If the deadlines for transposing the ECN + Directive are respected, the beginning of 2021 will bring about the second substantial reform of national competition law after 2003. Substantive rules do not change - that is, the existing prohibitions remain - but everything indicates that they will further strengthen the powers of the Competition Authority (AdC) in conducting investigations into practices suspected of restricting competition and will also reinforce the sanctioning framework applicable to infringements.
There is a consensus that the enforcement competition rules is critical to ensure the competitiveness of markets and bring benefits to consumers. It is also established that at the heart of the policy of enforcement the majority of competition authorities are looking for companies, where the bulk of the evidence with which the investigation of the cases is made is collected.
In the case of the PCA, the strengthening of powers comes at a time when some have cast doubts that they will have any use in the coming times (the Covid times) when we are approaching the end of the year without the Authority having, as much as if any, any search has been carried out. They are, it seems, unfounded doubts. Just look to the side to see that the Spanish competition authority has resumed its search and that it will be a matter of time before the AdC follows suit. Times change and the authorities adapt.
I have already had the opportunity to point out the serious challenges posed by making the solutions of the ECN + Directive compatible with the Constitution of the Republic. It is not the time to return to the topic. However, it is important to underline that more powers and heavier sanctions bring more responsibility. The only way to exercise this responsibility is with transparency. And what does this translate to? In clearly reasoned decisions that can be understood and syndicated by the addressees and scrutinized by the courts. Without justification, there is no transparency.
Competition rules may not be so important that they lead the legislator to give the AdC the power to peek at WhatsApp, but to dispense it after justifying the fines it imposes or the differences in fines between companies and between sentenced individuals. Reinforcement of powers and sanctions available to the enforce without a concomitant reinforcement of the responsibility to explain and substantiate decisions, it will not do any good. If, in addition to having unprecedented and growing power, the Authority can use it discretely without clearly stating its decisions, the rule of law is wounded to the death and competition policy is obscured.