Abstract
In order to facilitate national competition authorities (NCAs) in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU. The Directive’s aim is to empower the competition authorities of the Member States to be more effective enforcers of competition law and to ensure the proper functioning of the internal market. The so-called ECN+ Directive introduces minimum harmonisation rules allowing competition authorities to have common investigative, decision-making (notably fining decisions) and enforcement powers. The Directive, furthermore, sets minimum safeguards for the NCAs’ independence, accountability and resources as well as harmonizes leniency programmes including the coordination of national leniency programmes with each other and with that of the European Commission. This paper critically analyzes the legal and policy developments that paved the way for the adoption of this Directive. Moreover, it examines the changes the implementation of the Directive is likely to generate in current Hungarian law and policy of competition protection. The focus of the paper’s assessment is on the institutional aspects of the Directive and the enforcement of Articles 101 and 102 TFEU, in particular the mechanisms for ensuring independence and accountability of the NCAs. Through the assessment of the Hungarian implementation, the paper aims to shed light on a broader context of the Directive and the enforcement of EU competition law in EU Member States. The paper shows that the implementation of the Directive may fail to translate into (more) effective enforcement without an effective institutional capacity on the side of the NCAs, and in the broader legal and constitutional context of competition law and its multilevel enforcement
Highlights
In order to facilitate national competition authorities in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU
In most EU Member States, the NCA has the possibility to impose a fine after the investigations phase, which is the case in Hungary
Related to the previous issue, as the case of Hungary shows there may be a limited number of changes necessary in national law to implement the Directive
Summary
In order to facilitate national competition authorities (hereinafter: NCAs) in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU. In the meantime the ECN’s Working Group on cooperation issues and due process was set up that monitored convergence among the Member States and provided an overview of the different systems and procedures for competition law investigations within the ECN.25 Despite these developments, national rules still differed on fundamental aspects of the procedures, such as setting priorities, inspecting non-business premises, powers to inspect, to request information or to take commitment decisions, imposing behavioural or structural remedies, procedural rights of parties under investigation, for example, different scope of the privilege against self-incrimination for undertakings, and the enforcement measures and sanctions related to non-compliance with decisions, for instance, some NCAs did not have the power to impose fines directly in case of non-compliance with a commitment decision.. First a short overview of the recent development of competition law proceedings will be provided
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