonisation of national rules through a 
directive to achieve that goal, a regulation would result in more legal certainty and be liable to 
ensure  a  uniform  interpretation.  A  standalone  instrument  would  also  avoid  interfering  with 
existing legal instruments that provide investigative powers to the Commission in other policy 
areas13. 

3. 

• 

OF 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 
Stakeholder consultations15 

EX-POST 

EVALUATIONS14, 

STAKEHOLDER 

The Commission carried out a public consultation on this initiative, between 2 August and 7 
November 2016. It received 71 responses: 44 from the business sector16; 16 from consumers, 
non-governmental organisations or civil societies; and 11 from public authorities. Participants 
came from 18 EU Member States (68), an EEA country (1) and a non-European country (2). 
Responses showed that firms are often reluctant to share commercially-sensitive information 
with  public  authorities,  not  only  when  responding  to  public  consultations  but  even  when 
needed to support allegations of infringements of their rights. Respondents reported that they 
would  be  willing  to  provide  sensitive  information  to  the  Commission  if  confidentiality  was 
assured  and  the  administrative  burden  limited.  However,  several  firms  supported  only 
voluntary participation in data requests. 

In addition, the Commission has carried out targeted consultations with several large business 
associations  who  expressed  reservations  about  empowering  the  Commission  to  request 
information from firms beyond the sphere of competition law. They raised concerns about the 
protection  of  commercially-sensitive  data,  the  administrative  burden,  and  possible  fines  for 
not responding to requests. Firms expressed frustration at the Commission’s slow response to 
cases involving infringements of EU rules by Member States. 

At  the  Council  working  party  on  competitiveness  and  High  Level  Group  meetings,  the 
Member States enquired about the conditions to be satisfied by the Commission for requesting 
information,  their  role  in  the  process,  the  resulting  administrative  burden,  and  the 
proportionality of any sanctions. 

Stakeholders’  suggestions  have  been  largely  taken  on  board,  particularly  regarding  the  calls 
for  the  limited  use  of  the  tool  (translated  into  the  (pre-)  conditions  for  the  use  of  the 

12 

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16 

The use of Article 114 TFEU as legal basis for a regulation has already been accepted by the CJEU. See 
case C-270/12, §§97 and seq. 
E.g.  Regulation  (EU)  2015/1589  of  13  July  2015  laying  down  detailed  rules  for  the  application  of 
Article  108  of  the  Treaty  on  the  Functioning  of  the  European  Union,  OJ  L  248,  24.9.2015.  This 
Regulation  has  a  different  legal  basis  with  a  different  legislative  procedure  and  was  tailored  to  the 
specific objectives, procedural steps and powers of the Commission in the area of the State aid. 
Not applicable. 
See Annex 2 of the Impact Assessment for more detail. 
Business  associations  (31),  including  associations  representing  SMEs  only;  and  firms  (13),  including 
SMEs and micro enterprises (9). Altogether, the responding business associations represented over 20 
million firms. 

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investigative  tool  –  including  the  role  of  the  Member  States)  and  the  administrative  burden 
(for  example,  the  possibility  of  requesting  only  information  that  is  readily  available  to  the 
responding firms). The questions of the safeguards for protecting confidential information and 
of  penalties  for  non-reply  were  addressed  based  on  the  established  practices  in  the 
competition law domain. 

• 

Collection and use of expertise 

The Commission did not rely on specific external expertise for this initiative. 

• 

Impact assessment 

The  Impact  Assessment  Report  explained  how  the  lack  of  reliable  and  accurate  firm-level 
information available to the Commission and Member States creates a problem in situations 
when access to such information is needed to timely enforce internal market rules. The report 
further  examined,  beyond  the  existing  baseline  scenario,  different  policy  options  to  address 
that  problem,  namely:  (1)  the  voluntary  exchange  of  best  practices  between  Member  States 
and with the Commission, and developing guidance on collecting firm-level information; (2) 
the  lifting  of  national  rules  preventing  Member  States  authorities  from  sharing  firm-level 
information they already have or could get access to with the Commission and other Member 
States; (3) the introduction of residual investigative powers at national level17 so that Member 
States are able to collect firm-level information in all cases and share it with the Commission; 
(4)  the  introduction  of  an  investigative  tool  of  last  resort  for  the  Commission  to  use  where 
suspected obstacles to the functioning of the internal market may exist and the requested firm-
level  information  is  necessary  for  timely  and  effective  decision-making  and  not  readily 
available through other means; and (5) a combination of options 2 and 4. Options 2, 3 and 4 
are of a legislative nature. Discarded options include expanding the coverage of EU statistics 
and introducing regular reporting obligations for firms. 

The  introduction  of  an  investigative  tool  of  last  resort  for  the  Commission  (option  4)  was 
considered the best policy choice in terms of subsidiarity and proportionality, while also being 
the  most  effective  and  cost-efficient  option.  Option  4  overcomes  the  coordination  and  legal 
jurisdiction problems  in  the  event  that  Member  States  were  acting  alone  when  dealing  with 
cases that have cross-border dimension. It should result in having more robust information on 
malfunctions in the internal market. In turn, this should enable the Commission and Member 
States  to  ensure  a  higher  degree  of  compliance  with  internal  market  rules.  This  would 
strengthen  consumer  trust  in  the  internal  market  and  contribute  to  fulfilling  its  potential. 
Better access to information should result in better-informed enforcement of internal market 
rules  at  Member  State  level,  limiting  infringement  proceedings  against  Member  States. 
Businesses and  consumers would benefit from  the better functioning  of the internal  market: 
e.g. lower entry barriers, greater competition, more competitiveness and easier/cheaper cross-
border (and potentially international) expansion. 

The  total  annual  administrative  cost  for  undertakings  or  associations  of  undertakings  (i.e. 
compiling  the  information  for  preparing  replies  and  legal  advice)  is  estimated  at  between 
€370, 000 and €610, 00018. A slight additional cost could result from the submission of non-
confidential replies (i.e. to protect the respondent’s business secrets). The costs derived from 
the  preferred  option  for  Member  States  are  negligible  (see  below,  Section  4,  for  the 
Commission). There would be no direct social or environmental cost if the preferred option is 
used. 

17 
18 

Option 3 also integrates option 2. 
Assuming five requests per year (but several addressees per request). 

