Empowering the national competition authorities to be more ...ec.europa.eu/.../groupe_eurotunnel_se_fr.pdf · 1 Case Id: 2060f0cf-7669-4afa-82f1-ada3de404320 Date: 12/02/2016 10:38:37

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Case Id: 2060f0cf-7669-4afa-82f1-ada3de404320Date: 12/02/2016 10:38:37

Empowering the nationalcompetition authorities to be moreeffective enforcers

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PRACTICAL GUIDE

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INTRODUCTION

Preliminary Remark: The following questionnaire has been drafted by the Services of theDirectorate General for Competition in order to collect views on the enforcement of the EUcompetition rules by national competition authorities. The questionnaire does not reflect theviews of the European Commission and will not prejudice its future decisions, if any, onfurther action on this issue.

A. Purpose of the consultationThe purpose of the present consultation is to gather information on how to better serve the citizens ofthe European Union through the Union's competition law framework. This consultation invites citizensand stakeholders to provide feedback on their experience/knowledge of issues that nationalcompetition authorities may face which impact on their ability to effectively enforce the EUcompetition rules and what action, if any, should be taken in this regard.

The Commission will carefully analyse the outcome of the consultation before deciding whether andto what extent it should take further action. Input from stakeholders may be used in an ImpactAssessment to assess which measures should be taken, if any, to ensure national competitionauthorities are empowered to be effective enforcers.

B. BackgroundCompetition policy in Europe is a vital part of the . The aim of the EU competition rulesinternal marketis to provide everyone in Europe with better quality and innovative goods and services at lowerprices. Competition policy is about applying rules to make sure companies compete fairly with eachother. This encourages enterprise and efficiency, creates a wider choice for consumers and helpsreduce prices and improve quality. These are the reasons why competition authorities fight

.anticompetitive behaviour

The national competition authorities are essential partners for enforcing the EU competition rulesalongside the European Commission. Since 2004, the national competition authorities have beenempowered by Regulation 1/2003 to apply the EU competition rules. The national competitionauthorities and the European Commission closely cooperate with each other in the EuropeanCompetition Network, to ensure the EU competition rules are applied in a consistent way.[1]

Enforcement of the EU competition rules by both the European Commission and the nationalcompetition authorities is an essential building block to create an open, competitive and innovativesingle market and is crucial for creating jobs and growth in all sectors of the economy. The nationalcompetition authorities thus play a key role in making sure that the single market works well and fairlyfor the benefit of business and consumers.

However there is potential for the national competition authorities to do much more. It is not enoughto simply give the national competition authorities the powers to apply the EU antitrust rules: theyneed to have the means and instruments to act effectively.

On 9 July 2014, the Commission adopted a Communication on Ten Years of Antitrust Enforcement

http://ec.europa.eu/priorities/internal-market/index_en.htm

http://ec.europa.eu/competition/antitrust/overview_en.html

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On 9 July 2014, the Commission adopted a Communication on Ten Years of Antitrust Enforcementunder Regulation 1/2003: Achievements and Future Perspectives[2] which identified areas for actionto empower the national competition authorities to be more effective enforcers, namely to guaranteethat the national competition authorities:

(1) have an effective enforcement toolbox;

(2) can impose effective fines;

(3) have effective leniency programmes to encourage companies to come clean about cartels and

(4) have adequate resources and are sufficiently independent.

By way of follow-up to the Communication, the Commission has engaged in detailed fact-finding withthe national competition authorities. This public consultation aims to get the views of stakeholders,experts and the public at large.

C. General remarks regarding the consultationAny citizen or interested stakeholder organisation is invited to participate in the consultation. Inparticular, stakeholders active in competition matters, including businesses, their legal and economicadvisors, consumer and industry associations and members of the academic community, are invitedto respond to the questionnaire. Replies can be submitted in all official languages.

Any other comments and information is welcome, in particular, other documents, reports, studies, etc.which may be relevant.

The questionnaire is divided into three parts:

A. About you B. General questions C. Detailed questions for stakeholders active in competition matters

The detailed questions are further sub-divided into four sections: optional

C.1. Resources and independence of the national competition authorities C.2. Enforcement toolbox of the national competition authorities C.3. Powers of national competition authorities to fine undertakings C.4. Leniency programmes

We encourage .all respondents to the questionnaire to reply to the general questions

In addition, we encourage stakeholders active in competition matters to also reply to theAs these sections are optional, stakeholders sections with the detailed questions (C.1 to C.4).

may select those sections about which they have experience/knowledge.

Respondents only replying to the general questions are also invited to read the introductory parts ofeach of the sections C.1. to C.4 as they provide further background information on the scope of thequestionnaire.

The deadline for replies is . 12 February 2016

You can send to the mailbox [email protected] additional question oranythat you consider relevant to empowering the national competition authorities to be more information

effective enforcers.

[1] More information about the European Competition Network (ECN) can be found at: http://ec.europa.eu/competition/ecn/index_en.html

http://ec.europa.eu/competition/ecn/index_en.html

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[2] COM(2014) 453, 9.7.2014.

A. ABOUT YOU

*1. Are you replying as:

a private individualan organisation or a companya public authority or an international organisation

Please provide your contact details below:

*Your full name

MATHIEU SAMARCQ

*Organisation represented

GROUPE EUROTUNNEL SE

*Location (Country)

FRANCE

*Email address

[email protected]

1.1. Please indicate which type of organisation or company it is:

Academic institution Consumer organisationNon-governmental organisation Public AuthorityCompany/SME/micro-enterprise/sole trader Industry associationThink tank Consultancy/law firmMedia Trade union

1.2. Is it a multinational enterprise (groups with establishments in more than one country)?

Yes No

*

*

*

*

*


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1.3. How many employees does your company have?

1-9 10-49 50-249 250-499 500 or more

1.4. What level of turnover does your company have?

turnover ≤ €2million

€2< turnover ≤ €10million

€10< turnover≤€50 million

€50< turnover ≤€750 million

turnover> €750million

1.5. What is the balance sheet total (BST) of your company?

BST ≤ €2million

€2 < BST ≤ €10million

€10 < BST ≤ €43million

BST> €43million

3. Where are you based?

France

4. Do you represent interests or carry out activity at:

National level (your country only)EU levelInternational levelOther

In the interests of transparency, the Commission asks organisations who wish to submit comments inthe context of public consultations to provide the Commission and the public at large with informationabout whom and what they represent by registering in the and subscribing toTransparency Register its . If an organisation decides not to provide this information, it is the Commission'sCode of Conductstated policy to list the contribution as part of the individual contributions. (Consultation Standards,see COM (2002) 704; Better Regulation guidelines, see SWD(2015)111 final and Communication onETI Follow-up, see COM (2007) 127).

If you are a registered organisation, please indicate below your Register ID number when replying tothe online questionnaire. Your contribution will then be considered as representative of the views ofyour organisation.

If your organisation is not registered, you have the opportunity to . Then you can returnRegister nowto this page, continue replying the questionnaire and submit your contribution as a registeredorganisation.

It is important to read the specific privacy statement attached to the announcement of this publicconsultation for information on how your personal data and contribution will be used.

http://ec.europa.eu/transparencyregister/public/homePage.do

http://ec.europa.eu/transparencyregister/public/staticPage/displayStaticPage.do?locale=en&reference=CODE_OF_CONDUCT

https://ec.europa.eu/transparencyregister/public/ri/registering.do?locale=en

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5. For registered organisations: indicate here your Register ID number

geteudap1

*6. Please choose from one of the following options on the use of your contribution:

My/our contribution,

Can be directly published with my personal/organisation information (I consent topublication of all information in my contribution in whole or in part including myname/the name of my organisation, and I declare that nothing within my response isunlawful or would infringe the rights of any third party in a manner that would preventpublication).Can be directly published provided that I/my organisation remain(s) anonymous (I

consent to publication of any information in my contribution in whole or in part (whichmay include quotes or opinions I express) provided that this is done anonymously. Ideclare that nothing within my response is unlawful or would infringe the rights of anythird party in a manner that would prevent publication.Cannot be directly published but may be included within statistical data (I understand

that my contribution will not be directly published, but that my anonymised responsesmay be included in published statistical data, for example, to show general trends in theresponse to this consultation) Note that your answers may be subject to a request forpublic access to documents under Regulation (EC) No 1049/2001.

7. Finally, if required, can the Commission services contact you for further details on theinformation you have submitted?

Yes No

B. GENERAL QUESTIONS FOR ALL RESPONDENTS TO THEQUESTIONNAIRE

The aim of the EU competition rules is to provide everyone in Europe with better quality andinnovative goods and services at lower prices.

The national competition authorities together with the Commission are responsible for applying theEU competition rules to fight anti-competitive behaviour and make sure companies compete fairlywith each other.

This encourages enterprise, innovation and productivity, creates a wider choice for consumers andhelps reduce prices and improve quality.

