Competition experts met again at the St. Martin´s Conference 2015

The ninth of the regular St. Martin´s Conference on trends and developments in competition law was launched today at the Brno headquarters of the Office for the Protection of Competition. More than 150 experts in competition law from the Czech Republic and abroad were welcomed by Vice-chairman of the Office Michael Mikulík, who expressed his conviction the conference will be a significant contribution to the practice of all participants.

Introductory conference panel traditionally focused on the most important events in the competition sector for the past year, focused on the Czech and Slovak Republic and the European Union. Michal Petr, who until recently headed the Competition Division, prefaced results of the Office for the Protection of Competition. He stated particular continuous statistical data concerning the practice of the Office. In the past 10 months nine other administrative proceedings relating to prohibited agreements among undertakings has been initiated, the Office focused on the detection of cartels and bid rigging, also carried out 17 dawn-raids. Office has issued this year until now a total of five decisions; one of them is the significant case of a cartel in the construction sector with a fine of more than 2 billion Czech crown. "The year has not finished yet, we expect a few more decisions. At the same time we issued this superdecision, which is the biggest case in the history of the Office. It is an important case, preceded by three years of hard work," said Michal Petr. Amount of fines is now about more than ten times higher compared to the previous year. The decline in the number of cases occurred in the area of ​​mergers, but this situation the Office utilized to investigate the non-notified mergers - and presently conducts three administrative proceedings in this area. The Office also launched the very first procedure concerning the anti-competitive conduct by public authorities (§ 19a of the Competition Act). Michal Petr also approached the upcoming tenth amendment to the Competition Act, which will soon go through the legislative process. In addition to the unification of terminology of the new Civil Code will mainly bring adjustments in § 19a of the Competition Act. The Office will enjoy the possibility to conclude international agreements with partner authorities abroad, specifying disciplinary offenses and procedural or better regulation approach of the parties to the case. From the judicial review relating to competition Michal Petr pointed to uphold the decision of the Office concerning the CRT cartel by Supreme Administrative Court. Vice-chairman of the Anti-Monopoly Office of the Slovak Republic, Radoslav Tóth gave an overview of the results of work of their institution. Slovak Office fined 6 cartels, received 15 leniency applications and negotiated or will negotiate a total of 10 settlements. From a list of important cases he mentioned sanctioned cartels in the energy sector, the sale of motor vehicles and bid rigging construction companies and information technology. Sectoral priorities were set by Slovak Office mainly in public transport and in the sale and servicing of motor vehicles. Vice-chairman Toth also pointed out several problematic decisions of Slovak courts. The latest news at EU level were then summed up by Petr Zákoucký (AK Clifford Chance), who analyzed a series of decisions of the European courts, particularly with regard to infringement of Article 101 TFEU. Professor Peter Behrens (University of Hamburg) agreed in his lecture "Ordoliberlismus and its relevance to today's competition policy" with recent opinion of Advocate General of the Court of Justice of the EU, according to which in cases of abuse of dominant position formalistic approach should be applied instead of contemporary economic approach. Another conference panel presented the trend of introduction of advanced econometric methods to competition policy, especially in defining the relevant market.

Daniel Donath (CRA) at the outset pointed out that while in 1980 the definition of the relevant market for the US competition authorities was crucial in assessing mergers in 2010 it had only considered one of the means of assessing the market situation. Alexis Walckiers from the Belgian Competition Authority considers the definition of the market as a good tool that reflects the market structure and behavior of companies. However, the definition of the market is limited, particularly in certain with difficulty definable markets where restrictions on competition are not so obvious. As an example he stated innovative new products - can be inserted into existing markets or feel like the competition? Mr. Walckiers proposed to open the question of the definition of the relevant market for the European Commission.

Tony Curzon Price of the British Competition Authority even asked whether the definition of the relevant market is not, in some cases even harmful? According to him, market definition is only approximate predictor for evaluating market dominance, which is necessary to extend the significance of the outcome for the market to analyze and to avoid drawing the wrong consequences. Price believes that the original rules defining the relevant market no longer follow the current concept. Milan Brouček approximated the use of the definition of the relevant market as a tool for assessing the impact in the case of Slovak Telekom that abused its dominant position in the broadband market in the Slovak Republic. The last panel discussion on the first day of the conference stimulated the issue of interchange fees for card transactions. Christoph Baert from MasterCard Worldwide deemed necessary interchange fees and disagreed with opinions accusing fees to be tools which attain restriction of competition. David Anderson announced the European Commission has decided to regulate the financing of credit cards and issued a regulation on determining the level of fees that soon (December 9, 2015) will come into effect. Tomáš Kubeša noted that the legislative process in this case was swift and presented the content regulation, which applies to any consumer card linked to a bank account. Regulation particularly sets limits on interchange fees. For the Czech Republic, this fact will mean a drop in interchange fees, in some other countries these fees already meet the limits. The regulation also introduces a “Co-badging”, as well as a more transparent charging system for dealers, eliminating territorial restrictions and other adjustments. The role of competition authorities in this area of ​​regulation is not yet entirely clear.

Representative of the German competition authority Thomas Mehler said his office decided to ignore the possibility of regulating this sector, this new competence was assigned to the Office for the supervision of financial markets. Finally Nikodem Szadkowski  from the Polish competition authority concludes, they perceive themselves more in the role of a facilitator.