EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

This list is explicitly included in the Czech Antimonopoly Act in its Section 17(1), however it is just demonstrating various aspects and is definitely considered non exhaustive, so the authority can apply also further (and quite different) conditions and criteria (Eliáš, Bejček, Hajn, Ježek, 2007, p. 509). In practice, the abovementioned alternative division of mergers into horizontal, vertical, mixed, and conglomerate is also very relevant here, because the nine “areas” shall be assessed to a large extent depending on the type of merger (Kindl, Munková, 2012, pp. 339–360). In other words – there are different areas being assessed in the case of a vertical merger than in a case of a horizontal one, due to the different influence of such area on the relevant market. For example, the condition of the possibility to choose suppliers is assessed differently in case of horizontal or vertical mergers, as vertical mergers can result in supply shortage for other competitors and therefore have severe anticompetitive effects. It has to be noted, that in case of mergers of competitors having an aggregate market share below 25%, it is presumed that such mergers shall possess no threat for competition. That however does not mean that the authority cannot still decide (Neruda, 2008, pp. 385–393) that in a certain individual case the threat for competition exists despite this low market share. 5. Obligations imposed on competitors Chapter 1 above, already very briefly noted that the authority can either forbid such merger at all or to impose various obligations on merging competitors. This is an extremely important and unique part of merger control, due to the fact, that such obligations are not suggested by the authority, but by competitors themselves (as they do that in attempt to overturn the originally negative decision of the regulator). Originally the Czech regulator was the one to suggest the obligations, however this has been abolished by the Act No. 155/2009 Sb. (amending the Czech Antimonopoly Act in September 2009), and Czech UOHS cannot suggest these obligations anymore, regardless the fact that merging competitors do fully agree with such suggestion of a specific obligation/obligations being duly made by the respective competition authority. Competitors are obliged to prove to the authority, that the suggested measures are sufficient to achieve an unrestricted competition, i.e., that the merger would not negatively influence competition on a relevant market. There is indeed a great flexibility in types of such obligations (meaning there is no exhaustive list of all such measures), being mostly structural (i.e., sale of part of assets), behavioural, quasi-structural, control, or trying to break the current

277