REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the transposition of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 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: 2024-11-29
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, cartel, competition, competition law, restriction on competition, sanction (EU), single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 29.11.2024  COM(2024) 558 final  REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the transposition of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market  
 
 
REPORT FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

on the transposition of Directive (EU) 2019/1 of the European Parliament and of the 
Council of 11 December 2018 to empower the competition authorities of the 
Member States to be more effective enforcers and to ensure the proper functioning 
of the internal market 

1.  THE ECN+ DIRECTIVE: ITS ORIGINS AND GOALS  

EU antitrust rules seek to ensure effective competition on the internal market. Article 101 
of the Treaty on the Functioning of the European Union (‘TFEU’) prohibits agreements 
between  two  or  more  companies  that  restrict  competition,  such  as  cartels  between 
competitors  to  fix  prices.  Article  102  TFEU  prohibits  firms  with  a  dominant  market 
position from abusing that position, for example by providing illegal rebates or applying 
predatory pricing.  

Since  2004,  competition  authorities  in  EU  Member  States  (‘national  competition 
authorities’) have had the power under Council Regulation (EC) No 1/2003 (1) to apply 
the EU antitrust rules alongside the European Commission.  

The Commission and national competition authorities enforce EU antitrust rules in close 
cooperation  within  the  European  Competition  Network  (‘the  ECN’).  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  an  EU-wide 
precedent.  The  national  competition  authorities  are  usually  well  placed  to  act  where 
competition is substantially affected in their territory (2).  

In  empowering  national  competition  authorities,  Council  Regulation  (EC)  No  1/2003 
created a decentralised system for enforcing EU antitrust rules, but without laying down 
detailed means and instruments for applying these rules at national level. This meant that, 
although  national  competition  authorities  applied  the  same  substantive  rules,  their 
investigative and decision-making powers were subject to national law. 

The  Commission,  having  gathered  a  decade  of  experience  with  the  decentralised 
enforcement  system,  identified  some  areas  where  further  action  was  needed  (3).  On  22 
March 2017, the Commission proposed a directive to empower the competition authorities 

(1)  Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
the  Treaty,  OJ  L  1,  4.1.2003,  ELI: 

in  Articles  81  and  82  of 

competition 
http://data.europa.eu/eli/reg/2003/1/oj (‘Regulation (EC) No 1/2003’).  

laid  down 

(2)  See Section 2.1 ‘Principles of allocation’ of Commission Notice on cooperation within the Network of 

Competition Authorities, OJ C 101, 27.4.2004, p. 43.  

(3)  Commission  Communication  Ten  Years  of  Antitrust  Enforcement  under  Regulation  1/2003: 

Achievements and Future Perspectives, COM(2014) 453 final, 9 July 2014. 

 
 
 
      
 
of the Member States to be more effective enforcers and to ensure the proper functioning 
of the internal market (4). 

On 11 December 2018, the European Parliament and the Council duly adopted Directive 
(EU)  2019/1  (5)  (‘the  ECN+  Directive’).  It  aimed  to  ensure  that  national  competition 
authorities have: (i) basic guarantees of independence and resources; (ii) core investigative, 
decision-making and fining powers; (iii) leniency programmes; and (iv) mechanisms for 
mutual assistance. 

The  ECN+  Directive  entered  into  force  on  3  February  2019.  Member  States  had  to 
transpose the ECN+ Directive into national law by 4 February 2021. 

2.  SCOPE OF THIS REPORT 

Under  Article 35 of the  ECN+ Directive,  the Commission  must  report to  the European 
Parliament and the Council by 12 December 2024 on the transposition and implementation 
of the Directive. If appropriate, the Commission may review the ECN+ Directive and, if 
necessary, present a legislative proposal. 