1. Do you think that the EU competition rules are effectively enforced by the national ?competition authorities

Strongly disagreeDisagreeAgree

Strongly Agree

*

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Strongly AgreeNeutralDo not know/Not applicable

Please indicate which Member State(s)your answer refers to:

FranceUnited Kingdom

If you have different views for different countries, please clarify below your views for eachcountry.

Le Groupe Eurotunnel a été confronté à deux décisions divergentes des ANC

ayant eu des conséquences lourdes sur les activités du Groupe. Le 27 juin

2014, l’autorité britannique de la concurrence (CMA) a annoncé l’interdiction

aux ferries de la compagnie MyFerryLink d'exploiter la ligne Calais-Douvres au

motif que cette entreprise, issue de la prise de contrôle par le Groupe

Eurotunnel d'actifs de l'entreprise SeaFrance, serait en situation de

quasi-monopole. L'Autorité de la concurrence française avait pourtant donné en

2012, sous conditions, son aval au projet tel que validé par le tribunal de

commerce la même année. Pas moins de 533 marins et sédentaires français et

quelques 70 britanniques étaient employés par la SCOP SeaFrance. Près de 1 500

emplois européens, directs et indirects, étaient donc en péril. Le Groupe

Eurotunnel estime qu’en retirant un concurrent du marché, la CMA organise un

duopole de fait sur le secteur maritime, qui devrait se traduire par une

augmentation des tarifs pour le consommateur, une baisse de recettes pour les

ports de Calais et Douvres, et un drame social pour les salariés de la SCOP.

Les autorités de concurrence UK et FR ont donc une analyse différente de la

concurrence sur un même marché transmanche. Celle-ci les a conduites à adopter

deux décisions contradictoires ayant des effets désastreux sur les activités

transnationales du Groupe Eurotunnel

2. Do you think that the national competition to enforce the EUauthorities could do more

competition rules?Strongly disagreeDisagreeAgreeStrongly AgreeNeutralDo not know/Not applicable

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Please indicate which Member State(s)your answer refers to:


If you have different views for different countries, please clarify below your views for eachcountry.

Des dispositions spécifiques sur la coopération des ANC FR et UK concernant

les activités transmanche pourraient être mises en œuvre entre les ANC

concernées afin d’éviter une réédition du cas My Ferry Link.

3. For the NCAs identified above, which do you think would help them to be measures m

?ore effective enforcers of EU competition rules

Stronglydisagree

Disagree AgreeStronglyAgree

NeutralNoopinion

Ensuring nationalcompetitionauthorities haveguarantees thatthey enforce theEU competitionrules in the generalinterest of the EUand do not takeinstructions whendoing so

Ensuring nationalcompetitionauthorities havesufficientresources toperform their tasks

Ensuring nationalcompetitionauthorities haveeffectiveenforcement tools,e.g. to detect andinvestigate

competition law

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competition lawinfringements

Ensuring nationalcompetitionauthorities haveeffective powers tofine companies forbreach ofcompetition law

Ensuring nationalcompetitionauthorities haveeffective leniencyprogrammes toencouragecompanies tocome clean aboutcompetition lawinfringements

Other

You are welcome to add additional comments and/or explanations.

Au cas où plusieurs ANC sont saisies d'un même accord ou pratiques, mettre en

oeuvre des modalités imposant à chacune de rendre des décisions non

contradictoires.

Le cas des interventions parallèles de plusieurs ANC est traité dans la

communication du 27 avril 2004 sur la coopération des ANC : p.13 « Les

autorités qui traitent une plainte dans le cadre d'une intervention parallèle

s'efforceront de coordonner leur action dans la mesure du possible. À cet

effet, elles peuvent juger bon de désigner l'une d'elles comme chef de file et

de lui déléguer certaines tâches, comme la coordination des mesures d'enquête,

chaque autorité demeurant toutefois responsable de la procédure qu'elle a

elle-même engagée. »

to empower national competition authorities to be more4. Do you think action should be takeneffective enforcers of the EU competition rules:

Strongly disagreeDisagreeAgreeStrongly AgreeNeutralDo not know/Not applicable

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5. If you think that action should be taken to empower the national competition authorities tobe more effective enforcers of the EU competition rules, who do you think should take action?

Member StatesEU ActionCombination of EU/Member State actionDo not know/Not applicable

6. If you consider that to empower thethe Member States should take actionnational competition authorities to be more effective enforcers, what type ofaction is most appropriate?

Non-legislative action (e.g. best practices)Mix of legislative and non-legislative actionLegislative actionDo not know/Not applicable

You are welcome to add additional.comments and/or explanations

Lorsqu’une affaire vise une activité transfrontalière, le droit national des

Etats membres concernés devrait imposer une coopération des ANC de chacun de

ces Etats dans le but de parvenir à l’adoption de décisions non

contradictoires. En complément de la réponse ci-dessus (question 5), l'Union

européenne doit imposer aux Etats membres une coopération mise en oeuvre par

les législations nationales.

7. If you consider that to empower theaction should be taken at EU levelnational competition authorities to be more effective enforcers, what type ofEU action is most appropriate?



Lorsqu’une affaire vise une activité transfrontalière, le cadre juridique

européen doit imposer une coopération entre les ANC concernées afin de rendre

une décision commune ou à minima non contradictoire. La révision du Règlement

1/2003 et celle de la Communication de la Commission européenne du 27 avril

2004 sur la coopération des ANC pourraient permettre de renforcer le rôle de

la Commission européenne en tant qu’autorité européenne de concurrence, via le

Réseau européen de concurrence, pour toute affaire concernant plusieurs Etats

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membres. Le 10 octobre 2014, l’ancien Commissaire à la Concurrence, Joaquim

Almunia, a déclaré qu’une coopération renforcée entre les ANC et la Commission

était nécessaire pour éviter des cas tels que celui de MyFerryLink.

8. How would your preferred option for EU action affect the:following aspects

Verynegative

Negative PositiveVerypositive

NeutralNoopinion

The effectiveenforcement of theEU competitionrules

Legal certainty forbusinesses

Costs forbusinesses (*)

Cooperation withinthe EuropeanCompetitionNetwork

Legitimacy ofnationalcompetitionauthorities'decisions

Investmentclimate/economicgrowth

(*) Negative impact on costs means that costs increase. Positive impact on costs means that costsdecrease.

You are welcome to add ,additional comments and/or explanationsin particular, if you consider that your preferred option would have

, please provide details.any other impact

9. You are welcome to add any concerning theadditional comments/and or explanationsenforcement of the EU competition rules by the national competition authorities:

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En l'état actuel, les règles européennes sont incomplètes en ce qu'elles ne

prévoient pas le règlement de différends entre NCAs pour une activité

transfrontalière qui a un impact sur plusieurs Etats membres, sous un certain

seuil.

C. DETAILED QUESTIONS FOR STAKEHOLDERS ACTIVE INCOMPETITION MATTERS

C.1. RESOURCES AND INDEPENDENCE OF THE NCAs

The states that: "it is necessary toCommunication on Ten Years of Regulation 1/2003 of 9 July 2014further guarantee the independence of national competition authorities (" ") in the exercise ofNCAstheir tasks and that they have sufficient resources".

The NCAs directly enforce the EU Treaty provisions on competition, namely Articles and 101 102 TFEU, alongside the Commission. EU law leaves Member States a large degree of flexibility for thedesign of the NCAs. The and level of resources degree of independence of the NCAs are

subject to Article 35 of Regulation 1/2003, which requiresessentially determined by national lawMember States to designate NCA(s) in such a way that the provisions of the Regulation areeffectively complied with, and that the EU law principles of effectiveness and equivalence arerespected.

The Commission initial fact-finding in follow-up to the 2014 Communication shows that significant in differences exist among the NCAs in terms of human and financial resources Member

in terms of GDP and that NCAs in small Members States often suffer fromStates of a similar sizelimited financial means or very low staff numbers. Moreover, as a result of budgetary and staffingconstraints and cuts, many NCAs have had to stop or refrain from conducting certain

.enforcement activities

Against the backdrop of cuts in the resources of several authorities, an European CompetitionNetwork ("ECN") Resolution of Heads of Authorities was adopted on the continued need for

.[3] The Resolution underlined, inter alia, the need for appropriate infrastructureeffective institutionsand expert resources for all NCAs.

With regard to the functioning of the NCAs, the Commission initial fact-finding shows that while theyhave generally developed in the direction of greater independence, the applicable national rules donot always safeguard them against interference from public and private bodies when carrying

.out their task of enforcing EU competition law

The Commission has also and oftried to address the level of resources degree of independencesome NCAs through the Economic Adjustment Programmes with so-called Programme Countries andthe European Semester where possible, as well as through direct reactions to Member States on abilateral basis.

[3] See the Internet ( ).http://ec.europa.eu/competition/ecn/ncas.pdf

C.1.(a) Your experience/knowledge of resources and independence of NCAs when enforcingEU competition law

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0453&from=EN

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E101&from=EN


http://ec.europa.eu/competition/ecn/ncas.pdf

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1. Do you have experience/knowledge of the enforcement of the EU competition rules by theNCAs?