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The  Impact  Assessment  Report  and  an  Executive  Summary  Sheet19  were  submitted  to  the 
Regulatory Scrutiny Board. The board initially issued a negative opinion on 20 January 2017, 
followed  by  a  positive  opinion  with  reservations  on  23  March  201720.  The  board  requested 
that the report be adjusted in accordance with its recommendations21. The report now clearly 
focuses on the objective of addressing the lack of relevant information needed to ensure the 
application  of  internal  market  rules  in  those  specific  instances  in  which  information  is 
necessary and otherwise not available. It also better explains the conditions the Commission 
must  meet  before  it  can  use  the  investigative  tool  (see  the  above  sub-heading  on 
proportionality),  including  the  need  to  demonstrate  that  the  required  information  is  not 
available from other sources (the last resort aspect). Moreover, the report better presents the 
views of stakeholders22. 

• 

Regulatory fitness and simplification 

When  issuing  information  requests  to  undertakings  and  associations  of  undertakings,  the 
Commission  is  required  to  make  a  careful  selection  of  addressees  of  the  requests,  so  that 
requests are only addressed to undertakings and associations of undertakings that are able to 
provide  sufficiently  relevant  information  (Article  5(3)).  Normally,  only  large  undertakings 
with either a strong market position or significant trade volumes will be able to provide the 
relevant information to the Commission. Unlike SMEs, larger undertakings usually operate at 
a larger scale and with corporate sophistication allowing for a relatively easy retrieval of the 
requested  information.  Thus  the  resulting  administrative  burden  and  impact  on  these 
undertakings would not appear disproportionate.  

SMEs may theoretically be asked to reply to information requests under this proposal (e.g. in 
specific sectors or market where they may have a strong market position). However, in view 
of the volume of their economic activity, it is anticipated that this would probably not happen. 
Nevertheless if it is necessary to send a request to an SME, the proposal would minimise its 
compliance costs: the Commission is specifically required to take due account of the principle 
of  proportionality  when  considering  the  scope  of  the  information  requests  to  SMEs (Article 
5(3). The estimated cost of replying for an individual SME ranges from €300 to €1, 000 per 
request  with  an  additional  potential  legal  advice  cost  of  €1, 000,  roughly  25 %  of  the 
estimated response cost for a large undertaking. 

Micro-undertakings  are  exempted  from 
imposing 
disproportionate  administrative  burden  on  them,  considering  in  particular  that  they  are 
unlikely to be in a position to provide sufficiently relevant information. 

this  proposal 

to  avoid 

in  order 

Firms  of  all  sizes  will  benefit  from  a  better  functioning  internal  market,  thanks  to  more 
targeted  enforcement  actions  by  the  Commission  and  the  Member  States  to  ensure  the 
application of EU law, inter alia in the field of the internal market. 

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22 

http://ec.europa.eu/transparency/regdoc/?fuseaction=ia 
Ibid. 
The  Regulatory  Scrutiny  Board  noted  that:  ‘The  report  is  still  not  sufficiently  clear  and  sometimes 
inconsistent  with  regard  to  the  scope  of  the  initiative.  In  several  places  the  report  still  presents  the 
SMIT  as a  solution  to  general  problems of  data  availability,  or  as a  source of  information  for  single 
market  related  policy  purposes  that do  not stem  from  specific  enforcement  deficiencies,  while  it  does 
not provide justification to do so. (2) The report makes clear that the tool would be of last resort, but it 
is not clear about safeguards or the conditions that might trigger  investigations. (3) The main report 
still does not reflect clearly enough Member States' and business interests' respective views.’ 
See the Impact Assessment Report for further explanation on the adjustments made. 

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The  proposal  does  not  prescribe  any  particular  format  or  communication  channel  for 
processing  the  requests  for  information,  being  neutral  as  regards  information  and 
communication technology (ICT) developments. 

• 

Fundamental rights 

This  proposal  respects  fundamental  rights  and  observes  the  principles  recognised,  in 
particular,  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  It  includes 
safeguards  and  guarantees  taking  due  account  of  the  legitimate  interest  of  undertakings  to 
protect  their  business  secrets:  in  Article  7  (protection  of  confidential  information)  and 
Article 16 (professional secrecy) of the proposal (see Article 7 of the Charter). The proposal 
also complies with the right to the protection of personal data (see Article 8 of the Charter) 
and is consistent with rules on access to documents held by the Commission (see Article 41 of 
the  Charter).  The  proposal  respects,  in  so  far  as  addressees  of  information  requests  may 
challenge them before the CJEU, the right to an effective remedy and a fair trial (see Article 
47 of the Charter). The rules on the possible imposition of fines or periodic penalty payments 
respect the right to presumption of innocence and the proportionality of penalties (see Article 
48 and 49 of the Charter). 

4. 

BUDGETARY IMPLICATIONS 

This  initiative  does  not  create  an  additional  enforcement  scheme  to  be  applied  by  the 
Commission. Instead, it gives the Commission a specific investigative tool of last resort, to be 
used  as  part  of  existing  enforcement  procedures  and  actions.  It  is  estimated  that  the 
Commission  could incur annual data collection and analysis costs of between  €120,000 and 
€430,000,  assuming  five  information  requests  are  made  per  year23.  The  Commission  costs 
indicated  above  would  not  require  any  new  budgetary  needs,  only  the  redeployment  of 
existing staff and infrastructure. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

undertakings 

The  Commission  will  monitor  the  use  of  the  Regulation  with  a  view  to  assessing  its 
effectiveness  and  proportionality. It  will  rely  on  the  following  criteria: exceptionality  of  the 
use  of  the  Regulation,  cooperation  of  the  addressees  of  the  request  for  information  in 
providing such information and the quality of the information collected. The Commission will 
record the necessary data in that regard (e.g. annual use of the tool, area of the internal market 
concerned, 
timeliness, 
comprehensiveness, accuracy and quality of responses, response rate, whether the use of the 
tool resulted in better enforcement by the Commission). It will carry out follow-up voluntary 
feedback  surveys  addressed  to  firms  covered  by  the  requests  to  gauge  their  opinion  of  the 
process. Moreover, the Commission will also monitor the usefulness of this tool (e.g. success 
rate  of  infringement  proceedings,  stakeholders’  feedback  on  the  issue).  The  results  of  these 
monitoring activities would be assessed after five years of application of the Regulation. The 
Commission must draw up a report on the application of the Regulation every two years. 

undertakings 

associations 

covered, 

or 

of 

• 

Detailed explanation of the specific provisions of the proposal 

Chapter I (General provisions) presents the subject matter, scope and definitions (Articles 1 to 
4). It entrusts the Commission (Article 4) with the power to request information directly from 

23 

The Commission is not obliged to use the investigative tool. 