This  report  focuses  on  how  the  main  provisions  of  the  ECN+  Directive  have  been 
transposed  in  those  Member  States  that  have  completed  the  transposition  process.  It 
highlights the main improvements brought about by the ECN+ Directive in these Member 
States and the main issues identified regarding the transposition of the Directive. It also 
details  expected  developments  in  the  case  law  of  the  Court  of  Justice  of  the  European 
Union (‘the CJEU’) that may further shape certain aspects of the ECN+ Directive. 

As many Member States did not meet the two-year deadline for transposition, it is still too 
early to report on how the ECN+ Directive has been implemented or carry out a meaningful 
review of it.  

3.  THE COMMISSION’S ROLE DURING AND AFTER THE TRANSPOSITION PROCESS 

3.1.  The Commission’s technical assistance to Member States 

Shortly after the ECN+ Directive was adopted, the Commission held a meeting with all 
Member  States  to  discuss  the  provisions.  As  a  follow-up  and  throughout  the  national 
legislative processes, the Commission answered queries from Member States on how to 
interpret the ECN+  Directive’s  provisions, discussed possible options  for  transposing it 
and provided informal comments on draft national transposition measures (6). 

(4)  COM(2017)142 final of 22 March 2017. 

(5)  Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower 
the competition authorities of the Member States to be more effective enforcers and to ensure the proper 
functioning  of  the  internal  market,  OJ  L  11,  14.1.2019,  ELI:  http://data.europa.eu/eli/dir/2019/1/oj 
(‘ECN+ Directive’). 

(6)  For example, the Commission has been consulted on the conformity of a financing system of a national 
competition authority in light of the independence requirements of the ECN+ Directive (see, Article 4 
and Recital 17). 

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3.2. 

Infringements for non-communication of transposition measures 

Twenty-two Member States failed to meet the two-year deadline for transposition (7). In 
March  2021,  the  Commission  opened  infringement  proceedings  against  these  Member 
States  for  non-communication  of  transposition  measures.  In  2022  and  2023,  the 
Commission took the next steps in the infringement proceedings against Member States 
that had still not notified it of any transposition measures: in September 2022, it addressed 
reasoned opinions to Estonia, Luxembourg, Poland and Slovenia for non-transposition; in 
July 2023, it issued a reasoned opinion against Romania and referred Estonia to the CJEU.  

By  December  2023,  all  Member  States,  except  Estonia,  had  transposed  the  ECN+ 
Directive. The infringement proceedings against Estonia for non-transposition are pending 
before the CJEU (8). 

3.3.  The Commission’s compliance assessments of transposition measures 

In accordance with its Better Regulation Guidelines (9), the Commission has monitored the 
transposition  of  the  ECN+  Directive  in  the  Member  States  by  conducting  compliance 
assessments on both completeness and conformity of the national transposition measures. 

4.  MAIN PROVISIONS OF THE ECN+ DIRECTIVE AND TRANSPOSITION 

4.1. 

 Independence and resources 

Chapter III of the ECN+ Directive ensures that national competition authorities enjoy the 
necessary guarantees of independence when enforcing the EU antitrust rules and have the 
resources  they  need  to  carry  out  their  work,  which  are  pre-requisites  for  effective 
enforcement of EU antitrust rules. 

Article 4 introduces a minimum set of independence guarantees for national competition 
authorities. Member States are free to lay down additional independence guarantees. The 
Directive envisages operational independence, which means independence in the exercise 
of their duties and powers (see, recitals 17, 18 and 22). Member States should ensure that 
the  staff  of  national  competition  authorities  do  not  seek  or  take  instructions  from 
government or any other public or private entity, and refrain from actions incompatible 
with their duties and powers; decision makers cannot be dismissed for reasons relating to 
the  proper  performance  of  their  duties  and  powers,  and  must  be  selected,  recruited  or 
appointed  according  to  clear  and  transparent  procedures.  Finally,  national  competition 
authorities should have the power to set their priorities in full and be able to reject formal 
complaints on priority grounds.  

