Rajat ylittävät kilpailuoikeudelliset toimeksiannot ja ECN-yhteistyö/EN
Competition law matters are often cross-border in nature, and handling them requires an understanding of how the European Commission and the national competition authorities of the Member States coordinate their activities within the European Competition Network (ECN).
- Mistä on kyse: The ECN is a cooperation network formed by the European Commission and the Member States' competition authorities, which coordinates the allocation of cases among the authorities and the exchange of information in the application of Articles 101 and 102 TFEU.
- Miksi sillä on kaupallista merkitystä: The same matter may in principle fall within the competence of several authorities at the same time — the ECN's internal division of work determines which authority ultimately handles the case, which directly affects the applicable procedure and rights of appeal.
- Mikä menee useimmin pieleen: Following the ECN+ Directive, national authorities' investigative and enforcement powers have become considerably more harmonised, but significant procedural differences remain between Member States — a mandate's strategy cannot be built on the assumption that all Member States operate in the same way.
How the ECN Operates
[muokkaa]The ECN was established when the application of Articles 101 and 102 TFEU (then Articles 81 and 82 of the EC Treaty) was partly decentralised to the Member States' national competition authorities under Council Regulation (EC) No 1/2003, Article 11 of which lays down the cooperation between the Commission and the Member States' competition authorities.[1] The network enables the exchange of information between authorities under Article 12 of the Regulation[2] and helps determine which authority (or authorities) is best placed to handle a particular case — the general rule being that the competent authority is the one in whose territory the effects of the restriction of competition are mainly felt.[3]
The ECN+ Directive (2019/1)
[muokkaa]Directive (EU) 2019/1, the so-called ECN+ Directive, was adopted on 11 December 2018 with the aim of ensuring that all national competition authorities have sufficient and consistent enforcement powers — including adequate powers of inspection and to request information (Articles 6–9), an effective system of fines (Articles 13–16) and a functioning leniency programme (Articles 17–23).[4] The Directive also contains, in Chapter VII (Articles 24–28), provisions on mutual assistance between national competition authorities, including the obligation to assist another Member State's authority in carrying out inspections and hearings and in enforcing decisions imposing fines or periodic penalty payments in another Member State.[5] The Directive is also, in part, the background to the amendments made to the Finnish Competition Act that expanded the FCCA's investigative powers.[6]
Practical Significance for Mandates
[muokkaa]When a mandate concerns more than one Member State — for example, a suspected pan-European cartel or a cross-border distribution system — it is worth mapping out at an early stage which authority is likely to handle the matter, and taking into account the procedural particularities of each relevant Member State (e.g. coordinating leniency applications across several authorities, since there is no single, common ECN-wide leniency application). The implementation of the ECN+ Directive does, however, enable so-called summary applications: if an applicant has applied to the Commission for leniency or has obtained a marker in a case concerning more than three Member States, it may submit a more limited, summary application to national competition authorities instead of a full national application.[7] The exchange of information between competition authorities is also, in principle, possible between Member States, but the transmission of undertakings' voluntary corporate statements (leniency statements) to another Member State's competition authority is permitted only in narrowly defined situations.[8]
If a client's potential leniency application may concern more than one Member State, applications must be filed separately in each relevant country and, as far as possible, simultaneously — there is no single, common European leniency application within the ECN that would provide protection in all Member States at once.
See Also
[muokkaa]- The EU Merger Regulation and the One-Stop-Shop Principle
- The EU FDI Screening Regulation and Cross-Border Cooperation
- Immunity from and Reduction of Fines (the Leniency Programme)
Sources
[muokkaa]- ↑ 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 (now Articles 101 and 102 TFEU), Article 11 ("Cooperation between the Commission and the competition authorities of the Member States"), EUR-Lex, CELEX:32003R0001.
- ↑ Council Regulation (EC) No 1/2003, Article 12 ("Exchange of information"), EUR-Lex, CELEX:32003R0001.
- ↑ Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), paragraph 10, EUR-Lex, CELEX:52004XC0427(02).
- ↑ 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, EUR-Lex, CELEX:32019L0001.
- ↑ Directive (EU) 2019/1, Article 24 ("Cooperation between national administrative competition authorities") and Article 26 ("Requests for the enforcement of decisions imposing fines or periodic penalty payments"), EUR-Lex, CELEX:32019L0001.
- ↑ Act amending the Competition Act (546/2021) (Finnish text), by which sections 8–10, 13, 14, 16, 17, 19, 29, 33–37, 40 and 44–47 of the Competition Act (948/2011) were amended and, among other things, new sections 9a and 13a–13f and a new Chapter 5a were added to the Act, Finlex, 546/2021.
- ↑ Directive (EU) 2019/1, Article 22 ("Summary applications"), EUR-Lex, CELEX:32019L0001.
- ↑ Competition Act (948/2011), sections 38 and 40 (18 June 2021/546) (Finnish text), which govern the Finnish Competition and Consumer Authority's right to exchange information and transmit corporate statements to another Member State's competition authority subject to the safeguards referred to in Article 12 of Council Regulation (EC) No 1/2003, Finlex, Competition Act 948/2011.