Twenty Years of Harmonisation and Still Divergent: Development of Slovak Competition Law

Author(s): Ondrej Blažo / Language(s): English Issue: 9/2014

Since the time when the first competition rules were adopted after the Velvet Revolution in early 1990s, Slovak competition law has undergone several changes. Three acts on economic competition were subsequently adopted (in 1991, 1994, 2001), each of them several times amended. Although Slovakia became a member of the EU in 2004, the convergence of national competition rules with the law of the European Union is evident in the significant changes that were introduced in 2004. The evolution of Slovak competition rules cannot be considered finished – major amendments are expected in 2014. The following paper will analyze in which aspects Slovak competition law is diverging from the rules of the European Union. Court jurisprudence reviewing administrative decisions issued in competition matters is also important in the assessment of the competition law environment. The paper will provide an overview of those features of Slovak competition law that shall be harmonised, as well as reasons for their harmonisations. Yet it must be stressed that European law is not the universal model of convergence and hence the paper will provide thoughts on which features of Slovak competition law might remain country-specific

Ways of Harmonising Polish Competition Law with the Competition Law of the EU

Author(s): Krystyna Kowalik-Bańczyk / Language(s): English Issue: 9/2014

This article discusses the harmonisation of laws within the EU focusing on the specific ways of achieving an approximation of the Polish legal system with European competition law. It identifies and gives an overview of three specific ways of harmonising national laws with EU antitrust provisions: (1)spontaneous (or bottom-up) harmonisation; (2) judicial harmonisation and; (3) legislative harmonisation by means of EU Directives. With respect to the last category, particular attention is drawn to the legislative competences of the EU, allowing it to harmonise antitrust issues either on the basis of Articles 103 and 114 TFUE, or perhaps even on the basis of Article 82 TFEU.

Forgotten Issues When Talking about the More Economic Approach to Competition Law in Poland

Author(s): Anna Laszczyk / Language(s): English Issue: 9/2014

For the last fifteen years, competition policy in the European Union has been dominated by the ‘more economic approach’, or rather the ‘effects-based approach’, as it has recently been called. A similar trend can be observed in Polish competition law. Its mechanisms have been implemented into normative acts and the National Competition Authority seems to have, at least partially, adopted such approach also. On the other hand, some important issues related to the application of the more economic approach seem to have been overlooked by the Polish debate on this subject. These include questions such as: (i) whether such approach was present in Polish competition law even before the formal economisation of EU competition law; (ii) to what extent should the more economic approach be advocated and what are its limitations; (iii) how economic evidences should be assessed and whether neoclassical economics is enough. These issues will be analysed in the light of the decisions of the UOKiK President and the judgments of the Polish courts. The resulting conclusions will help provide answers to questions on the use of the more economic approach which have so far been avoided in Poland. The final aim of this paper is to assess the stage of the application of the more economic approach to Polish competition law and to assess its future perspectives.

The Impact of EU Law on a National Competition Authority’s Leniency Programme – the Case of Poland

Author(s): Piotr Sitarek / Language(s): English Issue: 9/2014

This paper is devoted to the impact of EU law on national leniency programmes, especially the Polish one. It analyses the jurisprudence of the Court of Justice in Pfleiderer, Donau Chemie And Schenker and identifies three specific areas of potential EU influence on national leniency programmes. The impact of EU law on the rules of access to leniency documents is analysed in detail on the basis of both EU and Polish law and taking into account the Draft Directive on Antitrust Damages Actions. The paper covers also the extent to which the principle of effectiveness of EU law limits the procedural autonomy of Member States in regard to their leniency programmes. This analysis covers both “negative conditions”, that is, elements of national leniency programmes which are incompatible with EU law, and “positive conditions”, in order words, those elements of domestic leniency programmes which are seen as necessary for securing their effectiveness.

Delimitation of the respective competences of the Commission and National Competition Authorities with regard to the application of competition law.

Author(s): Małgorzata Sieradzka / Language(s): English Issue: 9/2014

The analysed judgment was delivered by the Court of Justice (CJ) on 14 February 2012 in case C-17/10 Toshiba Corporation and Others. It concerns the interpretation of Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (hereafter: Regulation 1/2003), with regard to the competences of National Competition Authorities (hereafter: NCAs) to apply Article 81 and Article 82 TEC (now Article 101 and Article 102 TFEU) once the Commission has instituted antitrust proceedings. The investigated case referred to an international cartel which took place in part before, and in part after the date of the Czech Republic’s entry into the European Union. The Czech Regional Court in Brno asked for a preliminary ruling whether Article 81 TEC (now Art. 101 TFEU) and Article 3(1) of Regulation 1/2003 must be interpreted as meaning that these provisions must be applied in proceedings brought after 1 May 2004 against the said cartel, which had given rise to anti-competitive consequences on the territory of the Member State before that date. Since the proceedings against the cartel were conducted at European and national levels, it became necessary to make reference to the ne bis in idem principle applicable in antitrust law.

