The Act on Amendments to the the Competition Act (Official Gazette 41/2021) has been adopted on 9 April 2021, and it entered into force on 24 April 2021.
These amendments bring the text of the Competition Act in line with the case law of the Court of Justice of the European Union and transpose Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ L 11, 14.1.2019).) (the so-called ECN + Directive), which aims to ensure the independence of competition authorities of the Member States of the European Union, as well as adequate resources for the exercise of powers, minimum powers and the possibility of imposing fines and daily fines for established infringements, all in order to ensure uniform and efficient application of competition law in the European Union.
By adopting the amendments, Croatian competition protection legislation became fully harmonised with that of the EU. The amendments, among other things:
- introduce an obligation of competent authorities to respect the general principles of EU law and the EU Charter on Fundamental Rights in proceedings relating to the protection of competition;
- ensure a higher degree of independence of the Agency for the Protection of Market Competition (AZTN), by determining its position as a general national regulatory authority in the field of competition with appropriate legal status, independence, structure and resources, thus achieving institutional, financial and operational independence of the AZTN;
- define certain terms (such as “intent”, “negligence”, “secret cartel” and “penitential program”;
- introduce new powers of the AZTN (such as power to impose fines and daily fines, as well as business monitoring measures and structural measures);
- stipulate that temporary measures of the AZTN may not, as a rule, last longer than twelve months;
- stipulate that the AZTN’s claims against entrepreneurs and other persons must be proportionate and must not force the parties to admit the violation;
- introduce the authority of the AZTN to reject the initiative to initiate proceedings ex officio if it does not consider it a priority in its work and the AZTN assesses that this is not a significant distortion of competition;
- introduce new instruments oh the AZTN such as mandatory interviews, daily fines, unique instruments, settlements in cartel identification procedures;
- elaborate the AZTN instrument, insight into the statements of the penitents and proposals for settlement;
- define the conditions for the release of the entrepreneur’s staff from fines and the attitude towards criminal proceedings;
- prevent the AZTN from issuing a decision establishing that there has been no violation, but only leaving the possibility of issuing a decision on the suspension of the procedure; and
- elaborates the institute of limitation period.
Finally, by enacting amendments instead of enacting an entire new competition act, the legislator avoided a situation where there is no legal basis for initiating and conduction proceedings against undertakings that severely distorted competition in the period before a potential new act enters into force.
Dino Simonoski Bukovski