The Implementation of the ECN+ Directive in Hungary and Lessons Beyond

TLDR: In order to facilitate competition authorities in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU as discussed by the authors, which introduces minimum harmonisation rules allowing competition authorities to have common investigative, decision-making (notably fining decisions) and enforcement powers.

Abstract: In order to facilitate NCAs in their application of EU competition rules, the EU legislator adopted Directive 2019/1/EU. The Directive’s aim is to empower the competition authorities of the Member States to be more effective enforcers of competition law and to ensure the proper functioning of the internal market. The so-called ECN+ Directive introduces minimum harmonisation rules allowing competition authorities to have common investigative, decision-making (notably fining decisions) and enforcement powers. The Directive, furthermore, sets minimum safeguards for NCAs’ independence, accountability and resources, harmonizes leniency programs including the coordination of national leniency programs with each other and with that of the European Commission. The Directive also addresses mutual assistance among NCAs and the role of NCAs before national courts. The Directive seeks to strengthen the cooperation between national competition authorities and the Commission within the framework of the European Competition Network (ECN). The Directive envisages to give national competition authorities enforcement powers similar to those enjoyed by the Commission. This paper will, first, critically analyze the legal and policy developments that paved the way for the adoption of this Directive. Second, it will examine the changes the implementation of the Directive is likely to generate in the current Hungarian legal and policy of competition law. The focus of the paper’s assessment is on the institutional aspects of the Directive and the enforcement of Articles 101 and 102 TFEU, in particular the mechanisms for ensuring independence and accountability of NCAs. Through the assessment of the Hungarian implementation the paper aims to shed light on a broader context of the Directive and the enforcement of EU competition law in the EU Member States. The paper shows that the implementation of the Directive may fail to translate into (more) effective enforcement without effective institutional capacity on the side of the NCAs and in the broader legal and constitutional context of competition law and its multilevel enforcement.