The European Antitrust Review 2014 • Section 3: Country chapters
The principal piece of legislation regulating competition law in the Slovak Republic is Act No. 136/2001 Coll. on Protection of Competition, as amended (Competition Act). From its entry into force on 1 May 2001, it has been amended five times. Throughout the first half of 2013, discussions were held about the sixth amendment to the Competition Act, which is expected to enter the legislative procedure in summer 2013. While the first amendments served primarily to approximate the Slovak competition law to EU legal regime, the sixth amendment reacts on the experience and problems raised in decision-making practice.
The Competition Act lays down the rules for assessment of the anti-competitive practices: agreements restricting competition and abuse of dominant position, as well as merger control rules, procedural provisions and powers of the Slovak national competition authority (the Antimonopoly Office of the Slovak Republic (Office))and its second instance body (the council of the Office, composed of the chairman and vice chairman of the Office and five external members, experts in law and economy).
Apart from the Competition Act, two implementing decrees issued by the Office are the sources of binding competition rules in Slovakia: Decree No. 269/2004 Coll. Setting out Details on Calculation of Turnover (Turnover Decree) and Decree No. 204/2009 Coll. Setting out Details on Terms of Notification of Concentration (Notification Decree).
The binding legislation is supplemented by a series of soft law documents issued by the Office, relating, eg, to leniency programmmes, pre-notification contacts in the process of assessment of concentrations, parties to a concentration, ancillary restrictions to a concentration, remedies related to a concentration, fines set in case of abuse of a dominant position and agreements restricting competition (antitrust matters), commitments (in antitrust matters) and settlement (in matters of agreements restricting competition).
The Competition Act defines a concentration as a process of economic combination of undertakings, being:
- a merger or amalgamation of two or more previously independent undertakings; or
- an acquisition of direct or indirect control by one or more undertakings over the enterprise of another undertaking or undertakings or a part thereof.
- the capacity to exercise a controlling influence on the activities of the undertaking concerned, in particular based on the ownership rights or other rights to the enterprise, or a part thereof (‘part of the enterprise’ is understood as a branch office or any assets capable of generating a turnover); or
- rights, contracts or other circumstances which enable one party to have a controlling influence on the structure, voting or decision making of the undertaking’s bodies.
Creation of a full-function joint venture is also considered a concentration by way of acquisition of control.
Concentrations are subject to control of the Office, if they meet one of the following turnover-based criteria:
- the combined aggregate (group consolidated) turnover of the undertakings concerned for the last closed financial year preceding the concentration in the Slovak Republic was at least E46 million and, at the same time, at least two of the undertakings concerned have each generated, in the Slovak Republic, an aggregate (group consolidated) turnover of at least E14 million for the last complete financial year preceding the concentration; or
- the aggregate (group consolidated) turnover for the last complete financial year preceding the concentration in the Slovak Republic was:
- in case of a concentration by merger or amalgamation of two or more independent undertakings, at least E14 million generated by at least one of the concerned undertakings and, at the same time, the worldwide aggregate (group consolidated) turnover generated for the last complete financial year preceding the concentration, generated by another of the concerned undertakings, was at least E46 million;
- in case of a concentration by an acquisition of control, at least E14 million generated by the target undertaking and, at the same time, the worldwide aggregate (group consolidated) turnover for the last complete financial year preceding the concentration, generated by another of the concerned undertakings, was at least E46 million; and
- in case of concentration by creation of a full-function joint venture, at least E14 million generated by at least one of the undertakings creating the joint venture, and at the same time the worldwide (group consolidated) aggregate turnover for the last complete financial year preceding the concentration, generated by another of the concerned undertakings, was at least E46 million.
The Competition Act contains the negative definition of the term ‘concentration’, similar to the negative definition under the EU Merger Regulation.
There are no time limits for the notification of concentration to the Office. However, the notification must be filed before rights and obligations resulting from the concentration are exercised (ie, before implementation of the concentration), and after the triggering event of the concentration takes place (usually after signing the transaction agreement). In case of a concentration by an acquisition, the person liable for filing the notification, and the party to the proceedings, is the acquirer of control. In case of a concentration by merger or amalgamation, the notification is filed by all parties jointly. The Competition Act stipulates the basic information to be provided in the notification, while details are included in the Notification Decree.
