Legal provisions of COM(2017)257 - Conditions and procedure by which the Commission may request undertakings to provide information in relation to the internal market and related areas - EU monitor

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Legal provisions of COM(2017)257 - Conditions and procedure by which the Commission may request undertakings to provide information in relation to the internal market and related areas

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Chapter I General Provisions

Article 1

Subject Matter

1. This Regulation lays down rules on the following:

(a)     the conditions under which the Commission may request undertakings and associations of undertakings to provide information required for the performance of tasks entrusted to the Commission in relation to the areas referred to in Article 2;

(b)     the procedure to be followed for requesting such information.

2. This Regulation shall apply without prejudice to other provisions allowing the Commission or bodies, offices or agencies of the Union to gather or request information.

Article 2

Scope This Regulation shall apply in the following areas:

(1) the internal market, as referred to in Article 26(2) of the Treaty;

(2) agriculture and fisheries, other than the conservation of marine biological resources;

(3) transport;

(4) environment;

(5) energy.

Article 3

Definitions For the purpose of this Regulation, the following definitions apply:

(1) ‘micro undertaking’ means an undertaking as defined in paragraph 1 of Article 3 of Directive 2013/34/EU;

(2) ‘small undertaking’ means an undertaking as defined in the first subparagraph of paragraph 2 of Article 3 of Directive 2013/34/EU;

(3) ‘medium-sized undertaking’ means an undertaking as defined in paragraph 3 of Article 3 of Directive 2013/34/EU.

Article 4

Power to request information from undertakings and associations of undertakings

Where a serious difficulty with the application of Union law risks undermining the attainment of an important Union policy objective, the Commission may request information from undertakings or associations of undertakings, as provided for in Chapter II, for the purpose of addressing the above-mentioned difficulty.

Chapter II Conditions and procedure for requesting information

Article 5

Conditions

1. The Commission shall only use the power to request information from undertakings and associations of undertakings provided for in Article 4 where the information available to the Commission, required for the purpose referred to in Article 4, is not sufficient or adequate and cannot be obtained in a timely manner due to the following reasons:

(a)     the information is not contained in a publicly available source; and

(b)     the information has not been provided by a Member State upon request by the Commission; or

(c)     the information has not been provided by a legal or a natural person.

2. Prior to requesting information in accordance with Article 6, the Commission shall adopt a decision stating its intention to use the power to request information from undertakings or associations of undertakings under this Regulation.

This decision shall include the following:

(a) a summary description of the alleged serious difficulty of a cross-border dimension with the application of Union law and why such difficulty risks undermining the attainment of an important Union policy objective;

(b) a summary description of the information to be requested;

(c) (d)

(e)

a summary

a reasoned explanation of why such information is necessary for the purposes referred to in Article 4;

a reasoned explanation of why other means to obtain such information have proven insufficient or inadequate or cannot be obtained in a timely manner to date;

the criteria for selecting the addressees of the requests for information.

The decision shall be addressed to the Member State or Member States concerned. The Commission shall notify the Member State or Member States concerned without delay.

3. The undertakings or association of undertakings concerned by the request as referred

to in Article 4 are obliged to provide only information that is at their disposal.

The Commission shall take due account of the principle of proportionality, in particular with regard to small and medium-sized undertakings.

Article 6

Request for information made to undertakings and associations of undertakings

1. In the cases provided for in Article 4 and under the conditions laid down in Article 5, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide information.

When selecting the recipients of the requests for information, the Commission shall aim at ensuring that such requests are only addressed to undertakings and associations of undertakings that are capable of providing relevant information.

The Commission shall not issue requests for information in accordance with this Regulation to micro-undertakings, unless they are part of a group of undertakings which qualifies at least as small group as defined in Article 6(5) of Directive 2013/34/EU.

2. The simple request referred to in paragraph 1 shall state the legal basis and its purpose, specify what information is required and prescribe a proportionate time limit within which the information is to be provided. It shall also refer to the fines provided for in Article 9(1) for supplying incorrect or misleading information.