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undertakings  and  associations  of  undertakings  for  addressing  a  serious  problem  with  the 
application  of  Union  law  which  risks  undermining  the  attainment  of  an  important  Union 
policy objective. 

Chapter II sets out the conditions and procedure for requesting information. Article 5 limits 
the  Commission's  power  to  act  as  a  measure  of  last  resort:  where  it  cannot  obtain  the 
information from other sources in an adequate, sufficient or timely manner. The Commission 
must adopt a prior decision stating its intention to use the power in question, explaining the 
suspected  serious  problem,  the  information  sought,  why  such  information  is  needed,  why 
other means to obtain such information failed, and the criteria for selecting the addressees of 
the  requests  (which  cannot  be  micro-undertakings).  The  Commission  is  only  empowered  to 
request  information  that  the  addressee  of  the  request  is  able  to  provide.  The  concerned 
Member  State  or  States  will  be  the  addressees  of  the  prior  decision  and  the  Commission  is 
obliged to notify it to the Member State or States concerned without delay. Article 6 provides 
for  the  procedure  to  be  followed  for  requesting  information:  the  Commission  may  require 
undertakings or associations of undertakings to provide information by simple request or by 
decision and it must inform the Member State where the recipient of the request is situated. 
Where the Commission has launched a formal infringement procedure pursuant to Article 258 
TFEU, the Commission is obliged to provide the Member State concerned by the procedure 
with a copy of all requests for information issued in the context of that procedure, irrespective 
of  where  the  registered  seat  of  the  undertaking  or  association  of  undertakings  is  situated. 
Article 7 deals with the answers to the requests and the protection of confidential information. 
In particular, these provisions oblige the Commission to forward the answers received to the 
Member  State  concerned  by  the  request  where  they  are  relevant  for  a  formal  infringement 
procedure  pursuant  to  Article  258  TFEU  against  the  Member  State  concerned.  Where  an 
answer includes information that is confidential vis-à-vis that Member State, the Commission 
shall only forward the non-confidential version of the submission. Article 8 restricts the use of 
the information collected to the purpose established in Article 4. 

Chapter III (Articles 9 to 13) establishes the rules on fines and periodic penalty payments if a 
respondent supplies inaccurate or misleading information or if, in response to request made by 
formal  Commission  decision,  it  provides  incomplete  information  or  no  information  at  all. 
These rules follow the model of Regulation (EU) 2015/1589 applicable in the State aid area. 

Chapter IV (Final provisions  – Articles 14 to 19) sets out rules on extension of time-limits; 
publication of Commission decisions; professional secrecy obligations for the Member States; 
data  protection  (EU  officials  are  already  bound  by  similar  obligations  under  Article  339 
TFEU); reporting obligations for the Commission and the entry into force of the Regulation. 

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2017/0087 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

setting out the conditions and procedure by which the Commission may request 
undertakings and associations of undertakings to provide information in relation to the 
internal market and related areas 

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 43(2), 91, 100, 114, 192, 194(2) and 337 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 Committee,24 
Having regard to the opinion of the Committee of the Regions,25 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

In  accordance  with  Article  3(3)  of  Treaty  on  European  Union  (TEU),  the 
establishment of an internal market is one of the main objectives to be reached by the 
Union in cooperation with the Member States. Pursuant to Article 26(1) of the Treaty 
on  the  Functioning  of  the  European  Union  (TFEU),  the  Union  shall  adopt  measures 
with the aim of establishing or ensuring the functioning of the internal market. Under 
Article  26(2)  TFEU,  the  internal  market  shall  comprise  an  area  without  internal 
frontiers  in  which  the  free  movement  of  goods,  persons,  services  and  capital  is 
ensured. The internal market has generated new opportunities and economies of scale 
for European undertakings, has created jobs, has offered greater choice at lower prices 
for consumers and has enabled European citizens to live, study and work in the Union. 
Despite  all  the  progress  made,  significant  difficulties  in  the  establishment  and 
functioning of the internal market remain and European citizens and undertakings are 
unable  to  reap  the  full  benefits  of  the  internal  market.  In  certain  cases,  suboptimal 
information affecting the action by the Commission on the application of Union law in 
the  area  of  the  internal  market  increases  the  risk  of  the  emergence  of  difficulties  to 
trade  in  the  internal  market  resulting  from  uncoordinated  national  enforcement 
activities  or  multifarious  development  of  national  regulatory  solutions  to  those 
problems. 

(2) 

Article 337 TFEU provides for the Commission's power, within the limits and under 
the conditions which the Council may lay down acting by a simple majority, to collect 
any information required for the performance of its tasks. However, in Case C-490/10 
European  Parliament  v  Council,  the  Court  has  clarified  that  where  the  collection  of 

24 
25 

OJ C , , p. . 
OJ C , , p. . 

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information  contributes  directly  to  the  achievement  of  the  objectives  of  a  given 
European Union policy, the act laying down the conditions for such collection must be 
based on the legal basis which relates to that policy. This Regulation provides not only 
for a framework in which the Commission can collect information from undertakings 
and  associations  of  undertakings,  but  also  for  measures  to  enforce  the  requests  for 
information.  Therefore,  while  taking  fully  into  account  the  fact  that  the Commission 
derives  its  power  to  collect  information  directly  from  the  Treaty,  this  Regulation 
should be based, in addition to Article 337 TFEU, on the provisions of Articles 43(2), 
91, 100, 192 and 194(2) TFEU and also of Article 114 TFEU, which provides for the 
adoption  of measures  necessary  for the establishment and  functioning  of the internal 
market, including where differences between national rules are such as to obstruct the 
fundamental freedoms or where it is necessary to prevent the emergence of difficulties 
in the establishment and functioning of the internal market. 

Detecting  and,  where  appropriate,  addressing  such  difficulties  in  an  efficient  and 
effective  manner  requires  timely  access  to  comprehensive,  accurate  and  reliable 
quantitative and qualitative market information. This is particularly the case when the 
Commission  acts  as  guardian  of  the  Treaties,  pursuant  to  Article  17(1)  TEU  which 
entrusts the Commission with the tasks to ensure the application of the Treaties, and of 
the  measures  adopted  by  the  institutions  pursuant  to  them,  and  to  oversee  the 
application  of  Union  law.  As  established  by  the  Court  of  Justice  on  numerous 
occasions in the context of infringement proceedings under Article 258 TFEU, it is the 
Commission’s  responsibility  to  place  before  the  Court  of  Justice  all  the  relevant 
factual information to prove the existence of an infringement. Such information may 
include in certain instances market information, needed to enable the Court of Justice 
to establish whether the Union law has been breached. 