Yes No Do not know/Not applicable

If yes, in which countries?


2. In its Communication on Ten Years of Regulation 1/2003 of 9 July 2014, the Commissionconsiders it “necessary to further guarantee the independence of NCAs in the exercise of their

" when enforcing the EU competition rules.tasks and that they have sufficient resourcesDo you agree with this finding with respect to the NCAs with which you have

?experience/knowledge

Strongly disagreeDisagreeAgreeStrongly AgreeNeutralDo not know/Not applicable

You are welcome to add additional:comments/and or explanations

3. In your view, which are the main tasks should perform concerning the NCAs enforc

?ement of the EU competition rules

Stronglydisagree


NeutralNoopinion

Enforcement inindividual cases

Engaging incompetitionadvocacy

Cooperationwithin the ECN

for enforcement

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for enforcementof the EUcompetitionrules

Other

You are welcome to add additional:comments/and or explanations

4. Do you have experience/knowledge of instances where a NCA does not have concerning the sufficient human or financial resources to carry out its main tasks enf

(e.g. conduct simultaneous inspections atorcement of the EU competition rulesdifferent locations)?


You are welcome to add , in particular, explainingadditional comments and/or explanationswhich NCA(s) you refer to, and if and why you consider this to be a problem.

5. Do you have where a experience/knowledge of instances NCA has been influenced by other (e.g. government, other national public bodies, or private entities apart from the partiesbodies

involved in the case) when enforcing theor subject to instructions from outside the authorityEU competition rules in individual cases?


You are welcome to add , inadditional comments and/or explanationsparticular, explaining if and why you consider this to be a problem.

Dans le cas de My Ferry Link, la divergence dans les décisions des deux

autorités est telle, que l'on peut légitimement s'interroger sur ce qui pu a

conduire à ce résultat.

6. Do you have where experience/knowledge of instances members of the NCA’s top

due to their management/board or decision-making body have been dismissed enforcement

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due to their management/board or decision-making body have been dismissed enforcement (including for example the position they took during a collegiate decision makingactivities

process) ? in individual casesYes No Do not know/Not applicable

You are welcome to add , inadditional comments and/or explanationsparticular, explaining if and why you consider this to be a problem.

7. Do you have where experience/knowledge of instances members of the NCA’s top or management/board or decision-making body had a conflict of interest immediately after the

end of their contract/mandate with the NCA, have taken up a professionalposition/responsibility with an undertaking which had been subject to an investigation or

during their employment with the NCA?decisionYes No Do not know/Not applicable

You are welcome to add , in particular, explainingadditional comments and/or explanationswhich NCA(s), which activity and if and why you consider this to be a problem.

C.1.(b) Your views on potential action

8. Which measures are necessary to ensure that NCAs are functionally independent whenenforcing the EU competition rules, i.e. they act in the general interest of the EU and do nottake instructions when carrying out this task?

Please list the 3 most important measures in order of importance (starting with "1" for the mostimportant).

1 2 3

Guarantees ensuring that NCAs are endowed withadequate and stable human and financial resourcesto perform their tasks

Guarantees that NCA's top management/board ordecision-making body are not subject to instructionsfrom any government or other public or private body

Guarantees ensuring that dismissals of members ofthe NCA's top management/board or decision-making

body can only take place on objective grounds

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body can only take place on objective groundsunrelated to its enforcement activities

Rules on conflicts of interest for the NCA's topmanagement/board or decision-making body

Rules on accountability of the NCA (e.g. requiring thatNCAs report annually on their activities)

Other

You are welcome to add additionalcomments and/or explanations.

9. Should ensuring that NCAs have sufficient resources when they enforce the EU competitionrules be addressed by the Member States and/or by EU action?

Member StatesEU actionCombination of EU/Member State actionDo not know/Not applicable


10. Should guarantees regarding the independence of the NCAs when enforcing the EUcompetition rules be addressed at Member States and/or EU level?



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11. If you consider that there is a case for act, please specifyion by the Member States

what type of action you consider most:appropriate


You are welcome to add additional comments and/or explanations. If your reply is differentfor resources and for independence, please clarify it here.

12. If you consider that there is a case for EU action, what type of EU action you consider most appropriate:


You are welcome to add additional comments and/or explanations. If your reply is differentfor resources and for independence, please clarify it here.

13. Please clarify why you consider your preferred type of EU action more appropriate than to ensure the independence of the NCAs in the exercise of their tasks andother types of action

that they have sufficient resources when they enforce the EU competition rules?

Dans le cas d'activités transnationales, pour affirmer le principe de la

primauté du droit européen principale source du droit de la concurrence.

14. What would be the impact of your preferred option for EU action:on the following aspects

Verynegative


NeutralNoopinion

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Cooperation withinthe ECN

Legitimacy of NCAdecisions

Investmentclimate/economicgrowth


You are welcome to add ,additional comments and/or explanationsin particular, if you consider that your preferred option would have any other impact.

15. Please indicate whether you have any, such asother comment or suggestions

examples of good practice etc.

You may also provide additional information which may be relevant for this section (copies ofany documents, reports, studies etc.). Please do it by uploading the relevant information indocuments with a maximum size of 1 MB each using the button below.

Should you prefer to provide documents of more than 1 MB, please send them to the functionalmailbox [email protected] after having submitted your reply to the questionnaireindicating your Case-Id, email and contact details.

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C.2. ENFORCEMENT TOOLBOX OF THE NCAs

The provides: “it is necessary of 9 July 2014 Communication on Ten Years of Regulation 1/2003… to ensure that NCAs have a complete set of effective investigative and decision-making powers attheir disposal”.

The are tools NCAs use to apply the EU competition rules essentially governed by national law, subject only to EU general law principles of effectiveness and equivalence.

By way of follow-up to the Communication, the Commission has carried out initial fact-finding whichindicates that the vast majority of NCAs do not have a complete set of investigation and

which are and are .decision-making powers comprehensive in scope effective

Several NCAs do not have the power to fully set their enforcement priorities, e.g. they cannot, and choose which cases to dedicate their scarce resources.reject complaints on priority grounds

While most NCAs broadly have the same basic enforcement tools, some lack fundamental powerssuch as to adopt commitment decisions or to inspect non-business premises.

There are , e.g. while most NCAs have thesignificant differences in the scope of NCAs' powerspower to inspect, some cannot effectively gather digital evidence. Similarly, while all NCAs have thepower to adopt prohibition decisions, some cannot adopt behavioural or structural remedies to restorecompetition on the market.

Some NCAs cannot effectively fine non-compliance with their investigative and, as either their powers are not backed up by fines, fines are set at a verydecision-making powers

low level or there are no means to compel compliance e.g. through periodic penalty payments.

If NCAs do not have effective tools, their . It also ability to detect and find infringements suffers: NCAs often ask other NCAs to carry out inspections onimpacts on cooperation within the ECN

their behalf. However, the utility of this tool is diminished if NCAs do not have effective inspectionpowers. for companies operatingDivergences in procedures result in legal costs and uncertaintycross-border, which need to acquaint themselves with different rules.

The on key enforcement tools to foster softECN has developed a set of seven Recommendationsconvergence. Attempts have also been made to improve the enforcement toolbox of NCAsthrough the of Specific Economic Policy Conditionality with the Memoranda of Understanding

and through country specific recommendations in the frameworkso-called "Programme Countries"of the .European Semester

C.2.(a) Your experience/knowledge

1. Do you have use to enforce Articles 101 and 102experience/knowledge of the tools NCAsTFEU, e.g. to carry out inspections, to issue requests for information, to collect digital evidenceand to impose structural or behavioural remedies?



http://ec.europa.eu/competition/ecn/documents.html

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If yes, in which countries:


2. Do you have experience/ knowledge of instances where NCAs do not have effective to enforce Articles 101 and 102 TFEU, e.g. toinvestigation and decision-making tools

effectively carry out inspections, issue requests for information, adopt commitment decisions,issue interim orders?


Do you consider this to be a problem in terms of:

Stronglydisagree


NeutralNoopinion

The effectiveenforcement of theEU competitionrules e.g. NCAsmay refrain fromtaking action/carryout more limitedaction/take actionwhich does notmeet the desiredobjective?

Cooperation withinthe ECN e.g.NCAs may nothave effectivepowers to carryout an inspectionon behalf ofanother ECNmember pursuantto Article 22?

You are welcome to add , e.g. whichadditional comments and/or explanationsMember State(s) you refer to and if you consider that this gives rise to other

.problems

21

Le cas de MyFerryLink souligne une faiblesse dans les outils de coopération

entre les ANCs menant à des prises de décisions contradictoires pour des

activités transnationales et sur un même marché.Ce qui ne semble pas exister

sont la manière d'utiliser les outils. La prise de décision aurait dû être

coordonnée ou renvoyée devant la Commission européenne. A l’époque de

l’affaire MyFerryLink, l’ANC UK avait refusé de renvoyer le cas devant la

Commission européenne.