Article  5  introduces  a  requirement  for  Member  States  (i)  to  ensure  that  national 
competition authorities have the human, financial, technical and technological resources 
needed  to  perform  their  core  tasks  under  EU  antitrust  rules;  and  (ii)  to  grant  these 
authorities independence in spending the allocated budget for these tasks. Recital 17 states 

(7)  Only Denmark, Germany, Hungary, Lithuania and the Netherlands notified their national transposition 
measures  to  the  Commission  by  (or  shortly  after)  4  February  2021,  as  required  by  Article  34  of  the 
ECN+ Directive. 

(8)  See Case C-577/23 Commission v Estonia (Directive ECN +). 

(9)  SWD(2021) 305 final, available at https://commission.europa.eu/document/download/d0bbd77f-bee5-

4ee5-b5c4-6110c7605476_en?filename=swd2021_305_en.pdf, pages 39 and 40.   

3 

 
 
that the fines imposed by national competition authorities for infringements of EU antitrust 
rules  should  not  be  used  to  finance  these  authorities  directly.  This  is  to  ensure  their 
impartiality. 

Almost  all Member States  currently  have the minimum  set  of independence guarantees 
required by the ECN+ Directive in their national laws, including an explicit provision that 
guarantees the operational independence of the national competition authorities. The vast 
majority of Member States also guarantee that national competition authorities should have 
sufficient  resources  to  carry  out  their  tasks.  There  is  either  an  explicit  guarantee  in  the 
national laws, or an implicit guarantee because national competition authorities can exert 
an  influence  on  the  resources  available  to  them  in  the  budget  allocation  process.  Other 
national competition authorities are mainly self-funded via mandatory contributions from 
undertakings. 

The  transposition  of  this  Chapter  of  the  ECN+  Directive  has  strengthened  the 
independence of national competition authorities in a majority of Member States. This has 
been done  by adopting explicit provisions guaranteeing  their operational  and budgetary 
independence, removing previous ministerial  controls,  introducing  new rules to  prevent 
conflicts  of  interest,  increasing  protection  for  their  decision  makers  against  unjustified 
dismissal, and introducing clear selection criteria for these decision makers. A significant 
improvement in some Member States is also the power to set enforcement priorities and 
reject formal complaints on priority grounds. 

Some  Member  States  have  adopted  explicit  provisions  establishing  that  the  national 
competition  authority  should  have  sufficient  resources  to  carry  out  its  tasks.  In  a  few 
Member  States,  the  national  competition  authority  has  received  additional  resources  in 
terms of its budget or staffing following transposition of the Directive. 

The compliance assessments nevertheless show that in a few Member States, national law 
allows government officials to take part in national competition authorities' proceedings. 

In  one  Member  State,  the  protection  required  by  Article  4(3)  of  the  Directive  against 
unjustified dismissals of decision makers does not cover all decision makers at the national 
competition authority. Moreover, in several Member States, national law does not clearly 
define what are the permissible grounds for dismissal, and in particular what constitutes 
‘serious misconduct’ that could lead to a dismissal. One Member State also laid down an 
additional ground for dismissals beyond those set out in the Directive. 

A few Member States lack a transparent appointment procedure and clear selection criteria 
for the decision makers within their national competition authorities. 

In one Member State, the national competition authority does not have an explicit power 
to reject formal complaints on priority grounds. 

In a  few Member States, there are no guarantees to  ensure that sufficient resources  are 
available to the national competition authorities. 

Finally, in a few Member States, the national competition authorities are subject to certain 
government approvals when spending their allocated budget. 

4 

 
 
4.2. 

Investigative powers and decision-making powers 

Chapter  IV  of  the  ECN+  Directive  lays  down  the  minimum  effective  powers  national 
competition authorities must have to investigate and take decisions. The aim is to ensure 
that  national  competition  authorities  are  not  prevented  from  effectively  bringing  an 
infringement of EU antitrust rules to an end because of a lack of such powers or limitations 
in their scope. 

