CYIL vol. 12 (2021)

michal petr CYIL 12 (2021) breach of Articles 101 and 102 of the TFEU, the state cannot be found liable for the measure in question on the basis of these provisions in conjunction with Article 3(4) of the TEU. 2. National Competition Law In addition to the EU competition law, each Member State has introduced its own competition law; some of them regulate not only the conduct of undertakings, but of public authorities as well. In this article, we cannot perform a comparative analysis of different jurisdictions; 34 instead, we will take the relatively recently introduced regime in the Czech Republic as an example. The modern Czech competition law was adopted in 1991, 35 shortly after the revolution in 1989; from the very beginning, it was modelled on the EU competition law. Due to the fact that all of the economy was state-controlled during the communist era, it also contained a – rarely used – provision on anticompetitive conduct of state authorities. This provision was abandoned in 2001, when a new competition act (Czech Competition Act or CCA), 36 fully in line with EU competition law, was adopted. In 2012, originally without support of the Czech Competition Authority, the CCA was amended to also apply to conduct of public authorities. 37 The Competition Act currently states that public authorities shall not distort competition by exercising their public powers without justifiable reasons, in particular, by favouring a certain undertaking or a group of undertakings, eliminating a certain undertaking or a group of undertakings from competition, or eliminating competition from the relevant market. 38 It was already mentioned that the Czech Cybersecurity Agency declared in 2018 that technologies of Huawei constitute a cybersecurity threat and that the operators of critical infrastructure need to react to this threat and take precautionary measures, thus arguably excluding it from the competition. As such a decision falls exactly within the definition of the conduct prohibited by the CCA, could the Czech Competition Authority open antitrust proceedings with the Czech Cybersecurity Agency? We believe it cannot for the following reasons. Firstly, the CCA does not apply to decisions of public authorities, 39 what the measure in question arguably is, but typically to their legislative actions. But more importantly, the Czech Competition Act applies only to measures of public authorities adopted without justifiable reasons . 40 We have already discussed above that a conduct on the first sight contrary to Articles 101 and 102 of the TFEU is not anticompetitive when it is necessary to achieve legitimate non-economic goals; the same should in our opinion apply to Czech competition law.

34 For further details on this issue, see e.g. FOX, E. M., HEALEY, D. When the State Harms Competition – The Role for Competition Law. NYU Law and Economic Research Paper No. 13–11, available at: https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2248059 (accessed 1 September 2021).

35 Act No. 63/1991 Sb., on the Protection of Competition. 36 Act No. 143/2001 Sb., the Czech Competition Act. 37 Act. No. 360/2012 Sb., amending the Czech Competition Act.

38 Czech Competition Act, Section 19a(1). 39 Czech Competition Act, Section 19a(2)(a). 40 Czech Competition Act, Section 19a(1).

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