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Recent Developments in Slovak Competition Law Fifth Annual Conference on Competition Enforcement in the CEE Member States Zuzana Šabová Antimonopoly Office.

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Presentation on theme: "Recent Developments in Slovak Competition Law Fifth Annual Conference on Competition Enforcement in the CEE Member States Zuzana Šabová Antimonopoly Office."— Presentation transcript:

1 Recent Developments in Slovak Competition Law Fifth Annual Conference on Competition Enforcement in the CEE Member States Zuzana Šabová Antimonopoly Office of the SR Bratislava, 21 February 2014

2 Recent developments Legislation Draft amendment to the Competition Act Case-law developments Coherent application of the EU competition rules in Slovakia Amicus curiae intervention (Green dot case) Preliminary reference to the CJEU (Cartel of three banks) 2

3 Legislation I. December 2013 Draft amendment to the Slovak Competition Act submitted into the legislative proceedings January – February 2014 Interministry comment procedure July 1, 2014 Expected effective date of the amendment 3

4 Legislation II. Further improvement of merger control regime Formal introduction of the settlement procedure (applicable to all substantive infringements) Refinement of the leniency programme and de minimis rule Decrees of the Office on settlement procedure, leniency programme and de minimis rules Rights of defence and protection of information in the administrative proceedings Rewards for informants in cartel cases Change in management of the Office Other (mainly procedural) refinements 4

5 Rewards for informants Complementary investigative tool to leniency programme Main reasons: to boost cartel investigations to boost race for the leniency deterrence towards cartels Inspiration: UK, HU 5

6 Applicant Natural person only, not employee of the leniency applicant He/she should provide the AMO with: documents in written or electronic form, being the decisive evidence of the infringement or information and evidence enabling the targeted inspection The evidence is substantial for the decision finding the infringement Identity protection provided if whished Protection under labour law/contractual law 6

7 Reward 7 1% of the fine imposed, max. EUR 100.000 In case of judicial review: if the court changes the fine, the amount depends on the changed fine after the judgment becomes final After the fine was paid If the fine was not paid within the set time limit, reward reduced to 50%, max. EUR 10.000

8 Coherent application of EU Competition Law in Slovakia 8 2004 Reform – Regulation 1/2003: Member states are obliged to apply Art. 101 and 102 TFEU Same substantive rules, procedural and fining mechanisms subject to national rules Slovak experience: - Preliminary reference to the CJEU – Art. 267 TFEU (Cartel of banks) - Art. 15 (3) Reg. 1/2003 amicus curiae (Green dot case)

9 Cartel between banks I. 9 Decision of the AMO 2009 Cartel of the three banks: Všeobecná úverová banka, a.s. (VUB), Slovenská sporiteľňa, a.s. (SLSP), Československá obchodná banka, a.s. (CSOB) - exclusion of a competitor Akcenta CZ Akcenta CZ Czech non-bank payment institution provided foreign exchange services via current accounts (in the same bank as the client) Agreement on the termination of the current accounts of the Akcenta CZ and not opening them for this company in the future

10 Cartel between banks II. 10 Akcenta CZ had a licence of the Czech National Bank, but no licence of the Slovak National Bank According to banks, the Akcenta CZ was not their competitor as it was operating on the market illegally, without the licence of the National Bank of Slovakia The banks claim that they only met to inform each other about the illegality of the Akcenta CZ and the possible negative consequences

11 Decision of the Regional Court in Bratislava 11 three separate proceedings with each bank All arguments of the banks accepted: - it was necessary for the three banks to meet and exchange the information about the illegal conduct of Akcenta CZ - banks were only protecting their customers from possible negative consequences SLSP case - the participation of the employees in the meeting and the follow on communication among banks questioned (these were only employees and not the statutory body of the undertaking or the employees empowered by the statutory body)

12 Decision of the Supreme Court of Slovak Republic 12 CSOB – decision passed (2011) – the opinion of the RC upheld (case pending at the AMO) In the proceedings with SLSP – preliminary reference to the CJEU Final judgments in SLSP and VUB case passed on May 21 and May 22, 2013

13 Preliminary questions 13 Legality of Akcenta CZ – relevant for the assessment of the agreement within the meaning of Art 101 TFEU? (2 questions) Approval of a statutory body for employee involved in the cartel communication? Application of art. 101 (3) for such agreements?

14 CJEU ruling C-68/12 14 Art. 101 must be interpreted as meaning that the fact that an undertaking that is adversely affected by an agreement whose object is the restriction of competition was allegedly operating illegally on the relevant market at the time when the agreement was concluded is of no relevance to the question whether the agreement constitutes an infringement of that provision Art. 101 must be interpreted as meaning that, in order to find that an agreement is restrictive of competition, it is not necessary to demonstrate personal conduct on the part of a representative authorised under the undertaking´s constitution or the personal assent, in the form of a mandate, of that representative to the conduct of an employee of the undertaking who has participated in an anti-competitive meeting Art. 101 (3) must be interpreted as meaning that it can apply only when the undertaking has proved that the four cumulative conditions are met

15 Green Dot case amicus curiae I. 15 Abuse of dominant position, waste management sector Company ENVI-PAK – exclusivity on granting sub licences on the trade mark Green Dot Payment system for the trade mark: the service clients of ENVI-PAK (clients using services of packaging waste collection, recovery and recycling), had the possibility to use Green Dot for free, but licence clients (interested only in obtaining the approval to use the trade mark Green Dot), had to pay the fee for the licence itself Result of the payment system for the trade mark Green Dot - it was not economic to become a client of authorized organization other than ENVI-PAK.

16 Green Dot case – amicus curiae II. 16 Decision of the AMO 2010 – national and EU competition rules applied in parallel Violation of the general clause, fine imposed RC in Bratislava: it is not possible to impose a fine for the violation of the general clause – conflict with the nullum crimen sine lege principle Parallel application of EU and national competition rules questioned European Commission – amicus curiae intervention before the Supreme Court of SR Supreme Court of SR – decision of the AMO upheld in May 2013

17 Conclusions 17 Recent developments in Slovak competition law Tendency to follow the EU model Legislation, soft law Decision-making practice Importance of the instruments ensuring the coherent application of EU rules in Slovakia

18 18 Thank you for your attention!

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