At the end of February 2024, an amendment to the Prevention of Restriction of Competition Act (“ZPOmK-2A”) became applicable.
ZPOmK-2A introduces the following changes:
- Regarding the acquisition and disclosure of confidential information that comes to the attention of the Competition Protection Agency (“AVK”) in the course of proceedings;
- Regarding the method of imposing fines on individuals who have cooperated under the leniency programme;
- The possibility of submitting a hypothetical statement in the leniency procedure;
- Additional limitations on the use of data from settlement applications submitted by companies to AVK as part of acknowledging infringement of competition law;
- Regarding the implementation of corrective measures in concentration procedures; and
- Regulation of the legal basis for publishing data regarding a notified concentration on the AVK website.
In this article, our sole focus is on the aforementioned amendments pertaining to concentration notification procedures.
In the concentration notification procedure, AVK was able to become acquainted with confidential information, which it was obligated to safeguard accordingly. The amended Article 38 of ZPOmK-2 now explicitly allows AVK to obtain confidential or secret data also from state authorities, local authorities, holders of public authority, or other organizations possessing such information.
Corrective measures are an instrument that can be used to clear concentrations, where there is a serious suspicion of non-compliance with competition rules, to be permitted as they eliminate identified negative effects. The earlier procedure lacked clarity regarding the timeline within which a notifying party could suggest the implementation of corrective measures and the deadline for their completion. Under the ZPOmK-2A amendment, the notifying party may propose corrective measures within 45 business days from the issuance of the decision on the detailed assessment procedure of compliance with the concentration rules as stipulated in Article 70(4) of ZPomK-2. Proposals submitted after the deadline will only be considered if the AVK can definitively ascertain that the proposed corrective measures will comprehensively and unambiguously address the identified competition concerns. Moreover, AVK now also has an option to revise the decision incorporating corrective measures if significant alterations in circumstances, upon which the previous decision relied, transpire independently of the notifying party’s influence.
The last relevant amendment concerns the legal basis for the public disclosure of the initiated procedure for assessing notified concentrations. While in practice AVK has already been publishing the details of notified concentrations in certain cases (or these have been reflected in the table of concentrations under assessment and decisions), there is now an explicit legal basis provided. An additional requirement for the notifying party to complete the concentration notification form has been introduced in this regard. The highlighted aspect is notable as Article 69 of ZPOmK-2 mandates the notification of data due to the potential involvement of third parties who may demonstrate their legal interest in participating in the procedure and may offer pertinent information regarding the relevant concentration.
Considering the recent influx of inquiries from various parties regarding the potential for intervening in the concentration notification procedure or offering pertinent information, the inclusion of such provisions in the law signifies a significant endorsement and reinforcement for the advancement of practices concerning the engagement of third parties in concentration notification procedures.