The  Commission  does  not  have  general  investigative  powers  of  its  own  to  help  it 
enforce Union law in the area of the internal market. The existing investigative powers 
related  to  the  competition  rules,  as  prescribed  by  Council  Regulation  (EC)  No 
1/2003,26  Council  Regulation  (EC)  No  139/200427  and  Council  Regulation  (EU) 
2015/1589,28  are  limited  by  their  legal  basis  to  defined  areas  and  do  not  allow  the 
collection and use of the gathered information for other internal market-related policy 
purposes. 

As  recognised  by  the  Court  of  Justice,  when  enforcing  Union  law,  the  Commission, 
whereas  it  may  rely  on  indicia,  is  largely  reliant  on  the  information  provided  by 
complainants,  by  public  and  private  bodies,  and  by  the  Member  States  concerned. 
Pursuant  to  Article  4(3)  TEU,  Member  States  are  under  the  duty,  as  recalled  several 
times  by  the  Court  of  Justice,  to  facilitate  the  Commission’s  tasks,  including  in 
particular  its  role  as  guardian  of  the  Treaties.  However,  Member  States  may  not 
always  have  access  to  the  relevant  market  information  that  the  Commission  would 
need to perform its tasks or their national rules on information collection may prevent 
them from disclosing the information collected. 

(3) 

(4) 

(5) 

26 

27 

28 

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 L 1, 4.1.2003, p. 1). 
Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of  concentrations  between 
undertakings (OJ L 32, 5.2.2004, p. 1). 
Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of 
Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9). 

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(6) 

(7) 

To complement the information received from Member States, the Commission relies 
on voluntary cooperation from interested parties, in particular complainants. However, 
in  certain  instances  of  complex  cases  with  cross-border  dimension,  the  Commission 
would  need,  in  order  to  perform  a  sound  analysis,  to  complete  the  information 
received through these channels to ensure, for instance, that it is fully accurate or that 
information  from  different  Member  States  is  in  a  comparable  format.  Moreover,  the 
Commission may not always rely on official statistics for enforcement action, as there 
is  a  time  lag  in  their  production  and  they  may  not  always  be  sufficiently  detailed or 
disaggregated for the purposes of dealing with specific cases. 

Although  the  current  regulatory  framework  as  regards  the  Commission’s  means  to 
obtain information for addressing difficulties to the establishment and functioning of 
the  internal  market  rules  works  efficiently  for  a  great  majority  of  cases,  challenges 
arise  in  specific  situations  where  detailed,  comparable,  up-to-date,  and  often 
confidential, specific market data are necessary within a limited time frame. Indeed, a 
sound  economic  analysis  is  particularly  appropriate  for  assessing  the  existence  of 
difficulties  to  the  establishment  and  functioning  of  the  internal  market  in  complex 
cases  with  cross-border  dimension,  notably  when  those  cases  relate  to  fast-moving 
markets,  new  economic  activities  or  new  business  models  challenging  existing 
economic assumptions. However, completing such assessment may turn to be difficult 
in the absence of sufficient and comparable information. This renders the task of the 
Commission  to  ensure  the  application  of  Union  law  more  difficult  in  those  specific 
situations. 

(8)  Where  detailed,  comparable,  up-to-date,  and  often  confidential  market  information 
could  only  be  obtained from  market  players  in  a  timely  manner,  it  appears therefore 
appropriate, as a last resort, to empower the Commission, within the limits and under 
the conditions laid down in this Regulation, to request undertakings and associations 
of  undertakings  to  directly  provide  it,  in  a  timely  manner,  with  comprehensive, 
accurate  and  reliable  quantitative  and  qualitative  market  information  where  other 
sources  of  information  have  proven  unavailable,  insufficient  or  inadequate.  To  this 
effect, the Commission should first adopt a decision stating why other means to obtain 
the necessary information have proven ineffective. It is understood that the notion of 
undertaking  has  the  same  meaning  as  in  other  areas  of  EU  law,  in  particular 
competition law. 

(9) 

To ensure that the operation of this Regulation will involve Member States, reflecting 
the principle of sincere cooperation between the Commission and the Member States 
stipulated  in  Article  4(3)  TEU,  it  is  appropriate  to  provide  that  any  Commission 
decision stating its intention to use the power to request information from undertakings 
or associations of undertakings under this Regulation shall be notified to the Member 
State or the Member States concerned without delay. 

(10)  Such  empowerment  does  not  aim  at  creating  new  enforcement  powers  for  the 
Commission such as, in particular, the powers to pursue infringements of Union law in 
the internal market area against individual market participants. Its purpose is rather to 
provide  the  Commission  with  additional  fact-finding  ability  where  this  is  strictly 
required for performing the task entrusted to the Commission by the TFEU to ensure 
the  application  of  Union  law  in  relation  to  the  aim  of  establishing  and  ensuring  the 
functioning  of  the  internal  market.  In  the  interest  of  the  establishment  of  a  fully 
functioning internal market, it is appropriate to clarify that such empowerment covers 
also those economic sectors within the internal market for which TFEU has foreseen 

EN 

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common  policies:  agriculture  and  fisheries  (excluding  the  conservation  of  marine 
biological resources), transport, environment and energy. 

(11)  For this investigative tool to be effective, the information sought should relate to the 
application  of  relevant  Union  law.  This  may  consist,  for  example,  of  factual  market 
data,  including  cost  structure,  pricing  policy,  products  or  services  characteristics  or 
geographical  distribution  of  customers  and  suppliers.  It  may  also  consist  of 
undertakings’ or associations of undertakings’ fact-based analysis of the functioning of 
the internal market, such as in relation to perceived regulatory and entry barriers or to 
costs of cross-border operations. In order to minimise costs of replying to requests for 
information,  such  requests  should  only  cover  information  that  is  likely  to  be  at  the 
disposal of the undertaking or association of undertakings concerned. 

