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European Competition Day – Brno 14 May 2009 Celebration of the Fifth Anniversary of the ECN Challenges for the Future Ombretta Main. Italian Competition Authority. Summary. ECN as a unitary system Powers which the members of the network are provided with

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slide1

European Competition Day – Brno 14 May 2009

Celebration of the Fifth Anniversary of the ECN

Challenges for the Future

Ombretta Main

Italian Competition Authority

summary
Summary
  • ECN as a unitary system
  • Powers which the members of the network are provided with
  • Procedures applied by the different members within the network
  • Cases allocation in the presence of multinational cartels

Italian Competition Authority

the ecn as a unitary system
The ECN as a unitary system
  • Each NCA is meant to be part of the process concerning the application and the development of the EU law
  • Therefore, the Commission and the NCAs not only apply the same substantive rules, but they are also meant to be endowed with the same powers of enforcement

Italian Competition Authority

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Powers of enforcement

The NCAs’ powers, as indicated by Art 5of Reg 1/2003, include essential tools of enforcement, like the possibility to impose interim measures. This has enabled the ICA, even before the explicit provision on interim measures by the national law, to use this power.The network overall action would be less efficient should the applicability of these measures by NCAs be uncertain

Italian Competition Authority

power to impose structural remedies
Power to impose structural remedies
  • Art 7 (1) of the Reg 1/2003 provides the Commission with the power to impose structural remedies
  • Art 5 of the Reg 1/2003 does not contain the same provision
  • The ICA’s experience in the field shows that, given the absence of an explicit provision in the regulation on NCAs’ power to impose structural remedies, there is some uncertainty as to their possibility to do so
  • Under these circumstances, members of the network may not always be able to apply the most appropriate enforcement and deterrence tool

Italian Competition Authority

procedural divergences
Procedural Divergences
  • Powers are exerted according to different national procedures
  • Procedural divergences may result in different outcomes
  • Procedural divergences may complicate the cooperation among members of the network

Italian Competition Authority

cases allocation
Cases allocation
  • So far, in the vast majority of cases, the bpa has turns out to be either the Commission or a single NCA
  • This outcome is more consistent with an interpretation of the ECN as a forum for “the division of work” rather than for the joint organization
  • However, the joint involvement of more authorities may be appropriate in an increasing number of cases

Italian Competition Authority

parallel action
Parallel action

The cooperation notice mentions joint action among NCAs with regard to cases which are infrequent and have a limited geographical scope - few NCAs are expected to deal with a single infringement:

“parallel action by two or three NCAs may be appropriate where an agreement has substantial effects on competition mainly in their respective territories and the action of only one NCA would not be sufficient to bring the entire infringement to an end…” (art 12)

Italian Competition Authority

parallel action1
Parallel action

However, joint investigations by more authorities may also meet other needs, particularly in cases of multinational cartels

Frequently the same undertakings realize networks of similar agreements or practices in several MS, regarding one or more products

Italian Competition Authority

parallel action2
Parallel action
  • According to the cooperation notice, the Commission is the bpa if the MS involved are more than 3
  • However, doubts may arise as to the Commission’s capability to deal with all such cases
  • Thinking of the ECN’s future, an effective process of decentralization seems to be unavoidable in order to handle a growing number of proceedings regarding multinational cartels

Italian Competition Authority

joint investigations in cartel cases
Joint investigations in cartel cases
  • In cases of joint investigations, it is crucial for the authorities to coordinate their activity, especially at the beginning of the proceedings
  • Divergent procedures may complicate the coordination and hamper the effectiveness of joint investigations

Italian Competition Authority

challenges for the future
Challenges for the future

Allow NCAs to appropriately deal with infringements which are connected with the structure of the undertakings

harmonizing powers in order to ensure a uniform degree of enforcement

Truly consider ECN as a co-operation forum rather than as coordination tool

also harmonizing procedures in order to facilitate cooperation among authorities

Italian Competition Authority