3. Do you have experience/ knowledge of instances where NCAs have divergent investigation to enforce Articles 101 and 102 TFEU, e.g. to gather digital evidence,and decision-making tools

to impose structural or behavioural remedies? Yes No Do not know/Not applicable


Stronglydisagree


NeutralNoopinion

Costs forbusinessesoperatingcross-borderwithin the EU,e.g. costs ofbecomingacquainted withdifferent rules?

Uncertainty forbusinessesoperatingcross-borderwithin the EU,e.g. differences interms of whichdata may begathered?

Cooperationwithin the ECNe.g. differences interms of whichevidence can begathered onbehalf of anotherNCA?

22


.problems

Le cas de MyFerryLink illustre les possibilités données par le cadre juridique

des ANC pour adopter des décisions divergentes et contradictoires. En

l’espèce, les divergences de décisions ont eu des effets catastrophiques sur

les emplois des salariés de MyFerryLink.

4. Do you have experience/ knowledge of instances where NCAs do not have effective powers:to

with their investigative and decision-making powers, e.g. to4.1. fine non-complianceimpose with inspection powers such as breaching seals orfines for non-compliancefailure to comply with a commitment decision?



Stronglydisagree


NeutralNoopinion

The effectiveenforcement ofArticles 101 and102 TEFU byNCAs, e.g. ifNCAs' inspectionand investigationpowers are notbacked up by anypower to imposefines or the finesare set at a verylow levelcompanies may notbe incentivised tocomply?

Costs forbusinesses

operating

23

operatingcross-border withinthe EU, e.g. costsof becomingacquainted withdifferent rules?

Uncertainty forbusinessesoperatingcross-border withinthe EU?


.problems

4.2. compel compliance with their investigation and decision-making powers,g. to impose to ensure that an undertakingperiodic penalty paymentscomplies with a prohibition decision?



Stronglydisagree


NeutralNoopinion

The effectiveenforcement ofArticles 101 and102 TEFU byNCAs, e.g. ifNCAs' inspectionand investigationpowers are notbacked up by anypower to impose

fines or the fines

24

fines or the finesare set at a verylow levelcompanies may notbe incentivised tocomply?

Costs forbusinessesoperatingcross-border withinthe EU, e.g. costsof becomingacquainted withdifferent rules?

Uncertainty forbusinessesoperatingcross-border withinthe EU?


.problems

5. Do you have experience/ knowledge of instances where NCAs do not have the power to settheir priorities and to choose which cases to investigate, including the power to reject formal

?complaints on priority groundsYes No Do not know/Not applicable


Stronglydisagree


NeutralNoopinion

The effectiveenforcement of

Articles 101 and

25

Articles 101 and102 TEFU byNCAs?


Uncertainty forbusinessesoperatingcross-borderwithin the EU?


.problems

6. Do you have of ,experience/ knowledge divergent rules on prescription (limitation) periodse.g. if the possibility for one NCA to take an enforcement decision becomes time barred butanother NCA may still act?



.problems

Le cas My Ferry Link entre la C.M.A. et l'Autorité de la Concurrence française


26

Stronglydisagree


NeutralNoopinion

The effectiveenforcement ofArticles 101 and102 TEFU byNCAs?




.problems

La divergence de décision entre les NCAs FR et UK ont conduit à une

catastrophe sociale et financière. La construction européenne sur ce point

n'est pas aboutie et nécessite une réglementation spécifique complémentaire

7. Do you have experience/ knowledge of instances where one NCA (NCA A) does not have the (e.g. Statements of Objection) power to ask another NCA (NCA B) to notify acts or to enforce

, where it is not possible for NCA A to dofining decisions on its behalf in the territory of NCA Bso in its own jurisdiction, e.g. the company concerned has no legal presence there?



Stronglydisagree


NeutralNoopinion

The effective

27

The effectiveenforcement ofArticles 101 and102 TEFU byNCAs?

Costs forbusinessesoperatingcross-borderwithin the EU,e.g. costs ofbecomingacquainted withdifferent rules? (*)




.problems

8. Please specify whether you have encountered any other problem in terms of NCAs not?having sufficient tools to enforce Articles 101 and 102 TFEU


Please explain your answer and in particular which Member State(s) you refer to.

C.2.(b) Your views on potential action

in order to have an to enforce9. Which powers do you think NCAs need effective toolbox

28

in order to have an to enforce9. Which powers do you think NCAs need effective toolboxArticles 101 and 102 TFEU?

9.1. Power to inspect business premises

Stronglydisagree

Disagree AgreeStrongly

agreeNeutral

Noopinion

Which aspects of this tool do you consider to be of importance?

9.2. Power to inspect non-business premises, e.g. homes and means of transport ofdirectors, managers and other members of staff of the company being inspected

Stronglydisagree


agreeNeutral

Noopinion


9.3. Power to issue requests for information

Stronglydisagree


agreeNeutral

Noopinion


9.4. Power to effectively gather digital evidence

Stronglydisagree


agreeNeutral

Noopinion


29

9.5. Power for the officials of one NCA (NCA A), which request another NCA (NCA B) tocarry out an inspection on their behalf or to assist in the inspection carried out by NCA B(e.g. to be present during the inspection, to have investigative powers)

Stronglydisagree


agreeNeutral

Noopinion


Cela ne pourrait que se concevoir que sous le contrôle d'une autorité

supra-nationale, telle que la Commission européenne

9.6. Power to conduct interviews with persons who might have knowledge of the subjectunder investigation

Stronglydisagree


agreeNeutral

Noopinion


9.7. Power to conduct sector inquiries

Stronglydisagree


agreeNeutral

Noopinion


9.8. Power to adopt prohibition decisions

Stronglydisagree


agreeNeutral

Noopinion


30

9.9. Power to adopt formal settlement decisions (formal decision and reduced fine)

Stronglydisagree


agreeNeutral

Noopinion


9.10. Power to adopt commitment decisions

Stronglydisagree


agreeNeutral

Noopinion


9.11. Power to issue interim orders

Stronglydisagree


agreeNeutral

Noopinion


A pratiquer avec la plus haute prudence pour ne pas créer de situations

irréversibles, ni financièrement trop pénalisantes

9.12. Power to impose dissuasive fines for non-compliance with investigative anddecision-making powers

Stronglydisagree


agreeNeutral

Noopinion


31

9.13. Power to compel compliance with investigative and decision-making powers, e.g.,power to impose effective periodic penalty payments?

Stronglydisagree


agreeNeutral

Noopinion


9.14. Power to fully set enforcement priorities, including the power to reject complaints onpriority grounds?

Stronglydisagree


agreeNeutral

Noopinion


9.15. Power for NCAs to act within a certain time period (prescription periods)

Stronglydisagree


agreeNeutral

Noopinion


Lorsque l’affaire en question traite d’activités transnationales, les ANC

concernées devraient aligner leurs périodes de prescription afin d’éviter la

multiplication dans le temps des décisions contradictoires

9.16. Power for one NCA (NCA A) to ask another NCA (NCA B) to notify acts (e.g. aStatements of Objection) on their behalf in the territory of NCA B (e.g. if NCA A cannotnotify acts to a company in its own territory because it does not have a subsidiary or otherlegal representation there)

Strongly

disagree Disagree Agree

Strongly

agree Neutral

No

opinion

32

disagree Disagree Agree agree Neutral opinion


9.17. Power for one NCA (NCA A) to ask another NCA (NCA B) to enforce fining decisionson their behalf in the territory of NCA B (e.g. if NCA A cannot fine a company in its ownterritory because it does not have a subsidiary or other legal representation there).

Stronglydisagree


agreeNeutral

Noopinion


9.18. Other

Stronglydisagree


agreeNeutral

Noopinion

Indicate what this "Other" power would be:

Les ANC devraient avoir l'obligation de coordonner leurs prises de décision

entre elles lorsque les affaires concernent des activités transnationales.


10. Should ensuring that NCAs have an effective competition toolbox?be addressed by the Member States and/or by EU action



33

Lorsqu’il s’agit d’activités transnationales, la Commission européenne

devrait, a minima, superviser la coordination de la prise de décision des ANC.

10.1. If you consider that there is a case for a, please specifyction by the Member States

what type of action you consider most: appropriate



10.2. If you consider that there is a case for EU action,what type of EU action you consider most appropriate:



Lorsqu’il s’agit d’activités transnationales, la Commission européenne

devrait, a minima, superviser la coordination de la prise de décision des ANC.

11. Please clarify why you consider your preferred type of EU action to ensure that NCAsmore appropriate than other types of action

have an effective enforcement toolbox

Pour les affaires concernant des activités transnationales entre plusieurs

Etats membres de l’Union européenne, la Commission européenne, via le Réseau

34

européen de la concurrence, doit agir en tant qu’autorité européenne de

concurrence suprême. La Commission doit s’assurer que les règles de

concurrence sont respectées au niveau européen pour des activités

transnationales.

12. What would be the impact of your preferred option for EU action:on the following aspects

Verynegative


NeutralNoopinion

The effectiveenforcement ofthe EUcompetitionrules?

