On March 16, 2017, the European Commission (” EC”) presented a brand-new tool to make it simpler for people to notify the EC about competitors’ law infractions, primarily secret cartels, while preserving the privacy of the whistle-blowers.
The EC provided the goals of the brand-new tool (I) and how it works (II); this tool, which is not brand-new in Europe, leaves numerous concerns unanswered (III).
I. Objectives of the New Tool
The EC advised that, previously, most cartels have actually been discovered through its leniency program, which stays in place. With this brand-new tool, the EC wishes to motivate people, and not only business, to report their suspicions of anticompetitive practices. Inning accordance with the EC, the brand-new tool matches the leniency program by:
Increasing the possibility of detection and hence hindering endeavors from getting in or staying in cartels or performing other kinds of prohibited anti-competitive behaviour;.
Adding to the success, the celerity and the effectiveness of EC’s examinations; and.
Enhancing the accuracy and dependability of the info in ownership of the EC
II. How Does the New Tool Work?
The basic characteristic of the brand-new tool is its security of privacy. Undoubtedly, the brand-new tool is developed as an online platform where any individual can place any appropriate info and send it to the EC through a specifically-designed encrypted messaging system.
The platform has actually been developed by an external company– SecWay, a French company specialized in cyber security– which manages the platform as an intermediary. So, the EC does not keep an eye on the platform itself. Concretely, SecWay passes on just the material of gotten messages without forwarding any metadata that might be used to recognize the individual supplying the info.
The whistle-blower can trigger an alternative of asking for the EC to respond to its messages. The tool permits the EC to react to the whistle-blowers (without understanding who they are) in order to ask to supply information and information. Lastly, at their discretion, the whistle-blowers can divulge their identity by triggering another choice.
III. Despite the fact that the Concept Is Not Entirely New in Europe, the New Whistle-Blower Mechanism Leaves Several Questions Unanswered.
The very same confidential whistle-blowing idea is currently carried out by the Bundeskartellamt in Germany (with a really comparable platform as the EC’s but handled by a German company, Business Keeper AG), by the Competition Council in Romania and by the Competition and Consumer Authority in Denmark (with the very same SecWay platform).
In the UK, the Competition and Markets Authority (” CMA”) utilizes a comparable tool to permit people to report cartels. Nevertheless, the UK system does not offer complete privacy. The whistle-blower’s identity is not revealed to 3rd parties but it is understood by the CMA. Another distinction is that the CMA can use the whistle-blowers a monetary benefit approximately ₤ 100,000 (in remarkable scenarios).
The intro of the brand-new tool might suggest that the EC thinks about that there are a variety of cartels that are not revealed through its leniency program. Numerous concerns stay open at this phase.
The very first one is how the EC will find incorrect denunciations made by people who are looking for to destabilize a company or to trigger damage to people at a company. Examining the precision of details got anonymously, through a third-party company, is harder than when the EC gets details in discussions performed on a no-names basis (which is the existing treatment). There is a genuine danger that the EC will release baseless examinations on the back of details gotten through the brand-new tool. The EC needs to be transparent and report frequently on the variety of suggestion offs that it has actually gotten and the number of casual and official examinations it has actually opened based upon such info. If the tool leads to worthless examinations, which typically enforce a heavy problem on the examined business, the EC needs to reassess the value of the tool, or think about compensating innocent business for damage triggered.
The 2nd one is whether the EC will have the ability to consist of confidential info in the files while staying certified with EU law defence rights.
The 3rd one is whether, as it typically occurs, the EC development will motivate European nationwide competitors’ authorities to embrace the exact same sort of system.