ARTICLES: DIRECTIVE - NCA - ENFORCEMENT - ECN

Competition Authorities: Towards More Independence and Prioritisation? – The European Commission’s “ECN+” Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcers

This paper [1] contains my contribution to the panel “Competition authorities: Towards more independence and prioritisation?” at the 8th International Concurrences Review Conference “New Frontiers of Antitrust” (Paris, 26 June 2017). It focuses in particular on the European Commission’s “ECN+” Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (COM(2017)142 of 22 March 2017). The paper sets out the provisions concerning independence, prioritisation and resources contained in Chapter III (Articles 4 and 5) of the proposed Directive, lists their antecedents, and provides an analysis of the questions of independence, resources and prioritisation in the specific case of the enforcement of Articles 101 and 102 TFEU by the national competition authorities (“NCAs”). Readers who are already familiar with the ECN+ Proposal may want to go directly to the analysis part.

I. The provisions on independence, prioritisation and resources in the proposed Directive

1. On 22 March 2017, the European Commission (hereafter also: “the Commission”) adopted a proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, often referred to as the “ECN+” proposal (hereafter: “the ECN+ Proposal,” “the Proposal” or “the proposed Directive”). [2]

2. According to its Article 1(1), the proposed Directive “sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence and resources and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and consumers and undertakings are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers. The scope of the Directive covers the application of Articles 101 and 102 TFEU and national competition law provisions applied in parallel to Articles 101 and 102 TFEU to the same case.”

3. Article 2(1) of the proposed Directive provides that, for the purposes of this Directive, “ʻnational competition authority’ means an authority designated by a Member State pursuant to Article 35 of Regulation (EC) 1/2003 as responsible for the application of Articles 101 and 102 TFEU. Member States may designate one or more administrative authorities (national administrative competition authority), as well as judicial authorities (national judicial competition authority) to carry out these functions.” [3]

4. Article 2(3) further provides that “ʻEuropean Competition Network’ means the Network of public authorities formed by the national competition authorities and the Commission to provide a forum for discussion and cooperation in the application and enforcement of Articles 101 and 102 TFEU.” [4]

5. Chapter III of the proposed Directive reads as follows:

CHAPTER III

INDEPENDENCE AND RESOURCES

Article 4

Independence

1.To guarantee the independence of national administrative competition authorities when applying Articles 101 and 102 TFEU, Member States shall ensure that they perform their duties and exercise their powers impartially and in the interests of the effective and uniform enforcement of these provisions, subject to proportionate accountability requirements and without prejudice to close cooperation between competition authorities in the European Competition Network.

2.In particular, Member States shall ensure that:

a)The staff and the members of the decision-making body of national administrative competition authorities can perform their duties and exercise their powers for the application of Articles 101 and 102 TFEU independently from political or external influence;

b)The staff and the members of the decision-making body of national administrative competition authorities neither seek nor take any instructions from any government or other public or private entity when carrying out their duties and exercising their powers for the application of Articles 101 and 102 TFEU;

c)The staff and the members of the decision-making body of national administrative competition authorities refrain from any action which is incompatible with the performance of their duties and exercise of their powers for the application of Articles 101 and 102 TFEU;

d)The members of the decision-making body of national administrative competition authorities may be dismissed only if they no longer fulfil the conditions required for the performance of their duties or have been guilty of serious misconduct under national law. The grounds for dismissal should be laid down in advance in national law. They shall not be dismissed for reasons related to the proper performance of their duties and exercise of their powers in the application of Articles 101 and 102 TFEU as defined in Article 5(2);

e)National administrative competition authorities have the power to set their priorities for carrying out tasks for the application of Articles 101 and 102 TFEU as defined in Article 5(2). To the extent that national administrative authorities are obliged to consider complaints which are formally filed, this shall include the power of those authorities to reject such complaints on the grounds that they do not consider them to be a priority. This is without prejudice to the power of national competition authorities to reject complaints on other grounds defined by national law.

Article 5

Resources

1.Member States shall ensure that national competition authorities have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU as defined in paragraph 2.

2.The application of Articles 101 and 102 TFEU by national competition authorities shall include: conducting investigations with a view to applying Articles 101 and 102 TFEU; taking decisions applying these provisions on the basis of Article 5 of Regulation 1/2003; and cooperating closely in the European Competition Network with a view to ensuring the effective and uniform application of Articles 101 and 102 TFEU.”

6. The corresponding recitals 13 to 18 of the proposed Directive read as follows:

(13) Empowering [national competition authorities (NCAs)] to apply Articles 101 and 102 TFEU impartially and in the common interest of the effective enforcement of European competition rules is an essential component of the effective and uniform application of these rules.

(14) The independence of NCAs should be strengthened in order to ensure the effective and uniform application of Articles 101 and 102 TFEU. To this end, express provision should be made in national law to ensure that when applying Articles 101 and 102 TFEU NCAs are protected against external intervention or political pressure liable to jeopardise their independent assessment of matters coming before them. For that purpose, rules should be laid down in advance regarding the grounds for the dismissal of the members of the decision-making body of the NCAs in order to remove any reasonable doubt as to the impartiality of that body and its imperviousness to external factors.

(15) To ensure the independence of NCAs, their staff and members of the decision-making body should act with integrity and refrain from any action which is incompatible with the performance of their duties. The need to prevent the independent assessment of staff or members of the decision-making body being jeopardised entails that during their employment and term of office and for a reasonable period thereafter, they should refrain from any incompatible occupation, whether gainful or not. Furthermore, this also entails that during their employment and their term of office, they should not have an interest in any businesses or organisations which have dealings with a NCA to the extent that this has the potential to compromise their independence. The staff and the members of the decision-making body should declare any interest or asset which might create a conflict of interests in the performance of their duties. They should be required to inform the decision-making body, the other members thereof or, in the case of NCAs in which the decision-making power rests with only one person, their appointing authority, if, in the performance of their duties, they are called upon to decide on a matter in which they have an interest which might impair their impartiality.

(16)The independence of NCAs does not preclude either judicial review or parliamentary supervision in accordance with the laws of the Member States. Accountability requirements also contribute to ensuring the credibility and the legitimacy of the actions of NCAs. Proportionate accountability requirements include the publication by NCAs of periodic reports on their activities to a governmental or parliamentary body. NCAs may also be subject to control or monitoring of their financial expenditure, provided this does not affect their independence.

(17) NCAs should be able to prioritise their proceedings for the enforcement of Articles 101 and 102 TFEU to make effective use of their resources, and to allow them to focus on preventing and bringing to an end anti-competitive behaviour that distorts competition in the internal market. To this end, they should be able to reject complaints on the grounds that they are not a priority. This should be without prejudice to the power of NCAs to reject complaints on other grounds, such as lack of competence or to decide there are no grounds for action on their part. The power of NCAs to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.

(18) NCAs should have the necessary resources, in terms of staff, expertise, financial means and technical equipment, to ensure they can effectively perform their tasks when applying Articles 101 and 102 TFEU. In case their duties and powers under national law are extended, the resources that are necessary to perform those tasks should still be sufficient.”

7. The Explanatory Memorandum of the Proposal adds the following:

Chapter III – Independence and resources

This chapter ensures that NCAs enjoy the necessary guarantees of independence. In particular, it introduces guarantees aiming to protect staff and management of NCAs from external influence when enforcing the EU competition rules by: (i) ensuring that they can perform their duties and exercise their powers independently from political and other external influence; (ii) explicitly excluding instructions from any government or other public or private entity; (iii) ensuring that they refrain from any action which is incompatible with the performance of their duties and exercise of their powers; (iv) prohibiting the dismissal of their management for reasons related to decision-making in specific cases; (v) ensuring that they have the power to set their priorities in individual cases including the power to reject complaints for priority reasons. Regarding this last aspect, the proposal does not interfere with Member States’ prerogative to define general policy objectives. Most stakeholders during the public consultation process supported action covering all these aspects. Notably, businesses reported that the lack of ability of NCAs to set their priorities in full prevents them from focusing on infringements that cause the most harm to competition.

In addition, this Chapter introduces an explicit requirement for Member States to ensure that NCAs have the human, financial and technical resources that are necessary to perform their core tasks under Articles 101 and 102 TFEU. The relevant provision leaves room for Member States to deal with economic fluctuations without risking the effectiveness of NCAs.” [5]

II. Antecedents

1. Regulation 1/2003

8. According to its Explanatory Memorandum, the ECN+ Proposal “will complement Regulation (EC) No 1/2003, as empowering the NCAs to be effective enforcers will mean that the full potential of the decentralised system of enforcement put in place by this instrument is realised. In particular, it will give substance to the requirement in Article 35 of Regulation (EC) No 1/2003 that Member States should designate NCAs in such a way that the provisions of the Regulation are effectively complied with.” [6]

1.1 The decentralisation brought about by Regulation 1/2003

9. Regulation 1/2003, [7] which entered into application on 1 May 2004, brought about a radical change in the way in which the EU antitrust prohibitions contained in Articles 101 and 102 TFEU are enforced. The previous enforcement regime, under Regulation 17, [8] which dated from 1962, was characterised by a centralised notification and authorisation system for Article 101(3) TFEU. Regulation 1/2003 abolished this system and replaced it by a system of decentralised ex post enforcement, in which the European Commission and the competition authorities of the EU Member States (national competition authorities or NCAs), forming together the European Competition Network (ECN), pursue infringements of Articles 101 and 102 TFEU. [9]

1.2 The powers granted to the NCAs by Regulation 1/2003

10. Article 5 of Regulation 1/2003 reads as follows:

“Article 5

Powers of the competition authorities of the Member States

The competition authorities of the Member States shall have the power to apply [Articles 101 and 102 TFEU] in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

 requiring that an infringement be brought to an end,

 ordering interim measures,

 accepting commitments,

 imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action.”

11. In the words of the Joint Statement of the Council and the Commission on the functioning of the network of competition authorities, entered in the Council Minutes at the time of the adoption of Regulation 1/2003, [10] the decentralisation of the enforcement of Articles 101 and 102 TFEU brought about by Regulation 1/2003 has “strengthen[ed] the position of the NCAs. These [have been made] fully competent to apply [Articles 101 and 102 TFEU], actively contributing to the development of competition policy, law and practice.” [11]

12. The powers which Regulation 1/2003 has granted to the NCAs are, however, not identical to the European Commission’s powers. In particular, Article 5 of Regulation 1/2003 precludes the NCAs from adopting non-infringement decisions similar to the decisions which the Commission may adopt under Article 10 of Regulation 1/2003. [12]

13. The power of the Commission to adopt non-infringement decisions under Article 10 of Regulation 1/2003, the rule laid down in Article 11(6) of Regulation 1/2003, according to which the initiation of proceedings by the Commission relieves the NCAs of their competence to deal with the same case, and the rule laid down in Article 16(2) of Regulation 1/2003, according to which NCAs cannot take decisions which would run counter to an earlier decision by the Commission concerning the same agreement or practice, differentiate the position of the Commission from that of the NCAs. [13]

14. These differences all reflect the fact that, according to the case law of the Court of Justice, Article 105(1) TFEU, which constitutes the specific expression in the area of competition law of the general supervisory role conferred on the Commission (under the control of the Court of Justice) by Article 17(1) TEU, [14] makes the Commission responsible for defining and implementing the orientation of EU competition policy. [15]

1.3 Why decentralisation?

15. The question could be asked why the enforcement of Articles 101 and 102 TFEU should be decentralised to the NCAs. Why not leave this task exclusively to the European Commission? As I have explained elsewhere, [16] three reasons can be given:

– The first reason is one of resources. By adding those of the competition authorities of the Member States, substantially more resources can be devoted to the detection and punishment of violations of Articles 101 and 102 TFEU. Given the limited resources of the European Commission, this is certainly to be welcomed. This first reason is, however, not a very profound one, as the same result could be obtained by increasing the resources of the Commission’s Directorate General for Competition.

