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The Position of Intervener in Procedure Before the Slovenian Competition Protection Agency

The Position of Intervener in Procedure Before the Slovenian Competition Protection Agency

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The well-formed regulation of competition is a precondition for a healthy and effective market. Thus, countries have to not only adopt appropriate legislation, but also ensure that the relevant authorities will enforce that legislation in a way that allows all participants in the market to carry out their activities in a fair environment.

Protection of fair competition in Slovenia is ensured by the Slovenian Competition Protection Agency (the “Agency”). The Agency is responsible for implementing the Slovenian Prevention of Restriction of Competition Act (ZPomK-1) and Article 101-102 of the Treaty on the Functioning of the European Union. The Agency may carry out two types of procedures – one concerning restrictive practices and one in respect of concentrations – and it may impose sanctions on those undertakings which violate the rules of fair competition.

In this article, we will consider some issues which may arise in the procedure concerning restrictive practices, and focus especially on the procedural rights of an intervener. 

The procedure for restrictive practices starts when the Agency learns about circumstances that could constitute a restrictive agreement between undertakings or the abuse of a dominant position by one or more undertakings. Upon the discovery of such circumstances, the Agency will issue an order that an investigation is commencing.

The company targeted by the procedure (the “Infringer”), has the status of a party in the procedure. The Agency may also allow another person to participate in the procedure (the “Intervener”) if that other person can prove that the participation is necessary to protect his or her interests. Thus, an Infringer’s competitors will usually participate in the procedure as Interveners, especially if the Infringer’s restrictive acts resulted in damages for which the Interveners plan to seek compensation. Such Interveners usually have great deal of interest in the outcome of the procedure in front of the Agency, since Article 62.g of ZPOmK-1 provides that the civil courts which will hear these lawsuits are bound by the final decision of the Agency regarding the infringement. 

Despite the fact that both Infringer and the Intervener may participate in the procedure, their procedural rights substantively differ. Both have the right to review documentation relevant to the case (under Article 18 of ZPOmK-1), but when it comes to basic procedural rights such as the right to an adversarial procedure, the status of the Infringer and the Intervener is not the same. The Slovenian Supreme Court has explicitly stated that the Agency has to ensure the full right to an adversarial procedure only to the Infringer, whereas the Intervener enjoys this right only in exceptional cases: i.e., if ZPOmK-1 explicitly grants it or if it is necessary for the protection of the Intervener’s interests. 

The Agency thus has a certain margin of discretion as to if and to what extent it will allow the Intervener to exercise its right to an adversarial procedure. With this regard, the Supreme Court has stated that the Agency has to review any Intervener’s claims and evidence that is essential for the outcome of the procedure. However, the Agency is still the entity empowered to determine the significance of those claims and that evidence.

Participation in the procedure before the Agency is of great importance for the Intervener, since the Agency’s decision could have significant impact on the participant’s market position and profitability. Moreover, as explained above, the outcome of the procedure before the Agency will also effect the Intervener’s position in its case in court to obtain compensation of damages. 

Therefore, it is important that the Agency not use its discretion arbitrarily, and, when deciding on whether to grant the right to an adversarial procedure to the Intervener or not, it should consider the consequences of the outcome of its decision for the Intervener. Furthermore, if the Agency declines to provide an adversarial procedure to the Intervener, it should provide a thorough explanation as to why a specific claim or evidence was insufficient so that the Intervener is able to understand its decision and (if necessary) to challenge it to the Administrative Court 

By Katja Sumah, Partner, and Luka Rzek, Legal Clerk, Law Firm Miro Senica and Attorneys

This Article was originally published in Issue 5.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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