Bill on the organisation of the National Competition Authority: towards greater independence?
On 1st of October 2019, a bill (number 7449) was tabled in order to transpose into national law the Directive (EU) 2019/1 in order to provide Member States' competition authorities with the means to implement competition rules more effectively and to ensure the proper functioning of the internal market , the latter to be transposed by 4 February 2021 at the latest. According to the bill, the objective of this Directive is to “provide all national competition authorities of the Member States with sufficient guarantees of independence, resources and enforcement powers, necessary for the effective and uniform application throughout the Union of Articles 101 and 102 of the Treaty on the Functioning of the European Union and of the parallel provisions of national competition law”. The bill will repeal the competition law currently in force and plans to introduce several important amendments. Indeed, the latter establishes the transition from the Competition Council, an independent administrative authority, to the Competition Authority (hereafter “Authority”), thus becoming a public institution capable of taking legal action and represented for this purpose by its President. Concerning the composition of this Authority, the number of advisers will increase. As a result, the number of effective advisers will increase to four and the number of alternate advisers to a minimum of six. Changes are also to be noted in the procedure, such as concerning inspections. It is planned to transfer to the investigating judge at the Court of and in Luxembourg the power to issue to the investigating adviser an authorisation to carry out unannounced inspections of the undertakings concerned. The bill also proposes to extend the information that can be captured in order to include data stored, processed or transmitted in an automated data processing or transmission system. In addition, concerning the evidence, it should be noted in particular that “documents, oral statements, electronic messages, recordings and any other material containing information, in any form or support” will be admissible as evidence.
As regards the fines that may be imposed by the Authority, some amendments are to be noted: • firstly, it is provided that in the event of non-cooperation during the pre-trial phase the maximum amount of the fine will drop from 5% to 1% of the turnover concerned;
• secondly, it is proposed to insert an Article concerning the fines imposed on associations of undertakings;
• thirdly, new sanctions are added for non-compliance with a decision of the Authority.
Regarding the new powers to be granted to the Authority, it is planned to introduce a major novelty with the introduction of the transaction. In accordance with the Article on the subject “if discussions with a view to a transaction offer prospects for taking a transaction decision, the adviser shall draw up a transaction proposal, forward it to the undertakings or associations of undertakings concerned and set a time limit within which undertakings or associations of undertakings may voluntarily submit their transaction report to the Authority. This declaration contains a recognition of participation in the violation, as described in the transaction proposal and the resulting liability. It also accepts the amount of the proposed fine mentioned in the draft decision of transaction”. This article also states that “in calculating the amount of the fine, a reduction of up to 30 percent may apply”. Furthermore, concerning the commitments it is proposed to introduce the possibility for the undertakings concerned to submit commitments at any stage of the procedure and until a decision on the merits has been taken. Finally, it should be noted that no merger control is introduced in the bill for the benefit of the Authority. The explanatory memorandum does not mention the opportunity of introducing such a control in Luxembourg, which is regrettable. It is to be hoped that the bill will be amended in order to finally introduce a specific ex-ante merger control instrument like all national legislations in Europe.