– The second reason is that for cases where the relevant markets are local, national or regional, the competition authority or authorities concerned are likely to have better access to the relevant information than the Commission. [17]

– The third reason is that enforcement by multiple authorities is likely to lead to more innovation in the interpretation and application of the law. Enforcement by several authorities is likely to be more creative, innovative and adaptive to change than enforcement by a monopolist authority. [18]

1.4 A great success, with scope for even more

16. As I have argued elsewhere, [19] there can be no doubt that the decentralisation of the enforcement of Articles 101 and 102 TFEU to the NCAs brought about by Regulation 1/2003 has been a major success, beyond expectation.

17. From the start of the application of Regulation 1/2003 on 1 May 2004 until 31 December 2015, the NCAs have informed the Commission and their fellow NCAs of 1,769 investigations under Articles 101 and 102 TFEU, and of envisaged final decisions ordering termination of infringements, imposing fines or accepting commitments in 907 cases. [20]

18. During the same period, the Commission informed the Network of 297 investigations of its own, and adopted 117 final decisions. [21]

19. The national competition authorities have thus in quantitative terms become the primary public enforcers of Articles 101 and 102 TFEU, adopting 88% of all decisions. Given that the European Commission’s output has not declined, [22] and that under Regulation 17 the number of cases in which the national competition authorities applied Articles 101 and 102 TFEU was negligible, this means that the overall number of decisions ordering termination of infringements of Articles 101 or 102 TFEU, imposing fines or accepting commitments has undergone an eightfold increase. [23]

20. The table below shows per Member State, and in descending order, the number of envisaged final decisions submitted by the national competition authorities under Article 11(4) of Regulation 1/2003 in the period from 1 May 2004 to 31 December 2015, as well as the number of final decisions adopted by the European Commission in the same period:

A Figure is available in the PDF version of this Article

21. This list table makes visible that the NCAs with the largest output each adopt as many or even more decisions than the European Commission. However, the substantial differences between Member States, which cannot be fully explained by the differences in size between Member States, [24] also show the potential for further increase. [25]

1.5 Article 35 of Regulation 1/2003 and the case law of the Court of Justice

22. Article 35(1) of Regulation 1/2003 stipulates that the Member States are to “designate the competition authority or authorities responsible for the application of [Articles 101 and 102 TFEU] in such a way that the provisions of this regulation are effectively complied with.”

23. In VEBIC, the Court of Justice has clarified that “[t]he authorities so designated must, in accordance with the regulation, ensure that those Treaty Articles are applied effectively in the general interest.” [26] Whereas Article 35(1) of Regulation 1/2003 has left it to the Member States to make detailed provisions concerning the powers and functioning of their national competition authorities, such national provisions “must not jeopardise the attainment of the objective of the regulation, which is to ensure that Articles 101 and 102 TFEU are applied effectively by those authorities.” [27]

24. In Schenker, the Court of Justice has, in addition to the requirements of effective enforcement in the general interest already set out in VEBIC, also subjected the enforcement of Articles 101 and 102 TFEU by the NCAs to a requirement of uniform application of those Treaty Articles. [28]

25. As already mentioned above, [29] according to its Explanatory Memorandum, the ECN+ Proposal “will give substance to the requirement in Article 35 of Regulation (EC) No 1/2003 that Member States should designate NCAs in such a way that the provisions of the Regulation are effectively complied with.” [30]

26. At least for some of the provisions of the proposed Directive, it could be argued that they do not create any new obligations for the Member States, as the same obligation already flows from Article 35 of Regulation 1/2003, and could thus already today be enforced by the European Commission through infringement proceedings pursuant to Article 258 TFEU.

27. This appears in particular the case for the requirement under Article 5 of the proposed Directive for Member States to provide NCAs with the human, financial and technical resources necessary for their exercise of their powers when applying Articles 101 and 102 TFEU. [31]

2. Provisions on independence applicable to the European Commission

28. The Treaties and the EU Staff Regulations contain provisions on independence applicable to the European Commission similar to those proposed for NCAs in Article 4(1) and (2)(a) to (c) of the proposed Directive. [32]

29. Article 17(3) EU provides that “[i]n carrying out its responsibilities, the Commission shall be completely independent. (…) the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.” [33]

30. Within the college of commissioners, the Working Methods of the European Commission, laid down by the president of the Commission, provide that “the Commissioner for Competition will liaise closely with the Vice-President for Jobs, Growth, Investment and Competitiveness only in defining the general lines of the Commission competition and state aid policies and the instruments of general scope related to them. She will act independently in all competition cases.” [34]

31. As to the Commission’s staff, Articles 11 and 12 of the EU Staff Regulations provide that an official “shall carry out his duties and conduct himself solely with the interests of the Union in mind. He shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Union and shall refrain from any action or behaviour which might reflect adversely upon his position.” [35]

3. EU law requirements applicable to other national authorities

32. EU directives in the areas of electricity, natural gas, electronic communications and railways contain provisions concerning independence and resources of national regulatory authorities comparable to those proposed for national administrative competition authorities in Article 4(1) and (2)(a) to (d) and Article 5 of the proposed Directive. [36] Different provisions on independence exist in various other areas of EU law, for instance for data protection supervisory authorities, [37] and for airport coordinators. [38]

33. In a number of Member States the same authority that is the NCA is also the regulator for electricity, natural gas, electronic communications and/or railways. That authority is thus already today, as far as its regulatory tasks are concerned, subject to the requirements on independence and resources contained in the corresponding EU directives. [39]

34. In responses to the public consultation preceding the adoption of the proposed Directive, [40] the situation whereby EU secondary law explicitly safeguards the independence of national sectoral regulators but not of NCAs was described as “an anomaly that should disappear.” [41]

4. The Commission’s five-year report on Regulation 1/2003

35. Article 44 of Regulation 1/2003 required the Commission to report to the European Parliament and the Council on the functioning of Regulation 1/2003 five years after its entry into application. In its 2009 report, the Commission did not mention the issues of independence and resources of NCAs, but it did mention “the ability of Member States’ competition authorities to formally set enforcement priorities” as one of the aspects on which “divergences of Member States’ enforcement systems remain,” adding that “this aspect may merit further examination and reflection.” [42]

5. The 2010 ECN Resolution on resources

36. In 2010 a Resolution of the Meeting of Heads of the European competition authorities, entitled “Competition authorities in the European Union – the continued need for effective institutions,” was published, affirming that “competition authorities need to be adequately equipped for their tasks and be able to act under suitable conditions for the execution of their tasks, in an impartial and independent manner. Such means for effective and sustained operation must be guaranteed, including in times of budgetary constraints.” [43]

6. The 2013 ECN Recommendation on the power to set priorities

37. In 2013 seven Recommendations of the ECN Competition Authorities were published, concerning “key investigative and decision-making powers,” including an ECN Recommendation on the power to set priorities. [44] It recommended that:

1.The Authorities should have the ability to set priorities in the exercise of their tasks. To this end, the Authorities should be able to determine prioritisation criteria which support the definition of their priorities.

2.The Authorities should have the ability to open and close ex officio cases insofar as cases are deemed to be a priority by the Authority concerned. The Authorities should also, to the greatest extent possible, have the ability to decide not to initiate cases and reject complaints if they do not consider them to be a priority.

3. The ability to close or reject non-priority cases and complaints by the Authorities should be exercised in a way that maximises administrative efficiency, primarily by simple closure or informal means. This possibility should not limit or prejudge the ability of the Authorities to adopt formal decisions to close a case where considered necessary and/or appropriate by the Authority concerned.

4.Where applicable, the framework of judicial review of decisions by the Authorities to reject non-priority complaints should, to the greatest extent possible, be designed in a way that preserves the prerogative of the Authorities to set and pursue enforcement priorities.

5.The Authorities should have discretion as to whether or not they publish the priorities they have set, their prioritisation principles, as well as their decisions based on priority grounds, with a view to maximise the efficiency of their action.” [45]

38. The introductory part of the Recommendation explained inter alia:

“(…) Although in different degrees, most Authorities already have the ability to set priorities in their enforcement activities, including the power to initiate new individual cases ex officio. Nevertheless, some Authorities are bound by the legality principle which entails a legal duty to consider all complaints formally filed.

Further convergence on the ability of the Authorities to set priorities would help enhance effectiveness and efficiency in the enforcement of competition rules by ECN members by allowing them to focus their action on the most serious infringements/sectors and areas most in need of their action, thereby increasing the impact of their action for the benefit of consumers. At the level of the ECN as a whole, it can contribute to the consistent application of these rules by enhancing the ability of the Authorities to pursue cases which are relevant at ECN level in a more coordinated way, for instance, further convergence may encourage the launching of joint enforcement initiatives on a multi-jurisdictional level.” [46]

7. The Commission’s ten-year report on Regulation 1/2003

39. In 2014 the Commission adopted a report on ten years of Regulation 1/2003. [47]

40. In this report, the Commission stated that, “to enhance EU competition enforcement for the future, the institutional position of NCAs needs to be reinforced while at the same time ensuring further convergence of national procedures and sanctions applying to infringements of EU antitrust rules.” [48]

41. As to the institutional position of the NCAs, the report stated as follows:

EU law leaves Member States a large degree of flexibility for the design of their competition regimes. Despite the lack of specific EU law requirements, the position of the NCAs had evolved in the direction of more autonomy and effectiveness. Many national laws contain specific safeguards to ensure the independence and impartiality of NCAs. For instance, recent reforms in Cyprus, Ireland, Greece and Portugal have strengthened the position of the NCAs. [Footnote: Such changes were underpinned by the Economic Adjustment Programmes.] Reforms have been recommended in other Member States to strengthen the institutional position and resources of NCAs in the framework of the European Semester. [Footnote: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2014 European Semester: Country-specific recommendations, COM(2014) 400 final.] (…)

To ensure the effective enforcement of the EU competition rules, NCAs should be independent when exercising their functions and should have adequate resources. Challenges in this regard still persist, in particular concerning the autonomy of NCAs vis-à-vis their respective governments, and appointments and dismissals of NCA management or decision-makers. Issues have also arisen with regard to ensuring sufficient human and financial resources. (…)

Furthermore, the achievements made to date remain fragile and can be rolled back at any time. (…)

It is necessary to ensure that NCAs can execute their tasks in an impartial and independent manner. For this purpose, minimum guarantees are needed to ensure the independence of NCAs and their management or board members and to have NCAs endowed with sufficient human and financial resources. Important aspects in this regard are the grant of a separate budget with budgetary autonomy for NCAs, clear and transparent appointment procedures for the NCAs management or board members on the basis of merit, guarantees ensuring that dismissals can only take place on objective grounds unrelated to the decision-making of the NCA and rules on conflicts of interest and incompatibilities for the NCAs management or board.” [49]

42. As to convergence of procedures, the report stated that “it is necessary to ensure that all NCAs have a complete set of powers at their disposal, which are comprehensive in scope and are effective,” and mentioned as one of the “important elements” “the right of NCAs to set enforcement priorities.” [50]

43. The Commission’s report was accompanied by a Commission Staff Working Document, which lists “priority setting” as a “key component of the toolbox that authorities should have at their disposal,” [51] and which mentions the following: “Procedural convergence has been achieved in the context of agreements on financial support from the EU with the Programme Countries. In Greece, a new comprehensive competition law was adopted, which, inter alia, empowered the Greek NCA to reject complaints and set priorities and thereby address its backlog of cases. In Portugal, a new competition law was adopted which provides for major improvements, including the introduction of priority setting.” [52]

8. Resolutions of the European Parliament

44. In its resolution on the European Commission’s 2012 Annual Report on EU Competition Policy, the European Parliament “called on the Member States” “to ensure the independence of all national competition authorities (NCAs) (…) from national governments, making the nomination of non-political chairpersons and board members with no conflicts of interest essential” and “to ensure that staff and resources of NCAs (…) are sufficient and vary according to market-derived needs and those of the effective performance of their duties.” [53]

45. In its resolution on the 2013 Annual Report, the European Parliament “reminded the Commission” “that the independence of national competition authority should be monitored closely.” [54]

46. In its resolution on the 2014 Annual Report, the European Parliament mentioned that “the independence of national competition authorities is of paramount importance.” [55]