Insights from the Slovak banking cartel case.

Author(s): Beata Mäihäniemi / Language(s): English Issue: 9/2014

Agata Jurkowska-Gomułka, Publiczne i prywatne egzekwowanie zakazów praktyk ograniczających konkurencję: w poszukiwaniu zrównoważonego modelu współistnienia [Public and private enforcement of the prohibition of anticompetitive practices: in search of

Author(s): Paulina Korycińska-Rządca / Language(s): English Issue: 9/2014

The impact of EU law on Polish competition law and sector-specific regulation. CARS Conference, 21 May 2014. Report

Author(s): Dariusz Aziewicz,Marcin Kolasiński,Wojciech Podlasin,Ilona Szwedziak-Bork / Language(s): English Issue: 9/2014

Editorial foreword

Author(s): Agata Jurkowska-Gomułka / Language(s): English Issue: 8/2013

Expanding the Definitions of ‘Undertaking’ and ‘Economic Activity’: Application of Competition Rules to the Actions of State Institutions in Bosnia and Herzegovina

Author(s): Alexandr Svetlicinii / Language(s): English Issue: 8/2013

State-initiated competition restraints remain a recurrent problem for competition law enforcement in transition economies characterized by a history of price controls and extensive State regulation of economic activities. The application of the concepts of ‘undertaking’ and ‘economic activity’ to the actions of State institutions, as developed in EU competition law, allows national competition authorities to enforce competition rules against public bodies. EU candidate countries, as well as States aspiring to a candidate status, have been continuously reforming their competition laws, aligning them with acquis communautaire and applying EU competition law concepts and standards in their domestic enforcement practices. This paper deals with the particularities of the application of competition rules to the actions of State institutions in Bosnia and Herzegovina. A detailed study of emerging domestic case law demonstrates significant deviations in the interpretation and application of these well known competition law concepts. The legislative and enforcement peculiarities observed in the target jurisdiction are compared with those found in EU competition law and in the legal systems of neighbouring courtiers

Competition Law Enforcement in Times of Crisis: the Case of Serbia

Author(s): Dušan V. Popović / Language(s): English Issue: 8/2013

The development of Serbian competition law started in 2005 with the adoption of its first modern Competition Act. National competition rules are generally harmonized with European Union law, especially following the adoption of the current Competition Act of 2009. However, several problems in competition law enforcement can be identified still, the importance of which increases as the effects of the current economic crisis spread. The paper focuses mainly on three problems specific to competition law enforcement in Serbia, a country with a weak economy. The first problem identified is that of a possibly privileged treatment of state-owned companies. The Competition Authority commenced so far only two proceedings against undertakings with state-owned capital. Furthermore, the Authority seems to accord insufficient attention to some industry sectors that are of special public interest, such as the production and trade of gas or oil, dominated by undertakings with state-owned capital. Sector-specific analyses undertaken by the Competition Authority did not result in any proceedings being initiated ex officio. The second problem identified in this paper is the reluctance of the Serbian Competition Authority to enforce competition rules in certain ‘sensitive’ situations. Instead of taking a pro-active approach, it sometimes seems that the Authority chooses to act as an ‘advisor’ of undertakings rather than an enforcer of competition law. Finally, the paper analyzes the activities of the Commission for State Aid Control, notorious for its perpetually positive approach towards institutions granting state aid.

A Chicago-School Island in the Ordo-liberal Sea? The Hungarian Competition Office’s Relaxed Treatment of Abuse of Dominance Cases

Author(s): Csongor István Nagy / Language(s): English Issue: 8/2013

The paper presents and evaluates the impact of the ‘more economic’ approach of the Hungarian Competition Office’s decisional practice as to predatory pricing, margin squeeze and refusal to deal under Hungarian competition law. It compares the Hungarian practice with the more formalistic approach of the CJEU’s jurisprudence. The paper evaluates the Hungarian decisional practice in abuse cases and provides a brief assessment on the consequences of applying diverging standards in EU and national abuse of dominance law.

Private Enforcement of Competition Law in Slovenia: A New Field to Be Developed by Slovenian Courts

Author(s): Maja Brkan,Tanja Bratina / Language(s): English Issue: 8/2013

This contribution aims to demonstrate the legal framework that can shape and influence private enforcement in Slovenia. This includes, in particular, conditions for damage claims, collective redress mechanisms, legal costs and fees as well as discovery and burden of proof. It is shown which legislative changes may be needed in order to improve the effectiveness of private enforcement and the practical obstacles that will have to be overcome in the future. Furthermore, the article analyses the jurisprudence of Slovenian courts concerning private enforcement. Although there was practically no jurisprudence in this area only a few years ago, Slovenian courts have now ruled on a few such cases already. The number of private enforcement proceedings will most likely increase in the future. Therefore, it can be stated that private enforcement of competition law is an area that is slowly, but steadily, gaining importance in the Slovenian legal system.

