Notice of the Office On the Alternative Solution of Certain Competition Issues
On July 29, 2023, the Office for the Protection of Competition (hereinafter referred to as "the Office") issued a notice determining cases in which it intends to consider adopting one of the alternative methods of resolving possible distortions of competition in order to effectively exercise its powers. However, the decision on whether the Office will use an alternative solution to a competition issue in specific cases shall be always at its discretion.
The notice sets out possible alternative solutions to competition issues, how the Office intends to proceed in such cases, and in which cases it considers it appropriate and effective to use some of these solutions. Specifically, these solutions involve (i) resolving competition issues without initiating administrative proceedings through prioritization or competition advocacy, or (ii) within initiated administrative proceedings for committing an offense by issuing a decision on the acceptance of commitments. Such a solution may also be adopted in cases where EU competition law has been violated.
Prioritization and competitive advocacy consist in the possibility for the Office not to initiate administrative proceedings after a preliminary investigation into the matter, to terminate the case by its resolution, in particular with regard to the level of harmful effect of the conduct on competition, the nature of the conduct and the manner in which it was carried out, the importance of the market concerned, and the number of consumers affected.
The Office is entitled to proceed with prioritization when it finds, after a preliminary investigation into the matter, that resolving the matter is not its current priority, and, therefore, it will terminate the matter without further thorough investigation or intervention, or, specifically, will not initiate administrative proceedings in the matter.
The Office may then proceed with competition advocacy provided that, after a preliminary investigation into the matter, it finds that there may be an anti-competitive conduct committed by the undertakings or public authorities and concludes that its concerns about potential distortion of competition can be addressed by specific immediate measures, and it will call on the undertakings or public authorities to adopt them. If they comply, the Office may close the case without further investigation or intervention, or, specifically, will not initiate administrative proceedings.
The Office may issue a decision on the acceptance of commitments in cases of proceedings already initiated concerning prohibited agreements, abuse of a dominant position, and/or distortion of competition by public authorities. In that case, it will specifically decide to terminate the proceedings on condition that the commitments jointly proposed by the parties to the proceedings in order to maintain effective competition are fulfilled, thereby removing concerns about its possible distortion. However, this procedure cannot be applied in the case of conduct classified as a secret horizontal agreement or secret concerted practice aimed at distorting competition.