(12)  When 

information 

issuing  requests  for 

to  undertakings  and  associations  of 
undertakings,  the  Commission  is  required  to  undertake  a  careful  selection  of 
addressees  of  the  requests,  so  that  requests  are  only  addressed  to  undertakings  and 
associations  of  undertakings  that  are  capable  of  providing  sufficiently  relevant 
information,  notably  larger  undertakings  in  the  relevant  Member  States.  These 
requests for information are aimed at solving a presumed, i.e. based on the available 
information,  serious  problem  with  the  application  of  Union  law  in  the  areas  of  the 
internal  market,  agriculture  and  fisheries  (excluding  the  conservation  of  marine 
biological resources), transport, environment and energy. Their aim is not to prosecute 
undertakings for the underpinning behaviour, if any. Accordingly, sanctions provided 
for  in  the  instrument  are  designed  to  address  exclusively  two  instances.  They  only 
cover  an  intentional  or  through  gross  negligence  lack  of  a  response  to  a  request  for 
information and an intentionally or through gross negligence incorrect, incomplete, or 
misleading reply. The collected information, if relevant, could also be used to provide 
insight  into  situations  where  undertakings  find  it  difficult  to  comply  with  the 
legislation,  with  a  view  to  improving  the  proper  application  of  the  internal  market 
rules.  With  a  view  to  avoid  disproportionate  administrative  burden  for  micro-
undertakings,  which  are  anyway  unlikely  to  be  in  a  position  to  provide  sufficiently 
relevant  information,  the  Commission  should  be  precluded  from  issuing  requests  for 
information to this category of undertakings. When issuing requests for information to 
small and medium-sized undertakings, the Commission should take due account of the 
principle  of  proportionality.  While  SMEs  are  unlikely  to  operate  at  a  larger  scale 
enabling them to significantly affect market outcomes, the information gathered from 
SMEs  could  prove  valuable  in  informing  the  Commission  on  difficulties  in 
establishment and functioning of the internal market. Information readily available to 
SMEs might be of anecdotal nature but it could still alert the Commission about single 
market difficulties SMEs might suffer from. SMEs would normally not and should not 
incur any significant additional costs of data gathering in response to this tool. Given 
their  relatively  weaker  bargaining  position  in  value  chains,  SMEs  might  be  more 
respecting 
forthcoming  with 
confidentiality  and  anonymity.  Resolving  a  difficulty 
the  single  market 
establishment and functioning could in particular benefit SMEs as it is often the small 
innovative firms which face the greatest barriers when trying to start up and scale up 
across the single market. For reasons of consistency and legal certainty, the definitions 

information  when  granted  a  procedure  duly 

in 

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of  ‘micro-undertaking’,  ‘small  undertaking’  and  ‘medium-sized  undertaking’  of 
Directive 2013/34/EU of the European Parliament and of the Council29 should apply. 

(13) 

In  the  interest  of  the  consistency  in  the  application  of  Union  law  in  the  area  of  the 
internal market as well as agriculture, fisheries (excluding the conservation of marine 
biological  resources),  transport,  environment  and  energy,  it  is  necessary  to  establish 
mechanisms for the sharing of information between the Commission and the Member 
States in relation to the requests for information and, where appropriate, to the replies 
to such requests, without prejudice to professional secrecy obligations. 

(14)  The  investigative  tool  provided  for  in  this  Regulation  is  particularly  useful  for 
ensuring  the  application  of  Union  law  in  the  area  of  the  internal  market  by  the 
Commission. It is also useful, for any subsequent enforcement action by the Member 
States concerned that would require the use of the relevant information collected using 
this  power  and  disclosed  by  the  Commission  to  the  Member  States  concerned. 
Moreover,  where  difficulties  in  the  application  of  existing  rules  are  experienced, 
including situations where undertakings are not able to comply with the legislation due 
to lack of legal clarity, this investigative tool could also be useful after the use of other 
tools and sources of relevant information have proven inadequate, for contributing to 
the conception or design of regulatory solutions. It is also appropriate not to allow the 
use  of  such  information  for  other  purposes,  in  particular  the  application  of  the 
competition  rules  of  the  TFEU,  without  prejudice  to  the  reuse  of  information  made 
public. 

(15)  The  Commission  should  be  able  to  enforce  compliance  with  the  requests  for 
information  it  addresses  to  any  undertaking  or  association  of  undertakings,  as 
appropriate, by means of proportionate fines and periodic penalty payments imposed 
by way of decision. In setting the amounts of fines and periodic penalty payments, the 
Commission should take due account of the principle of proportionality (including the 
aspects  of  appropriateness),  in  particular  as  regards  small  and  medium-sized 
undertakings.  The  rights  of  the  parties  requested  to  provide  information  should  be 
safeguarded  by  giving  them  the  opportunity  to  make  known  their  views  before  any 
decision imposing fines or periodic penalty payments is taken. 

(16)  Taking  due  account  of  the  principle  of  proportionality  (including  the  aspects  of 
appropriateness),  the  Commission  should  be  able  to  reduce  the  periodic  penalty 
payments or waive them entirely, when addressees of requests provide the information 
requested,  albeit  after  the  expiry  of  the  deadline.  For  reasons  of  legal  certainty,  it  is 
also appropriate to provide for limitation periods for the imposition and enforcement 
of fines and periodic penalty payments. 

(17)  The  Court  of  Justice  should,  in  accordance  with  Article  261  TFEU,  have  unlimited 
jurisdiction in respect of decisions by which the Commission imposes fines or periodic 
penalty  payments  under  this  Regulation,  which  means  that  it  may  cancel,  reduce  or 
increase the fine or periodic penalty payment imposed by the Commission. 

(18) 

In  the  interests  of  transparency  and  legal  certainty,  it  is  appropriate  to  give  public 
information  on  Commission  decisions.  The  Commission,  when  publishing  and 

29 

Directive  2013/34/EU  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  the  annual 
financial  statements,  consolidated  financial  statements  and  related  reports  of  certain  types  of 
undertakings,  amending  Directive  2006/43/EC  of  the  European  Parliament  and  of  the  Council  and 
repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p.19). 

EN 

15 

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handling such information, should respect the rules on professional secrecy, including 
the protection of all confidential information, in accordance with Article 339 TFEU. 