Articles  6  to  9  ensure  that  national  competition  authorities  have  effective  investigative 
tools. Under Articles 6 and 7, the authorities have the powers to carry-out unannounced 
inspections at business and non-business premises. Under Article 8, they have the power 
to  issue  requests  for  information  and  under  Article  9,  they  have  the  power  to  summon 
representatives of undertakings, representatives of legal persons other than undertakings 
and natural persons for interviews. 

Articles  10  to  12  introduce  a  minimum  set  of  decision-making  powers  that  national 
competition authorities should have. Under Article 10, these authorities have the power to 
find an infringement, require the undertaking to bring it to an end and impose structural 
and behavioural remedies. They may also find that an infringement was committed in the 
past.  Under  Article  11,  they  have  the  power  to  adopt  interim  measures  on  their  own 
initiative (ex officio). Under Article 12, they can accept commitments by undertakings. 

In terms of investigative powers, almost all Member States have aligned their national laws 
with the Directive. In some Member States, this has resulted in the introduction of new 
powers,  such  as  the  power  to  carry  out  inspections  at  non-business  premises,  conduct 
inspections  with  the  assistance  of  the  police,  continue  the  inspection  at  its  own  or 
designated premises, send requests for information to other legal and natural persons and 
summon  relevant  persons  for  interviews.  Some  Member  States  have  gone  beyond  the 
minimum requirements set out in the Directive, by giving national competition authorities 
the power to ask questions during inspections at non-business premises and to seal such 
premises and relevant documentation.  

In several Member States, however, the compliance assessments show certain limitations 
to  the  national  competition  authority’s  power  to  conduct  unannounced  inspections  at 
business  and  non-business  premises.  Most  often  the  limitation  consists  of  the  authority 
being required to meet legal standards that do not comply with those provided for in the 
Directive.  Certain  limitations  have  also  been  identified  in  relation  to  the  national 
competition  authority’s  power  to  search  and  copy  electronic  documents  at  business 
premises and to continue the inspection at its own or designated premises. Not all Member 
States have transposed the prior judicial authorisation required by the ECN+ Directive for 
inspections at non-business premises. 

Moreover, in a few Member States the national competition authority is prevented from 
requesting information from other natural and legal persons.  

In  a  few  others,  the  national  competition  authority  is  prevented  from  summoning 
representatives of other legal persons and/or natural persons for interviews. 

In terms of decision-making powers, all the Member States now have the minimum set of 
powers envisaged by the ECN+ Directive in their national laws. Major improvements have 
been made in some Member States where the national competition authority did not yet 
have the power to impose behavioural and structural remedies, and in a few Member States 
where previously national competition authorities were unable to adopt interim measures 

5 

 
at  their  own  initiative.  In  a  few  Member  States  a  market  test  was  established  in  the 
procedure for commitment decisions. Some Member States have used the transposition of 
the ECN+ Directive to empower their national competition authority to adopt settlement 
decisions, although this is a power not covered by the Directive. 

The compliance assessments nevertheless show that in a few Member States, the national 
competition authority is required to show a ‘legitimate interest’ to find an infringement 
committed in the past, which is a requirement not provided for in the ECN+ Directive. 

4.3. 

Fines and periodic penalty payments  

Under  Chapter  V  of  the  ECN+  Directive,  national  competition  authorities  can  impose 
deterrent fines on undertakings.  

Article  13  provides  for  national  competition  authorities  to  impose  fines  in  their  own 
administrative  proceedings  or  seek  the  imposition  of  fines  in  non-criminal  judicial 
proceedings on undertakings for infringements of EU antitrust rules. It also ensures that 
they can impose fines for failure to comply with investigative measures or decisions.  

Article 14 introduces core parameters that national competition authorities should consider 
when determining the amount of the fine. It also provides for the possibility to impose fines 
on associations of undertakings based on the turnover of their members. Article 15 lays 
down  a  common  minimum  basis  for  the  legal  maximum  fine  that  can  be  imposed  for 
infringements  of  EU  antitrust  rules.  Member  States  are  free  to  introduce  a  higher  legal 
maximum fine. 

