Italian Competition Authority European Competition Day – Brno 14 May 2009 Celebration of the Fifth Anniversary of the ECN Challenges for the Future Ombretta Main

2 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

3 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

4 The NCAs’ powers, as indicated by Art 5 of 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 Powers of enforcement

5 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

6 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

7 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

8 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

9 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

10 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

11 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

12 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