3. The decision referred to in paragraph 1 shall state the legal basis, the purpose of the request, specify what information is required and prescribe a proportionate time limit within which the information is to be provided. It shall also indicate the fines provided for in Article 9(1) and the periodic penalties payments provided for in Article 9(2), as appropriate.

In addition, it shall indicate the right of the undertaking or association of undertakings to have the decision reviewed by the Court of Justice of the European Union.

The undertaking and association of undertakings concerned may request an extension of the time-limit, in accordance with Article 14.

4. The Commission shall simultaneously provide a copy of the simple request or of the decision referred to in this Article to the Member State in whose territory the registered seat of the undertaking or association of undertakings is situated.

Where the Commission has launched a formal infringement procedure pursuant to Article 258 TFEU, the Commission shall provide the Member State concerned by the procedure with a copy of all simple requests or decisions referred to in this Article issued in the context of that procedure, irrespective of where the registered seat of the undertaking or association of undertakings is situated.

5. The decisions referred to in paragraph 1 shall be addressed to the undertaking or association of undertakings concerned. The Commission shall notify the decision to the addressee without delay.

Article 7

Answers to requests

for information and protection of confidential information

1. The undertakings or associations of undertakings providing information following a Commission’s request for information based on Article 5 shall submit their answers to the Commission in a clear, complete and accurate manner.

2. The Commission shall give the addressee the opportunity to indicate which information it considers to be covered by the obligation of professional secrecy.

The undertaking or association of undertakings submitting information pursuant to Article 5 shall clearly indicate which information it considers to be confidential, stating the reasons for such confidentiality claim, and provide the Commission with a separate non-confidential version of the submission. When information is to be provided by a certain deadline, the same deadline shall apply for providing the non-confidential version.

3. The Commission shall forward the answers received to the Member State concerned by the request where they are relevant for a formal infringement procedure pursuant to Article 258 TFEU against the Member State concerned. Where an answer under this article includes information that is confidential vis-à-vis that Member State, the Commission shall only forward the non-confidential version of the submission.

4. The Commission shall verify whether the confidentiality claim of the information transmitted made by the respondent undertakings or associations of undertakings under subparagraph 2 of paragraph 2 is well-founded and proportionate.

After giving the undertaking or association of undertakings concerned the opportunity of making known its views, the Commission may take a decision finding that the information claimed to be confidential is not protected, and setting a date after which the information is to be disclosed. That period shall not be less than 1 month.

That decision shall be notified to the undertaking or association of undertakings concerned without delay.

Article 8

Use of the information collected by the Commission

The Commission shall only use the information collected pursuant to Article 5 for performing the purpose set out in Article 4.

The Commission may only include confidential information provided by undertakings or association of undertakings in documents to be transmitted to other parties or to be made public, in the following cases:

(a)          where such information is in summary or aggregated form or in any event in a form such that individual undertakings or associations of undertakings cannot be identified;

(b)         where the Commission has previously obtained the agreement of the respondent to disclose such information;

(c)          where the disclosure of such information to a Member State is necessary to substantiate an infringement of Union law within the scope of this Regulation provided that the respondent has had the opportunity to make his views known before a decision is taken and to make use of available judicial remedies before disclosure.

The information that has already been made public may be used by the Commission for a purpose other than the one set out in this Regulation.

Chapter III Fines and periodic penalty payments

Article 9

Fines and periodic penalty payments

1. The Commission may, by decision, where deemed necessary and proportionate,

impose on undertakings or association of undertakings fines not exceeding 1 % of their total turnover in the preceding business year where they intentionally or through gross negligence:

(a) (b)

supply incorrect or misleading information in response to a request made pursuant to Article 6(2);

supply incorrect, incomplete or misleading information in response to a decision adopted pursuant to Article 6(3) or do not supply the information within the prescribed time limit.

2. The Commission may, by decision, impose on undertakings or associations of

undertakings periodic penalty payments where an undertaking fails to supply complete, accurate and not misleading information within the prescribed deadline as requested by the Commission by a decision adopted pursuant to Article 6(3).

The periodic penalty payments shall not exceed 5 % of the average daily turnover of the undertaking or association concerned in the preceding business year for each

working day of delay, calculated from the date established in the decision, until it supplies the information requested or required by the Commission.

