Presentation Transcript

1. Fifth Annual Conference on Competition Enforcement in the CEE Member StatesDue process in competition law Michaela Nosa Antimonopoly Office of the SR Bratislava, 21/02/2014 Theviews in thispresentation are thoseoftheauthor and do notbindthe AMO astheinstitution
2. LegalframeworkProcedureatthe AMO ECHR Constitution CodeofAdministrativeProcedure Act on ProtectionofCompetition
3. Proceedings at AMO The parties to the proceedings have access to file from the beginning of the administrative proceedings All documents except for business secret, confidential information or information that is protected by specific legislation (in case this would be the part of the administrative file)
4. Proceedings at AMO Undertakingshaveright to beinformed by the AMO thattheymayindicateduringproceedingswhichoftheinformationissubject to businesssecrecy or confidentialinformation; theymust explain in writing the confidentiality of information or documents or their designation as business secrets. The AMO may ask the party to the proceedings to provide a different wording of information or documents that does not contain businesssecrets or does not have a confidential character. The AMO shall also protect information whose confidentiality it has been asked to maintain. Confidentiality of such information shall, however, constitute no obstacle to its disclosure if this is necessary for a decision and if a party to the proceedings does not provide any other wording of the information and documents that does not contain business secrets or is not confidential. Employeesof AMO are required to maintain confidentiality of information subject to business secrecy of an undertaking or designated as confidential by an undertaking
5. BusinesssecretConfidentialinformation business secret encompasses all information of business, production or technical nature related to undertaking, having real or possible material or immaterial value, not generally available in the respective business circles, and which the undertaking wants to protect and whose protection is secured by the undertaking. Confidentialinformation – no specificdefinitiongiven by CompetitionAct
6. ProceduralfairnessPrivate v. publicinterest Complexcases, lot of data needed especially in abuse of dominant position cases and mergercases Proceduralfairness and protection of private interests v. public interest on revealing the violation of competition law The issue is two-sided: Replies to RFIs, i.e. informationfromthemarketplayersisessential, however, often subject to business secrets Accessto file; exercising right ofdefense – due process issues
7. Draftamendment to Competition Act Definition of confidential information Right to indicate which of the information is subject to confidentiality, business secret; the AMO checks whether the conditions for business secrecy are met Protection In case of exercising right of defense Summaries Information solely for the purpose of the rights of defense with consent of the person that submitted the information/exceptionally the information can be accessible only to the (legal) representative of the undertaking Claims – not in line with principles of the Bar and representation of clients? If not – than what would be the solution? access to leniency file after SO
8. Access by thirdparties 3rd parties important input On request, access to file possible if the interest in the matter is justified No right to appeal the decision in the case Transparency rules Control of the state or tools to get into file without need to justify any interest in the matter?
9. Thank you for your attention! www.antimon.gov.sk Twitter: @PMUSR_tweetuje michaela.nosa@antimon.gov.sk