Article  16  provides  for  the  power  to  impose  periodic  penalty  payments  to  ensure 
compliance with investigative measures and decisions.  

Following  the  transposition  of  the  ECN+  Directive,  national  competition  authorities  in 
almost all Member States have the power to impose effective, proportionate and dissuasive 
fines,  as  well  as  periodic  penalty  payments  on  undertakings  and  associations  of 
undertakings.  

Substantial improvements were made in a couple of Member States, where implementation 
of  the  ECN+  Directive  led  to  significant  changes  in  their  enforcement  system.  Two 
Member States moved from a purely criminal enforcement system to a mixed civil/criminal 
system  where  fines  can  now  also  be  imposed  or  confirmed  by  a  civil  court.  Two  other 
Member States that already had an enforcement system that complied with the Directive, 
took the opportunity to make their system more efficient: in one Member State, the national 
competition authority is no longer required to apply to a court but can impose fines as part 
of its own administrative proceedings; in the other Member State, the national competition 
authority  no  longer  needs  to  follow  a  criminal  law  procedure  to  impose  fines  on 
undertakings. 

Moreover,  some  Member  States  have  increased  the  maximum  amounts  of  fines,  while 
others have made it possible to impose fines for procedural infringements. The notion of 
‘undertaking’  has  been  established  in  another  Member  State,  where  fines  can  now  be 
imposed  on  parent  companies  and  legal  successors.  In  other  Member  States,  national 
competition  authorities  now  have  the  power  to  impose  fines  on  associations  of 
undertakings based on the turnover of their members and to oblige the association to ask 
for contributions from its members to cover the fine. 

6 

 
The compliance assessments nevertheless show that certain limitations persist in several 
Member States where the national competition authorities are prevented from imposing 
procedural fines for failure to comply with investigative measures and/or decisions or can 
impose  such fines  only for certain  types of  non-compliance.  Moreover, in one Member 
State,  the  national  competition  authority  would  first  need  to  hold  a  natural  person  in  a 
leading position liable before imposing a fine on the undertaking for that infringement. In 
another  Member  State,  the  maximum  amount  of  the  fine  that  the  national  competition 
authority  can  impose  for  infringements  of  EU  antitrust  rules  is  not  in  line  with  the 
requirements of the ECN+ Directive.  

4.4.  Leniency  

Chapter  VI  of  the  ECN+  Directive  lays  down  harmonised  rules  for  national  leniency 
programmes.  Leniency  programmes  are  a  key  tool  for  detecting  cartels.  The  aim  is  to 
increase legal certainty for undertakings that wish to apply for leniency, thereby ensuring 
that they have an incentive to cooperate with the Commission and the national competition 
authorities by reducing the differences between the leniency programmes applicable in the 
Member States. 

Article 17 lays down uniform conditions for granting immunity from fines for undertakings 
that disclose their participation in secret cartels. Article 18 establishes the conditions for 
granting a reduction of fines  for undertakings that  do not  qualify for  full  immunity  but 
provide  evidence  that  is  of  significant  added  value  in  proving  the  existence  of  a  secret 
cartel. Article 19 details the general conditions that must be met by any applicant seeking 
leniency, ensuring their full cooperation and the termination of their  involvement in the 
cartel.  Article  20  provides  for  uniform  rules  on  the  form,  submission  and  language  of 
leniency statements.  

Article 21 introduces harmonised rules for ‘markers’ for applications for immunity from 
fines. These abbreviated immunity applications allow undertakings to be granted a place 
in the leniency queue while they gather enough information and evidence to qualify for 
immunity from fines. Article 22 introduces a streamlined system for summary applications. 
It allows applicants that have applied to the Commission for leniency to submit summary 
applications to national competition authorities in relation to the same secret cartel. 

Finally, Article 23 introduces protection against administrative and criminal sanctions for 
current and former staff of immunity applicants, provided that certain conditions are met. 