Legal certaintyfor businesses?

Costs forbusinesses? (*)

Cooperationwithin the ECN?


You are welcome to add , in particular ifadditional comments and/or explanationsyou consider that your preferred option would have any other impact.




Should you prefer to provide documents of more than 1 MB, please send them to the functional

35



C.3. POWER OF THE NCAS TO IMPOSE FINES ON UNDERTAKINGS

The provides: "… it is of 9 July 2014 Communication on Ten Years of Regulation 1/2003necessary to ensure that all NCAs have effective powers to impose deterrent fines on undertakingsand on associations of undertakings"

Fines imposed on undertakings and associations of undertakings at national level for breachesof Articles and TFEU are , and each Member State has its own101 102 not regulated by EU lawlegal framework and methodology for imposing fines. Members States must ensure that the fines

.applied are effective, proportionate and dissuasive

However, the fact-finding carried out by the Commission since the adoption of the Communicationhas confirmed the existence of several issues which may lead to differences in the level of

. These issues relate mainly to: (1) the nature of theenforcement of Articles 101 and 102 TFEUfines imposed (administrative, civil or criminal), (2) who can be fined, and (3) certain aspects of themethodologies to determine the fines.

Regarding , generally Member States enforcethe imposed on undertakingsnature of the finesArticles 101 and 102 TFEU according to either: (i) administrative (non-criminal) systems, in which thefindings of infringements and the fines imposed are decided by the NCA, (ii) civil systems, in whichthe finding of an infringement can be done either by the NCA or by a civil court, but the fines areimposed by civil courts only, or (iii) criminal systems, in which fines are imposed pursuant to criminalprocedures, normally by criminal courts or in some cases by the NCA but according to quasi-criminal(misdemeanour) procedures.

Regarding , some competition authorities do not apply the concept ofwho can be fined and cannot hold the parent companies liable for"undertaking" as established in EU law

infringements of their subsidiaries. Others cannot hold liable the legal successor of an infringer(for example after a merger into another company) or its . In other cases, theeconomic successorfinding of the infringement is subject to finding liability of natural persons in the first place. In addition,

, while others that can dosome competition authorities cannot fine associations of undertakingsit are prevented from imposing dissuasive fines when the infringement relates to the activities of itsmembers because the fine cannot take account of the sales of such members.

Finally, with respect to the differences relate mainly tothe methodologies to determine the finesthe following aspects: (i) the of the fines, (ii) the used, whichlegal maximum type of methodologycan be based on an "overall assessment", on a "basic amount", or set at a given level in a rangebetween a minimum and a maximum amount, including aspects such as the gravity and duration ofthe infringement, and (iii) the considered and otheraggravating and mitigating circumstancesfactors applied to achieve appropriate levels of deterrence.

For example, . The the legal maximum of the fines is not consistent across the EU amongst Member States. Some aremethodologies for the determination of the fines also differ

rather systematic and are explained in more or less detail in national guidelines, while others are




36

rather systematic and are explained in more or less detail in national guidelines, while others arebased on a less systematic assessment of the facts of the case. Generally, fines are based onessential aspects such as the gravity of the infringement, its duration and some type of sales linked tothe infringement or to the undertakings involved in it. These aspects are however not always appliedor done in different ways. Also the aggravating and mitigating circumstances and other factors

.are not always the same in all jurisdictions

The questions below exclusively concern the imposition of fines on undertakings for breaches and to the imposition of fines on .of the EU competition rules do not relate natural persons

C.3.1. NATURE OF FINES

C.3.1.(a) Your experience/knowledge

1. For each system of competition enforcement[4], indicate the advantages and disadvantagesfor the enforcement of fines imposed on companies for breach of Articles 101 and 102 TFEU,both in terms of their effectiveness and their efficiency (i.e. in terms of time, use of resources,administrative burden or any other aspect you consider as relevant).

[4] Generally Member States enforce Articles 101 and 102 TFEU according to either: (i)administrative (non-criminal) systems, in which the findings of infringements and the fines imposedare decided by the NCA, (ii) civil systems, in which the finding of an infringement can be done eitherby the NCA or by a civil court, but the fines are imposed by civil courts only, or (iii) criminal systems,in which fines are imposed pursuant to criminal procedures, normally by criminal courts or in somecases by the NCA but according to quasi-criminal (misdemeanour) procedures.

Administrative (NCA): Advantages of the system

- rapidité, compétence technique des NCAs

Administrative (NCA): Disadvantages of the system

- risque de négliger les droits de la défense: recours nécessaire devant les

juridictions civiles ou pénales avec allongement des procédures

Civil (Civil court): Advantages of the system

- contrôle par l'autorité judiciaire

- respect à priori total des droits de la défense

37

Civil (Civil court): Disadvantages of the system

- longueur des procédures

- compétence technique des magistrats

Criminal/Misdemeanour (NCA): Advantages of the system

Criminal/Misdemeanour (NCA): Disadvantages of the system

- montant limité des amendes

Criminal (Criminal court): Advantages of the system

- aspect dissuasif

- rigueur et efficacité d'une instruction judiciaire pour certains domaines

(ex: ententes...)

Criminal (Criminal court): Disadvantages of the system

- longueur des procédures

- compétence technique des magistrats

2. Do you have experience/knowledge of instanceswhere Member States cannot impose

for infringements of Articlesadministrative fines101 and 102 TFEU?


You are welcome to add , e.g. which Memberadditional comments and/or explanationsState(s) you refer to and concrete examples of cases supporting your arguments.

38

that in some Member States only/primarily 3. Do you consider it to be a problem criminal finescan be imposed for infringements of Articles 101 and 102 TFEU (e.g. for the consistent andeffective enforcement of these Articles)?

Stronglydisagree


agreeNeutral

Noopinion


voir la réponse C.3.1.a.4 ci-dessous

that in some Member States only/primarily can4. Do you consider it to be a problem civil finesbe imposed for infringements of Articles 101 and 102 TFEU (e.g. for the consistent andeffective enforcement of these Articles)?

Stronglydisagree


agreeNeutral

Noopinion


La pénalisation des amendes relève des droits nationaux, mais, lorsqu'il

s'agit d'activités transnationales, l'Union européenne doit veiller à ce que

les mêmes règles qu'elles soient civiles ou pénales s'appliquent de manière

identique dans les Etats membres concernés. Il n'est pas concevable qu'une

même infraction soit pénale dans un Etat membre et civile dans un autre Etat

membre.

C.3.1.(b) Your views on potential action

5. To the extent that you consider it to be a problem that in some Member States it is notpossible to impose administrative fines on companies for infringements of Articles 101 and 102TFEU, ?which measures do you think should be taken to address this issue

civil/criminal fines by a system of administrative finesReplacingIntroducing administrative fines for NCAs which do not have this possibility theirin addition to

already existing civil/criminal finesTake measures to make civil/criminal enforcement/imposition of fines more effective, e.g. giving

NCAs the power to initiate proceedings before civil/criminal courts instead of the publicprosecutor having (sole) competence to initiate proceedings

Other

39

OtherDo not know/Not applicable

Should your suggested measure cover:

All infringements of Articles 101 and 102 TFEU?Only some infringements of Articles 101 and 102 TFEU?All types of proceedings (such as normal proceedings, formal settlements, etc)Only some types of proceedings


6. Should your preferred measure be addres and/or by sed by the Member States EU

?actionMember StatesEU actionCombination of EU/Member State actionDo not know/Not applicable


6.1. If you consider that there is a case for ac, please specifytion by the Member States



40


6.2. If you consider that there is a case for EU action, what type of EU action you consider most appropriate:



7. Please clarify why you consider your preferred type of EU action more appropriate than other types of action.

Une action européenne est nécessaire pour assurer une cohésion dans

l'application des règles européennes pour les activités transnationales (voir

le cas My Ferry Link).

8. What would be the impact of your preferred option for EU action on:the following aspects

Verynegative


NeutralNoopinion

The effectiveenforcement ofthe EUcompetition rules

The consistentenforcement ofthe EUcompetition rules

Infringements

41

Infringementsbeing fined

The level of suchfines (**)

Legal certaintyfor businesses



(*) Negative impact on costs means that costs increase. Positive impact on costs means that costsdecrease.(**) Negative impact on level of fines means that fines are less deterrent. Positive impact on level offines means that fines are more deterrent.

You are welcome to add additional comments and/oryou consider that yourexplanations, in particular if

preferred option would have .any other impact

C.3.2. WHO IS FINED

C.3.2.1. Concept of undertaking and the application of parent liability and succession in linewith EU law

C.3.2.1.(a) Your experience/knowledge

1. Do you have where the , andexperience/knowledge of instances EU concept of undertakingin particular the , was notapplication of parental liability and legal and economic successionapplied for establishing liability for infringements of Article 101 and 102 TFEU?[5]

[5] Some competition authorities do not apply the concept of "undertaking" as established in EU lawand cannot hold the parents liable for infringements of their subsidiaries. Others cannot hold liable thelegal successor of an infringer (for example after a merger into another company) or its economicsuccessor. In other cases, the finding of the infringement is subject to finding liability of naturalpersons in the first place. In addition, some competition authorities cannot fine associations ofundertakings, while others that can do it are prevented from imposing dissuasive fines when theinfringement relates to the activities of its members because the fine cannot take account of the salesof such members.


