EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

It follows from the foregoing that, if the very power to carry out an inspection is to pass the test of legality and legitimacy and at the same time be considered disproportionate by the courts, it must always meet the following basic requirements envisaged by the court:

a) Definition of the subject of the inspection. b) Definition of the purpose of the inspection. c) Definition of the scope of the control.

d) Verifiability of indications leading to an on-the-spot investigation. e) Clarification of the essential facts that are subject to inspection by the Competition Authority. f ) Preserving the right to enforce defense.

3. Essential requirements for decisions authorising a verification visit

3.1 Object of the inspection The appropriate and, from the point of view of legal certainty, sustainable definition of the subject matter of the on-site inspection can be demonstrated by the example of a hypothetical competitor waste PLC operating in the waste collection and disposal market and in the market for recycling and production of plastics. When defining the subject of an inspection, it is always a matter of determining what the inspection will cover. The subject matter of the self monitoring should not be defined too broadly to include de facto all possible conduct of the entity under investigation. An excessively broad definition of the subject matter of the inspection may be assessed by the courts as unlawful interference on the grounds of the so-called ‘unlawful interference’. fishing expedition. That is, an investigation where it is not clear at the outset whether there is a distortion of competition law, but the competition authority is guided only by intuition without a credible justification for conducting an inspection. In our particular case, in the case of Waste PLC, we will assume that the company is suspected of bid rigging in the procurement of waste collection by several contracting authorities when the contracts were awarded by two cities and two regions within three years. The complaint about bid rigging at Waste a.s. was anonymous. So how to define the subject of the inspection correctly? In our case, the subject of the inspection should be determined in such a way that the subject of the inspection is contracts for the collection of waste, not for the recycling and production of plastics. The subject of the review should not be the evaluation of Waste PLC’s own offers, but information that confirms the existence of a prohibited agreement, such as the director’s diary, email or information obtained from a mobile phone.

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