Nathalie Jalabert Doury
The third edition of the Competition Inquiries conference was presented by Nathalie Jalabert Doury, who recalled that competition inquiry is a sensitive subject where, in decision-making practice and case law, the needs of the inquiry, and in particular of search and seizure operations (OVS), on the one hand, and the protection of the rights of the defence, on the other hand, clash. The challenge for companies is to be able to take the right decisions when they are subject to a competition investigation.
WHAT FUTURE FOR EUROPEAN COMPETITION INVESTIGATIONS UNDER THE REC+ DIRECTIVE?
Anthony M. Collins
Proposing a presentation and a commentary on the proposal for the ECN+ Directive adopted at first reading by the European Parliament, Judge Collins first of all recalled the objective of this directive: to provide the competition authorities of the Member States with the means to enable the effective implementation of the European competition rules and to guarantee the proper functioning of the internal market. The proposed Directive has a dual legal basis: it is based on Articles 103 and 114 of the Treaty on the Functioning of the European Union (TFEU). Since Article 103 TFEU alone allows the European legislator to regulate the activity of the national competition authorities (NCAs), it is questionable why Article 114 TFEU is also used as a second legal basis. The solution proposed by Judge Collins is linked to the application of European competition law to national investigations: indeed, the fourth recital of the proposal states that "the scope of the Directive covers both the application of Articles 101 and 102 taken in isolation and the parallel application of national competition law to the same case". As Article 103 TFEU only operates in the context of the application of Union law, it is Article 114 TFEU which allows the scope of the Directive to be extended to national proceedings in which NCAs apply their national law in parallel with Articles 101 and 102 TFEU. In reality, as Judge Collins pointed out, it is possible that the proposal for a Directive may run up against the fundamental principle of the division of competences between the Union and the Member States.