42

You are welcome to add , e.g. whichadditional comments and/or explanationsMember State(s) you refer to and concrete examples where possible.

2. Do you consider that the non-application of the concept of undertaking, parental liability and has had concrete negative effects on the succession in line with EU law consistent and

enforcement of Articles 101 and 102 TFEU in your Member State/Member States witheffectivewhich you have contact?

Stronglydisagree


agreeNeutral

Noopinion

You are welcome to add , in particular if youadditional comments and/or explanationsconsider that this can give rise to other problems, and indicating which Member State(s)you refer to.

Seules les entreprises ayant effectivement participé à la commission d'une

infraction doivent pouvoir être responsable et il appartient à l'enquête

d'établir cette participation: "la culpabilité ne se présume pas".

C.3.2.1.(b) Your views on potential action

3. To the extent that you consider this to be a problem for the consistent and effectiveenforcement of Articles 101 and 102 TFEU, which measures do you think should be taken toaddress this issue?

Ensure the EU-wide application of the concept of undertaking as established in EU lawOtherDo not know/Not applicable


voir la réponse ci-dessus

4. Should your preferred measure be addres and/or by sed by the Member States EU

?action

43





Non-legislative action (e.g. best practices, advocacy)Mix of legislative and non-legislative actionLegislative actionDo not know/Not applicable



Non-legislative action (e.g. best practices, advocacy)Mix of legislative and non-legislative actionLegislative actionDo not know/Not applicable


44


Dans le cas d'activités transnationales, pour affirmer le principe de primauté

du droit européen principale source de droit de la concurrence

6. What would be the impact of your on thepreferred option for EU action

following aspects:

Verynegative


NeutralNoopinion

The effectiveenforcement ofthe EUcompetition rules

The consistentenforcement ofthe EUcompetition rules

Number ofInfringementsbeing fined





You are welcome to add ,additional comments and/or explanationsin particular if you consider that your preferred option would have

.any other impact

45

C.3.2.2. Power to impose effective fines on association of undertakings


7. Do you have where experience/knowledge of instances N fCAs cannot impose fines on associations of undertakings

or infringements of the EU competition rules?Yes No Do not know/Not applicable

Do you ?consider this to be a problem

Stronglydisagree


agreeNeutral

Noopinion


8. Do you have where the experience/knowledge of instances sales of the members of for imposing a fine onthe associations of undertakings cannot be taken into account

the association?Yes No Do not know/Not applicable


Stronglydisagree


agreeNeutral

Noopinion



46

9. To the extent that you consider it to be a problem that NCAs cannot effectively fineassociations of undertakings ? which measures should be taken to address this issue

All NCAs should have the power to find infringements committed by associations ofundertakings and impose fines.OtherDo not know/Not applicable

If you have chosen the option of "All NCAs should have the power to find infringements", do you think that thiscommitted by associations of undertakings and impose fines

should also include:

the power to take into account the turnover of the members in order to calculate the fine anddetermine the legal maximum, when the infringement of the association relates to the activitiesof its members?the means to require the payment of part of the fine from the members of the association if this

is necessary to ensure the full payment of the fine?


10. Should your preferred measure be addre and/or by ssed by the Member States EU



10.2. If you consider that there is a case for EU action,what type of EU action you consider most appropriate:

Non-legislative action (e.g. best practices)

47




Pour affirmer le principe de primauté du droit européen principal (unique)

source de droit de la concurrence


following aspects:

Verynegative


NeutralNoopinion


The consistentenforcement of theEU competitionrules

Infringementsbeing fined




Cooperation withinthe ECN (e.g.

infringements in

48

infringements inseveral MemberStates treatingassociations ofundertakingsdifferently)


You are welcome to add ,additional comments and/or explanationsin particular if you consider that your preferred option would have

.any other impact

C.3.3. AMOUNT OF FINES: LEGAL MAXIMUM, FINES METHODOLOGIES AND OTHERFACTORS

C.3.3.1. Legal maximum of fines


1. Do you have of the existence of experience/knowledge divergences in the legal of the level of fines imposed by NCAs for infringements of Articles 101 andmaximum

102 TFEU?Yes No Do not know/Not applicable


Stronglydisagree


agreeNeutral

Noopinion


49


2. To the extent that you consider this to be a problem, whichmeasures do you think should be taken to address this issue?

Establishing a common legal maximum for the level of fines imposed by NCAs across the EUEstablishing a minimum legal maximum for the level of fines imposed by NCAs across the EUOtherDo not know/Not applicable


C.3.3.2. Fines methodologies

In the questions below "methodologies" are understood as the methods by which NCAs or national prior to considering other factors that can aggravate orcourts determine the initial value of the fine

mitigate the fines or increase it to achieve an appropriate level of deterrence (these factors are dealtwith in the next section). It does not take into account either the way in which the legal maximum of

(already assessed in the previous section) the fine is set or reductions in the fines as a result ofleniency programmes.


3. Do you have experience/knowledge of the existence of divergences in the fines applied by NCAs?methodologies



Stronglydisagree


agreeNeutral

Noopinion

Please explain in more detail your reply, adding additional comments and/or, e.g. which Member State(s) you refer to and concrete examplesexplanations

where possible.

50

Dans le cas d’affaires concernant des activités binationales, telles que

l’affaire My Ferry Link, le principe d’uniformité du droit de la concurrence

au sein de l'Union européenne doit être garanti. Toute décision contradictoire

concernant les condamnations doit être évitée. L’imposition d’amendes

différentes pour une même activité transnationale pourrait créer des

déséquilibres financiers mettant en péril la survie de l’activité.


4. To the extent that you consider this situation to be a problem, which measures do you think should be taken to address this issue?

Establish a set of minimum core elements to be taken into account in fining methodologies ofall NCAsEstablish a more detailed common methodology to be taken into account in fining

methodologies of all NCAsOtherDo not know/Not applicable


Une méthodologie commune sur les amendes attribuées par les ANC doit prévoir

le cas spécifique des activités transnationales.

5. If you were to consider that there should be a set of minimum core, what theseelements to be taken into account by all methodologies

elements should be?

Stronglydisagree


NeutralNoopinion

Gravity of theinfringement

Duration of theinfringement

Value of saleslinked to theinfringement

Any other(s)

51

You are welcome to add , in particular ifadditional comments and/or explanationsyou consider that there are other elements that can be included in the set of

.minimum core elements

C.3.3.3. Aggravating and mitigating circumstances and other factors


6. Do you have of the existence of experience/knowledge divergences in the sets of applied by NCAs toaggravating and mitigating circumstances and other factors

calculate fines?Yes No Do not know/Not applicable


Stronglydisagree


agreeNeutral

Noopinion

You are welcome to add additional comments and/or explanations, e.g. which MemberState(s) you refer to and concrete examples where possible.


7. To the extent that you consider this to be a problem, which?measures do you think should be taken to address this issue

Establish a common set of minimum aggravating and mitigating elements to be taken intoaccount in fining methodologies of all NCAsEstablish a more detailed common set of aggravating and mitigating elements to be taken into

account by in fining methodologies of all NCAsOtherDo not know/Not applicable


52

Please reply to the questions below with respect to each of the three issues addressed above.

8. Should your preferred measures be and/or ?addressed by the Member States by EU action

8.1. Measure on legal maximum of fines



8.2. Measure on fines methodologies



8.3. Measure on aggravating and mitigating circumstances and other factors

53



9. If you consider that there is a case for acti, please specifyon by the Member States



You are welcome to add additional comments and/or explanations. If your reply is differentfor the measures on legal maximum, fines methodologies and aggravating/mitigatingcircumstances, please clarify it here.

10. If you consider that there is a case for EU action, what type of EU action you considermost appropriate:

10.1. For the measure on legal maximum of fines:



54

10.2. For the measure on fines methodologies:



10.3. For the measure on aggravating and mitigating circumstances and other factors:



11. Please clarify why you consider your preferred type of EU action more appropriate thanother types of action:

11.1. For legal maximum of fines:

55

Dans le cadre d'activités transnationales, pour affirmer le principe de

primauté du droit européen comme principale source de droit de la concurrence.

11.2. For fines methodologies:


primauté du droit européen comme principale source de droit de la concurrence.

11.3. For aggravating and mitigating circumstances and other factors:

Une action européenne permet de prendre en compte les spécificités des marchés

au sein desquels sont effectuées les activités transnationales.


following aspects?

Verynegative


NeutralNoopinion


The consistentenforcement of theEU competitionrules

The effectivenessof fines (**)



Cooperation withinthe ECN (e.g.treatment of aninfringement inseveral MemberStates in a

coherent manner

56

coherent manneras regards thesefactors)

NCAs' flexibility toadapt to thespecificcircumstances ofeach case

(*) Negative impact on costs means that costs increase. Positive impact on costs means that costsdecrease.(**) Negative impact on effectiveness of fines means that fines are less deterrent. Positive impact oneffectiveness of fines means that fines are more deterrent.