It is also possible to conduct pre-notification consultations with the Office in order to establish the scope of information to be provided to the Office. The notification may also be submitted to the Office before the transaction agreement is concluded, on the basis of a draft agreement at the stage when the parties can demonstrate that the transaction will likely occur and will result in a notifiable concentration.
The procedure concerning the assessment of concentration is conducted in two phases. In the case of simple concentrations that do not raise competition concerns, the Office shall decide in Phase I, within 25 working days of delivery of a complete notification containing all required information. Such decision shall usually contain a simplified reasoning stating the names of undertakings concerned and the relevant sector or market concerned.
If the concentration requires a more thorough analysis for the identification of affected markets and competition concerns, the Office shall inform the notifying party in Phase I within 25 working days. In such case, the Office shall render to the notifying party its decision in Phase II within 90 working days of delivery of such written notification.
Upon reasoned request of the notifying party or upon its consent, the Office may reasonably extend the time limit for rendering the decision either in Phase I or Phase II. It may even repeat this extension, but the total period of all extensions together cannot exceed 30 days.
The concentration shall be cleared by the Office if it does not significantly impede effective competition on the relevant market, in particular as a result of the creation or strengthening of a dominant position. The Office, similarly to the European Commission, uses the SIEC substantive test.
If the concentration raises concerns of compliance with the above-mentioned substantive test, the Office shall ask the notifying party to propose remedies which would be capable of removing identified competition concerns. If the Office considers the proposed remedies sufficient to ensure compliance with the substantive test, the concentration shall be cleared with conditions. If no remedies are proposed by the notifying party within 30 working days, or if the Office finds the proposed remedies incapable or insufficient to eliminate identified competition concerns, the Office shall prohibit the concentration.
The decision of the Office can be appealed within 15 days from its delivery to the Council of the Office. Decisions of the Council of the Office may further be subject to a judicial review.
The concentration may not be implemented before the decision of the Office on the concentration becomes final and binding, unless the Office grants an exemption for serious reasons. Implementation of the merger before the final decision, as well as failure to notify the concentration, is subject to fines by the Office up to the statutory maximum of 10 per cent of the individual turnover of the infringing party.
Cartels/agreements restricting competition
One of the principal rules for protection of competition as defined by the Competition Act is the prohibition of agreements restricting competition. The prohibition comprises agreements themselves, as well as concerted practices and decisions of associations of undertakings.
The agreement between undertakings is defined as any oral or written mutual expression of will of the parties, as well as other mutual expressions of will derived from the conduct of the parties. The definition covers most anti-competitive agreements between undertakings, both hard-core horizontal cartels and vertical agreements, express or tacit. According to the case law of the Office, in order to qualify the conduct as an agreement restricting competition containing direct fixing of prices of goods or services, it is sufficient, regarding the participation of the undertaking in such price fixing, that the undertaking had the information on the price agreement and did not express its disagreement with such information. The concept of agreement is therefore wide enough to comprise even implied agreements.
‘Concerted practice’ is understood as a coordination of conduct of the undertakings which does not fulfil the definition of the agreement and which may not be considered as a natural consequence of the competitor’s behaviour. Such cooperation must be intended and usually leads to anti-competitive coordination based on information exchange. As the concerted practice does not fulfil the definition of ‘agreement’, it is possible to imply the existence of the concerted practice in situations where there is no economic justification for the conduct of the parties, such as the consequences of the competitor’s behaviour; thus, the concurrence must be a result of anti-competitive coordination. Therefore, proving the concerted practice may require extensive economic analysis.
Finally, the decision of association of undertakings is a legal act and a recommendation of the body of a professional association. There is extensive case law in Slovakia relating to anti-competitive decisions of professional associations, either by direct price fixing, determining minimum prices or restricting commercial activities such as advertising. The associations sanctioned for anti-competitive conduct were, among others, the Association of University Hospitals, the Slovak Chamber of Psychologists, the Real Estate Brokers’ Association and even the Slovak Bar Association. According to case law, a decision of the association of undertakings must be understood as a formal act resulting from the internal regulations of the association or its internal norms, ie, a legal act of the association (it is the decision of the association in narrower sense), as well as any kind of recommendation of the association, being the practice, conduct or decision of the association that lacks the signs of the formal terms for such act, however, its purpose is or its result may be a restriction of competition.
