National competition law authorities: Vestager identifies the need to ensure all NCAs have adequate enforcement powers

The European Union’s Competition Commissioner Margrethe Vestager has highlighted the differences which currently exist in the ability of national competition authorities (NCAs) in each EU Member State to enforce competition law. Ms. Vestager, speaking on Friday 20 November at the London School of Economics, stressed how these differences have led to the strength of sanctions for anti-competitive behaviour varying quite dramatically across EU Member States.

Ms. Vestager explained that the Commission is currently holding a formal consultation on whether EU legislation is needed to ensure that all NCAs have adequate resources and tools in place to ensure that effective enforcement is possible across all EU member states. The Commissioner did, however, emphasise that any legislative solution would not be one which attempts to harmonise the approach taken by all NCAs, given that each State has its own court practices and legal traditions. The Commission would nevertheless aim to provide all Member States with a minimum set of arms, an ‘enforcement toolbox’, that would help them effectively implement EU competition law. 

Ms. Vestager highlighted a number of areas of concern where the disparities between the powers and approaches of NCAs are particularly evident, including:

• the legal powers NCAs have to collect evidence in support of their investigations;
• the ability for some NCAs to impose fines of a level which would deter businesses from engaging in cartel activity;
• issues around the leniency programmes operated by different NCAs, so that it may not be clear which cartel member was first to provide information; and 
• concerns over the independence and impartiality of some NCAs. 

 The consultation opened on 4 November 2015 and will run until February 2016, with any subsequent legislation expected to be introduced in early 2017.