Private Enforcement of Competition Law in Polish Courts: The Story of an (Almost) Lost Hope for Development

Author(s): Agata Jurkowska-Gomułka / Language(s): English Issue: 8/2013

The article reviews judgments of Polish courts on private enforcement of competition law between 1993 and 2012. A quantitative analysis of this jurisprudence shows that very few cases of that type exist at all. Their qualitative characteristics illustrate that: none of them referred to consumers; none of the claims was a ‘pure’ damage claim; all of these cases focused on partial or general nullity of contracts concluded as a result of an anticompetitive practice; almost all of them concerned an abuse of a dominant position; only one referred to competition-restricting agreements. The relevant jurisprudence largely focused on the binding force of a prior decision of the Polish competition body upon civil courts. Even if the fact that some cases of this type were at all record might suggest that there is a potential for developing private enforcement of antitrust in Poland, nothing like this actually happened. Unfortunately, the Act on Collective Redress (in force since July 2010) has not contributed to a growth in the number of consumers (or any other entities) engaging in court disputes with undertakings restricting competition

Private Enforcement of Competition Law – the Case of Estonia

Author(s): Karin Sein / Language(s): English Issue: 8/2013

Jurisprudence on private enforcement of competition law has so far been almost non-existent in Estonia. Most cases where competition law issues are raised within the context of damage claims are solved by out-of-court settlements. One of the main reasons for this scarcity is the fact that this is a fairly unfamiliar field for Estonian lawyers, attorneys and judges. The first reason for the low number of private enforcement of competition law cases in Estonia is therefore lacking awareness and legal uncertainty. The other key barrier lies in burden of proof issues associated with damage claims. It has proven very difficult in practice for an injured person to prove that he/she sustained damages as a result of a competition law infringement; even more so to prove the actual extent of such damages. There is no juridical practice yet on how to calculate business losses and judges face considerable difficulties when confronted with this task. Another problem lies in the availability of evidence. As discovery is not possible in Estonia, its civil procedure rules make it difficult for claimants to obtain evidence necessary to prove the facts underlying their claims.Estonian law does not provide for a special procedure for antitrust damage claims – there are no collective claims, no class actions, nor actions by representative bodies or other forms of public interest litigation (no collective redress). It is thus only possible to file damage claims arising from competition law infringements either in normal civil proceedings or as a civil claim within the framework of criminal proceedings on a competition law crime. The need for collective redress has not yet been subject to a legal debate at the national level, and there has not been a single private enforcement case opened by a consumer in Estonia so far. The only Supreme Court case in existence in this field, which was decided in 2011, has cleared the basis and availability of damage claims for competition law infringement. It has shown, at the same time, the many problems connected to calculating damages in this context.

Key Legislative and Jurisprudential Developments of Polish Antitrust Law in 2012

Author(s): Anna Piszcz / Language(s): English Issue: 8/2013

This article has two objectives. First, it presents the most important developments of Polish antitrust legislation of 2012. These include recent amendments to legal provisions on judicial antitrust proceedings contained in the Code of Civil Procedure, and some novel issues in the area of non-binding guidelines of the Polish NCA, the UOKiK President. Second, the article introduces key developments in Polish competition law jurisprudence of 2012. It characterises selected rulings delivered by the Polish Supreme Court, the Court of Appeals in Warsaw and the Court of Competition and Consumer Protection. Judgments are divided according to their subject matter

Regional Court in Brno on Cartels in 2012. Case comments to judgments in CRT cartel and GIS cartel

Author(s): Petra Joanna Pipková / Language(s): English Issue: 8/2013

Recent judgements of the General Court and the Supreme Court of the Slovak Republic in inspection matters – Landmark Decisions or Wasted Opportunities to Solve Problem?

Author(s): Ondrej Blažo / Language(s): English Issue: 8/2013

Dawid Miąsik, Stosunek prawa ochrony konkurencji do prawa własności intelektualnej [The relationship between competition law and intellectualproperty law], Warszawa 2012, 586 p.

Author(s): Rafał Sikorski / Language(s): English Issue: 8/2013

Dušan Popović, Iskljuciva prava intelektualne svojine i slobodna konkurencija [Exclusive Intellectual Property Rights and Free Competition], Faculty of Law of the University of Belgrade 2012, 284 p

Author(s): Ana S. Knežević Bojović / Language(s): English Issue: 8/2013