47. Most recently, in its resolution on the 2015 Annual Report, the European Parliament reiterated that “the independence of national competition authorities is of paramount importance, and that this includes ensuring that they have the resources they need to perform their tasks.” [56]

9. Public consultation

48. From November 2015 to February 2016 the Commission held a public consultation on empowering the NCAs to be more effective enforcers. The consultation questionnaire contained a set of more general questions and a set of more detailed questions. There were 181 replies from a variety of stakeholders. [57]

49. As to the more general questions, according to the Commission’s summary report of the replies, 85% of respondents agreed that ensuring that NCAs have sufficient resources to perform their tasks would help NCAs to be more effective, and 76% of respondents agreed that having guarantees that NCAs enforce the EU antitrust rules in the general interest of the EU and do not take instructions when doing so would help NCAs to be more effective. [58]

50. As to the more specific questions, when asked to identify the three measures they considered to be of most importance to ensure the independence of NCAs, 97% of respondents mentioned guarantees that the top management or decision-making body of the NCA are not subject to instructions from any government or other public or private body; 96% mentioned guarantees ensuring that NCAs are endowed with adequate and stable human and financial resources to perform their tasks; 67% mentioned guarantees ensuring that dismissals of members of the NCA’s top management or decision-making body can only take place on objective grounds unrelated to the NCA’s enforcement activities; and 46% mentioned rules on conflicts of interest for the NCA’s top management or decision-making body. [59] When asked to identify from a given list all the investigation and decision-making tools stakeholders think that NCAs need to have in order for them to be effective enforcers of the EU antitrust rules, 75% of respondents selected, among many other powers, the power to fully set enforcement priorities, including the power to reject complaints on priority grounds. [60]

51. A number of respondents provided further comments. As to independence, as already mentioned above, several respondents referred to the existing EU secondary law safeguards for the independence of national sector regulators, arguing that similar guarantees should be provided for NCAs. [61] The Bundeskartellamt (German NCA), while confirming that it is itself sufficiently independent, indicated that it is “aware of several cases where the president of the NCA of a larger EU Member State was dismissed ahead of the normal end of the term, reportedly because the respective Member State’s government did not agree with decisions taken by the authority.” [62] The Italian business association Assonime referred to “recent experience in some Member States (for instance, Poland and Greece)” and indicated that “the credibility of the whole system of protection of competition [in the EU], including compliance with the principle of equal treatment of national and non-national undertakings, strongly depends on the independence of competition authorities from external influence when performing their task.” [63] The UK Competition and Markets Authority (CMA) pointed out that, “as with other NCAs and the Commission itself, however, the CMA necessarily operates within a political context. It is important that NCAs are sensitive to both political currents and commercial realities and that there is continued dialogue between an NCA and its government (as well as with stakeholders), provided that that does not inhibit or limit the NCA’s independent, impartial decision making or assessment.” [64] Finally, the European business association BusinessEurope stressed that “independence does not mean lack of accountability—to the contrary, a higher degree of independence must be accompanied by greater accountability and judicial control.” [65]

52. As to resources, the Bundeskartellamt, while confirming that it has itself sufficient resources, indicated that it is aware “from discussions with peer national authorities represented in the ECN that several of them have only very limited resources, and are for instance unable to conduct inspections concerning potential competition infringements on a larger scale.” [66] Some NCAs indicated themselves that they do not have sufficient resources. [67] More sceptically, BusinessEurope stated that “providing additional enforcement tools and enlarged budgets to national authorities may not automatically lead to better competition law enforcement. Quantity should not be mixed with quality.” [68]

53. As to prioritisation, the Bundeskartellamt, while confirming that it has itself sufficient powers to set priorities in general and to prioritise individual cases, indicated that “it is aware from experience that not all other authorities in the ECN have sufficient powers to prioritize. In particular, some authorities are under an obligation to adopt reasoned decisions upon a complaint within relatively strict deadlines. Such a system carries not only the risk that an authority’s resources are wasted on dealing with low priority cases in more detail than necessary, but can also give complainants an opportunity to unduly interfere with case allocation between individual ECN authorities.” [69] The Autorité de la concurrence (French NCA) confirmed that it does not have the power to reject formal complaints on priority grounds, and responded “neutral” to the question whether it considers this to be a problem, whereas the French government defended the French system, pointing out in particular that it guarantees that all cases in which competition infringements are found are dealt with. [70] The European Association of Craft, Small and Medium-sized Enterprises (UEAPME) stated that “due also to national laws regarding the prioritization of NCA’s action, it might happen that some cases remain uninspected if the volume of the activity is limited. This leaves [small and medium enterprises (SMEs)] in most member states without the support of NCAs. Therefore it would be useful to have a tool, where SMEs or their representatives have the possibility to bring competition cases before an independent authority, which has an obligation to decide the case.” [71] Finally, the French Association of Large Companies (AFEP) stated that “the power of the NCAs to set their own priorities can be beneficial if priorities are set in an open debate with stakeholders. Judicial review must be possible where a complaint is not dealt with. However, too divergent priorities of the NCAs may lead to uneven enforcement of competition law.” [72]

10. Impact Assessment

54. Together with the ECN+ Proposal, the Commission published a Commission Staff Working Document containing an Impact Assessment of the proposal. [73]

55. As to independence, the Impact Assessment mentions in particular that “a genuine risk of influence by other state bodies exists where state-owned companies or activities by state bodies are subject of an investigation by the NCA or where its enforcement action would interfere with other public interests.” [74]

56. Without naming the Member States concerned, the Impact Assessment also describes three cases where improper interference with the independent functioning of NCAs has taken place. [75]

57. As to resources, the Impact Assessment includes a number of graphs which show, for different groups of (unnamed) Member States with similar GDP levels, a positive correlation between the level of the budget of NCAs and their level of enforcement of Articles 101 and 102 TFEU, as well as between the number of their staff and their level of enforcement. [76]

58. As to prioritisation, the Impact Assessment mentions that 15 NCAs (that is, the NCAs in a majority of the 28 Member States) do not have the full power to set their priorities, in that they cannot reject complaints without doing a detailed investigation on substance. [77] No examples of problems in the Member States concerned or graphs showing a negative correlation between the inability to reject complaints on priority grounds and enforcement levels are provided, but, as in the Explanatory Memorandum, [78] it is mentioned that “stakeholders, notably businesses, report that the lack of the power of NCAs to set their priorities in full prevents them from focusing on infringements that cause the most harm to competition.” [79]

III. Analysis

1. Resources

59. Of the three issues discussed in this paper (independence, prioritisation, and resources), the requirement for NCAs to have the human, financial and technical resources that are necessary for the effective performance of their duties and exercise of their powers when applying Articles 101 and 102 TFEU, as set out in Article 5 of the proposed Directive, is the most obviously justified. [80]

60. As explained above, [81] this requirement already flows from Article 35 of Regulation 1/2003, as interpreted by the Court of Justice, and is thus not really new.

61. While adequate resources are not a sufficient condition for effective antitrust enforcement, [82] they undeniably constitute a necessary condition.

62. The example given in the public consultation of several NCAs not having enough resources to conduct inspections on a larger scale shows that insufficient resources are a real problem in several Member States. [83]

63. Finally, the empirical evidence contained in the Impact Assessment, showing a positive correlation between, on the one hand, the level of the budget or the number of staff of NCAs and, on the other hand, the level of enforcement of Articles 101 and 102 TFEU, [84] confirms more generally that resources are part of the explanation for the substantial differences in enforcement levels between Member States [85] and hence also part of the solution in order to achieve an effective and uniform application of Articles 101 and 102 TFEU throughout the European Union. [86]

2. Independence

64. As indicated in the Impact Assessment, “it is widely accepted by organisations such as the OECD and UNCTAD as well as academics and stakeholders that the independence of competition authorities is a prerequisite for effective competition enforcement.” [87]

65. Leaving aside for the moment the provision on prioritisation in Article 4(2)(e) of the proposed Directive, which will be discussed separately in the last part of this paper, [88] it also appears clearly from the responses to the public consultation, [89] as well as from the resolutions of the European Parliament, [90] that there is a broad consensus in the EU in favour of independence guarantees for NCAs similar to those in Article 4(1) and (2)(a) to (d) of the proposed Directive.

66. The examples mentioned in the Impact Assessment, [91] as well as in some responses to the public consultation, [92] of improper interference with the independence of NCAs show that the issue is not merely a theoretical one.

67. It may nevertheless be worthwhile to examine in some more depth the meaning and purpose of independence in the specific case of the enforcement of Articles 101 and 102 TFEU by the NCAs.

2.1 The notion of independence: A few selected definitions

68. The Shorter Oxford English Dictionary defines “independence” as “the condition or quality of being independent,” and defines “independent” as “not subject to the authority or control of any person, country, etc.: free to act as one pleases, autonomous.” [93]

69. Independence understood as absence-of-any-control or freedom-to-act-as-one-pleases is not a desirable state of affairs, at least not from the perspective of the general interest. Independence should not be a licence for laziness, inefficiency, dereliction of duty, intransparency, arbitrariness, self-dealing, corruption, abuse of powers, self-aggrandisement and the like. NCAs have been created and have been given powers and resources to fulfil a task in the general interest, and there should be adequate controls to ensure that the NCAs use their powers and resources for that purpose.

70. For this reason, it is generally accepted that independence should go hand in hand with accountability. [94] As independence means absence of controls, and accountability means controls, the crucial issue is to determine which types of controls are inappropriate and which are appropriate to ensure that NCAs fulfil their task. [95]

71. The ECN+ Proposal clearly recognises this distinction. Indeed, according to Article 4(1) of the proposed Directive, the independence of NCAs shall be “subject to proportionate accountability requirements and without prejudice to close cooperation between competition authorities in the European Competition Network.” Recital 16 of the proposed Directive adds that “the independence of NCAs does not preclude either judicial review or parliamentary supervision in accordance with the laws of the Member States. Accountability requirements also contribute to the credibility and the legitimacy of the actions of NCAs. Proportionate accountability requirements include the publication by NCAs of periodic reports on their activities to a governmental or parliamentary body. NCAs may also be subject to control or monitoring of their financial expenditure, provided this does not affect their independence.”

72. In the context of interpreting the notion of “complete independence” as applicable to national data protection supervisory authorities [96]—a notion that is arguably distinct from mere “independence”—the Court of Justice has held that “in relation to a public body, the term ‘independence’ normally means a status which ensures that the body concerned can act completely freely, without taking instructions or being put under any pressure.” [97] This definition, or at least the first part of it (“completely freely”), raises the same problem as the Shorter Oxford Dictionary definition discussed above, [98] and does not appear to have been repeated by the court in later judgments. [99]

73. In the context of interpreting the notion of “court or tribunal” for the purposes of Article 267 TFEU, the Court of Justice has held that independence “entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards the proceedings before them.” [100] The qualifier “liable to jeopardise the independent judgment of its members as regards the proceedings before them” is a useful one, as it reflects the need to distinguish between appropriate and inappropriate controls. [101] Recital 14 of the ECN+ Proposal similarly refers to the need for NCAs being protected “against external intervention or political pressure liable to jeopardise their independent assessment of matters coming before them.”

74. In the context of interpreting the EU law requirement of independence for airport coordinators, [102] the EFTA Court has held that it must be ensured that “neither the authorities of the [Member State] concerned nor any other party can unduly influence the coordinator before, during and after the allocation process.” [103] The qualifier “unduly” is again a useful one, as it reflects the need for appropriate accountability controls, [104] as well as the need to respect procedural requirements, including the fundamental right to be heard. The latter need is also reflected in Article 3 of the ECN+ Proposal, according to which “the exercise of the powers referred to in this Directive by national competition authorities shall be subject to appropriate safeguards, including respect of undertakings’ rights of defence and the right to an effective remedy before a tribunal, in accordance with general principles of Union law and the Charter of Fundamental Rights of the European Union.” [105]

75. According to a report of the International Competition Network (ICN), that competition authorities should be “independent” means “that their actions should be based on the facts and the law and not on political considerations.” [106]

76. Last but not least, Chris Fonteijn, the chairman of the board of the Netherlands Authority for Consumers and Markets (ACM), has defined independence as “having the freedom to reach conclusions, in accordance with the task that lawmakers have bestowed upon us, without having to face inappropriate pressure (the notion of no pressure is unrealistic).” [107]

2.2 The NCAs’ task

77. The above discussion of the notion of independence has made it clear that the crucial issue is to determine which types of controls, interference or influence are inappropriate and which are appropriate to ensure that NCAs fulfil their task. [108] The preliminary question to be answered is thus what the NCAs’ task is.