All Member States now have leniency programmes in place that follow uniform rules and 
procedures.  The  transposition  of  the  ECN+  Directive  has  led  to  the  introduction  of 
administrative leniency programmes in two Member States. In other Member States, the 
leniency  programmes  have  been  codified  in  primary  or  secondary  legislation.  More 
generally, transposition has led to greater harmonisation between the leniency programmes 
across the EU. In some Member States, transposition has also prompted the introduction 
of markers and summary applications. Other Member States have introduced protection 
against criminal sanctions for the staff of immunity applicants.  

All Member States have implemented the ECN+ Directive’s core provisions on leniency. 
The compliance assessments nevertheless show that in a few Member States the national 
competition  authorities  are  not  prevented  from  requesting  further  information  from 
undertakings after they have submitted a summary application and/or are not required to 
request only in exceptional circumstances a full application before the Commission has 
taken a decision on whether to pursue the case. 

7 

 
In a few Member States, protection against administrative and/or criminal sanctions for 
staff of immunity applicants is either not provided for in national law or would additionally 
require the staff member to submit an individual immunity application. In another Member 
State,  national  law  grants  the  public  prosecutor  wide  discretion  to  decide  whether  to 
prosecute or penalise these individuals.  

A  related  issue  is  that  several  Member  States  do  not  specifically  require  national 
competition  authorities  to  ensure  the  necessary  contacts  between  the  competent 
prosecuting  or  sanctioning  authorities  in  their  Member  States  and  the  competition 
authorities of other Member States to guarantee that the staff of immunity applicants are 
protected from administrative and/or criminal sanctions in cross-border situations. 

4.5.  Mutual assistance 

Chapter  VII  of  the  ECN+  Directive  introduces  harmonised  rules  that  facilitate  mutual 
assistance  between  national  competition  authorities.  These  mechanisms  of  mutual 
assistance empower national competition authorities to enforce competition law beyond 
their  borders  effectively,  thereby  allowing  the  decentralised  system  for  enforcing  EU 
antitrust rules to work as a cohesive whole. 

Article  24  permits  officials  from  national  competition  authorities  to  attend  and  provide 
assistance  for  inspections  and  interviews  conducted  by  another  national  competition 
authority on their behalf.  It  also  empowers  national  competition  authorities  to  use their 
investigative powers to establish non-compliance with measures and decisions taken by 
other  national  competition  authorities.  Under  Articles  25  and  26,  national  competition 
authorities can ask each other to notify documents and enforce decisions on their behalf, 
using a uniform instrument. 

Articles 27 and 28 lay down general principles for cooperation, for instance in relation to 
the applicable law, the content of the uniform instrument, language requirements, coverage 
of  costs,  the  possibility  to  refuse  assistance  and  the  handling  of  disputes  concerning 
requests for mutual assistance. 

The  ECN+  Directive  has  strengthened  cooperation  between  national  competition 
authorities.  It  has  provided  a  new  power  for  these  authorities  to  use  their  investigative 
measures to establish non-compliance with investigative measures and decisions adopted 
by other national competition authorities. It has also introduced the ‘uniform instrument’, 
which now makes it easier for national competition authorities to have their acts notified 
or enforced in other Member States. 

The  compliance  assessments  nevertheless  show  that  in  several  Member  States  national 
competition  authorities  are  not  explicitly  empowered  to  use  investigative  measures  to 
verify  compliance  with  investigative  measures  and  decisions  taken  by  other  national 
competition authorities, or to request such mutual assistance, or to exchange information 
collected in that context to be used as evidence in their enforcement proceedings. 

In several Member States, there is either no explicit power to request the notification of 
acts or the enforcement of decisions by other national competition authorities, or this power 
is  subject  to  stricter  conditions  than  those  provided  for  in  the  Directive.  Finally,  a  few 
Member States do not rule out the possibility of applying national limitation periods to 
fining decisions taken by other national competition authorities, which could prevent those 
authorities from providing the mutual assistance requested. 

8 

 
 
 
4.6.  Limitation periods 

Chapter VIII of the ECN+ Directive contains rules on limitation periods for the imposition 
of fines and periodic penalty payments by national competition authorities. 