You are welcome to add additional comments and/oryou consider that yourexplanations, in particular if

preferred option would have .any other impact






C.4. LENIENCY PROGRAMMES

The identifies the followingCommunication on Ten Years of Regulation 1/2003 of July 2014


57

The identifies the followingCommunication on Ten Years of Regulation 1/2003 of July 2014areas for action "[to] ensure that […] well designed leniency programmes are in place in all Member

" To this end,States and consider measures to avoid disincentives for corporate leniency applicants.the Communication provides: "It is necessary to ensure that the achievements made in leniencyprogrammes are secured." […] "It is appropriate to consider possibilities to address the issue ofinterplay between corporate leniency programmes and sanctions on individuals that exist at Member

"State level.

Secret cartels are difficult to detect and investigate. Cooperation by parties is often crucial to uncoverand punish these highly detrimental illegal practices. Therefore, leniency programmes are among

asthe most effective tools for the detection, investigation and punishment of secret cartelswell as for providing effective deterrence against cartelisation.

Leniency programmes operate in all Member States except Malta. A common denominator in theEuropean Union is that all leniency programmes cover secret cartels. This questionnaire thusaddresses leniency programmes insofar as secret cartels are concerned.

As the Commission and the NCAs have parallel competences to apply the EU competition, their . Therefore, (suchrules leniency programmes are interlinked limitations in one jurisdiction

as who can benefit from the leniency programme and under which conditions) may have a spill-over.effect for other EU jurisdictions

The ECN Model Leniency Programme (MLP) was endorsed by the ECN in 2006, and sets out theprincipal elements which the ECN members believe should be common in all programmes.[6] Inaddition to the introduction of a uniform summary application system (see below), its aim is to providea greater degree of predictability for potential leniency applicants and to avoid applicants being facedwith uncertainty and contradictory demands when more than one leniency programme is applicable.

In the questions below, and unless otherwise specified, leniency includes both immunity from finesand reduction of fines.

[6] See further http://ec.europa.eu/competition/ecn/documents.html

C.4.1. LEGAL BASIS FOR LENIENCY AND DIVERGENCES IN LENIENCY PROGRAMMES

The ECN (MLP)[7] [8]. While the MLPModel Leniency Programme does not bind national courtsstimulated voluntary convergence among leniency programmes of Member States, the initial factfinding shows that a , including for features which impact on number of divergences remain who

. Divergence in such leniency features can benefit from leniency and under which conditions may such as when it comes to deciding lead to different outcomes which applicants benefit from

.leniency

[7] See further the introduction to section C.4 above

[8] See the judgments in Case C-360/09, Pfleiderer AG v Bundeskartellamt and Case C‑536/11,Bundeswettbewerbsbehörde v Donau Chemie.


1. Do you have experience/knowledge about the functioning of Member States'

covering secret cartels?leniency programmes



58

covering secret cartels?leniency programmesYes No

2. Do you consider it to be a problem [9] for Memberthat there is no legal basis in EU lawStates' leniency programmes covering secret cartels which infringe EU competition law?

[9] The European Court of Justice has held that the ECN Model Leniency Programme is not legallybinding: Case C-360/09, Pfleiderer AG v Bundeskartellamt and Case C‑536/11,Bundeswettbewerbsbehörde v Donau Chemie.

Stronglydisagree


AgreeNeutral

Do not know/Notapplicable

You are welcome to add additional comments and/or explanations, indicating which.Member State(s) you refer to

3. In your view, are there divergences in the features of Member States' which could have an leniency programmes impact on who can benefit from

?leniency and under which conditionsYes No Do not know/Not applicable

You are welcome to add additional comments, indicating which Memberand/or explanations

State(s) you refer to.


Stronglydisagree


NeutralNoopinion

The effectiveenforcement ofthe EUcompetitionrules by NCAs

The consistent

59

The consistentenforcement ofthe EUcompetitionrules by NCAs

Legal certaintyfor business

Other

You are welcome to add additional comments, indicating whichand/or explanations

Member States you refer to.

4. Does the [10] ECN Model Leniency Programme ensure a sufficient of Memberdegree of alignment of the leniency programmes

States?

[10] See further http://ec.europa.eu/competition/ecn/documents.htmlYes No Do not know/Not applicable




5. To the extent that you consider the lack of an EU legal basis for leniency programmes and/or to be a problem, which divergences between national leniency programmes measures do you

?think should be taken to address this issueIntroduction of an EU legal basis for leniency programmes for secret cartels in all Member

StatesIntroduction of core principles for leniency programmes in all Member StatesOtherDo not know/Not applicable


60


un cadre européen harmonisé pour les programmes de clémence permettrait

d'éviter les contradictions dans les prise de décisions des ANC lorsqu'il

s'agit d'activités transnationales.

6. Should the forlack of an EU legal basisnational leniency programmes and divergen

be ces between such programmes addresse and/or by d by the Member States EU action

?Member StatesEU actionCombination of EU/Member State actionDo not know/Not applicable


Une action au niveau européen, dans le cadre du Réseau européen de

concurrence, est l’échelle adéquate pour éviter les décisions contradictoires

pour les activités transnationales.




7. Please clarify why you consider your preferred type of EU action

61

7. Please clarify why you consider your preferred type of EU actionmore appropriate than other types of action.

Dans le cas d'activités transnationales, pour affirmer le principe de primauté

du droit européen comme principale source de droit de la concurrence.


Verynegative


NeutralNoopinion

The effectiveenforcement ofthe EUcompetitionrules





You are welcome to add ,additional comments and/or explanationsin particular, if you consider that your preferred option would have any other impact.

C.4.2. DEALING WITH MULTIPLE LENIENCY APPLICATIONS

The ECN Model Leniency Programme (MLP) created a , which issystem of summary applicationsaimed in cases where a secret cartel has effects onat facilitating multiple leniency filingscompetition in more than three Member States.[11]

However, according to the initial fact finding summary applications are not available in all Member, which accept summary applications in practice, States. A few Member States do not have rules

. Also, in certain jurisdictions summary applications areon this in their leniency programmesavailable for immunity applicants . The initial factbut not for subsequent leniency applicantsfinding shows that the criteria for the assessment of summary applications are not aligned

, which may across the EU impact on the availability of leniency and lead to divergent in cases covering a number of jurisdictions.assessments

62

in cases covering a number of jurisdictions.assessments

[11] The system is intended to work as follows: if a full application for leniency has been made to theCommission concerning a case for which the Commission is particularly well placed to act, NCAs canaccept temporarily to protect the applicant’s position in the leniency queue on the basis of very limitedinformation (the so-called summary application) that they can give orally. This protects leniencyapplicants from losing their leniency protection because of re-allocation of cases from theCommission to NCAs, because, for example, the Commission does not take up a part or the entirecase. It also allows leniency applicants to focus their cooperation efforts on the Commission withouthaving to provide detailed information to several NCAs. Should any of the NCAs become active, it willgrant the leniency applicant additional time to complete its application.


1. Do you have experience/knowledge about in the EUmultiple leniency filings

concerning secret cartels? Yes No

2. Do you have experience/knowledge of su?mmary applications


Please and the reasons for your choice whether to use (or not)describe your experiencesummary applications, indicating which Member State(s) you refer to.

3. Have you experienced any problems with? summary applications

Stronglydisagree


AgreeNeutral




4. Does the ECN Model Leniency Programme ensure a sufficient degree of alignment of in the Member States?summary applications


63



5. Are you aware of any divergences in Member States:

5.1. In national rules on summary applications?


5.2. In their application in practice?




5.3. Do you consider this to be a problem in terms of:

Stronglydisagree


NeutralNoopinion

The effectiveenforcement ofthe EUcompetitionrules by NCAs

The consistentenforcement ofthe EUcompetitionrules by NCAs

64

Legal certaintyfor business

Incentives toapply forleniency

Other

Please specify what the "Other" problem would be:

You are welcome to add additional comments and/or, in particular, if you consider it could give rise toexplanations

other problems.


6. To the extent that you consider any divergences in national rules on summary applicationsor their application in practice in Member States to be a problem, which measures do you think

?should be taken to address this issueEnsuring the availability of summary applications in all Member StatesAligning the features of summary applications in all Member States on the basis of the ECN

Model Leniency ProgrammeOtherDo not know/not applicable


7. Should this problem be addressed by the and/or ?Member States by EU action

Member States

EU action

65

EU actionCombination of EU/Member State actionDo not know/Not applicable


7.2. If you consider that there is a case for EU action, what type of EU action you consider most appropriate?



8. Please clarify why you consider your preferred type of EU action for an effective andcoherent leniency system in the EU .more appropriate than other types of action

Dans le cas d'activités transnationales, un système de clémence harmonisé au

niveau européen permettrait d'éviter la prise de décisions contradictoires

entre les ANC concernées


Verynegative


NeutralNoopinion



66




You are welcome to add , in particular, ifadditional comments and/or explanationsyou think that your preferred option would have any other impact.

