EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

to a penalty, and administrative fines up to 870,000 euros or 1 percent of the turnover of the provider. It will be possible to increase the fine by 100 percent in the case of a repeat infringement (Dutch draft bill, art. 4 and 5). Finally, Italy introduced administrative control and a sanction mechanism in order to enforce not only the P2B Regulation but also to ensure compliance with new duties set by the national law. The Italian Communications Authority shall ensure effective application of the P2B Regulation. In addition, Italy introduced new duties to providers of online intermediation services and online search engine, namely to enrol in the Register of Communication Operators and to pay the annual contribution to the Italian Communications Authority (Law No. 178/2020, Art. 1, par. 515, 517). The Authority may impose a fine from 2 percent up to 5 percent of the turnover generated in the previous fiscal year ( Bisceglia et al. , 2021). 3.4 Conclusion of the enforcement of the P2B Regulation Based on the analysis above, it is obvious that some Member States (the Czech Republic, Netherlands, and Italy), ensured or intend to ensure enforcement of the Regulation by administrative control and sanctions, while others (Germany and Finland) leave enforcement to the courts through the actions of the competitors, organizations, etc. Although it is too early to assess the pros and cons of both systems in the Czech Republic, the administrative control will probably be more effective. The reason behind this is the preventive function of the threat of administrative sanctions, ex-officio proceedings instead of permanent need of action brought by the party concerned and presumed shorter duration of administrative delictual proceedings compared to the length of civil proceedings. Besides enforcement mechanisms, some Member States introduced additional duties. Especially the duty to enrol in the Register and to pay annual contribution that were introduced in Italy may be inspiring for other Member States. The former could be very useful from the point of view of the supervisory authority – to have an overview of which providers it supervises and controls. The latter is also very useful in financing the administrative costs of the supervisory authorities. The Member States’ inconsistencies in enforcing the P2B Regulation, the different number of cases that they handled, and the different effectiveness of each system may play a role in the Commission’s forthcoming assessment of the P2B Regulation. Is it possible that Commission concludes that unification is needed (also considering usual cross-border nature of the providers) and it is necessary to designate a national supervisory authority by each Member State? Or even would the control of compliance with the P2B Regulation fall directly under the European Commission, as it is also proposed in very similar agenda according to the Digital Markets Act proposal (Art. 18 et seq.)?

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