The content of communications recorded by criminal law enforcement authorities (LEAs) and traffic and location data; Not only voice communications, but also electronic messages made not only from a mobile phone, but also from landlines and other devices; Records of surveillance of persons and property by the LEAs. This and other information have so far reached the Czech national competition authority (Czech NCA) without being able to use it legally as evidence in the proceedings.
A major amendment to the Czech Republic Act on Protection of Competition(ZOHS) now allows the Czech NCA to use these records and data from the LEAs as evidence "in the exercise of supervision in the case of a secret horizontal agreement or concerted practice, which has as its object the distortion of competition".
The Czech NCA cannot therefore use the records in all kinds of proceedings. Typically, these will be used in the proceedings concerning prohibited agreements between the participants in tender procedures (bid-rigging), or other prohibited agreements between competitors (cartels).
Likewise, not all criminal proceedings qualify as a source of such records and data.
These must have been:
- taken by the LEA in criminal proceedings involving natural persons for a crime under Section 248(2) of the Czech Criminal Code (breach of regulations on rules of economic competition) and subsequently handed over to the Czech NCA after the end of the pre-trial proceedings, or
- taken in criminal proceedings for any of the other crimes against mandatory rules of market economy and circulation of goods in dealing with foreign countries (typically, e.g., machinations in commission of public contract and public contest), if the LEA has referred or handed over the case to the Czech NCA.
Only records and data taken after 29 July 2023 and only in Czech NCA proceedings initiated after the said date may be used as evidence.
Despite these limitations and safeguards, this is undoubtedly the most controversial amendment introduced by this major amendment to the ZOHS. In its current form, it is potentially contradictory to the right to defence and some other fundamental rights and freedoms.
We will bring you an overview of the remaining relevant amendments in the future. Stay tuned!
By Michal Hrabovsky, Head of Competition, Eversheds Sutherland
