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‘The Commission’s enforcement powers could be regarded as excessive.’ Critically discuss.
The European Commission has powers that are more extensive than those of the national competition authorities. Regulation 1/2003 gives the Commission the power to
- Investigate alleged infringements
- Require undertakings to terminate infringements
- Order interim measures
- Impose fines and penalties where breaches are established
Article 7 of the Regulation provides that the Commission can impose either behavioural remedies (which regulate future conduct) or structural remedies (which change the structure of the market) that are proportionate to the infringement and necessary to bring the infringement to an end. Examples of behavioural remedies can be found in Commission Decision 2007/53/EC Microsoft and included, inter alia, a requirement to make certain information available to other undertakings. Structural remedies are clearly far-reaching as they change the structure of the market e.g. by asset transfer. As such they are appropriate in exceptional cases only e.g. where it is necessary to break up dominant undertakings under Article 102 TFEU.
The Commission has very significant powers of investigation under Chapter V of Regulation 1/2003, which permit them to request information from national governments and national competition authorities, to request or require undertakings to provide information, to interview individuals concerning its inquiries and to inspect business premises. Such inspections can be voluntary or mandatory. In the latter case, the Commission does not have power of forcible entry but they can require the necessary assistance from national authorities.
Finally, the Commission has the power to levy substantial fines and daily penalties for infringements of Article 101 and 102 TFEU, for supplying incorrect or misleading information or for failure to comply with a request for information.
It is clear, therefore, that the Commission has extensive enforcement powers. It is important to highlight, however, that, in order to be effective, competition requires both that undertakings act independently of each other and that they are subject to the competitive pressure exerted by each other. The extensive powers of the European Commission could be argued to ensure efficiency in the enforcement of competition law and, thus, free trade.