3. Where the undertaking or association of undertakings provides no or incomplete information, the Commission shall prior the imposition of a fine or penalty, set a final deadline of two weeks to receive the missing information.

4. The Commission shall take into account the nature, gravity and duration of the breach of Article 6(1), as well as the principle of proportionality in particular with regard to small and medium-sized undertakings when fixing the amount of the fine or periodic penalty payment.

5. Where the undertakings or associations of undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may reduce or waive the amount of the periodic penalty payment.

6. Before adopting any decision in accordance with paragraph 1 or 2, the Commission shall give the concerned undertakings or associations of undertakings the opportunity of making known their views.

Article 10

Limitation period for the imposition of fines and periodic penalty payments

1. The powers conferred on the Commission by Article 9 shall be subject to a limitation period of three years.

2. The period provided for in paragraph 1 shall start on the day on which the infringement referred to in Article 9 is committed. However, in the case of continuing or repeated breaches of Article 6(1), the period shall begin on the day on which the breach ceases.

3. Any action taken by the Commission for the purpose of investigating or pursuing a possible breach of Article 6(1) shall interrupt the limitation period for the imposition of fines or periodic penalty payments, with effect from the date on which the action is notified to the undertaking or association of undertakings concerned.

4. After each interruption, the limitation period shall start running afresh. However, the limitation period shall expire at the latest on the day on which a period of six years has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which the limitation period is suspended in accordance with paragraph 5.

5. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.

Article 11

Limitation period for the enforcement of fines and periodic penalty payments

1. The powers of the Commission to enforce decisions adopted pursuant to Article 9 shall be subject to a limitation period of five years.

2. The period provided for in paragraph 1 shall start on the day on which the decision taken pursuant to Article 9 becomes final.

3. The limitation period provided for in paragraph 1 shall be interrupted:

(a)     by notification of a decision modifying the original amount of the fine or periodic penalty payment or refusing an application for modification;

(b)     by any action of a Member State, acting at the request of the Commission, or of the Commission, intended to enforce payment of the fine or periodic penalty payment.

4. After each interruption, the limitation period shall start running afresh.

5. The limitation period provided for in paragraph 1 shall be suspended for so long as:

(a)     the respondent is allowed time to pay;

(b)     the enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.

Article 12

Addressees of decisions

The decisions taken pursuant to Article 9(1) and (2) shall be addressed to the undertaking or association of undertakings concerned. The Commission shall notify the decision to the addressee without delay.

Article 13

Review by the Court of Justice

The Court of Justice of the European Union shall have unlimited jurisdiction within the meaning of Article 261 TFEU to review fines or periodic penalty payments imposed by the Commission. It may cancel, reduce or increase the fine or periodic penalty payment imposed.

Chapter IV Final provisions

Article 14

Extension of time-limits

Time limits shall be specified in months or in working days.

Any request for the extension of a time-limit shall be duly substantiated and submitted in writing to the service and address designated by the Commission at least five working days before expiry. The Commission may decide to extend the time-limit, to the extent that it is justified and proportionate.

Article 15

Publication of decisions

1. The Commission shall publish in the Official Journal of the European Union a summary notice of the decisions which it takes pursuant to Article 5(2). The summary notice shall state that a copy of the decision may be obtained in the authentic language version or versions.

2. The Commission shall publish in the Official Journal of the European Union the decisions which it takes pursuant to Article 9(1) and (2).

Article 16

Professional secrecy

Without prejudice to Articles 7 and 8, the Member States, their officials and other servants, shall not disclose information which they have acquired through the application of this Regulation and which is covered by the obligation of professional secrecy.

Article 17

Protection of personal data

With regard to the processing of personal data within the framework of this Regulation, Member States shall carry out their tasks for the purposes of this Regulation in accordance with the national laws, regulations or administrative provisions transposing Directive 95/46/EC. With regard to the processing of personal data by the Commission within the framework of this Regulation, it shall comply with the provisions of Regulation (EC) No 45/2001.

Article 18

Reports

The Commission shall draw up a report every two years on the application of this Regulation and shall submit it to the European Parliament and to the Council.

Article 19

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.