Under Article 29(1), national limitation periods must be suspended or interrupted for the 
duration of enforcement proceedings with respect to the same infringement of EU antitrust 
rules by another national competition authority or the Commission. This ensures that the 
system  of  parallel  powers  within  the  ECN  works  effectively,  and  other  national 
competition authorities are not prevented from subsequently investigating the conduct in 
question or taking a decision. 

Article 29(2) requires Member States to ensure that their limitation periods are suspended 
or  interrupted  while  the  fining  decisions  of  their  national  competition  authorities  are 
subject  to  judicial  review.  This  prevents  lengthy  appeal  proceedings  from  affecting  the 
power of national competition authorities to impose fines or periodic penalty payments. 

A major improvement brought about by the ECN+ Directive is that all Member States now 
have a rule ensuring that their national competition authorities are not time-barred from 
imposing fines and periodic penalty payments when the Commission or another national 
competition authority is dealing with the same infringement. 

The compliance assessments nevertheless show that a few national laws are ambiguous 
about whether the suspension or interruption extends to all undertakings involved in the 
infringement. Other national laws only allow the suspension or interruption to be triggered 
conditional  on  certain  steps  having  been  taken  (for  example,  formal  opening  of 
proceedings). 

4.7.  General provisions  

Chapter  IX  of  the  ECN+  Directive  includes  general  provisions  concerning  the  role  of 
national administrative competition authorities before national courts, access to files by 
parties, limitations on the access and use of information, and the admissibility of evidence 
before national competition authorities. 

Article 30 ensures that national administrative competition authorities have the power to 
bring and/or defend their cases before national courts.  

Article  31  seeks  to  limit  the  use  of  certain  categories  of  information  that  undertakings 
submit to national competition authorities during enforcement proceedings. By increasing 
legal certainty about the protection of this information, the ECN+ Directive seeks to ensure 
the effectiveness of enforcement procedures, and of leniency and settlement programmes.  

Article  31(2)  provides  for  a  general  obligation  of  professional  secrecy  for  national 
competition  authorities  and  their  staff.  Article  31(3)  restricts  the  access  to  leniency 
statements and settlement submissions in any relevant proceedings where these documents 
may end up, for instance in criminal proceedings when national competition authorities are 
required to transfer their files to the public prosecutor. Article 31(4) limits how parties that 
have obtained access to the file of the enforcement proceedings of national competition 
authorities  can  use  information  from  leniency  statements  and  settlement  submissions. 
Article 31(5) prohibits parties from using certain categories of information in proceedings 
before  national  courts  pending  enforcement  proceedings  by  the  national  competition 

9 

 
 
 
 
authority. Finally, Article 31(6) lays down specific conditions for the exchange of leniency 
statements between national competition authorities.  

Article 32 ensures that all types of proof are admissible as evidence before the national 
competition authorities, irrespective of the form they take and the medium on which they 
are stored. 

Following  transposition  of  the  ECN+  Directive,  national  competition  authorities  in  all 
Member States have the power to bring and/or defend their cases before national courts. 
However,  the  compliance  assessments  show  that,  in  some  Member  States,  the  national 
competition  authorities  do  not  have  the  right  to  appeal  a  refusal  by  a  national  judicial 
authority to grant prior authorisation for inspections. 

In all Member States, the national competition authorities and their staff are subject to an 
obligation of professional secrecy. Moreover, all Member States provide in their national 
laws  for  some  limitations  on  the  use  of  certain  categories  of  information,  in  particular 
leniency statements and settlement submissions.  

The compliance assessments nevertheless show certain limitations. In the vast majority of 
Member  States,  national  law  does  not  restrict  the  access  to  leniency  statements  and 
settlement submissions in all relevant proceedings where these documents may end up. In 
a  few  Member  States,  the  use  of  information  obtained  from  leniency  statements  and 
settlement submissions through access to the files is not expressly limited to the specific 
circumstances described by the ECN+ Directive. Moreover, in some Member States the 
restriction  regarding  the  use  of  certain  categories  of  information  pending  enforcement 
proceedings by the national competition authority is either not provided for or does not 
extend to all national court proceedings.  

