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INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE CZECH LENIENCY PROGRAMME

INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE CZECH LENIENCY PROGRAMME. BRNO 12 NOVEMBER 2009 TOMÁŠ FIALA  VEJMELKA & WÜNSCH. Should you seek leniency?. Factors to be considered: Likelihood of enforcement action Level of fines Damages in private civil actions Corporate resources

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INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE CZECH LENIENCY PROGRAMME

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  1. INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE CZECH LENIENCY PROGRAMME BRNO 12 NOVEMBER 2009 TOMÁŠ FIALA  VEJMELKA & WÜNSCH

  2. Should you seek leniency? • Factors to be considered: • Likelihood of enforcement action • Level of fines • Damages in private civil actions • Corporate resources • Pressure within the industry

  3. Interpretive issues – a few examples • 1. Termination of participation in anticompetitive activity • What constitute an action to terminate participation in the anticompetitive activity? • What happens if lower-level employees would continue for short period in the activity? • 2. Not the leader or originator of the activity • What does it mean to be the „leader“ or „originator“? • What happens if there are two ring-leaders? • IN GENERAL: The leniency programme has to be interpreted in order to provide the maximum amount of incentives and opportunities

  4. Marker system and its application • A marker affords the opportunity to save a place in a queue (elements of transparency and predictability) • BUT, the Office has reserved a discretion to grant a marker (element of uncertainty) • MOREOVER, the request for a marker needs to be justified (difficult to understand) • The time period to perfect a marker must be adequate to allow the applicant to complete its internal investigation

  5. Cooperation obligations of the applicant : uncertainty of process • What is the extent of the ongoing cooperation obligation – how onerous it needs to be in practice? • Under what circumstances can the conditional immunity be revoked? • When can an applicant challenge an Office‘s decision to revoke conditional immunity?

  6. Conclusion • Transparency and predictability : basic elements of effective leniency programme • The Czech leniency programme would benefit from further clarification from the Competition Office

  7. THANK YOU FOR YOUR KIND ATTENTION Tomáš Fiala Vejmelka & Wünsch, s. r. o. Italská 27 CZ-120 00 Prague 2 T: +420-222 25 30 50 F: +420-222 25 30 90 E: prague@vejwun.cz W: www.vejwun.cz

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