78. As explained above, it appears from the VEBIC and Schenker judgments of the Court of Justice that the NCAs’ task is the effective and uniform application of Articles 101 and 102 TFEU in the general interest. [109]

79. The court’s language is reflected in the wording of the proposed Directive, in particular its Article 4(1) (“in the interests of the effective and uniform enforcement of those provisions”) and recital 13 (“in the common interest of the effective enforcement of European competition rules”).

2.3 Independence from economic operators and business interests

80. The decisions which NCAs take in the application of Articles 101 and 102 TFEU (opening and closing investigations, making findings of infringement, imposing remedies and penalties, accepting commitments and settlements, rejecting complaints) are obviously of great import to the economic operators whom they affect (not only the economic operators targeted by the investigation, but also other economic operators such as competitors and customers).

81. While NCAs must respect the undertakings’ right to be heard, [110] their decisions should be based on their own, impartial judgment, with a view to the effective and uniform application of Articles 101 and 102 TFEU in the general interest, without any bias in favour or against any particular economic operator or category of economic operators.

82. As the Court of Justice has held, “a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured between the various economic operators.” [111] For this reason, the Court of Justice has considered that it is justified for EU secondary law to entrust regulatory tasks in the telecommunications sector “to a body independent of public or private undertakings offering competing goods and/or services in the telecommunications sector.” [112] The same reason justifies requiring that NCAs, whose duties and powers affect all sectors of the economy, are independent of all public and private economic operators.

83. Article 4(1) and (2)(b) and (c) of the proposed Directive require Member States to ensure that NCAs “perform their duties and exercise their powers impartially and in the interests of the effective and uniform enforcement of [Articles 101 and 102 TFEU],” that the staff and members of the decision-making body of NCAs “neither seek nor take any instructions from any (…) public or private entity” and “refrain from any action which is incompatible with the performance of their duties and exercise of their powers.” With regard to the latter requirement, recital 15 explains that this includes that they “should refrain from any incompatible occupation,” “not have an interest in any businesses or organisations which have dealings with an NCA to the extent that this has the potential to compromise their independence,” and “declare any interest or asset which might create a conflict of interests in the performance of their duties.”

84. Independence from economic operators is not only necessary to prevent unequal treatment between different economic operators, but also to prevent regulatory capture by business interests. [113] Regulatory capture is the phenomenon where an authority entrusted with a regulatory task in the general interest ends up identifying with the businesses it regulates and defending the interests of those businesses rather than the public interest. [114] As John Kay has pointed out, “the most common form of capture is honest and may be characterised as intellectual capture.” [115] This can in particular occur when the staff and members of the decision-making body of competition authorities identify professionally and maybe also socially with and end up feeling accountable to a competition expert community that is structurally biased towards the outlook and interests of big business. [116] As I have argued elsewhere, [117] the risk of such bias in the competition expert community is in particular visible in the area of abuse of dominance. The beneficiaries of full enforcement of Article 102 TFEU, as interpreted by the Court of Justice, for instance with regard to exclusivity rebates, [118] are, apart from the EU general interest, European consumers and the smaller companies that are the actual or potential competitors of dominant companies. These benefits are spread out over many beneficiaries, many of whom may never even become aware of it. They are thus unlikely to defend effectively their interests. [119] Indeed, as Dieter Wolf, former president of the Bundeskartellamt, has pointed out, competition has no lobby. [120] On the other hand, the loss to the dominant undertakings that are prevented from abusing their dominant position is highly concentrated. [121] Dominant companies can thus be expected to lobby strongly against full enforcement. For antitrust practitioners, dominant companies are the largest and most lucrative clients. Antitrust practitioners thus have an interest in positioning themselves as proponents of views that chime with dominant company interests. Many antitrust academics are also practitioners, or may want to become practitioners at a later stage of their career. Large parts of the publication and conference markets are also run by and for practitioners. Many academics may thus face similar incentives as those faced by practitioners. [122]

2.4 Independence from government, other state bodies and politics

85. The need to prevent unequal treatment between economic operators, which, as explained above, [123] justifies the independence of NCAs from economic operators, also justifies their independence from their national government and from political interference. [124]

86. Indeed, as explained above, [125] NCAs should take their decisions (opening and closing investigations, making findings of infringement, imposing remedies and penalties, accepting commitments and settlements, rejecting complaints) impartially, with a view to the effective and uniform application of Articles 101 and 102 TFEU in the general interest, without any bias in favour or against any particular economic operator or category of economic operators. It should thus be avoided that certain economic operators end up being favoured by NCAs because those operators benefit from political support.

87. As indicated in the Impact Assessment, [126] a specific risk exists when state-owned companies or economic activities by state bodies are the subject of an investigation by the NCA. More broadly, as has been pointed out in the public consultation, [127] the credibility of the whole system of protection of competition in the EU, which requires compliance with the principle of equal treatment of national and non-national undertakings, strongly depends on the independence of NCAs from their national government and politics.

88. The need to avoid unequal treatment justifies keeping governments, other public bodies or elected politicians out of NCAs’ decisions in individual cases. On the other hand, it is normal for independent authorities to be accountable to their governments and/or parliaments for their general activities, in particular through annual reports. [128]

89. The ECN+ Proposal also reflects this distinction: Article 4(2)(a) and (b) provide that Member States must ensure that the staff and members of the decision-making body of NCAs can perform their duties and exercise their powers for the application of Articles 101 and 102 TFEU “independently from political and other external influence,” and that they shall “neither seek nor take instructions from any government or other public (…) entity.” Recital 14 clarifies that the required protection is against “external intervention or political pressure liable to jeopardise their independent assessment of the matters coming before them,” and that it is also “for that reason” that Article 4(2)(d) lays down rules regarding the grounds for the dismissal of the members of the decision-making body of the NCAs “in order to remove any reasonable doubt as to the impartiality of that body and its imperviousness to external factors.” On the other hand, Article 4(1) recognises the appropriateness of “proportionate accountability requirements.” Recital 16 affirms that “the independence of NCAs does not preclude (…) parliamentary supervision in accordance with the laws of the Member States.” That this rather broad statement should not be understood as allowing also parliamentary interference in individual cases is, however, clear from Article 4(1) and from the further explanation in recital 16 that “proportionate accountability requirements include the publication by NCAs of periodic reports on their activities to a governmental or parliamentary body. NCAs may also be subject to control or monitoring of their financial expenditure, provided this does not affect their independence.” The distinction between interference in individual cases and accountability for the NCAs’ general activities is also reflected in recital 17, according to which “the power of NCAs to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.” [129]

2.5 The role of the European Commission and the European Competition Network

90. According to the Joint Statement of the Council and the Commission on the functioning of the network of competition authorities, entered in the Council Minutes at the time of the adoption of Regulation 1/2003, “all competition authorities within the [European Competition] Network are independent from one another.” [130]

91. As far as the relationship between, on the one hand, the NCAs and, on the other hand, the European Commission is concerned, this appears not entirely true. Indeed, as already mentioned above, [131] according to Article 11(6) of Regulation 1/2003, the initiation of proceedings by the Commission relieves the NCAs of their competence to deal with the same case. Combined with the obligations, laid down in Article 11(3) and (4) of Regulation 1/2003, for NCAs to inform the Commission of the start of their investigation and to provide the Commission with a summary of their draft decisions finding an infringement or accepting commitments, this power undeniably reduces the NCAs’ independence, [132] even if, according to the Joint Statement of the Council and the Commission, the Commission is to exercise its powers vis-à-vis the NCAs “with the utmost regard for the cooperative nature of the Network.” [133]

92. This lack of full independence of NCAs vis-à-vis the Commission is however unproblematic. Indeed, as explained above, [134] it reflects the fact that, according to the case law of the Court of Justice, Article 105(1) TFEU, which constitutes the specific expression in the area of competition law of the general supervisory role conferred on the Commission (under the control of the Court of Justice) by Article 17(1) TEU, makes the Commission responsible for defining and implementing the orientation of EU competition policy. The Commission’s powers vis-à-vis the NCAs do not endanger the fulfilment by the NCAs of their task of applying Articles 101 and 102 TFEU effectively and uniformly in the general interest, [135] but rather constitute a safeguard to ensure the fulfilment of this task.

93. The Commission’s powers vis-à-vis the NCAs, and more generally the close cooperation within the European Competition Network, can also help ensuring the NCAs’ independence from their national government and politics, as NCAs may be able to call upon the Commission’s authority when put under pressure in their Member State. [136]

94. Finally, the ECN also provides a professional network with which the staff and members of the decision-making bodies of the NCAs can identify, and which, because it includes only competition authorities, does not present the same risk of intellectual capture by big business interests discussed above in relation to the wider competition expert community. [137]

2.6 The role of judicial review

95. Recital 16 of the proposed Directive states that “the independence of NCAs does not preclude (…) judicial review.”

96. Indeed, judicial review does not limit the NCAs’ independence, as properly understood. [138] To the contrary, it strengthens their independence. [139]

97. For example, political pressure on an NCA to impose higher fines on the non-national members of a cartel than on the national members will be ineffective if the NCA’s fining decision is subject to judicial review and the reviewing court can remedy unequal treatment.

98. As already mentioned, [140] Article 3 of the proposed Directive provides that “the exercise of the powers [to apply Articles 101 and 102 TFEU] by national competition authorities shall be subject to appropriate safeguards, including (…) the right to an effective remedy before a tribunal, in accordance with general principles of Union law and the Charter of Fundamental Rights of the European Union.”

99. That judicial review strengthens independence is also true for the rejection of complaints. The possibility for complainants to seek judicial review protects an NCA against political pressure not to act on complaints against politically favoured companies. [141]

2.7 De facto independence and the limits of legislating for independence

100. It is generally recognised that there is not necessarily a full correspondence between legal (formal, de jure) independence and de facto (actual, real) independence of competition authorities. [142] De facto independence depends on various factors, including the general political and administrative culture of the state in which the competition authority functions, the length of existence and the track record of the competition authority, and the personalities of its top management. [143]

101. The divergence between formal and de facto independence does, however, not justify abstaining from legislating for independence. Indeed, as the OECD Secretariat has pointed out, “although legal independence does not automatically bring about de facto independence, it still matters. Aspects of legal independence provide [competition authorities] with those minimum safeguards which may not prevent all political pressures, but nonetheless make it less probable.” [144]

102. On the other hand, the fact that actual independence depends on numerous factors that significantly vary between EU Member States justifies limiting EU legislation to the most general and basic minimum requirements, such as those contained in Article 4(1) and (2)(a) to (d) of the proposed Directive. [145]

3. Prioritisation

3.1 The current situation

103. To understand the provisions on prioritisation contained in Article 4(2)(e) of the proposed Directive, it may be useful first to describe the current situation with regard to prioritisation by NCAs.

104. It would appear that all NCAs have, like the European Commission, the power to set positive priorities, in that they can initiate investigations and proceedings on their own initiative (ex officio), without having received any formal notification or complaint. [146]

105. Important differences between NCAs exist, however, with regard to the setting of negative priorities, more precisely the possibility to reject complaints on the ground that the NCA does not consider the complaint to be a priority.

