The Directive 1/2019 of 11 December 2018 (hereinafter the NCA+ Directive) aims to empower the competition authorities of Member States to be more effective enforcers and to support the proper functioning of the internal market. It establishes minimal requirements that all National Competition Authorities (hereinafter NCA) need to comply with to ensure the effective application of EU competition law and the necessary tools to do so.

The idea of a more unified approach between NCA is not new. The European Competition Network (hereinafter ENC) was created as an addition to Regulation 1/2003 and was intended as such a forum for exchange. The NCA+ Directive aims to add to this framework to ensure closer cooperation and more harmonization.

Regulation 1/2003 has introduced a fundamental shift in the approach to competition law enforcement by decentralizing processes and giving NCA the role of co-enforcers. This shift required all NCA to have the right tools as well as sufficient powers to step into this role. Under Regulation 1/2003, the Member States had full discretion on the internal organization of their NCAs, the only obligation provided for was their cooperation with the Commission. With this change, the Commission agreed to “give up its monopoly on what was considered its ‘sharpest sword’“ (Corinna Potocnik-Manzouri) and transfer its competencies to the Member States.

The above-mentioned ENC as well as other guidances and notices were aimed to guide the NCA to more harmonization, however, as a soft-law instrument, it had only limited effects. The existing fragmentation and legal uncertainty could not be addressed effectively.

After various assessments and evaluations of Regulation 1/2003, the Commission’s 2014 Communication “Ten Years of Antitrust Enforcement under Regulation 1/2003“ found that while the decentralization was successful in increasing the enforcement of competition law infringements, not all NCAs were as effective as they should be. Therefore, the Commission presented a proposal for the NCA+ Directive in 2017, designed as a complementary instrument to Regulation 1/2003 aligning competencies. It does not introduce any substantive legal changes, and by being a Directive, Member States retain flexibility in the implementation of the requirements, instead of a “one-size-fits-all“ approach.

The measures imposed by the directive aim to cover any potential inconsistencies and ensure that NCAs have the necessary resources and competencies to take over a part of the Commission’s enforcement work. The main measures can be summarized as follows:

– NCA must be able to “exercise their powers impartially and in the interests of the effective and uniform application“ of competition law (art. 4).

– Member States need to ensure the appropriate financial and human resources for the NCA to function (see art. 5). There are no concrete numbers to determine what is “necessary for the effective performance“, so the Member States retain a certain power to determine their way of working.

– NCA must have the powers needed to gather evidence (see Chapter IV) and if necessary, impose sanctions (see Chapter V).

– NCA must have a coordinated leniency program (see Chapter VI), which encourages entities to cooperate with the authorities and present evidence of illegal cartels.

The Directive does not regulate the concrete composition or organization of the NCAs, they can be in the form of collegial decision-making bodies (like in the vast majority of Member States) but also have single-headed management (like in Poland, Germany, or the Czech Republic). This has been criticized by authors like Maciej Bernatt or Magdalena Knapp, as large differences persist between these systems. For instance, in Poland, only one commissioner is acting as a NCA, who is appointed by and acts under the supervision of the prime minister (see in this regard also the Sped-Pro case, in which the General Court ruled on its independence).

Other authors criticize the entire decentralized approach introduced by Regulation 1/2003 of which the NCA+ Directive is part. According to the Commission’s evaluations, the system is working well (although this might be a biased opinion…), as the number of enforced competition cases is higher and the Commission has the necessary air to breathe and concentrate on larger-scale infractions.

Thus, one could say that while decentralization has proven to be useful, the uniform application of EU competition law has taken a hit. NCAs often follow national particularities and competition laws might be thus renationalized. In the light of the principle of national procedural autonomy, the ENC+ Directive has only intervened in a limited manner in this area and could not bring any solutions. This leads to NCAs applying the uniform EU competition law following their national procedures, which may seem contradictory at first sight.

In conclusion, we can see that harmonization through soft-law instruments was not possible, and that even after the adoption of binding legal tools, uniform application and independence from governmental bodies are not still guaranteed. There is a balance that needs to be struck between delegating competencies to NCA, while ensuring that EU law will be applied in the same way, guaranteeing legal certainty and foreseeability.

Overall, the Directive was an important step to harmonize NCAs and eliminate major inconsistencies, such as fine calculations and enforcement approaches. Nevertheless, as many authors state, there are still important concerns, such as the political independence in Member States like Poland, which may compromise the impartiality of enforcement.