EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2.2 Exploratory phase This phase of the inspection is an ex-ante stage that places high demands on competition authorities. Evidence and evidence are provided both by the competition authority that conducts the inspection, but may also be based on information from other competition authorities within the framework of mutual cooperation. “Documents or analyses drawn up by another administration, both national and national, may form the basis if they are relevant for the conduct of a particular proceeding” (Judgment of the CJEU, Archer Daniels Midland C-511/06 P). It is not uncommon for legal or economic evidence, analyses or data obtained on anti-competitive conduct to be challenged by actions for unlawful interference by competition authorities after this fact is known to the parties. This is happening not only in national courts, but also in the European Court of Justice. The big question is how extensive or clear the evidence or evidence seized by the competition authorities must be, which legitimately entitles them to carry out an on-the-spot inspection, without prejudice to the legal certainty of competitors that there will be no unlawful interference with them. A possible answer, and the determination of the boundary between lawful and unlawful interference by competition authorities, is given to us by the CJEU itself, when, in the case of the judgment of České dráhy v European Commission, it states the following: “…if there are sufficient indications justifying the suspicion of (…) unlawful conduct, the Commission cannot be required to examine also all the evidence to the contrary”. At this stage, the competition authority should consider very carefully all the information it is examining in order to avoid suspicion of bias or favouritism of one of the competitors. These are notably cases where possible cartels are investigated, the investigation of which is based on submissions made under leniency programmes. Even at this stage, when the actual administrative procedure has not yet been initiated, it is necessary to guarantee that the information, documents, data or analyses obtained are not unilateral, favouring one of the parties to any administrative proceedings. Impartial and objective action must always be taken to ensure that the limits of the principles of equal treatment and impartiality are respected. At this stage of the inspection, the competition authority should always be able to prove the existence and so-called procedural traces. Thus, to have recorded and substantiated in its file everything that leads to the conclusion that it is in the interest of protecting competition against the infringement to order and carry out an on-site inspection verification. Even at this stage, the competition authority is obliged to comply with and respect all the principles of administrative procedure and the limits of legal certainty. Where there is a boundary between legal and illegal procedure can be found in the case of a local investigation at the premises of Fortuna GAME a. s. on the initiative

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