CYIL vol. 16 (2025)

VÁCLAV ŠMEJKAL The third significant difference lies in the fact that the Czech amendment to the Competition Act does not mention anything about the possibility of negotiation and acceptance of commitments by undertakings in markets with distorted competition. The current text of ZOHS provides for the possibility of separate commitment proceedings for individual competition infringements, including, since the last amendment, proceedings for competition infringements by public authorities. Although the absence of commitments in the proposed NCT does not preclude competition advocacy by the ÚOHS even in the application of the NCT, commitments will only be available (unless the proposed amendment is supplemented) after the initiation of standard sanction proceedings against a particular undertaking - the infringer of traditional prohibitions on cartel agreements, abuse of dominance, and also against parties to merger proceedings. The BKA, apart from what has already been mentioned, is not squeezed out of sectors with sector-specific regulators, as is the case with the Czech ÚOHS. Otherwise, there is an overwhelming consensus between the two national NCTs. The use of NCTs in both countries is conditional on a publicly announced and negotiated sector inquiry (although neither country has a clearly separated exploratory and in-depth investigation phase as in the UK), in which potentially affected undertakings will participate and the resulting reports from the competition authorities should not come as a surprise to them. Both laws contain an identical list of observable market parameters (number, size and market shares of the main undertakings, prices, choice, quality of the products offered, etc.) against which the lack of genuine competition is to be measured. In both countries, the authorities’ measures will be addressed only to the decisive undertakings in the relevant markets with dysfunctional competition - the selection of which, however, has no more precise criteria set out in either law. Therefore, the frequency and vigour of the use of NCTs, i.e., the capacity and activity of one or the other competition authority, will be the main determinant of whether firms will fear significantly different effects of NCTs when moving between the German and Czech markets. Although in both countries the imposition of measures on undertakings is intended to be subsidiary to traditional competition protection and to intervene only where traditional prohibitions on cartels and abuse of dominance prove ineffective or inapplicable, it cannot be ruled out that in one country there will be several sectoral investigations (with possible follow-up measures) each year and in the other there will substantially fewer. Current figures show that the Czech ÚOHS has carried out two sector inquiries in the period 2022–2023 and initiated two new ones in 2024, 27 while the German BKA has carried out six for 2022, 2023, and the first half of 2024. 28 Thus, the intensity of the use of NCTs may not only be due to different market conditions, but also to the capacity of the competition authority to carry out their demanding market investigation.

Accompanying the DMA and a Presumption of Benefits. Kluwer Competition Law Blog 15.11.2023, available online at: https://competitionlawblog.kluwercompetitionlaw.com/2023/11/15/new-provisions-in-german competition-law-new-competition-tool-provisions-accompanying-the-dma-and-a-presumption-of-benefits/. 27 ÚOHS, Annual Reports , available online at: https://uohs.gov.cz/cs/informacni-centrum/vyrocni-zpravy.html. 28 BUNDEKARTELLAMT, Annual Reports , available online at: https://www.bundeskartellamt.de/SharedDocs/ Publikation/EN/Jahresbericht/Jahresbericht_2023-2024.html.

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