EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

In the case of investigations into prohibited agreements, however, it may not always be justified and indicate all the information received or secured by the competition authority before the start of the inspection. These are cases where the inspection is based on information obtained under the leniency program, where one of the cartel participants cooperates with the competition authority with the prospect of being reduced or even forgiven for any fine. It would be completely counterproductive if the existence of leniency were communicated to the other cartel participants together with the initiation of the verification visit. Such a procedure could lead to a difficulty or even to the termination of the conduct of administrative proceedings. Information obtained by a competition authority as a result of a leniency notification shall, on the basis of administrative practice, be communicated to the parties to the administrative procedure only at the time of the statement of objections. This is one of the exceptions, as opposed to general administrative proceedings, where the procedural defence of the subject under investigation is not limited (Jalabert-Doury, N. 2020; Judgment of the CJEU, Archer Daniels Midland C-511/06 P). However, the competition authority should always, irrespective of leniency, justify all the facts both to the detriment and in favour of the entity under investigation. Both administrative practice and courts place emphasis on an objective assessment of whether it is necessary to carry out a self-monitoring exercise and whether there are other legal instruments or procedures that could lead to the protection of competition law. The purpose of the inspection should always be to clarify whether there is evidence which, on the basis of the principle of material truth, demonstrates the existence of both anti-competitive conduct and a causal link between the anti-competitive conduct and the serious disturbance of the relevant market. In addition, competition authorities should also be able to demonstrate liability for anti-competitive conduct towards a particular entity (Jalabert-Doury, N., 2020). 3.3 Scope of inspection When defining the scope of the inspection, care must also be taken to ensure that, before the actual initiation of the inspection, the competition authority can identify, on the basis of circumstantial evidence, the sectors which may be affected by the anti-competitive conduct. In our case, it will be a question of which public contracts for waste collection may be affected by bid riging. For example, these can only be contracts for the disposal of hazardous waste or for the collection of sorted waste. The scope of the inspection is defined not only in substance, but also by the scope, the number of places where the inspection is carried out. It is common practice of competition authorities that even before the start of an inspection, physical inspections of sites that are suitable for inspection are carried out.

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