Similarly to Art. 101 TFEU, the Competition Act contains a list of practices which constitute agreements restricting competition:
- direct or indirect fixing of prices of goods and services or other business terms;
- commitment to restriction or control of production, sales, technical development or investment;
- allocation of markets or sources of supply;
- commitment of the parties to the agreement to apply, towards particular undertakings, in case of identical or comparable performance, dissimilar conditions, under which such undertakings are or may be disadvantaged in competition (discrimination);
- agreements conditional upon accepting further commitments, which, by their nature or business customs, do not relate to the subject matter of such agreements (tying and bundling); and
- indications of collusive behaviour, based on which the undertakings coordinate their conduct, in particular in the process of public procurement (bid rigging).
The list of practices constituting an agreement restricting competition is only indicative and the actual anti-competitive conduct may be also based solely on the infringement of the general provision prohibiting the agreements restricting competition.
Similarly to EU rules, Slovak law recognises the system of negative definitions and exemptions from the general prohibition of anti-competitive agreements, including the individual and block exemptions and de minimis rule.
The prohibition of agreements restricting competition does not apply to agreements restricting competition which, at the same time, cumulatively meet all of the following conditions:
- contribute to improving the production or distribution of goods or to promoting technical or economic progress;
- allow consumers to have a fair share of the resulting benefit;
- do not impose on the undertakings concerned restrictions which are not indispensable to the achievement of these objectives; and
- do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
In the past, Slovak law contained national legislation on block exemptions. After the accession of Slovakia to the European Union, the national block exemptions were repealed. Nowadays, by way of reference, the general prohibition as defined in the Competition Act does not apply to groups of agreements restricting competition, which may not affect trade between the EU member states, while their purpose is or their effect may be the restriction of competition on the domestic market, and which meet conditions for exemption from the prohibition according to the EU block exemption regulations. Therefore, EU block exemption regulations also apply to agreements of solely national scope.
Under de minimis rule contained directly in the Competition Act, the prohibition of agreements restricting competition does not affect agreements of a minor importance, which impact on the market is negligible, ie, in case the aggregate market share of the parties to the agreement does not exceed, or the market share of none of the participants exceeds 10 per cent on the overall relevant product market in the Slovak Republic. The 10 per cent market share threshold applies equally to horizontal and vertical agreements; however, the application of the de minimis rule to several enumerated hard-core practices (price fixing, restrictions of sales, technical development or investments and allocation of market or sources of supplies) is excluded. The rule also does not apply to a restriction of competition by cumulative effect of agreements restricting competition, which contain a similar type of restriction and which lead to similar effects on the relevant market, and where their overall market share exceeds 10 per cent of the overall share of goods or services on the relevant market.
Upon request of the Office, the undertaking is obliged to prove that the particular agreement does not constitute the agreement restricting competition under the Competition Act, or benefits from one of the legal exemptions.
Abuse of dominant position
In line with EU law, a dominant position is defined as the position held by one or more undertakings that do not face a substantial competition and are able to act independently due to their economic power. The concept of the relevant market comprises the geographical and temporal concurrence of the supply and demand of such goods, performances, works and services which are identical or mutually interchangeable with respect to the satisfaction of certain needs of users.
‘Relevant market’ is defined on the basis of its product and geographical elements. A relevant product market comprises identical or mutually interchangeable goods that can satisfy certain needs of users. Mutually interchangeable goods are those that are interchangeable, especially from the point of view of their physical and technical characteristics, price and purpose of use. ‘Relevant geographical market’ is defined as a territory in which the conditions for competition are homogeneous to such an extent that this territory can be separated from other territories with different conditions for competition.
The legislation contains the general prohibition of abuse of dominance, as well as the non-exhaustive list of abusive behaviour, namely:
- imposing, directly or indirectly, unfair purchase or selling prices or other unfair trading conditions;
- threatening limitation, or carrying out the actual limitation, of production, markets or technical development to the prejudice of customers;
- applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
- making the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or commercial usage, have no connection with the subject of such contracts; and
- carrying out a temporary abuse of economic power with the intention of excluding the competition.
The Competition Act also contains specific provisions establishing the so-called essential facility doctrine. The essential facility is defined as a device, infrastructure or part thereof, location or right, of which construction or acquisition by another undertaking is objectively impossible, and without access thereto or exploitation thereof the competition could be distorted. It is sufficient to consider the device or infrastructure an essential facility if the lack of access to such facility may result in distortion (not complete elimination) of competition. It is considered an abuse of dominant position if the holder of an essential facility refuses its competitors access to such facility while at the same time:
- the facility can be exploited by both the holder and the competitor;
- the competitor requesting access is able to meet the respective qualitative and quantitative requirements on its operation; and
- the undertaking requesting access is able to provide an adequate compensation to the holder of the facility.
