The Draft Provisions on Antitrust Fines in the Commission's Ecn Proposal

Abstract

With its Proposal for a directive to empower the competition authorities of the Member States to be more effective enforcers (“ECN Proposal”), the Commission has undertaken great effort to harmonise public enforcement throughout the Member States and has thereby entered uncharted waters. With this article, the authors intend to take a closer look at two major pillars of the ECN Proposal: the introduction of the Commission’s economic entity doctrine to national antitrust laws as well as the aspired harmonisation of the Member States’ leniency programmes. The authors are sceptical towards the idea of the economic entity doctrine becoming the unitary sanctioning concept throughout the EU. Also, they argue that the introduction of a 10% fine cap for any National Competition Authority irrespective of the size of the Member State can lead to highly disparate relative fining powers throughout the internal market. As to the leniency aspect, the present article elaborates on a one-stop-shop leniency principle. Such would go beyond the current Proposal in that it would render multiple leniency filings obsolete within the EU.

Keywords: antitrust sanctions, national competition authorities, leniency application, European competition network, antitrust compliance, economic entity doctrine

JEL Classification: K21; K23; K42; L40