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Cartel Law – Records and Data of Your Telecommunication Traffic Now as Evidence

Cartel Law – Records and Data of Your Telecommunication Traffic Now as Evidence

Czech Republic
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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:

  1. 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
  2. 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

Czech Republic Knowledge Partner

PRK Partners, one of the leading Central European law firms, has been helping clients achieve their business objectives almost 30 years. Our team of lawyers, based in our Prague, Ostrava, and Bratislava offices, has a unique knowledge of Czech and Slovak law and of the business environment. Our lawyers studied at top law schools in the United States, United Kingdom, Switzerland and elsewhere. They also have experience working for leading international and domestic law firms in a number of jurisdictions. We speak your language, too. Our legal team is fluent in more than 15 languages, including all the key languages of the region.

PRK Partners has one of the most experienced legal teams on the market. We are consistently rated as one of the leading law firms in the region. We have received many significant honours and awards for our work. We represent the interests of international clients operating in the Czech Republic in an efficient way, combining local knowledge with an understanding of their global requirements in a business-friendly approach. We are one of the largest law firms in the Czech Republic and Slovakia. Our specialised teams of lawyers and tax advisors advise major global corporations as well as local companies. We provide comprehensive legal advice drawing on our profound knowledge of local law and markets.

Our legal advice delivers tangible results – as proven by our strong track record. We are the only Czech member firm of Lex Mundi, the world's leading network of independent law firms. As one of the leading law firms in the region, we have received many national and international awards, in some cases several years in a row. Honours include the Chambers Europe Award for Excellence, The Lawyer and Czech and Slovak Law Firm of the Year. Thanks to our close cooperation with leading international law firms and strong local players, we can serve clients in multiple jurisdictions around the globe. Our strong network means that we can meet your needs, wherever you do business.

PRK Partners has been repeatedly voted among the most socially responsible firms in the category of small and mid-sized firms and was awarded the bronze certificate at the annual TOP Responsible Firm of the Year Awards.

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