106. Some national competition authorities, such as the French Autorité de la concurrence and the Spanish Comisión Nacional de los Mercados y la Competencia (CNMC), have no discretion to reject complaints under Articles 101 and 102 TFEU for lack of priority interest. [147] The Autorité de la concurrence can be seized with a complaint by a company, the minister of Economics, a local authority, a professional organisation, a trade union or a consumer association. Unless the facts are more than five years old or the complaint is manifestly lacking in supporting evidence, the Autorité de la concurrence must investigate the complaint and adopt a final decision. [148]

107. At the other extreme, there is no formal status of “complainant” before the German Bundeskartellamt. Decisions as to which cases to investigate and pursue are taken by the Decision Division (Beschlussabteilung) responsible for the sector concerned. In case of an informal complaint, if the Decision Division concerned does not open proceedings, the complainant will be informed accordingly through an informal letter which also refers to the possibility of enforcing the competition rules through private litigation. The German courts decline to review such decisions. If the Decision Division concerned opens proceedings, the complainant can, like any other interested third party, obtain the status of intervener in the proceedings. [149]

108. In the middle between these two extremes, several Member States, for instance the Netherlands and the United Kingdom (still a Member State at the time of writing), have a system similar to that applicable to the European Commission (hereafter: “the European-Commission-style system”). [150] Any person who submits a written, reasoned complaint and whose interests are likely to be materially affected by the conduct that is the subject matter of the complaint can obtain formal complainant status. If the authority decides to close its file because a (further) investigation does not fit in its priorities, it must address to the complainant a reasoned decision, which is subject to judicial review, but, as it is recognised that the authority has discretion to set its enforcement priorities, the judicial review is limited to whether the contested decision is based on materially incorrect facts or vitiated by an error of law, a manifest error of appraisal or misuse of powers. [151]

3.2 What Article 4(2)(e) of the proposed Directive does

109. Article 4(2)(e) of the proposed Directive appears to do three things:

– It obliges Member States to ensure that NCAs have the power to set positive priorities, i.e. the power to initiate investigations and proceedings on their own initiative (ex officio), without having received any formal notification or complaint. As mentioned above, all NCAs already appear to have this power today. [152]

– It obliges Member States to ensure that NCAs have the power to set negative priorities, in that, if according to national law the NCA is obliged to consider formal complaints, it must have the power to reject such complaints on the ground that it does not consider them to be a priority. Compared to the current situation, the French system, in which the NCA is obliged to investigate all complaints and adopt a final decision on them, [153] would thus be outlawed. On the other hand, both the German system, in which there is no legal status of “complainant,” [154] and the European-Commission-style system, in which there is a legal status of complainant but also discretion for the authority to reject complaints on grounds of lack of priority interest, [155] subject to (limited) judicial review, would be compatible with the proposed Directive.

– It obliges Member States to ensure that NCAs set priorities independently, in the interest of the effective and uniform enforcement of Articles 101 and 102 TFEU. As is apparent from the last sentence of recital 17 of the proposed Directive, as well as from the Explanatory Memorandum, this refers only to the setting of priorities “in individual cases,” “without prejudice to the right of a government of a Member State to issue general policy or priority guidelines to national competition authorities that are not related to specific proceedings for the enforcement of Articles 101 and 102 TFEU.”

3.3 The relationship between prioritisation and independence

110. Of the three things which Article 4(2)(e) of the proposed Directive does, as set out just above, the third element—namely, that NCAs should be able to set priorities independently without government interference in individual cases—clearly constitutes a measure to strengthen NCAs’ independence, [156] and hence justifies that Article 4(2)(e) forms part of Article 4 of the proposed Directive, which deals with independence.

111. The first and second elements—namely, that NCAs should have the power to initiate cases on their own initiative and that they should not be obliged to investigate and decide upon cases that they consider not to be a priority—do not directly relate to independence.

112. Indeed, courts, which are the purest case of independent state bodies, do not normally have the power to initiate cases on their own initiative nor to refuse cases for lack of priority interest, and the wording of Article 4(2)(e) of the proposed Directive has been carefully limited so as to cover only national administrative competition authorities, not national judicial competition authorities. [157]

113. It cannot be argued either that the fact that the French Autorité de la concurrence has not had the power up to now to reject complaints under Articles 101 and 102 TFEU on priority grounds would in any way have undermined or negatively affected its independence.

114. It could even be argued that having the power to reject complaints for lack of priority might weaken a competition authority’s independence, in the absence of sufficient other independence guarantees. Imagine for instance that the head of a competition authority is nearing the end of his mandate and would like to be renewed in his office, that the decision to give him a second mandate is in the hands of a minister, and that the competition authority happens to have received a complaint against a state-owned company under the jurisdiction of the same minister, or a company which is based in the minister’s constituency, or which has contributed financially to his election campaign, or in which the minister’s spouse is the main shareholder. In such a situation, the impossibility for the competition authority to reject the complaint on priority grounds would clearly strengthen the authority’s independence. Whether or not the possibility to reject complaints on priority grounds actually presents an independence risk depends, however, on the presence or absence of other independence guarantees. Judicial review of decisions rejecting complaints, even if limited as in the European-Commission-style system, strongly reduces the risks of political interference. [158] In the case of Germany, the above hypothetical could not even arise, as the president of the Bundeskartellamt is appointed for life and the heads of the Decision Decisions are permanent officials of the Bundeskartellamt. Indeed, the absence of complainant rights in the German system has not prevented the Bundeskartellamt from being one of the most independent, if not the most independent of all NCAs. [159]

115. The fact that two of the three elements contained in Article 4(2)(e) of the proposed Directive—namely, that NCAs should have the power to initiate cases on their own initiative and that they should not be obliged to investigate and decide upon cases that they consider not to be a priority—cannot be considered to strengthen independence does, however, not mean that these elements may not be justified on other grounds, as discussed in the remainder of this paper.

3.4 The power to set positive priorities

116. It is indeed important, for the effective enforcement of Articles 101 and 102 TFEU, that the competition authorities (both the European Commission and NCAs) not only act upon complaints and leniency applications but also initiate investigations and proceedings on their own initiative (ex officio).

117. The type of infringements for which complaints are likely to be received does not cover all types of infringements of Articles 101 and 102 TFEU, and complaints are unlikely to be received for some of the most serious types of infringements. [160] Victims of abuse of a dominant position may be too scared of retaliation by the dominant company to lodge a complaint, and victims of practices such as secret price cartels may not even be aware of the infringement. As I have argued in detail elsewhere, [161] whereas a well-designed leniency programme can be very effective to help competition authorities detect secret cartels, its prolonged success also requires that the competition authority continues to collect intelligence and evidence of cartel infringements by other means, in particular information from anonymous informants. [162]

118. As pointed out in the 2013 ECN Recommendation on the power to set priorities, [163] the possibility to initiate investigations ex officio also allows authorities to pursue cases at ECN level in a more coordinated way, for instance through joint enforcement initiatives on a multi-jurisdictional level. [164]

3.5 The power to set negative priorities and its relationship with resources

119. According to recital 17 of the proposed Directive, NCAs should be able to reject complaints on the grounds that they are not a priority so as to allow them “to make effective use of their resources.” [165]

120. The issue of whether NCAs should have the power to reject complaints for lack of priority interest is indeed in several ways interlinked with the issue of resources.

121. As explained above, [166] it is important, for the effective enforcement of Articles 101 and 102 TFEU, that the competition authorities (both the European Commission and NCAs) not only act upon complaints and leniency applications but also initiate investigations and proceedings on their own initiative (ex officio). If an NCA receives a large number of complaints, is obliged to investigate all the complaints it receives, and has only a relatively small amount of resources at its disposal, the NCA may end up being in the situation where it has to spend all its resources on dealing with the complaints, leaving no resources to investigate cases on its own initiative. Such a situation may also arise if the NCA has in principle enough resources both to deal with all complaints and to do ex officio cases, but, due to inefficiencies in its operations (or as a result of past inefficiencies or past underfunding that have led to a backlog of pending complaints), ends up spending all its resources on dealing with complaints. In all of these situations, there is a problem for the effective enforcement of Articles 101 and 102 TFEU, and removing the obligation to investigate all complaints is a possible solution to this problem. I understand that this is what happened in Greece, where, as reported in the Commission Staff Working Document accompanying the Commission’s ten-year report on Regulation 1/2003, [167] a change in the law allowing for the NCA to reject non-priority complaints allowed the NCA to address a backlog of pending cases. [168]

122. It should, however, be noted that this type of problem could also be resolved by the NCA receiving more resources and/or making more efficient use of its resources. [169] The example of the French Autorité de la concurrence, which cannot reject complaints on the ground of lack of priority interest, but which nevertheless also has a vibrant activity of ex officio investigations, all within a not particularly high budget, shows that this is possible. [170] Indeed, in the public consultation, the Autorité de la concurrence did not indicate that its current inability to reject complaints on the ground of lack of priority interest would have impeded its effectiveness, [171] whereas the French government pointed out that the French system has the advantage that it guarantees that all cases in which competition infringements are found are dealt with. [172]

123. As has been pointed out in the economic literature, the obligation to deal with all complaints may have the beneficial effect of forcing competition authorities to work harder and be more productive. [173] As visible from the statistics above, the French NCA tops the list of European competition authorities in terms of number of final decisions. [174]

124. There is also a link between the obligation for Member States to ensure that national competition authorities have the necessary resources for the effective enforcement of Articles 101 and 102 TFEU, as laid down in Article 5 of the proposed Directive, and the issue of whether the NCA has the power to reject non-priority complaints. If an NCA that today is obliged to investigate all complaints, and that today has sufficient resources to do this as well as to investigate cases on its own initiative, were in the future allowed not to investigate non-priority complaints, its Member State might be able to reduce that NCA’s resources without violating the obligation laid down in Article 5 of the proposed Directive.

125. In its reply to the public consultation, the Bundeskartellamt has pointed out that, where authorities are under an obligation to adopt reasoned decisions on all complaints, there is a “risk that an authority’s resources are wasted on dealing with low priority cases in more detail than necessary.” [175]

126. Indeed, as I have argued elsewhere, [176] a possible justification for not pursuing all cases of alleged or suspected infringement of the antitrust prohibitions is that the cost of investigating and pursuing a case may exceed the benefits of doing so. Relevant costs here are not only the resources spent by the competition authority and the courts but also the costs borne by the companies defending themselves or responding to information requests. [177]

127. Should a competition authority for instance spend a million euros to investigate price fixing in an industry with sales of ten thousand euros? [178] Not if the investigation yields no benefits beyond the market concerned, either in terms of deterrence of others or in terms of clarification of the law. The difficulty is, however, that very often the main benefit of enforcement action in a given case lies precisely in the deterrent and precedent effect beyond the case concerned, [179] and the size of those benefits is usually difficult to assess. [180]

128. On the other hand, as I have also argued elsewhere, [181] the process of prioritisation itself may consume substantial resources. Where a competition authority employs people specifically to work on prioritisation, these people could alternatively be employed as case handlers, allowing more cases to be pursued. Similarly, where case teams have to spend a significant part of their time verifying and justifying the priority status of their cases, they can deal with fewer cases. Finally, where prioritisation decisions are not taken by the case-handling divisions but by others within the competition authority, there may also be a risk of negative motivational effects on the case handlers. [182]

3.6 The power to set negative priorities and optimal case allocation within the ECN

129. In its reply to the public consultation, the Bundeskartellamt has pointed out that “some authorities are under an obligation to adopt reasoned decisions within relatively strict deadlines. Such a system (…) can give complainants an opportunity to unduly interfere with case allocation between individual ECN authorities.” [183]

130. Given that Article 13 of Regulation 1/2003 already empowers all NCAs as well as the European Commission to reject a complaint on the ground that another authority within the ECN is dealing with the case, the problem highlighted by the Bundeskartellamt appears to relate not so much to the obligation to adopt reasoned decisions but rather to the strict deadlines, which would force the authority to adopt a reasoned decision on the complaint before proper discussions on a possible reallocation of the case to another authority have taken place and, if the case is reallocated to another authority, the other authority has started investigating the case. [184] The appropriate solution to this problem would thus appear to be either the relaxation of the strict deadlines, [185] or the speeding-up of case allocation discussions within the ECN, or some combination of both of these measures.

131. It is true that the problem highlighted by the Bundeskartellamt would also disappear if all NCAs as well as the European Commission would, like the Bundeskartellamt, have no obligation to adopt reasoned decisions rejecting complaints. However, as explained above, [186] while Article 4(2)(e) of the proposed Directive, if adopted, would outlaw the French system, in which the NCA must investigate all complaints, it would not outlaw the European-Commission-style system, under which authorities can reject complaints for lack of priority interest but must do so through a reasoned decision. [187] Article 4(2)(e) of the proposed Directive would thus not solve the problem.

