EASTERN EUROPE Wolf Theiss
Competition law
LAST YEAR SAW AN INCREASE IN LEGISLATIVE
not directly involved in the proceedings
developments in CEE
activities concerning competition law in several central and eastern European (CEE)
or other premises for which there is
and SEE countries
and south-east European (SEE) countries. The non-EU member countries in the region
specific evidence is to be found on such premises.
continue to harmonise their competition law regimes with international standards
CA 2010 will introduce a leniency
applicable in most jurisdictions in the EU. This should facilitate the competition law
programme with a clear set of conditions for immunity and the reduction of fines for
assessment for undertakings active in
whistleblowers in cartel cases.
reasonable grounds to conclude that
numerous jurisdictions across Europe.
BY MARIANA SPASOJEVIC attorney, Wolf Theiss
SERBIA What will impact companies active in CEE and SEE countries the most, however, is that the current legislative developments
Competition Act (CA) 2009 came into effect, which introduces several of
seek to enhance the level of competition law enforcement. There seems to be
substantial changes to the application of competition law in Serbia. To strengthen
a shift in focus from merger control to other competition law aspects (cartels
the enforcement of competition law, the authority (under Serbian law) is vested
and abuse of dominance). It is expected that undertakings in this region will more
with an unprecedented combination of investigatory and punitive powers.
regularly have to deal with interventions or investigations by the competition authorities. Practices, which currently may not be uncommon in the market, may in future have to be reassessed as to their compatibility with competition law. CROATIA The Competition Act (CA) 2010 will enter into force on 1 October this year. CA 2010 will broaden the investigative powers of the competition authority and will correct a range of practical shortcomings in the current legislation.
‘What will impact companies active in CEE and SEE countries the most is that the current legislative developments seek to enhance the level of competition law enforcement.’
2 The In-House Lawyer March 2010
On 1 November last year, the Serbian
Most notably, the authority will be empowered to autonomously impose fines for the infringement of competition law. This is an important change because under the current regime, the authority needs to take recourse to misdemeanour courts to impose such fines. Fines for hardcore restrictions can generally range from 1%-10% of a concerned undertaking’s aggregate annual turnover. However, the level of fines may be increased to compensate for any unjust enrichment resulting from the competition law infringement. Furthermore, the competition authority is vested with powers to carry out dawn raids. The competition authority may, on a judicial warrant, search business premises, land and vehicles. In addition, under certain conditions, it is possible to conduct a search of the business premises of undertakings
As in Croatia, the power to impose fines for competition law infringements is moved from the misdemeanour courts to the competition authority, since the prior regime did not prove effective. The maximum amount of fines that can be imposed remains unchanged at 10% of the responsible party’s annual turnover. However, the minimum amount of 1% of the responsible party’s turnover has been abolished. In addition, procedural penalty payments (for failure to provide information, observe interim measures or notify a concentration) ranging between €500 and €5,000 per day (up to a maximum of 10% of the responsible party’s annual turnover) have been introduced. The investigatory powers of the competition authority have expanded under CA 2009, in particular with respect to the possibility of carrying out dawn raids. Compulsory searches of businesses, vehicles and private homes may be carried out on the basis of a decision by the competition authority. Searches of private homes, however, may also require a judicial warrant. Statements can be taken by officials on the spot during the raid and premises may be sealed. What may benefit undertakings active in Serbia is that CA 2009 increases the merger control thresholds. This is likely to reduce the number of concentrations that require a merger control notification in Serbia.
EASTERN EUROPE Wolf Theiss
BOSNIA AND HERZEGOVINA As in Serbia, the amendments to the Bosnian Competition Act (BCA) 2009 (which entered into effect on 21 October)
‘The new provisions on leniency aim to harmonise Albania’s leniency programme with the relevant EC
have brought about a welcome improvement to the merger control regime. The applicable
rules and address the authority’s past difficulties in
thresholds were increased and a (cumulative) local turnover test was introduced. In
detecting cartels.’
practice, it is expected that a large number of concentrations (which – due to the low thresholds of the previous regime – required notification, even though they did not have an effect on the local market), will in future fall outside the scope of BCA 2009. BCA 2009 corrected a practical shortcoming in the effective enforcement of merger control rules. The authority may now impose fines for a breach of the suspension obligation in the amount of up to 10% of the total annual turnover of the undertaking concerned. ALBANIA The Albanian competition authority recently enacted the regulation ‘on fines and leniency’ that establishes a new leniency programme. It also contains rules on
the calculation of fines for competition law infringements.
as well as setting out aggravating and mitigating circumstances.
The new provisions on leniency aim to harmonise Albania’s leniency programme
SLOVENIA Also, in Slovenia, a new leniency
with the relevant EC rules and address the authority’s past difficulties in detecting
programme was introduced, which came into effect from 1 January 2010. The
cartels. The regulation sets out the criteria
relevant regulation (on the procedures for the application for immunity from
and procedure for granting immunity from fines or a reduction thereof for cartel offenders. The new regulation also determines the calculation of fines, which can range up to 10% of the offender’s annual turnover. The new provisions include detailed rules on how fines are to be calculated, including a classification of infringements according to duration and seriousness,
fines and reductions of fines in cartel law infringements) contains detailed guidelines on how to apply for immunity from fines or for a reduction of fines, including the required content of applications and information on the procedural framework. By Mariana Spasojevic, attorney, Wolf Theiss. E-mail: mariana.spasojevic@wolftheiss.com.
March 2010 The In-House Lawyer 3