1. Fifth Annual Conference on Competition Enforcement in the CEE Member States Due process in competition law Michaela Nosa Antimonopoly Office of the SR Bratislava, 21/02/2014 The views in this presentation are those of the author and do not bind the AMO as the institution

2. Legal framework Procedure at the AMO ECHR Constitution Code of Administrative Procedure Act on Protection of Competition 2

3. Proceedings at AMO  The parties to the proceedings have access to file from the beginning of the administrative proceedings  All documents except for business secret, confidential information or information that is protected by specific legislation (in case this would be the part of the administrative file) 3

4. Proceedings at AMO  Undertakings have right to be informed by the AMO that they may indicate during proceedings which of the information is subject to business secrecy or confidential information; they must explain in writing the confidentiality of information or documents or their designation as business secrets.  The AMO may ask the party to the proceedings to provide a different wording of information or documents that does not contain business secrets or does not have a confidential character.  The AMO shall also protect information whose confidentiality it has been asked to maintain. Confidentiality of such information shall, however, constitute no obstacle to its disclosure if this is necessary for a decision and if a party to the proceedings does not provide any other wording of the information and documents that does not contain business secrets or is not confidential.  Employees of AMO are required to maintain confidentiality of information subject to business secrecy of an undertaking or designated as confidential by an undertaking 4

5. Business secret Confidential information  business secret encompasses all information of business, production or technical nature related to undertaking, having real or possible material or immaterial value, not generally available in the respective business circles, and which the undertaking wants to protect and whose protection is secured by the undertaking.  Confidential information – no specific definition given by Competition Act 5

6. Procedural fairness Private v. public interest  Complex cases, lot of data needed especially in abuse of dominant position cases and merger cases  Procedural fairness and protection of private interests v. public interest on revealing the violation of competition law  The issue is two-sided: - Replies to RFIs, i.e. information from the market players is essential, however, often subject to business secrets - Access to file; exercising right of defense – due process issues 6

7. Draft amendment to Competition Act  Definition of confidential information  Right to indicate which of the information is subject to confidentiality, business secret; the AMO checks whether the conditions for business secrecy are met  Protection In case of exercising right of defense  Summaries  Information solely for the purpose of the rights of defense with consent of the person that submitted the information/exceptionally the information can be accessible only to the (legal) representative of the undertaking Claims – not in line with principles of the Bar and representation of clients? If not – than what would be the solution?  access to leniency file after SO 7

8. Access by third parties  3rd parties  important input  On request, access to file possible if the interest in the matter is justified  No right to appeal the decision in the case  Transparency rules  Control of the state or tools to get into file without need to justify any interest in the matter? 8

9. 9 Thank you for your attention! www.antimon.gov.sk Twitter: @PMUSR_tweetuje michaela.nosa@antimon.gov.sk