132. More broadly, one could, of course, ask the question whether, in the interest not only of the efficient functioning of the ECN but also of equal treatment of complainants throughout the EU, the status and rights of complainants should not be fully harmonised for all authorities within the ECN. That would, however, go beyond the relatively modest ECN+ Proposal, but could conceivably be a further step for the future.

Footnotes

[1Paper presented at New Frontiers of Antitrust 8th International Concurrences Review Conference (Paris, 26 June 2017) accessible at http://ssrn.com/author=456087. I am grateful to Elisavet Arsenidou, Daniel Dittert, Céline Gauer, Laurence Idot, Šarūnas Keserauskas, Gero Meessen, Siún O’Keeffe, Konrad Ost, Enrique Sepúlveda Garcia, Ailsa Sinclair and Anna Vernet for helpful comments and contributions. All views expressed in this paper are strictly personal, and should not be construed as reflecting the opinion of the European Commission or any of the above-mentioned persons. Comments are welcome at wouter.wils@ec.europa.eu.

[2COM(2017)142 final of 22.3.2017. The name “ECN+” refers to the European Competition Network (ECN) and an addition to Regulation 1/2003; see text accompanied by notes 3 and 5 to 30 below.

[3See text accompanied by note 31 below.

[4See note 1 above and text accompanied by note 8 below.

[5COM(2017)142, at 15.

[6COM(2017)142, at 4.

[7Council 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 [2003] OJ L1/1. Articles 81 and 82 of the then EC Treaty have since (without any modification) become Articles 101 and 102 TFEU. In this paper I will systematically refer to the current numbers and name.

[8Council Regulation No 17 [1962] OJ 13/204 (Special English Edition 1959–62, p. 87).

[9For a detailed analysis of Regulation 1/2003, in comparison with the regime preceding it, see my Community Report in D. Cahill and J. D. Cooke (eds.), The Modernisation of EU Competition Law Enforcement in the EU – FIDE 2004 National Reports (Cambridge 2004), 661–736, also accessible at http://ssrn.com/author=456087, and my book Principles of European Antitrust Enforcement (Hart 2005). For a reminder of the genesis of Regulation 1/2003 and an overview of its main results, see my paper Ten Years of Regulation 1/2003 – A Retrospective (2013) 4 Journal of European Competition Law & Practice 293, also accessible at http://ssrn.com/author=456087.

[10Council Document 15435/02 ADD 1 of 10 December 2002, accessible at http://register.consilium.eu.int. According to its paragraphs 3 and 4, “this Joint Statement is political in nature and does therefore not create any legal rights or obligations. It is limited to setting out common political understanding shared by all Member States and the Commission on the principles of the functioning of the Network. Details will be set out in a Commission notice which will be drafted and updated as necessary in close cooperation with Member States.” The said notice is Commission Notice on cooperation with the Network of Competition Authorities, [2004] OJ C101/43. According to its paragraph 72, the principles set out in that notice have been agreed to by the NCAs. On the Joint Statement, see further judgment in France Télécom v. Commission, T-339/04, EU:T:2007:80, para. 85, and Opinion of Advocate General Mazák in Pfleiderer, C-360/09, EU:C:2010:782, para. 26.

[11Idem, para. 6.

[12Judgments in Tele2 Polska, C-375/09, EU:C:2011:270, para. 19 to 30, and in Schenker, C-681/11, EU:C:2013:404, para. 42.

[13Furthermore, pursuant to Article 105(3) TFEU, only the Commission can adopt block exemption regulations and, under Article 29 of Regulation 1/2003, the Commission has wider powers than the NCAs to withdraw the benefits of such block exemption regulations in individual cases; see further Principles of European Antitrust Enforcement, as note 8 above, section 1.2.1.

[14Judgments in Automec v. Commission, T-24/90, EU:T:1992:97, para. 73, and in Limburgse Vinyl Maatschappij and Others v. Commission, T-305/94, EU:T:1999:80, para. 46.

[15Judgment in Masterfoods, C-344/98, EU:C:2000:689, para. 46; see also para. 9 of the Joint Statement of the Council and the Commission, as note 9 above: “The Commission, as guardian of the Treaty, has the ultimate but not the sole responsibility for developing policy and safeguarding efficiency and consistency. Therefore the instruments of the Commission on the one hand and of the NCAs on the other hand are not identical. The additional powers the Commission has been granted to fulfil its responsibilities will be exercised with the utmost regard for the cooperative nature of the Network.”

[16See Principles of European Antitrust Enforcement, as note 8 above, section 1.1.4.3.4.

[17Part of the advantage of national authorities relates to language; see Principles of European Antitrust Enforcement, as note 8 above, section 1.2.15.

[18See also E. Fox, Modernization: Efficiency, Dynamic Efficiency, and the Diffusion of Competition Law, in C. D. Ehlermann and I. Atanasiu (eds.), European Competition Law Annual 2000: The Modernisation of EC Antitrust Policy (Hart 2001) 123, and J. S. Venit, Brave New World: The Modernization of Enforcement under Articles 81 and 82 of the EC Treaty (2003) 40 Common Market Law Review 545 at 562–563.

[19See Ten Years of Regulation 1/2003 – A Retrospective, as note 8 above.

[20These and other statistics can be found at http://ec.europa.eu/competition/
ecn/statistics.html.

[21The last statistic is based on my own counting on the basis of the list of decisions accessible on the Commission’s competition website http://ec.europa.eu/
competition/index_en.html; see also Ten Years of Regulation 1/2003 – A Retrospective, as note 8 above, at footnote 21; my paper Ten years of commitment decisions under Article 9 of Regulation 1/2003: Too much of a good thing?, accessible at http://ssrn.com/author=456087, table 2; and my paper The Use of Leniency in EU Cartel Enforcement: An Assessment After Twenty Years (2016) 39 World Competition 327, also accessible at http://ssrn.com/author=456087, Annex and footnote 25.

[22See Ten Years of Regulation 1/2003 – A Retrospective, as note 8 above.

[23While the number of decisions does, of course, not give a full picture of the performance of a competition authority in the task of enforcing prohibitions like those contained in Articles 101 and 102 TFEU, it nevertheless constitutes, among all available single indicators of performance, the most important one. See also text accompanied by notes 75, 77 and 173 below.

[24See for instance the differences between Hungary and Poland, between Denmark and Ireland, or between the Netherlands and Belgium.

[25Indeed, the European Competition Network, with its statistics, creates a basis of comparison which may lead Member States and national competition authorities that perform relatively less well to take measures so as to increase their output; see, for instance, UK Department for Business Innovation & Skills, A Competition Regime for Growth: A Consultation on Options for Reform (March 2011), para. 5.6.

[26Judgment in VEBIC, C-439/08, EU:C:2010:739, para. 56.

[27Idem, para. 57.

[28Judgment in Schenker, C-681/11, EU:C:2013:404, para. 36, 46 and 49.

[29Text accompanying note 5 above.

[30COM(2017)142, at 4.

[31See section 1.2.7 of Principles of European Antitrust Enforcement, as note 8 above, referring also to the fact that the adoption and entry into application of Regulation 1/2003 already led at that time a number of Member States to increase the resources available to their NCAs. Compare with the Impact Assessment, as note 72 below, at 29.

[32To be precise, the provision on independence in Article 4 of the proposed Directive apply only to national administrative competition authorities, not to national judicial competition authorities; see text accompanied by note 2 above. For ease of reading, I will ignore this nuance in the remainder of this paper, except where this nuance matters; see text accompanied by note 156 below.

[33Article 245 TFEU adds that “Member States shall respect their independence and shall not seek to influence them in the performance of their tasks.”

[34Communication from the President to the Commission, The Working Methods of the European Commission 2014–2019, C(2014)9004 of 11 November 2014, accessible at https://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-9004-EN-F1-1.Pdf, at 15, footnote 6.

[35Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, [1962] OJ 45/1385, last amended by Regulation (EU) No 423/2014 of the European Parliament and the Council of 16 April 2014, [2014] OJ L 129/12.

[36See Article 35 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity, [2009] OJ L 211/55; Article 39 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas, [2009] OJ L 211/94 and Commission Staff Working Paper, Interpretative Note on Directive 2009/72/EC and Directive 2009/73/EC – The Regulatory Authorities (22 January 2010), accessible at https://ec.europa.eu/energy/sites/ener/files/documents/2010_01_21_the_regulatory_authorities.pdf; Article 3 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), [2002] OJ L 108/33; and Article 55 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, [2012] OJ L 343/32.

[37See Article 8(3) of the Charter of Fundamental Rights of the European Union, Article 16(2) TFEU, and Articles 52 and 53 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), [2016] OJ L119/1, and judgments in Commission v. Germany, C-518/07, EU:C:2010:125, in Commission v. Austria, C-614/10, EU:C:2012:631, and in Commission v. Hungary, C-288/12, EU:C:2014:237.

[38See Article 4 of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports, [1993] OJ L 14/1, and judgment of the EFTA Court of 10 December 2014 in Case E-18/14 Wow air v. Icelandic Competition Authority and Others.

[39See, in the context of the merger of the electronic communications regulator with the NCA (and other regulators) in Spain, judgment in Ormaetxea Garai and Lorenzo Almendros, C-424/15, EU:C:2016:780.

[40See (text accompanying) note 56 below.

[41Consultation response by the American Chamber of Commerce to the European Union (AmCham EU), at 3; see also consultation response by the French Competition Authority, at 15 and 20, and consultation response by the Lithuanian Competition Authority, at 13, 15 and 16, all accessible at http://ec.europa.eu/
competition/consultations/2015_effective_enforcers/index_en.html.

[42Communication from the Commission to the European Parliament and the Council – Report on the functioning of Regulation 1/2003, COM(2009)206 of 29 April 2009, para. 33.

[43Resolution of the Meeting of Heads of the European competition authorities of 16 November 2010, Competition authorities in the European Union – the continued need for effective institutions, accessible at http://ec.europa.eu/competition/ecn/
index_en.html.

[44ECN Recommendation on the power to set priorities (December 2013), accessible at http://ec.europa.eu/competition/ecn/index_en.html.

[45Idem, at 5–6. The third of these points could be read as an implicit criticism of Article 7 of Regulation 773/2004 (Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, [2004] OJ L 123/18) and of the case law of the EU courts according to which complainants whose complaint is rejected on priority grounds by the European Commission are entitled to a formal rejection decision that is subject to judicial review by the EU courts; see text accompanied by note 149 below. It could alternatively be interpreted as merely encouraging the practice of, before starting the formal rejection procedure, informally contacting the complainant in the hope that the complainant will withdraw its complaint; see para. 139, first and second sentence, of the Commission Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, [2011] OJ C308/6.

[46As note 43 above, at 2.

[47Communication from the Commission to the European Parliament and the Council – Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives, COM(2014)453 of 9 July 2014.

[48Idem, para. 25.

[49Idem, para. 26–29. See also Speech by Commission Vice-President Almunia, Weaving Europe’s single competition area, European Competition Day, Rome, 10 October 2014, SPEECH/14/678, at 4: “Thanks to [Memorandums of Understanding] concluded in the context of [EU financial assistance] programmes, the Irish NCA now has adequate staff and the Cypriot and Portuguese authorities were given more effective investigative powers.”

[50Idem, para. 34.

[51Commission Staff Working Document – Enhancing competition enforcement by the Member States’ competition authorities: institutional and procedural issues, SWD(2014)231 of 9 July 2014, para. 59.

[52Idem, para. 49.

[53European Parliament resolution of 11 December 2013 on the Annual Report on EU Competition Policy (2013/2075(INI)), para. 32.

[54European Parliament resolution of 10 March 2015 on the Annual Report on EU Competition Policy (2014/2158(INI)), para. 8.

[55European Parliament resolution of 19 January 2016 on the Annual Report on EU Competition Policy (2015/2140(INI)), recital F.