Infringement of the prohibition of agreement restricting competition and abuse of dominant position is subject to fine of up to 10 per cent of the turnover for the preceding financial year. If the undertaking achieved a turnover of less than E330 or no turnover, or if the turnover cannot be calculated, the maximum fine is E330,000. The undertaking may also be subject to a fine of up to 1 per cent of the its turnover for the preceding financial year if it:
- fails to provide the requested information and documents within the set period;
- submits false information;
- fails to allow entry to the premises for the purposes of inspection; or
- refusal to cooperate are subject to a fine.
When determining the exact amount of a fine, the Office takes into account various aggravating and attenuating circumstances, including the gravity and duration of the infringement, the scope of the infringement (whether only national or also EU competition rules were infringed) and whether conditions, obligations or commitments imposed by a previous decision of the Office were infringed. When assessing the gravity of the violation, the Office considers its nature, actual impact on the market and, where appropriate, the size of the relevant market. The Office also takes into account whether:
- the infringement by the same undertaking is repeated;
- the undertaking refused to cooperate with the Office;
- the undertaking was in the position of a leader or instigator of the infringement;
- the undertaking gained financial benefit as a result of the infringement; or
- the undertaking failed to fulfil in practice the agreement restricting competition.
Alternative means of enforcement (leniency programme, settlement)
The leniency programme was also introduced in the Slovak Competition Act in 2004. The undertaking, which was a party to a cartel (horizontal agreement restricting competition), consisting of price fixing, restrictions of production, sales, technical development or investment, market allocation or bid-rigging arrangements, is entitled to full immunity from the fine, if it meets the following criteria:
- it was the first undertaking which provided, on its own initiative, decisive evidence proving the infringement or information leading to a dawn raid, based on which the decisive evidence proving the infringement was discovered;
- it terminated its participation in the anti-competitive agreement when it provided the evidence to the Office, at the latest;
- it did not force another undertaking to participate in the anti-competitive agreement, or it was not the instigator of such agreement; and
- it provided the Office with all evidence available to it and cooperated with the Office during the investigation.
The undertaking which is not the first to provide the evidence to the Office may be eligible for a fine reduction of up to 50 per cent if it meets the following criteria:
- it provides, on its own initiative, significant evidence which, in combination with the information and documents already available to the Office, enables the Office to prove the infringement; and
- it terminated its participation in the anti-competitive agreement at the latest at the time when it provided the evidence to the Office.
Another alternative means of enforcement is the settlement procedure. Details on the conditions for applying the settlement are contained in the soft law of the Office. Settlement is permissible in case of both horizontal and vertical agreements restricting competition. If the party admits its participation in the anti-competitive agreement, cooperates with the Office throughout the proceedings and states the maximum fine it is willing to accept, the Office may reduce the fine, otherwise imposed, by up to 50 per cent in the case of vertical agreements and by up to 30 per cent in the case of horizontal agreements. Settlement negotiations may be commenced by the Office on its own initiative, or based on the request of the party to the proceedings. However, there is no legal entitlement to such procedure and its use is upon discretion of the Office.
The Office may further close proceedings regarding an infringement consisting in an anti-competitive agreement or abuse of a dominant position by imposing commitments on the undertakings, without imposing a fine. The commitments should be proposed by the undertakings and must effectively eliminate and prevent the distortion of competition.
In spring 2013, the Office issued its Prioritisation Policy determining both long-term and short-term priorities of the Office. This policy determined the criteria for assessing the priority of the case:
- the type and seriousness of the case;
- the importance of the investigation;
- the probability of success; and
- the strategic nature of the case.
In relation to this first criteria, the Office divided the types of infringements into very serious (eg, horizontal agreements on prices, market allocation, actual restriction of production, bid rigging, exclusionary abuse of dominant position or implementation of a merger that would be prohibited if notified), serious (eg, exploitative abuse of dominance, other horizontal agreements, vertical agreements containing hard-core restrictions or implementation of a merger which would not be prohibited if notified), and less serious (eg, other vertical agreements). Priority will be given to very serious and serious infringements.
In factual gravity of the infringement, the Office will consider, for example, the impact of the infringement on competition (priority is given to actual or unavoidable impact), geographical impact (priority increases with a greater extent of affected area), duration of the infringement, number of affected consumers, a case harming consumers who may be primarily exposed to exploitation due to limited access to market, impact on consumers, type of product (greater priority is given to everyday consumer products used by large number of consumers), market share of the undertakings, and repeated infringement.