(19)  The disclosure of information about an undertaking’s business activity could result in 
a serious harm to  the same  undertaking.  Therefore, the Commission  should take due 
account of the legitimate interests of undertakings, in particular the protection of their 
business  secrets.  To  ensure  that  business  secrets  and  other  confidential  information 
provided  to  the  Commission  are  treated  in  compliance  with  Article  339  TFEU,  any 
undertaking  or  association  of  undertaking  submitting  information  should  clearly 
identify  which  information  it  considers  to  be  confidential  and  why  it  is  confidential. 
The Commission should not be able to disclose confidential information provided by 
such  respondents  to  the  Member  State  concerned  by  the  request  unless  it  has 
previously  obtained  their  agreement  to  disclose  that  information  to  that  effect.  The 
respondent concerned should be required to provide the Commission with a separate 
non-confidential  version  of  the  information  that  could  be  disclosed  to  the  relevant 
Member State. In cases where information marked as confidential does not seem to be 
covered by obligations of professional secrecy, it is appropriate to have a mechanism 
in  place  according  to  which  the  Commission  can  decide  the  extent  to  which  such 
information  can  be  disclosed.  Any  such  decision  to  reject  a  claim  that  a  piece  of 
information  is  confidential  should  indicate  a  period  at  the  end  of  which  it  may  be 
disclosed, so that the respondent can make use of any judicial protection available to 
it, including any interim measure. The rights of the respondent should be safeguarded 
by giving it the opportunity to make known its views before any decision to reject the 
confidentiality claim is taken. 

(20)  Given the exceptionality of the investigative tool provided for in this Regulation and 
with a view to monitoring the proportionality of its use, the Commission shall draw up 
a report every two years on the application of this Regulation and shall submit it to the 
European Parliament and to the Council. 

(21)  This Regulation respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  In 
particular,  this  Regulation  seeks  to  ensure  full  respect  for  the  right  to  respect  for 
private  and  family  life,  the  right  to  protection  of  personal  data,  the  right  to  good 
administration,  in  in  particular  the  access  to  files,  while  respecting  business  secrecy, 
the  right  to  an  effective  remedy  and  to  a  fair  trial,  the  right  of  defence  and  the 
principles of legality and proportionality of penalties.  

(22)  Where the measures provided for in this Regulation entail the  processing of personal 
data,  they  should  be  carried  out  in  accordance  with  Union  law  on  the  protection  of 
personal  data,  in  particular  Directive  95/46/EC30.  With  regard  to  the  processing  of 
persona data by the Commission and within the framework of this Regulation, it shall 
comply  with  the  provisions  of  Regulation  (EC)  No  45/2001  of  the  European 
Parliament and of the Council31. 

30 

31 

Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  1995  on  the 
protection of  individuals with  regard  to  the  processing of  personal  data and on  the free  movement  of 
such data, (OJ L 281, 23.11.1995). 
Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on 
the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the  Community 
institutions and bodies and on the free movement of such data, (OJ L 8, 12.1.2001, p. 1). 

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(23)  Since the objectives of this Regulation, namely facilitating the Commission’s access to 
market information necessary for carrying out its tasks in order to achieve a smooth-
functioning  of  the  internal  market  cannot  be  sufficiently  achieved  by  the  Member 
States  but  can  rather,  by  reason  of  its  scale  and  effects,  be  better  achieved  at  Union 
level, the Union may adopt measures, in accordance with the principle of subsidiarity 
as set out in Article 5 TEU. In accordance with the principle of proportionality, as set 
out  in that Article, this Regulation does  not go beyond what is  necessary in  order to 
achieve those objectives. 

(24)  This Regulation should not affect the investigative powers of the Member States. This 
Regulation does not aim to amend, restrict or annul the investigative powers that the 
Commission  or  bodies,  offices  or  agencies  of  the  Union  have  already  received 
pursuant  to  other  Union  legal  instruments.  In  particular,  this  Regulation  should  not 
affect  the  investigative  powers  of  the  Commission  related  to  the  application  of  the 
competition rules necessary for the functioning of the internal market. 

(25)  The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with  Article 
28(2) of Regulation (EC) 45/2001 of the European Parliament and of the Council and 
delivered an opinion on […]. 

HAVE ADOPTED THIS REGULATION: 

Chapter I 

General Provisions 

Article 1 

Subject Matter 

1. 

This Regulation lays down rules on the following: 

(a) 

the  conditions  under  which  the  Commission  may  request  undertakings  and 
associations  of  undertakings 
the 
to  provide 
performance  of  tasks  entrusted  to  the  Commission  in  relation  to  the  areas 
referred to in Article 2; 

information  required  for 

(b) 

the procedure to be followed for requesting such information. 

2. 

This  Regulation  shall  apply  without  prejudice  to  other  provisions  allowing  the 
Commission  or  bodies,  offices  or  agencies  of  the  Union  to  gather  or  request 
information. 

Article 2 

Scope 

This Regulation shall apply in the following areas: 

(1) 

(2) 

(3) 

(4) 

EN 

the internal market, as referred to in Article 26(2) of the Treaty; 

agriculture and fisheries, other than the conservation of marine biological resources; 

transport; 

environment; 

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(5) 

energy. 

Article 3 

Definitions 

For the purpose of this Regulation, the following definitions apply: 

(1) 

(2) 

(3) 

‘micro undertaking’ means an undertaking as defined in paragraph 1 of Article 3 of 
Directive 2013/34/EU; 

‘small  undertaking’  means  an  undertaking  as  defined  in  the  first  subparagraph  of 
paragraph 2 of Article 3 of Directive 2013/34/EU; 

‘medium-sized  undertaking’  means  an  undertaking  as  defined  in  paragraph  3  of 
Article 3 of Directive 2013/34/EU. 

Article 4 

Power to request information from undertakings and associations of undertakings  

Where a serious difficulty with the application of Union law risks undermining the attainment 
of  an  important  Union  policy  objective,  the  Commission  may  request  information  from 
undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of 
addressing the above-mentioned difficulty. 

Chapter II 

Conditions and procedure for requesting information 

Article 5 

Conditions 

1. 

The Commission shall only use the power to request information from undertakings 
and  associations  of  undertakings  provided  for  in  Article  4  where  the  information 
available to the Commission, required for the purpose referred to in Article 4, is not 
sufficient  or  adequate  and  cannot  be  obtained  in  a  timely  manner  due  to  the 
following reasons: 

(a) 

(b) 

the information is not contained in a publicly available source; and 

the information has not been provided by a Member State upon request by the 
Commission; or 

(c) 

the information has not been provided by a legal or a natural person. 

2. 

Prior to requesting information  in  accordance with  Article 6, the Commission  shall 
adopt  a  decision  stating  its  intention  to  use  the  power  to  request  information  from 
undertakings or associations of undertakings under this Regulation. 

This decision shall include the following: 

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(a) 

a  summary  description  of  the  alleged  serious  difficulty  of  a  cross-border 
dimension  with  the  application  of  Union  law  and  why  such  difficulty  risks 
undermining the attainment of an important Union policy objective; 

(b) 

a summary description of the information to be requested; 

(c) 

(d) 

a reasoned explanation of why such information is necessary for the purposes 
referred to in Article 4; 

a  reasoned  explanation  of  why  other  means  to  obtain  such  information  have 
proven insufficient or inadequate or cannot be obtained in a timely manner to 
date; 

(e) 

the criteria for selecting the addressees of the requests for information. 

