ECN + Directive 2019/1 Flashcards
(20 cards)
What is the ECN?
The “European Competition Network” is defined in
Article 2
It’s the network of public authorities comprising the
NCAs and the European Commission
The ECN provides a “forum for discussion and
cooperation” as regards the application/enforcement
of Arts 101 and 102
What is the Objective of the ECN +??
ART 1 of Directive - To ensure NRA’s/NCA’s have independence, resources, enforcement and fining powers to apply Art 101 and 102. This allows for the overall goal of preventing market distortion.
Contains rules about “mutual assistance” between NRA’s, such as in Inspection and Interviews (Art 24). The directive seeks to ensure “smooth functioning” of the system of collaboration within the ECN.
What is an NCA?
A “national competition authority” is an authority
designated by a Member State, pursuant to Article
35 of Regulation (EC) No 1/2003 (the
Modernisation Regulation) as being responsible
for the application of Articles 101 and 102, TFEU
Ireland (CCPC)
France (Autorite de la Concurrence)
Other Definitions in the Directive?
Cartel - “among the most serious restrictions of competition” Compared to 101 it is more comprehensive and enforcement focused including price-fixing, market or customer sharing, restricting imports/exports, bid-rigging.
A “leniency programme” AKA “whistle blowing” is a system whereby when a cartelist co-operated with an investigation they may receive a reduced punishment. Incorporates elements of the ECN model leniency programme and attempts to harmonise leniency procedures across the EU.
USE INFO FROM OTHER CHAPTER….
Other Definitions (part 2.)
Leniency Statement - this is oral or written info provided by a cartelist which describes the role or knowledge of the cartelist. Art 2 (17)
Article 4 Independence
This article requires that Member States shall ensure that
national administrative competition
authorities (NACAs) perform their duties
and exercise their powers impartially.
When exercising powers they must - “independently from political and
external influence”
“neither
seek nor take any instructions from
government/other public/private entities”
“refrain from taking any action
which is incompatible with their NACA
duties/powers”
those who “retire from the NACAs,
refrain from dealing with enforcement
proceedings that could give rise to a conflict
of interests” (“for a reasonable period after
leaving office”)
“members of the decision-making body of
NACAs are selected, recruited or appointed
according to clear and transparent
procedures”
Art 4 (part 2.)
NACAs shall have the power to set their priorities
concerning tasks (investigations) under Arts 101 and 102
While they are obliged to consider formal complaints, they
also have the power to “reject such complaints”
E.G., they may not consider such a complaint/case to be
an enforcement priority
Art 5 - Resources
MS must ensure -
NCA’s have a sufficient number of qualified staff and sufficient financial, technical and
technological resources.
NCAs are granted
independence in the spending of the allocated budget
Art 5 - Resources (part 2.)
NACAs will be obliged to submit periodic reports on their activities/resources to a
governmental/parliamentary body
periodic report must contain information about:
Any appointments/dismissals of members of the decision-making body
The amount of resources allocated in the relevant year (and changes in that
amount compared to previous years)
The Periodic Report ‘shall’ be made publicly available
Art 6 - Power to Inspect Business Premises
NACAs must be able to conduct ‘all necessary, unannounced inspections’ of undertakings.
They can:
1) enter any premises, land and means of transport of
the undertaking/association of undertakings
2) examine the books and other records related to the business.
3) right to access any
information which is accessible to the undertaking which is subject to the inspection.
4) To take or obtain in any form, copies of or extracts
from such books or records
NCA Powers (part 2.)
5) To seal any business premises and books or records
during the inspection
6) To ask any member of staff of the undertaking being
inspected for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers.
7) Undertakings and Associations of Undertakings are required ‘to submit to the inspections’.
8) If an undertaking opposes an inspection, NCAs will be
able to ‘obtain the necessary assistance of the police or an equivalent enforcement authority’
9) Article 6 is ‘without prejudice to requirements under
national law for the prior authorisation of such
inspections by a national judicial authority’ (a court)
Article 7 – Power to inspect other premises
If there is reasonable suspicion that evidence is in the homes of any member of staff, NACA inspection permitted, can br “premises, land or transport”. subject to ‘the prior authorisation of a national judicial authority’
Article 8 – Requests for Information
All relevant info for application of 101/102 must be provided “within a specified and reasonable time limit”
Requests must be proportionate and accessible.
Article 9 – Interviews
NACA’s can summon:
A representative of an undertaking/association of undertakings
A representative of other legal persons (companies) or, any natural persons
If they may have information related to the application of 101/102.
Article 17 – Immunity from Fines
Member States shall ensure that NCAs have in place leniency programmes that enable them to grant immunity from fines to undertakings for disclosing their participation in secret cartels.
Can be for other purposes too if they wish..
Art 17 (part 2.)
Evidence submitted must allow NCA to carry out targeted inspection, must generate “value added” from the viewpoint of the NCA.
NCA rejects an application for immunity from
fines, the applicant can request the NCA to consider a
reduction of fine
Article 18 – Reduction of Fines
Again, MS must ensure NCA’s have leniency programmes in place and evidence must represent “significant added value”
Article 19 – General Conditions for Leniency
1) must have ended its involvement in the alleged secret cartel at the latest immediately following its leniency application.
2) cooperates genuinely, fully on a continuous basis and expeditiously with the NCA until investigation ends.
3) applicant must provide the NCA promptly with all relevant information/evidence relating to the alleged secret cartel, to include:
the name/address of the applicant
Names of all current/past members of the secret cartel
4) A detailed description of the alleged secret cartel
including:
The affected products
The affected territories
The duration
The nature of the alleged secret cartel conduct
5) must remain at NCA’s disposal to answer questions and allow staff to be interviewed.
Article 20 – Form of leniency statements
Applicants must be able to submit their leniency statements in
writing or, in oral form
Article 19 – General Conditions for Leniency again…
must not destroy, falsify or conceal
relevant information or evidence
applicant must not disclose its leniency
application (or its contents) before the NCA has issued
its statement of objections