The importance of the investigation will be assessed based on the nature of the industry (priority increases in liberalised and network industries, and highly concentrated markets with entry barriers and regular market failures), the amount of damage caused and the existence of private enforcement actions relating to the case. The probability of success shall increase with the availability of relevant information and evidence, and the possibility to obtain such by the Office, as well as the existence of precedent cases and cases where there is no other authority capable of dealing effectively with the case. Finally, the Office may choose to deal with the case based on its strategic importance even when it does not fall within the other priority criteria, if the case is in line with the current goals and vision of the Office, in order to build credibility of the Office, or if the case has a potential of becoming the important precedent case for future.
Among the short-term priorities, covering approximately one year, the Office intends to focus on horizontal cartels, bid rigging and unnotified concentrations. Priority, possibly including more intensive investigation and elaboration of a sector study, will be given to the financial sector, the food industry and the heating sector.
Amendment to the Competition Act
The wording of the intended amendment of the Competition Act is currently under public consultation. The Office intends to submit the bill to the government and have it adopted by the parliament in summer 2013.
In the merger control area, the amendment should repeal the Turnover Decree and replace its relevant provisions to the Competition Act. A simplified notification form for concentrations that do not raise competition concerns should be created. Procedural time limits in cases of submission of incorrect or false information in the notification or submission of incomplete notification should be adjusted.
In the antitrust area, new transparent provisions regarding block exemptions, settlement and commitments procedures should be introduced. Several soft law documents should be transformed into binding decrees of the Office (eg, the guidelines on leniency programme), thus giving them binding nature. Special provisions establishing the abuse of a dominant position based on the essential facility doctrine should be abolished, as the concept is already known on the market and may be enforced under the general provision on the prohibition of abuse of dominance.
Internal competences within the Office should be partly reorganised. The vice chairman of the Office should no longer be a member of the Council of the Office, and should coordinate all departments of the Office dealing with all first-instance proceedings. Provisions regulating unannounced inspections of the Office (dawn raids) should be changed. After the adoption of the amendment, powers of the Office and obligations of the undertakings during the inspection should be explicitly and transparently laid down.
Somehow controversially, the amendment also intends to grant immunity from private damages actions to the successful full leniency applicant. In order to motivate individuals to approach the Office with evidence of an infringement, the Office intends to introduce a possibility to reward the individuals who submits a decisive evidence of the horizontal agreement restricting competition by 1 per cent of the aggregate fine imposed on and paid by the undertakings, at most by 100,000 or, if the fine was not paid such reward shall be decreased by 50 per cent, and limited in total by 10,000.
Finally, new provisions regarding dealing with confidential information, including the contents of the leniency application, should be introduced. Leniency documents should be only available to other parties to the proceedings after the Office issues call before issuing the decision (statement of objections). The information identified as confidential or as a business secret should be available to other parties to the proceedings only in exceptional circumstances when they are necessary for the exercise of the right of defence, if the non-confidential versions of the documents are not sufficient and upon consent of the party who submitted such documents. In case such consent is not granted, the documents should only be available to the legal counsel of the party concerned.
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Čechová & Partners is one of the biggest and best-respected commercial law firms in Slovakia with considerable international experience. It has provided services to foreign and domestic clients since its founding in 1990, when it became one of the first law firms established in Slovakia after the country began to transform into a free market economy.
Čechová & Partners is an independent Slovak law firm and regularly ranks as a top-tier organisation in most surveys of the Slovak legal market. Čechová & Partners makes use of an extensive network of cooperating law firms abroad and draws from its membership in prestigious networks of independent law firms and legal associations.
Čechová & Partners’ legal advice and representation in a wide range of anti-monopoly matters have been strong aspects of its expertise since the firm began. The firm advises its clients on various merger control and competition issues in connection with the planning of mergers or acquisitions and entering into various contractual relations. The firm assists its clients in clearances of mergers and acquisitions in the local market, along with worldwide transactions of multinationals in diverse areas, and has provided a huge variety of advice in respect to agreements restricting economic competition. The firm has gained comprehensive practice and experience in a range of sectors, including banking, energy, chemicals, pharmaceutics, paper, machinery, construction, motor vehicles, engineering, investment funds, media, food and beverages.
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