The  decision  shall  be  addressed to  the  Member  State  or  Member  States  concerned. 
The Commission shall notify the Member State or Member States concerned without 
delay. 

3. 

The undertakings or association of undertakings concerned by the request as referred 
to in Article 4 are obliged to provide only information that is at their disposal. 

The  Commission  shall  take  due  account  of  the  principle  of  proportionality,  in 
particular with regard to small and medium-sized undertakings. 

Article 6 

Request for information made to undertakings and associations of undertakings 

1. 

In the cases provided for in Article 4 and under the conditions laid down in Article 5, 
the  Commission  may,  by  simple  request  or  by  decision,  require  undertakings  and 
associations of undertakings to provide information. 

2. 

3. 

When selecting the recipients of the requests for information, the Commission shall 
aim  at  ensuring  that  such  requests  are  only  addressed  to  undertakings  and 
associations of undertakings that are capable of providing relevant information. 

The  Commission  shall  not  issue  requests  for  information  in  accordance  with  this 
Regulation  to  micro-undertakings,  unless  they  are  part  of  a  group  of  undertakings 
which  qualifies  at  least  as  small  group  as  defined  in  Article  6(5)  of  Directive 
2013/34/EU. 

The  simple  request  referred  to  in  paragraph  1  shall  state  the  legal  basis  and  its 
purpose,  specify  what  information  is  required  and  prescribe  a  proportionate  time 
limit  within  which  the  information  is  to  be  provided.  It  shall  also  refer to  the  fines 
provided for in Article 9(1) for supplying incorrect or misleading information. 

The decision referred to in paragraph 1 shall state the legal basis, the purpose of the 
request, specify what information is required and prescribe a proportionate time limit 
within  which  the  information  is  to  be  provided.  It  shall  also  indicate  the  fines 
provided  for  in  Article  9(1)  and  the  periodic  penalties  payments  provided  for  in 
Article 9(2), as appropriate. 

In  addition,  it  shall  indicate  the  right  of  the  undertaking  or  association  of 
undertakings to have the decision reviewed by the Court of Justice of the European 
Union. 

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4. 

5. 

1. 

2. 

3. 

4. 

The undertaking and association of undertakings concerned may request an extension 
of the time-limit, in accordance with Article 14. 

The Commission shall simultaneously provide a copy of the simple request or of the 
decision  referred  to  in  this  Article  to  the  Member  State  in  whose  territory  the 
registered seat of the undertaking or association of undertakings is situated. 

Where  the  Commission  has  launched  a  formal  infringement  procedure  pursuant  to 
Article 258 TFEU, the Commission shall provide the Member State concerned by the 
procedure with a copy of all simple requests or decisions referred to in this Article  
issued in the context of that procedure, irrespective of where the registered seat of the 
undertaking or association of undertakings is situated. 

The  decisions  referred  to  in  paragraph  1  shall  be  addressed  to  the  undertaking  or 
association of undertakings concerned. The Commission shall notify the decision to 
the addressee without delay. 

Article 7 

Answers to requests for information and protection of confidential information 

The undertakings or associations of undertakings providing information following a 
Commission’s request for information based on Article 5 shall submit their answers 
to the Commission in a clear, complete and accurate manner. 

The  Commission  shall  give  the  addressee  the  opportunity  to  indicate  which 
information it considers to be covered by the obligation of professional secrecy. 

The  undertaking  or  association  of  undertakings  submitting  information  pursuant  to 
Article  5  shall  clearly  indicate  which  information  it  considers  to  be  confidential, 
stating the reasons for such confidentiality claim, and provide the Commission with a 
separate  non-confidential  version  of  the  submission.  When  information  is  to  be 
provided by a certain deadline, the same deadline shall apply for providing the non-
confidential version. 

The Commission shall forward the answers received to the Member State concerned 
by the request where they are relevant for a formal infringement procedure pursuant 
to  Article  258 TFEU against the Member State  concerned.  Where  an answer under 
this article includes information that is confidential vis-à-vis that Member State, the 
Commission shall only forward the non-confidential version of the submission. 

The  Commission  shall  verify  whether  the  confidentiality  claim  of  the  information 
transmitted  made  by  the  respondent  undertakings  or  associations  of  undertakings 
under subparagraph 2 of paragraph 2 is well-founded and proportionate. 

After  giving  the  undertaking  or  association  of  undertakings  concerned  the 
opportunity of making known its views, the Commission may take a decision finding 
that  the  information  claimed  to  be  confidential  is  not  protected,  and  setting  a  date 
after  which  the  information  is  to  be  disclosed.  That  period  shall  not  be  less  than  1 
month.  

That  decision  shall  be  notified  to  the  undertaking  or  association  of  undertakings 
concerned without delay. 

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Article 8 

Use of the information collected by the Commission 

The Commission shall only use the information collected pursuant to Article 5 for performing 
the purpose set out in Article 4. 

The  Commission  may  only  include  confidential  information  provided  by  undertakings  or 
association  of  undertakings  in  documents  to  be  transmitted  to  other  parties  or  to  be  made 
public, in the following cases: 

(a) 

(b) 

(c) 

where such information is in summary or aggregated form or in any event in a form 
such  that  individual  undertakings  or  associations  of  undertakings  cannot  be 
identified; 

where  the  Commission  has  previously  obtained  the  agreement  of  the  respondent  to 
disclose such information; 

where  the  disclosure  of  such  information  to  a  Member  State  is  necessary  to 
substantiate  an  infringement  of  Union  law  within  the  scope  of  this  Regulation 
provided  that  the  respondent  has  had  the  opportunity  to  make  his  views  known 
before  a  decision  is  taken  and  to  make  use  of  available  judicial  remedies  before 
disclosure. 

The  information  that  has  already  been  made  public  may  be  used  by  the  Commission  for  a 
purpose other than the one set out in this Regulation. 

Chapter III 

Fines and periodic penalty payments 

Article 9 

Fines and periodic penalty payments 

1. 

2. 

The  Commission  may,  by  decision,  where  deemed  necessary  and  proportionate, 
impose  on  undertakings  or  association  of  undertakings  fines  not  exceeding  1 %  of 
their total turnover in the preceding business year where they intentionally or through 
gross negligence: 

(a) 

(b) 

supply  incorrect  or  misleading  information  in  response  to  a  request  made 
pursuant to Article 6(2); 

supply  incorrect,  incomplete  or  misleading  information  in  response  to  a 
decision  adopted  pursuant  to  Article  6(3)  or  do  not  supply  the  information 
within the prescribed time limit. 