C.4.3. PROTECTION OF LENIENCY, SETTELEMENT AND OTHER MATERIAL IN THE FILE OFTHE COMPETITION AUTHORITY

Parties that choose to cooperate are required to under leniency programmes disclose their and leniency material. In case of formalparticipation in a secret cartel provide self-incriminating

, the parties are required tosettlement procedures acknowledge their participation in and liability. In this framework, for the infringement the parties provide the NCAs with material which, if

and used outside the context of the investigation in which it has been provided, coulddisclosedseriously . Furthermore, ongoing investigations of competitionharm their commercial interestsauthorities could be seriously harmed if for the purpose of suchmaterials specifically prepared investigations, either by the parties or by the competition authority, are disclosed when the

.competition authority has not yet closed its investigation

The initial fact finding shows that the level of protection granted for such material varies betweenMember States. The Damages Directive[12] harmonises protection of leniency and settlement

as well as of of documents during ongoing investigations, in the context of civilmaterial, disclosure damages actions before EU national courts. However, this Directive does not explicitly address

, such as the or in or other scenarios use of material in other civil matters third jurisdictionsthrough "transparency" rules/public access to documents.access by the public at large

Under the , Directive national courts are not allowed to order the disclosure of leniency. Furthermore, national courts cannot order the disclosurestatements and settlement submissions

of documents that are specifically prepared for the proceedings of a competition authority as. If someone obtains any of these documents throughlong as those proceedings are ongoing

access to the file, (s)he can (temporarily) not use them before a national court.

[12] Directive 2014/104/EU on certain rules governing actions for damages under national law forinfringements of the competition law provisions of the Member States and of the European Union, OJL349/1 of 5.12.2014.


67


1. Do you have experience/knowledge about the protection of leniency andandsettlement material about the protection of documents from disclosure

?during ongoing investigationsYes No Do not know/Not applicable

1.1. In which countries?


2. In your view, is there a sufficient level of protection of in the forleniency and settlement material Member States

which you have experience/knowledge?Yes No Do not know/Not applicable

You are welcome to add additional comments indicating which Memberand/or explanations,


3. In your view, is there a specifically prepared for thesufficient level of protection of materialspurpose of the investigation of a competition authority (either by the parties or by thecompetition authority) in the Member States for whichwhilst that investigation is still ongoingyou have experience/knowledge?





4. To the extent that you consider that in the Member States for which you have

68

4. To the extent that you consider that in the Member States for which you haveexperience/knowledge the level of protection of leniency and settlement material is insuficcientinsufficient, ?which measures do you think should be taken to address this issue

Extend the same protection put in place for leniency statements and settlement submissions bythe Damages Directive to other situationsOtherDo not know/not applicable


5. To the extent that you consider that in the Member States for which you haveexperience/knowledge the level of protection for documents prepared for the investigation of acompetition authority whilst that investigation is still ongoing is insufficient, which measures

?do you think should be taken to address this issueExtend the same protection put in place for documents specifically prepared for the purpose of

an investigation of a competition authority whilst that investigation is still ongoing by theDamages Directive to other situationsOtherDo not know/not applicable


6. Should the protection of leniency and settlements material, as well as of material specificallyprepared for the purpose of the investigation of a competition authority whilst that

be addressed by the and/or by ?investigation is still ongoing, Member States EU actionMember StatesEU actionCombination of EU/Member State actionDo not know/Not applicable


69








7. Please clarify why you consider your preferred type of EU action for an effective andcoherent leniency system in the EU .more appropriate than other types of action


primauté du droit européen comme principale source de droit de la concurrence


Very Negative Positive Very Neutral No

70

Verynegative

Negative Positive Verypositive

Neutral Noopinion







C.4.4. INTERPLAY BETWEEN LENIENCY PROGRAMMES AND SANCTIONS ON INDIVIDUALS

Most Member States provide for various sanctions on individuals for competition lawinfringements, in addition to fines on undertakings. However, the initial fact finding shows that

, if the arrangements to protect employees of undertakings from such sanctions companiescooperate under the corporate leniency programme of a NCA or the Commission, exist only in

(referred to as “interplay”).a few Member States


1. Do you have experience with or knowledge of sanctions that can be for their participation in secret cartels? imposed on individuals


2. Do you have experience with or knowledge of arrangements in Member States to protect, which cooperate under the corporate leniency programmes ofemployees of undertakings

NCAs or the Commission, ?from individual sanctionsYes No Do not know/Not applicable

71



that such2.1. Do you consider it to be a problemarrangements only exist in a few Member States

Stronglydisagree


AgreeNeutral





3. To the extent that you consider the lack of national arrangements to protect employees ofundertakings, which cooperate under the corporate leniency programmes of NCAs or theCommission, to be a problem, which measures do you think should be taken to address this

?issueEstablish safeguards to protect employees of companies which cooperate under corporate

leniency programmes from the imposition of individual sanctions for the same cartel conductOtherDo not know/Not applicable

3.1. If you have chosen the option establishing safeguards to protect employees ofcompanies which cooperate under corporate leniency programmes, what should thiscover?

current employeesformer employeesprotection from administrative sanctions in all Member States, e.g. director disqualification

orders

protection from criminal sanctions in all Member States, e.g. imprisonment

72

protection from criminal sanctions in all Member States, e.g. imprisonmentemployees of companies which obtain under corporate leniency programmesimmunityemployees of companies which benefit from a under corporate leniencyreduction in fines

programmesemployees of companies which cooperate under the corporate leniency programmes of any

NCAemployees of companies which cooperate under the European Commission's leniency

programme


En tout état de cause et lorsqu'il s'agit d'activités transnationales,

l'Union Européenne doit veiller à ce qu'une même infraction soit punie d'une

même peine dans chaque Etat membre.

4. Should the interplay between corporate leniency programmes and sanctions on individuals and/or by ?be addressed by the Member States EU action






73

5. Please clarify why you consider your preferred type of EU action for an effective andcoherent leniency system for the enforcement of the EU competition rules across the EU moreappropriate than other types of action.

Dans le cas des cartels transnationaux concernant au moins deux Etats membres,

l'Union européenne doit superviser a minima le traitement de l'affaire par les

ANC pour affirmer le principe de primauté du droit européen comme principale

source de droit de la concurrence.


Verynegative


NeutralNoopinion









74



CONCLUSION AND SUBMISSION

1. What do you think about our questionnaire?

Utile mais incomplet: plusieurs aspects du Droit de la Concurrence, Analyses

de marchés, grille de lecture etc.

Il n'a pas été évoqué les remèdes qui peuvent être exigés en matière de

concentration d'entreprise pou atténuer les effets anticoncurrentiels d'une

telle opération.

2. Were any important questions missing?

Oui, voir réponse ci-dessus

3. Would you be willing to participate in a short telephone interview to deepen ourunderstanding of your answers?

Oui

Background DocumentsCommission SWD "Enhancing competition enforcement by the Member States' competition authorities: institutionaland procedural issues" accompanying the Communication from the Commission (SWD(2014) 231 final, 9.7.2014)(/eusurvey/files/0a8fee8d-cd1f-426f-8b96-200cb6f0a5b5)

Communication from the Commission - Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievementsand Future Perspectives (COM(2014) 453 final, 9.7.2014)(/eusurvey/files/620d3975-1019-4169-afd1-c770167c4e6c)

Communication from the Commission to the European Parliament and the Council, Report on the functioning ofRegulation 1/2003 (COM(2009) 206 final, 29.4.2009) (/eusurvey/files/2cff6b19-1690-49d3-a9ed-70b8e12bc51e)

ECN Model Leniency Programme (/eusurvey/files/d9fc6fa7-39fc-4eb1-b4d2-1207ec672d81)

https://ec.europa.eu/eusurvey/files/0a8fee8d-cd1f-426f-8b96-200cb6f0a5b5



https://ec.europa.eu/eusurvey/files/620d3975-1019-4169-afd1-c770167c4e6c



https://ec.europa.eu/eusurvey/files/2cff6b19-1690-49d3-a9ed-70b8e12bc51e

https://ec.europa.eu/eusurvey/files/2cff6b19-1690-49d3-a9ed-70b8e12bc51e

https://ec.europa.eu/eusurvey/files/d9fc6fa7-39fc-4eb1-b4d2-1207ec672d81

75

ECN Model Leniency Programme (/eusurvey/files/d9fc6fa7-39fc-4eb1-b4d2-1207ec672d81)

Regulation 1/2003 (/eusurvey/files/58236441-8770-4dfd-92d3-3342d872ecbb)

Contact [email protected]

https://ec.europa.eu/eusurvey/files/d9fc6fa7-39fc-4eb1-b4d2-1207ec672d81

https://ec.europa.eu/eusurvey/files/58236441-8770-4dfd-92d3-3342d872ecbb