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
•
Pressure within the industry
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
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
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?
Conclusion
Transparency and predictability : basic elements of effective
leniency programme
The Czech leniency programme would benefit from further
clarification from the Competition Office
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: [email protected]
W: www.vejwun.cz