The  Commission  may,  by  decision,  impose  on  undertakings  or  associations  of 
undertakings  periodic  penalty  payments  where  an  undertaking  fails  to  supply 
complete, accurate and not misleading information within the prescribed deadline as 
requested by the Commission by a decision adopted pursuant to Article 6(3). 

The periodic penalty payments shall not exceed 5 % of the average daily turnover of 
the  undertaking  or  association  concerned  in  the  preceding  business  year  for  each 

EN 

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working  day  of  delay,  calculated  from  the  date  established  in  the  decision,  until  it 
supplies the information requested or required by the Commission. 

Where  the  undertaking  or  association  of  undertakings  provides  no  or  incomplete 
information,  the  Commission  shall  prior  the  imposition  of  a  fine  or  penalty,  set  a 
final deadline of two weeks to receive the missing information. 

The  Commission  shall  take  into  account  the  nature,  gravity  and  duration  of  the 
breach  of  Article  6(1),  as  well  as  the  principle  of  proportionality  in  particular  with 
regard to small and medium-sized undertakings when fixing the amount of the fine or 
periodic penalty payment. 

Where the undertakings or associations of undertakings have satisfied the obligation 
which  the  periodic  penalty  payment  was  intended  to  enforce,  the  Commission  may 
reduce or waive the amount of the periodic penalty payment. 

Before adopting any decision in accordance with paragraph 1 or 2, the Commission 
shall give the concerned undertakings or associations of undertakings the opportunity 
of making known their views. 

Article 10 

Limitation period for the imposition of fines and periodic penalty payments 

The powers conferred on the Commission by Article 9 shall be subject to a limitation 
period of three years. 

The  period  provided  for  in  paragraph  1  shall  start  on  the  day  on  which  the 
infringement  referred  to  in  Article  9  is  committed.  However,  in  the  case  of 
continuing or repeated breaches of Article 6(1), the period shall begin on the day on 
which the breach ceases. 

Any action taken by the Commission for the purpose of investigating or pursuing a 
possible breach of Article 6(1) shall interrupt the limitation period for the imposition 
of fines or periodic penalty payments, with effect from the date on which the action 
is notified to the undertaking or association of undertakings concerned. 

After each interruption, the limitation period shall start running afresh. However, the 
limitation period shall expire at the latest on the day on which a period of six years 
has  elapsed  without  the  Commission  having  imposed  a  fine  or  a  periodic  penalty 
payment.  That  period  shall  be  extended  by  the  time  during  which  the  limitation 
period is suspended in accordance with paragraph 5. 

The limitation period for the imposition of fines or periodic penalty payments shall 
be  suspended  for  as  long  as  the  decision  of  the  Commission  is  the  subject  of 
proceedings pending before the Court of Justice of the European Union. 

Article 11 

Limitation period for the enforcement of fines and periodic penalty payments 

The  powers  of  the  Commission  to  enforce  decisions  adopted  pursuant  to  Article  9 
shall be subject to a limitation period of five years. 

The period provided for in paragraph 1 shall start on the day on which the decision 
taken pursuant to Article 9 becomes final. 

3. 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

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3. 

The limitation period provided for in paragraph 1 shall be interrupted: 

(a) 

by  notification  of  a  decision  modifying  the  original  amount  of  the  fine  or 
periodic penalty payment or refusing an application for modification; 

(b)  by any action of a Member State, acting at the request of the Commission, or of 
the  Commission,  intended  to  enforce  payment  of  the  fine  or  periodic  penalty 
payment. 

4. 

5. 

After each interruption, the limitation period shall start running afresh. 

The limitation period provided for in paragraph 1 shall be suspended for so long as: 

(a) 

(b) 

the respondent is allowed time to pay; 

the enforcement of payment is suspended pursuant to a decision of the Court of 
Justice of the European Union. 

Article 12 

Addressees of decisions 

The decisions taken pursuant to Article 9(1) and (2) shall be addressed to the undertaking or 
association  of  undertakings  concerned.  The  Commission  shall  notify  the  decision  to  the 
addressee without delay. 

Article 13 

Review by the Court of Justice 

The  Court  of  Justice  of  the  European  Union  shall  have  unlimited  jurisdiction  within  the 
meaning of Article 261 TFEU to review fines or periodic penalty payments imposed by the 
Commission. It may cancel, reduce or increase the fine or periodic penalty payment imposed. 

Chapter IV 

Final provisions 

Article 14 

Extension of time-limits 

Time limits shall be specified in months or in working days. 

Any  request  for  the  extension  of  a  time-limit  shall  be  duly  substantiated  and  submitted  in 
writing to the service and address designated by the Commission at least five working days 
before  expiry.  The  Commission  may  decide  to  extend  the  time-limit,  to  the  extent  that  it  is 
justified and proportionate. 

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Article 15 

Publication of decisions 

1. 

2. 

The  Commission  shall  publish  in  the  Official  Journal  of  the  European  Union  a 
summary  notice  of  the  decisions  which  it  takes  pursuant  to  Article  5(2).  The 
summary  notice  shall  state  that  a  copy  of  the  decision  may  be  obtained  in  the 
authentic language version or versions. 

The  Commission  shall  publish  in  the  Official  Journal  of  the  European  Union  the 
decisions which it takes pursuant to Article 9(1) and (2). 

Article 16 

Professional secrecy 

Without prejudice to Articles 7 and 8, the Member States, their officials and other servants, 
shall  not  disclose  information  which  they  have  acquired  through  the  application  of  this 
Regulation and which is covered by the obligation of professional secrecy. 

Article 17 

Protection of personal data 

With  regard  to  the  processing  of  personal  data  within  the  framework  of  this  Regulation, 
Member  States  shall  carry  out  their  tasks  for  the  purposes  of  this  Regulation  in  accordance 
with  the  national  laws,  regulations  or  administrative  provisions  transposing  Directive 
95/46/EC.  With  regard  to  the  processing  of  personal  data  by  the  Commission  within  the 
framework  of  this  Regulation,  it  shall  comply  with  the  provisions  of  Regulation  (EC)  No 
45/2001. 

Article 18 

Reports 

The Commission shall draw up a report every two years on the application of this Regulation 
and shall submit it to the European Parliament and to the Council. 

Article 19 

Entry into force 

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

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

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Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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