EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

investigations by the Office), provided reasonable grounds for believing that it was a description of conduct that could very well have taken place, could have made reasonable economic sense for the actors (in the case of secrecy, could have given them a substantial economic advantage) and the way in which it was carried out, correspond to general knowledge of the normal commission of anti competitive conduct of that type in a given constellation of participants (market structure, market shares of each operator, their role on the market and their intentions over a given period of time) on the relevant market.” (Judgment of the Supreme Administrative Court, 2 As 295/2019-99) It follows from the foregoing that, in order to ensure the success of the inspection, it is essential that competition authorities carefully and objectively assess all available information justifying the conduct of their own inspection. The above example of the existence or absence of unlawful interference at this stage of conducting a morning raid is of fundamental importance for the morning raid as such and the subsequent administrative procedure itself. A similar conclusion was reached by the Supreme Administrative Court (hereinafter referred to as the SAC) in the case of a local investigation by the Ústí nad Labem Public Transport Company (Judgment of the Supreme Administrative Court 3 As 92/2020-59). 2.3 Implementing phase This phase of the inspection always begins with the actual issuance of the decision on the authorisation to carry out the inspection. The decision should respect both the rules of law and the claims to its scope defined by case law. The decision to carry out an on-site inspection should not arbitrarily interfere with the rights of the persons under investigation. The decision should respect the general principles of administrative law in the form of the principles of legality and legitimacy. The question is how broadly and to what extent the authorisation to carry out an inspection should be formulated and where the limits of legal certainty of the competitor under investigation are given. In general, the CJEU considers that, in the case of an investigation by the European Commission, it is not necessary in the context of an inspection authorisation: “to communicate all the information at its disposal about suspected infringements, nor does it have to give an accurate legal classification of such infringements, provided that it clearly indicates the presumptions it intends to examine. While the Commission is required to state as precisely as possible what is the subject of the investigation and the facts to which the inspection is to relate, it is not necessary for the decision ordering the inspection to contain a precise definition of the relevant market, a precise legal classification or an indication of the period during which the infringement should have been committed, provided that the inspection regulation contains essential elements.” (Judgment of the CJEU, Nexans C-37/13 P)

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