St. Martin´s Conference 2019 – Current Trends and Developments in Competition Law

More than 150 competition experts, both from the Czech Republic and abroad, participated in this year’s St. Martin´s Conference which took place on 13th and 14th November 2019 in Brno. The conference was organised by the Office for the Protection of Competition (hereinafter referred to as “the Office”) and it was focused on trends and developments in competition law and significant market power.

 

During two conference days, participants had the possibility to attend five different panels and one specialized workshop divided to three separate sessions. Over thirty panellists were discussing various competition topics issues and share their knowledge and experience.

The attention of the audience took, among others, the keynote presentation by Professor Renato Nazzini from the King’s College in London. The topic of his presentation was “A Competition Policy for the Digital Economy”. According to Mr Nazzini, the digital revolution brings new challenges for the competition policy, which shall respond to more concentrated digital markets, strong network effects and increasing importance of data. A new approach is necessary towards double-sided platforms, services provided for free, new business models as well as strategies and innovations, which may disrupt the competition.  In relation to this statement, Mr Nazzini pointed out that whole economy is now digital, more or less. He also pursued the issue of algorithmic pricing, which is generally considered being procompetitive, but it may be misused as a tool of anticompetitive behaviour as well. Collection and use of data by technology companies might be also problematic from the perspective of competition policy, not only in connection with the personal data protection, but also as a tool of abuse of dominance or a barrier to entry.  Professor Nazzini also addressed the burden of proof issue, as there are some indications that the EU Commission is currently considering its reversal on the undertaking under investigation. However, Mr Nazzini thinks that the burden of proof is already reversed on dominant undertakings. What makes the intended concept problematic is the possibility that if the undertaking did not submit sufficient evidence, a behaviour, that does not disrupt competition, might be prohibited. Finally, the speaker mentioned various attitudes towards mergers on the market of digital platforms – some countries are currently changing the notification thresholds, while other are considering creation of “black lists” of companies, which would be obliged to notify a concentration, even if they did not reach the thresholds. As a conclusion, Mr Nazzini stated that the digital economy presents a fundamental challenge for the competition policy. The view of basic concepts of the competition policy should be reviewed, but this is not impossible without the help of current tools of the competition law.

Another highly anticipated panel was the one dealing with the issue of joint bidding in tenders.  The panel was moderated by Kamil Nejezchleb from the Office, who presented general features of submitting the joint bids from the perspective of competition law. He was followed by Michal Petr from the Palacký University Olomouc, who gave a summary of the most significant foreign judgements dealing with this issue. According to the approach given by case law of the EFTA court in a Norwegian case of Ski Taxi and Follo Taxi, the emphasis is put on the ability of the competitors to submit stand-alone bids. If so, the submission of a joint bid results in their price coordination, and therefore this kind of behaviour shall be qualified as prohibited target price agreement in any case.  On the other hand, in some other states, such behaviour has not been considered as target agreement resulting in distortion of competition and this approach underlines the necessity to assess every case on ad hoc basis. The panel moderator pointed out, that also the Czech NCA is in favour of this ad hoc approach. The Office preferably examines whether the joint bid is submitted by competitors, who are indeed competing between each other in relation to certain tenders. Only then it is possible to assess the bid as a target agreement, taking into account the economic context in which the bid was submitted. The Office does not see a problem in such cooperation between undertakings if their common bid is significantly more beneficial for the contracting authority than the individual offers, with the condition that only the necessary minimum information has been shared between the competitors. Later Robert Neruda from AK HAVEL & PARTNERS presented the undertaking´s point of view, when he took note of the fact that companies can take advantage of joint bids, for example because they have regular customers or other ongoing contracts so they do not have enough free resources, or when joint bid is more economically efficient for them. Therefore, even if they would be able to submit an individual stand-alone bid, they rather cooperate with each other and create a joint bid, because from the business perspective it is logical solution, and there is no need to seek anti-competition behaviour in these situations. The panel was closed by Bartosz Turno from law firm WKB, who explained the Polish experience in this field. The Polish competition authority has not so far proved an anti-competitive conduct of undertakings submitting joint bids in a lot of cases, nevertheless they take a very strict position on this matter.  Following the slight corrections made by case-law, the anti-competitive behaviour is proved when two competitors submit a joint bid even though they are able to get a contract separately, unless they justifies their submission by economic reasons. These include, for example, risk minimization associated with the involvement of those competitors performing other investment projects, more effective use of human and technical resources to reduce the costs of performing the investment, to ensure complementarity of capacities of the parties and to divide contractual risks.

Press Unit of the Office