[56European Parliament resolution of 14 February 2017 on the Annual Report on EU Competition Policy (2016/2100(INI)), para. 150; see also para. 155, in which the European Parliament underlined that “the independence of DG Competition is of the utmost importance for it to achieve its goals in a successful manner,” called on the Commission “to reallocate sufficient financial and human resources to DG Competition,” requested that “the Commission have sufficient technically skilled engineers available when investigating high-tech companies,” and urged the Commission “to bring in line with practices for other Commission officials the ethical rules for DG Competition’s Chief Economist’s Team.” On the last point, see also my paper The Judgment of the EU General Court in Intel and the So-Called More Economic Approach to Abuse of Dominance (2014) 37 World Competition 405, also accessible at http://ssrn.com/author=456087, footnote 92.

[57The consultation questionnaire, all the replies to the consultation (some in redacted, anonymised form) and a summary report of the replies are accessible at http://ec.europa.eu/competition/consultations/2015_effective_enforcers/index_en.html.

[58Summary report of the replies, as note 56 above, at 4.

[59Idem, at 6.

[60Idem, at 7.

[61See (text accompanying) note 40 above.

[62Reply of the Bundeskartellamt, as note 56 above, at 9 and 15.

[63Reply of Assonime, as note 56 above, at 1–2; see also reply of the American Chamber of Commerce to the European Union (AmChamEU), as note 56 above, at 2 (referring to “recent unfortunate developments in Poland and Greece”); as well as anonymous replies numbers 2, 14, 22, 30, 35 and 42, as note 56 above (concerning also three other Member States). Obviously, anonymous replies need to be interpreted with due caution.

[64Reply of the Competition and Markets Authority, as note 56 above, at 5.

[65Reply of BusinessEurope, as note 56 above, at 3; see similarly reply by the German business association BDI Bundesverband der Deutschen Industrie, as note 56 above, at 2.

[66Reply of the Bundeskartellamt, as note 56 above, at 9 and 14.

[67See for instance the replies of the Finnish Competition and Consumer Authority and of the Lithuanian Competition Council, as note 56 above.

[68Reply of BusinessEurope, as note 56 above, at 2.

[69Reply of the Bundeskartellamt, as note 56 above, at 27.

[70Reply of the Autorité de la concurrence, as note 56 above, at 28, and reply of the French Authorities, as note 56 above, at 5.

[71Reply (Position Paper) of UEAPME – European Association of Craft, Small and Medium-Sized Enterprises, as note 56 above, at 2.

[72Reply of the AFEP – French Association of Large Companies, as note 56 above, at 3.

[73Commission Staff Working Document, Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, SWD(2017)114 of 22 March 2017.

[74Impact Assessment, as note 72 above, Part 1/2, at 26.

[75Idem, at 26–27.

[76Idem, at 27–28, and Part 2/2, Annex XIV, at 88–90.

[77Impact Assessment, as note 72 above, Part 1/2, at 17. The 15 Member States concerned are not named, but I understand that they include France and Spain; see text accompanied by note 69 above and text accompanied by note 146 below.

[78See text accompanied by note 4 above.

[79Impact Assessment, as note 72 above, Part 1/2, at 17–18; see further note 164 below.

[80It should, however, be kept in mind that safeguarding competition is but one of the many important government tasks (such as health, education, security, etc.), which all make claims on inevitably limited state resources.

[81Text accompanied by footnotes 25 to 30 above.

[82See the sceptical comment by BusinessEurope at note 67 above.

[83See text accompanied by note 65 above.

[84See text accompanied by note 75 above.

[85See the statistics above, text accompanied by notes 22 and 23.

[86See text accompanied by note 27 above.

[87Impact Assessment, as note 72 above, at 25, with references to OECD and UNCTAD documents and academic articles in footnotes 63, 64 and 65.

[88See text accompanied by notes 145 to 186 below.

[89See text accompanied by notes 57 to 64 above.

[90See text accompanied by notes 52 to 55 above.

[91See text accompanied by notes 73 and 74 above.

[92See text accompanied by notes 61 and 62 above.

[93Shorter Oxford English Dictionary (Oxford University Press, sixth edition 2007).

[94See A. Ottow, Market & Competition Authorities: Good Agency Principles (Oxford University Press 2015), at 85 (“Clearly, accountability and independence are two sides of the same coin”); S. Peers and M. Costa, Reassessing the Accountability of European Union Decentralized Agencies: Mind the Independence Gap (2016) 22 European Public Law 645; M. Scholten, “Independent, hence unaccountable?” The Need for a Broader Debate on Accountability of the Executive (2011) 4 Review of European Administrative Law 5; and International Competition Network, Competition Policy Implementation Working Group, Seminar on Competition Agency Effectiveness, Summary Report (Brussels, January 2009), accessible at http://www.
internationalcompetitionnetwork.org/uploads/library/doc376.pdf, at 25.

[95See further below, text accompanied by notes 107 to 140.

[96See note 36 above.

[97Judgment in Commission v. Germany, C-518/07, EU:C:2010:125, para. 18.

[98See text accompanied by notes 92 and 93 above.

[99See for instance judgment in Commission v. Hungary, C-288/12, EU:C:2014:237, para. 51.

[100Judgment in RTL Belgium, C-517/09, EU:C:2010:821, para. 39.

[101See text accompanied by notes 92 to 94 above and text accompanied by notes 107 to 140 below.

[102See note 37 above.

[103Judgment in Case E-18/14, as note 37 above, para. 37.

[104See text accompanied by notes 93 and 94 above.

[105The obligation for NCAs, when applying Articles 101 and 102 TFEU, to respect fundamental rights as laid down in the Charter of Fundamental Rights of the European Union and in general principles of Union law already exists today; see my paper EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights (2011) 34 World Competition 189, also accessible at http://ssrn.com/author=456087.

[106International Competition Network, Competition Policy Implementation Working Group, Seminar on Competition Agency Effectiveness, Summary Report (Brussels, January 2009), accessible at http://www.
internationalcompetitionnetwork.org/uploads/library/doc376.pdf, at 25.

[107C. Fonteijn, Regulators are independent, but “noblesse oblige” (14 October 2011), accessible (in Dutch language original) at https://www.acm.nl/nl/
publicaties/publicatie/11469/Chris-Fonteijn-Toezichthouder-is-onafhankelijk-maar-noblesse-oblige, at 2.

[108See text accompanied by notes 92 to 106 above.

[109See text accompanied by notes 25 to 27 above.

[110See Article 3 of the ECN+ Proposal, text accompanied by note 104 above.

[111Judgment in French Republic v. Commission, C-202/88, EU:C:1991:120, para. 51.

[112Idem, para. 52.

[113L. M. Schouten and A. J. C. de Moor-van Vugt, De onafhankelijkheid van de Autoriteit Consument en Markt (2015) SEW Tijdschrift voor Europees en economisch recht 62 at 64.

[114Idem, at 64, and D. Carpenter and D.A. Moss (eds.), Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press 2014), at 13.

[115J. Kay, Better a distant judge than a pliant regulator – Why overseers are so often captured by their industries, Financial Times, 2 November 2010; see also J. Kwak, Cultural Capture and the Financial Crisis, in D. Carpenter and D.A. Moss (eds.), Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press 2014), 71.

[116On the concept of expert community or epistemic community, see F. van Waarden and M. Drahos, Courts and (epistemic) communities in the convergence of competition policies (2002) 9 Journal of European Public Policy 913 at 928, and P. M. Haas, Introduction: Epistemic communities and international policy coordination (1992) 46 International Organization 1 at 3, defining “epistemic community” as “a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area.”

[117See my paper The Judgment of the EU General Court in Intel and the So-Called More Economic Approach to Abuse of Dominance (2014) 37 World Competition 405, at 432–434.

[118As note 116 above.

[119On diffused interests being less able to defend themselves than concentrated interests, see generally M. Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard University Press, 1965) and The Rise and Decline of Nations (Yale University Press, 1982).

[120D. Wolf, in C. D. Ehlermann and L. L. Laudati, European Competition Law Annual 1997: The Objectives of Competition Policy (Hart, 1998), Panel Discussion on Competition Policy Objectives, at 24, adding: “Institutional safeguards are needed to ensure that competition has at least one clear voice. (…) economists have learned to be advocates of the interests of their clients, just as lawyers have learned to do so. Thus, reliance on economic arguments does not protect the process. Independent institutions combined with judicial review by courts is the best way to guarantee objective results. Competition authorities must, of course, be staffed with lawyers and economists. However, as long as competition authorities are not independent, the risk is always present that specific interests will influence their decisions.”

[121As note 118 above.

[122See also L. Zingales, Preventing Economists’ Capture, in D. Carpenter and D. A. Moss (eds.), Preventing Regulatory Capture: Special Interest Influence and How to Limit It (Cambridge University Press 2014), 124–151, developing the argument and providing some empirical evidence consistent with the hypothesis that capture of (academic) economists by business interests exists, and is pervasive; J. Broulik, Economics in Antitrust Enforcement and the Private Benefit of Scholarly Commentators, TILEC Discussion Paper DP 2017-001 (January 2017), accessible at http://ssrn.com/abstract=2898753; and J. Eisinger and J. Elliott, These Professors Make More Than a Thousand Bucks an Hour Peddling Mega-Mergers: The economists are leveraging their academic prestige with secret reports justifying concentration. Their predictions are often wrong and consumers pay the price (ProPublica, 16 November 2016), accessible at https://www.propublica.org/article/these-professors-make-more-than-thousand-bucks-hour-peddling-mega-mergers.

[123See text accompanied by notes 109 to 112 above.

[124In the literature, some further justifications for the independence of competition authorities from their governments or from elected politicians have been advanced; for a critical overview of these justifications, see A. Walckiers, B. Crutzen and N. Sahuguet, An Economic Perspective on Independent Competition Enforcement, in M. Merola, N. Petit and J. Rivas, 10 Years of Regulation 1/2003: Challenges and Reform (Bruylant 2015) 105–117.

[125See text accompanied by notes 109 and 110 above.

[126See text accompanied by note 73 above.

[127See text accompanied by note 62 above.

[128See, for example, Article 5 of the European Commission’s Proposal for Council Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013)534 final of 17 July 2013, which provides that “the European Public Prosecutor’s Office shall be independent,” but also that “the European Public Prosecutor shall be accountable to the European Parliament, the Council and the European Commission for the general activities of the European Public Prosecutor’s Office, in particular by giving an annual report”; see also, as to the Working Methods of the European Commission, text accompanied by note 33 above.

[129See further text accompanied by notes 154 and 155 below.

[130As note 9 above, para. 7.

[131See text accompanied by note 12.

[132See judgment in Syfait and Others, C-53/03, EU:C:2005:333, para. 34–36, in which the Court of Justice took into account Article 11(6) of Regulation 1/2003 as an element among others leading to the conclusion that the Greek Competition Council did not constitute a “court or tribunal” for the purposes of Article 267 TFEU; see also A. Riley, EC Antitrust Modernisation: The Commission Does Very Nicely – Thank You!; Part Two: Between the Idea and the Reality: Decentralisation under Regulation No 1 (2003) European Competition Law Review 657; G. Monti, Independence, Interdependence and Legitimacy: The EU Commission, National Competition Authorities, and the European Competition Network (EUI Working Paper LAW 2014/01), accessible at http://ssrn.com/abstract=2379320, and G. Monti, Alrosa and Commitment Decisions in perspective, in B. E. Hawk, Annual Proceedings of the Fordham Competition Law Institute International Antitrust Law & Policy 2014 (Juris 2015), 461 at 479 (“NCAs lost their independenceto the Commission”).

[133As note 9 above, para. 9; see also note 14 above.

[134See text accompanied by notes 13 and 14 above.

[135See text accompanied by note 108 above.

[136See Principles of European Antitrust Enforcement, as note 8 above, section 1.2.8.

