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 Component II

This component provides for different actions almost all of which are logically and timely interrelated in such a manner that one action has to be terminated, before the next can be started. All the tasks listed in the overview (with the exception of point II.E) require a two-step approach: In a first step the current legal situation must be analyzed. Issuing recommendations for improvements and, a fortiori, drafting of legal texts or guidelines can only follow as a second step.  This relation has not always been taken into account by the TP when fixing the respective deadlines, which therefore may have to be adapted so as to become practicable.

A preliminary analysis of the current Law has already been included in the annex to the TP. This analysis has to be completed and, where necessary, be changed after an in-depth scrutiny. Furthermore, several amendments to the Law, recently adopted by the Government, must be evaluated. This work has already started and will continue during the coming month. The drafting of new provisions, provided for a later period, can be envisaged only after having been carefully prepared by discussions with the CPC, the Ministry for Trade and Services and other interested Institutions as well as with the legal and the business communities of this country, which will start after the analysis of the current Law and the recently proposed amendments has been completed.

In its current form the Law already contains certain procedural rules which the CPC has to follow in the hearings of interested and third parties. These provisions are, however, largely incomplete. The existing lacunas cannot be filled by the reference to the existing Law on Administrative Procedure because the latter do not allow an adequate economic appraisal of competition cases. New provisions must therefore be drafted. It will have to be decided at a later stage, how these can be inserted in the Law which itself is subjected to review. In the first place a gap analysis has to be carried out. This action will start immediately after the Inception Report.

In order to ensure compliance with the EU Acquis and a future SAA Agreement, the secondary legislation, too, needs to be analyzed. This task relates to the existing decrees on merger notification and the definition of the relevant market. It comprises an examination of the proposed block exemptions, which are waiting for being adopted by the Government. Only after such a review it can be decided to what extent the above texts will have to be amended or replaced. New legal texts and guidelines will only be drafted where this is necessary to fill apparent gaps in the current competition law system. So the necessary cartel notification form is still lacking. Guidelines for the appraisal of horizontal mergers, horizontal cooperation agreements and vertical restraints are at least useful and should likewise be drafted. Whether specific block exemptions for car distribution and servicing contracts or for brewery contracts are required, must be decided when the analysis of the whole relevant secondary legislation has been completed. This should be done within the coming three months. Further actions should follow thereafter.

The case law in competition matters, too, must comply with the EU Acquis. Under this aspect the CPC’s enforcement record will have to be analyzed in order to find whether the current decision-making practice corresponds to the principles and standards of European Community law.

The TP also provides for trainings concerning legal and economic competition issues for the judiciary. This activity should allow judges to acquire specialized knowledge in the mentioned area and to become familiar with the EU Acquis. Specialized seminars will offer an overview of EC and national competition law including procedural rules, with particular regard to those provisions which organize cooperation between competition authorities and law courts under the concept of “amicus curiae”. Such training measures, which will start with a basic economic introduction and cover specific problems relating to both the procedure before competition authorities (e. g. “dawn raids”, imposition and direct enforcement of sanctions for infringements of the competition rules, leniency, settlements, procedural guaranties for interested and third parties) and the civil law procedure before the courts (e.g. injunctions to stop illegal conduct of under takings, damage claims, class actions), will correspond to the double function of the national judge consisting, on the one hand,  in controlling decisions taken by the competition authority and, on the other hand, in contributing to the private enforcement of the competition rules.

The above mentioned training measures will also increase within the judiciary awareness for the need to ensure an efficient and transparent judicial review of the activities deployed by competition authorities. Many reasons speak for the establishment of a system in which the two functions referred to above are assumed by one and the same court. Such a solution would permit the necessary specialization of the judges in charge of ruling on competition cases and  at the same time avoid the risk of conflicting decisions which a division of competences between the administrative and the civil law branches of the judiciary would necessarily bring about. The TP therefore provides to study the possibility of creating a specialized court for competition matters. A comparative analysis of the various systems of judicial control adopted by the EU Member States and some Third Countries will help to find a solution to the aforesaid problem. This action should start immediately after the end of the inception phase of the Project.