In  all  Member  States,  all  types  of  proof  are  admissible  as  evidence  before  the  national 
competition authorities, irrespective of the form they take and the medium on which they 
are stored.  

5.  EXPECTED CASE LAW DEVELOPMENTS RELATING TO THE ECN+ DIRECTIVE 

Following the  adoption  of  the ECN+ Directive,  a number of  requests for a preliminary 
ruling were made to the CJEU concerning obligations under the ECN+ Directive.  

Case C-2/23 FL und KM Baugesellschaft and S is a request from Austria seeking guidance 
on  whether  national  law  can  allow  criminal  prosecutors  to  access  and  use  leniency 
statements and settlement submissions. The CJEU ruling is expected to provide guidance 
on the safeguarding of leniency statements and settlement submissions (Article 31(3)) in 
the context of cooperation between national competition authorities and other regulatory 
or prosecuting authorities.  

Joined Cases C-258/23 to C260/23 Imagens Médicas Integradas and Others, as well as 
Cases C-132/24 Apap and Others and C-195/24 Blueotter and Others, are requests from 
Portugal  seeking  guidance  on  whether  email  correspondence  can  be  seized  during 
inspections  in  business  premises  without  a  prior  judicial  authorisation.  Case  C-619/23 
Ronos is a request from Bulgaria seeking guidance on whether constitutional safeguards 
could limit the power to search chat correspondence in an application on a laptop found 
during  inspections  of  business  premises.  These  CJEU  rulings  are  expected  to  provide 
clarifications on inspection powers (Article 6), the admissibility of evidence (Article 32), 

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and  the  duty  of  Member  States  to  design  procedural  safeguards  in  a  way  that  strikes  a 
balance between the fundamental rights of undertakings and the duty to ensure that  EU 
antitrust rules are effectively enforced (Recital 14). 

Case C-511/23 Caronte & Tourist SpA is a request from Italy seeking guidance on whether 
time  limits  for  national  competition  authorities’  pre-investigations  of  complaints  are 
compatible with the effective enforcement of EU antitrust rules. The CJEU ruling may also 
address  the  impact  such  time  limits  could  have  on  the  power  of  national  competition 
authorities to set enforcement priorities (Article 4(5)).  

Finally, Case C-588/24 Imballaggi Piemontesi is a request from Italy seeking guidance on 
whether a national provision that allows the competition authority, under certain conditions 
and  with  a  reasoned  justification,  to  extend  the  time  limits  within  which  enforcement 
proceedings must be concluded is compatible with the duty to conduct proceedings within 
a reasonable timeframe (Article 3(3)).  

6.  CONCLUSION 

The  ECN+  Directive  aims  to  empower  national  competition  authorities  to  be  more 
effective enforcers of EU antitrust rules by introducing a minimum set of independence 
guarantees and of investigative, decision-making, and fining powers, harmonising leniency 
programmes  and  enhancing  cooperation  between  national  competition  authorities.  The 
ECN+ Directive thereby complements the decentralised enforcement system  introduced 
by  Regulation  (EC)  No  1/2003,  which  empowered  national  competition  authorities  to 
enforce EU antitrust rules without conferring harmonised enforcement powers on them. 

All Member States except one have transposed the Directive’s main provisions, although 
most of them have done so with a delay.  

The Commission will continue to assess and monitor Member States’ compliance with the 
ECN+ Directive and will take appropriate measures, including infringement proceedings 
where  necessary,  to  ensure  its  full  and  correct  transposition  throughout  the  EU.  The 
Commission will also continue to monitor the developments in the Member States in this 
area  with  a  view  to  reviewing  the  ECN+  Directive  once  sufficient  experience  from  the 
application of the new rules has accumulated. 

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