[137See text accompanied by notes 112 to 121 above. The absence of (direct or indirect) representation of business interests also distinguishes the ECN from some other international groupings of competition authorities that have institutionalised channels of business representation creating a risk of intellectual capture. For instance, the OECD Competition Committee includes participation by the Business and Industry Advisory Committee to the OECD (BIAC), without any counterbalancing representation of consumer views and interests. The International Competition Network (ICN) involves so-called Non-Governmental Advisors (“NGAs”). While it has been claimed that “the goals of NGAs are in principle aligned with those of the [competition authorities]” (P. Lugard, The International Competition Network at Ten: Origins, Accomplishments and Aspirations (Intersentia, 2011), at 15), the fact remains that the interests of big business in relation to antitrust enforcement are not aligned with the general interest (see text accompanying notes 117 to 120 above) and that the logic of collective action (see (text accompanying notes 118 and 120 above) makes it all but inevitable that, among the different NGAs, those representing (directly or indirectly) the views and interests of big business will end up being most vocal. Indeed, it would appear that the desire of the big business community to exercise influence over international antitrust enforcement was part of the impetus to create the ICN in the first place; see M. E. Janow and J. F. Rill, The Origins of the ICN, in P. Lugard (ed.), The International Competition Network at Ten: Origins, Accomplishments and Aspirations (Intersentia, 2011), 21 at 34.

[138As explained above (text accompanied by notes 92 and 93), independence should not be understood as absence-of-any-control or freedom-to-act-as-one-pleases.

[139For a different view, see W. E. Kovacic, Competition agencies, independence, and the political process, in J. Drexl, W. Kerber and R. Podszun (eds.), Competition Policy and the Economic Approach: Foundations and Limitations (Edward Elgar 2011), 291 at 296, who lists “absence of judicial review” as one of the “safeguards that would tend to ensure insulation from political control.”

[140Text accompanied by note 104 above.

[141See further below, text accompanied by notes 157 and 158.

[142OECD, Global Forum on Competition (1–2 December 2016), Independence of Competition Authorities – From Designs to Practices, Background Paper by the OECD Secretariat, DAF/COMP/GF(2016)5, at 18.

[143Idem, at 18–19.

[144Idem, at 18.

[145As David Currie, the chairman of the UK Competition and Markets Authority, has pointed out: “although the debate about independence is often around particular statutes and mechanisms, the effectiveness of these is crucially influenced by the wider political culture in which they are embedded, and that culture itself is shaped by evolution and experience over time, sometimes decades. And this influence itself is complex: mechanisms that in one culture may be benign and help to foster independence may in other cultures become a device for subverting independence”; D. Currie, Resources, Capacity and Independence of National Authorities, 21st Annual EU Competition Law and Policy Workshop – Stronger NCAs – Procedures, Powers and Prospects (European University Institute, 3–4 June 2016).

[146For a more detailed discussion of the different types of prioritisation and discretion, see my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456087, and L. Idot, Reform of Regulation 1/2003: Power to set priorities, Concurrences No 3-2015, 51.

[147With regard to complaints about purely local facts, falling only under national competition law and not under Articles 101 and 102 TFEU, the Autorité de la concurrence can refer the matter to be dealt with by the minister of Economics; see Article L. 464-9 of the Commercial Code and the reply of the French Authorities to the public consultation, as notes 56 and 69 above.

[148Article 5 of Regulation 1/2003 does, however, not allow national competition authorities to take decisions finding that Article 101 TFEU or Article 102 TFEU have not been infringed, only decisions that there are no grounds for action by the national competition authority; see judgment in Tele2 Polska, C-375/09, EU:C:2011:270, and text accompanied by note 11 above.

[149See K. Ost, Münchener Kommentar Europäisches und Deutsches Wettbewerbsrecht (Kartellrecht), Vol. 2 (Beck 2008), at 738–739.

[150See my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456087, at footnotes 21–28 and 110–113.

As has been pointed out by L. Idot, as note 145 above, para. 23, the position of the European Commission is, however, different from that of the NCAs, because, when the Commission decides not to deal with a case for lack of EU interest, the NCAs can still deal with the case. Indeed, whereas in one early judgment the General Court used some language suggesting that the possibility to set negative priorities would be inherent in the task of all competition authorities (see judgment in Automec v. Commission, T-24/90, EU:T:1992:97, para. 77 and 85), this language has never been used by the Court of Justice and has not been used in later judgments of the General Court, which have instead all based the Commission’s right to reject complaints for lack of EU interest on the Commission’s unique role under Article 105(1) TFEU; see judgments in Ufex and Others v. Commission, C-119/97 P, EU:C:1999:116, para. 88, in IECC v. Commission, C-449/98 P, EU:C:2001:275, para. 36, in CEAHR v. Commission, T-427/08, EU:T:2010:517, para. 27, in Diamanthandel Spira v. Commission, T-108/07, EU:T:2013:367, para. 97, and in Topps Europe v. Commission, T-699/14, EU:T:2017:2, para. 62, and text accompanied by note 13 above. Contrary to what has been suggested by one respondent in the public consultation (reply of Assonime, as note 56 above, at 4), it can thus not be derived from the case law of the Court of Justice that NCAs should be entitled to reject complaints on priority grounds. That EU law as it currently stands is not opposed either to NCAs having the power (on the basis of their national law) to reject complaints on priority grounds is apparent from the judgment in EasyJet Airline v. Commission, T-355/13, EU:T:2015:36.

[151As note 149 above.

[152See text accompanied by note 145 above, and L. Idot, as note 145 above, at 52–53.

[153See text accompanied by notes 146 and 147 above.

[154See text accompanied by note 148 above.

[155See text accompanied by note 149 above.

[156See text accompanied by notes 122 to 128 above.

[157See Article 2(1) of the proposed Directive and text accompanied by note 2 above.

[158See text accompanied by notes 149 and 150 and text accompanied by note 140 above.

[159The Bundeskartellamt is also the oldest of the NCAs; see text accompanied by note 142 above as to the link between age and de facto independence; see also note 144 above as to the importance of national culture.

[160See my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456087, at footnotes 128–129.

[161See my paper The Use of Leniency in EU Cartel Enforcement: An Assessment After Twenty Years (2016) 39 World Competition 327, also accessible at http://ssrn.com/author=456087, at footnotes 96–103.

[162Following the example of the Danish and German NCAs, the European Commission has in March 2017 introduced a new anonymous whistleblower tool for cartels and other anti-competitive practices; see http://ec.europa.eu/
competition/cartels/whistleblower/index.htlm; see also MLex, Anonymous whistleblower tool yields results for Danish antitrust probes (30 March 2017) and MLex, Disaffected workers triggering more Spanish cartel probes (29 March 2017); see also the “Cartels never go unnoticed” campaign launched by the Netherlands Authority for Consumers and Markets (ACM) in June 2016, https://www.acm.nl/en/publications/publication/15873/ACM-launches-offensive-against-illegal-cartel-agreements.

[163As note 43 above.

[164See text accompanied by note 45 above.

[165Recital 17 also refers to the need “to allow [NCAs] to focus on preventing and bringing to an end anti-competitive behaviour that distorts competition in the internal market.” As, by definition, all infringements of Articles 101 and 102 TFEU concern anti-competitive behaviour that distorts competition in the internal market, and complaints that concern behaviour falling outside the prohibitions contained in Articles 101 and 102 TFEU can always be rejected on that ground by NCAs, without any need for prioritisation, this does not add another justification for the power to set negative priorities. The Explanatory Memorandum of the Proposal further points out that during the public consultation most stakeholders supported the measure and that “notably, businesses reported that the lack of ability of NCAs to set priorities in full prevents them from focusing on infringements that cause the most harm to competition”; see text accompanied by note 4 above. As already mentioned above (text accompanied by note 59), when asked in the public consultation to identify from a given list all the investigation and decision-making tools stakeholders think that NCAs need to have in order for them to be effective enforcers of the EU antitrust rules, 75% of the respondents that provided an answer to this question selected, among many other powers, the power to fully set enforcement priorities, including the power to reject complaints on priority grounds. Among the businesses and business associations that responded to the question, only 58% agreed, whereas 19% disagreed, the remainder expressing a neutral position (see note 56 above). That businesses do not have a unanimous view on the matter is not surprising, as they are affected in different ways. As potential complainants, businesses have an interest in NCAs dealing with all complaints (and having sufficient resources to do so; see text accompanied by note 70 above and text accompanied by notes 164 to 169 below), whereas as potential targets of complaints, they may consider that NCAs should focus on other, more harmful infringements committed by others, or simply that NCAs should be less active.

[166See text accompanied by notes 159 to 163 above.

[167As note 50 above.

[168See text accompanied by note 51 above.

[169Other filters than prioritisation could also be used to avoid excessive numbers of complaints, for instance requirements as to who can lodge a complaint (for instance, not individual consumers but only recognised consumer associations) and requirements as to the evidence to be provided by the complainant; see text accompanied by note 147 above as well as L. Idot, as note 145 above, para. 11.

[170For more details on the indeed exemplary performance of the French Autorité de la concurrence, see L. Idot, as note 145 above, at 55 and 56.

[171See text accompanied by note 69 above.

[172Reply of the French Authorities, as note 69 above, at 5; see also the reply by the European Association of Craft, Small and Medium-sized Enterprises (UEAPME) to the public consultation, text accompanied by note 70 above; L. Idot, as note 145 above, at 57; and, more generally on the optimal division of tasks between public and private antitrust enforcement, my papers Should Private Antitrust Enforcement Be Encouraged in Europe? (2003) 26 World Competition 473 and Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future (2017) 40 World Competition 3, both also accessible at http://ssrn.com/author=456087.

[173See N. Garoupa, Some reflections on the economics of prosecutors: Mandatory vs. selective prosecution (2009) 29 International Review of Law and Economics 25.

[174See text accompanied by notes 22 and 23 above.

[175See text accompanied by note 68 above.

[176See my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456087, at footnotes 122–124.

[177As note 175 above.

[178D. W. Carlton, How should Economic Evidence be Presented and Evaluated?, in C.-D. Ehlermann and M. Marquis (eds.), European Competition Law Annual 2009: Evaluation of Evidence and its Judicial Review in Competition Cases (Hart 2010), 611 at 612.

[179See UK Office of Fair Trading, The Deterrent Effect of Competition Enforcement by the OFT: a report prepared for the OFT by Deloitte (2007).

[180See M. A. Bergman, Quis Custodiet Ipsos Custodes? Or Measuring and Evaluating the Effectiveness of Competition Enforcement (2008) 156 De Economist 387. As I have also argued elsewhere (as note 175 above, at footnotes 142–145), as the individuals taking decisions in competition authorities are, like everyone else, subject to the psychological phenomenon of availability bias, and as competition authorities and the individuals working in them are also likely to be judged by others primarily on the basis of the most readily visible output, there is a risk of excessive focus on whatever is immediate and apparently big. There is in particular a risk of only dealing with big cases in big markets, while seemingly smaller cases in smaller markets may actually be equally or more important, because they occur more frequently and intervention in some small cases could have considerable deterrence and precedent effects for many other cases. Furthermore, where a perception arises that competition authorities are only interested in dealing with big cases involving large companies in big markets, this risks having a negative deterrent effect on smaller companies and on companies active in smaller markets; see UK National Audit Office, The Office of Fair Trading: Progress Report on Maintaining Competition in Markets, HC 127 Session 2008–2009, 5 March 2009, at 6.

[181See my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456087, following footnote 145.

[182All these risks can, of course, be mitigated in a well-managed competition authority.

[183See text accompanied by note 68 above.

[184On the notion of “dealing with the case” within the meaning of Article 13 of Regulation 1/2003, see judgment in Si.mobil v. Commission, T-201/11, EU:T:2014:196, para. 47–50.

[185Strict deadlines obviously also have advantages, in that they reduce uncertainty for the parties in an investigation; see Interview with Mr. Martín Quemada, president of the Spanish Comisión Nacional de los Mercados y la Competencia (CNMC) with the Occasion of Hosting in Madrid the ICN Cartel Workshop on 3 to 5 October 2016 (2016) 39 World Competition 525 at 530.

[186See text accompanied by note 148 above.

[187See also text accompanied by note 149 above.

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Wouter Wils, Competition Authorities: Towards More Independence and Prioritisation? – The European Commission’s “ECN+” Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcers, November 2017, Concurrences Review N° 4-2017, Art. N° 84881, pp. 60-80

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