Text file: 9929.txt
author: TB
downvotes: 0
end consideration date: 2019-04-02
id: '9929'
number comments: 4
number views: 1050
proposal type: Competent authority response
response: "Response from the Ministry of Economic Development and Technology\n\nArticle\
  \ 6 of the Act on the Prevention of Restraints of Competition (hereinafter: ZPOmK-1)\
  \ provides that agreements between undertakings, decisions of associations of undertakings\
  \ and concerted practices of undertakings, the object or effect of which is to prevent,\
  \ restrict or distort competition in the territory of the Republic of Slovenia,\
  \ are prohibited and void. In particular, it shall be prohibited, directly or indirectly,\
  \ to fix purchase or selling prices or other commercial terms, to restrict or control\
  \ production, sales, technical progress or investment, to impose unequal conditions\
  \ on comparable transactions in relations with other parties to the contract if\
  \ this places the party to the contract at a competitive disadvantage, to require\
  \ the parties to the contract to undertake additional obligations which are unrelated\
  \ by their nature or by commercial usage to the subject-matter of the contract,\
  \ to divide up the market or the sources of supply between the parties to the contract.\
  \ or to divide up the market or the sources of supply between the parties to the\
  \ contract.\n\nThe Public Agency for the Protection of Competition of the Republic\
  \ of Slovenia (hereinafter referred to as the Agency) shall be responsible for monitoring\
  \ the implementation of the above provision and for deciding as an infringement\
  \ authority on infringements of the above provision. The Agency shall initiate proceedings\
  \ ex officio where it becomes aware of circumstances which indicate that an infringement\
  \ of the above provision is likely. The Agency may become aware of these circumstances\
  \ itself or on the basis of reports from undertakings or individuals.\n\nArticle\
  \ 101 of the Treaty on the Functioning of the European Union provides for a comparable\
  \ prohibition of restrictive agreements.\n\nThe CCCTB-1 therefore already prohibits\
  \ cartel agreements and provides for a fine of up to ten per cent of the annual\
  \ turnover of a legal person, a sole proprietor and an individual engaged in an\
  \ independent professional activity for established infringements.\n\nThe Ministry\
  \ considers that the provisions of the ZPOmK-1 relating to the prohibition of restrictive\
  \ practices are adequate and do not need to be amended.\n\nUnlawful restriction\
  \ of competition is also defined as a criminal offence. 225. Article 225 of the\
  \ Criminal Code provides that anyone who, in the course of carrying out an economic\
  \ activity in contravention of the provisions governing the protection of competition,\
  \ violates the prohibition on restrictive agreements between undertakings, abuses\
  \ the dominant position of one or more undertakings or creates a prohibited concentration\
  \ of undertakings and thereby prevents or significantly impedes or distorts competition\
  \ in the Republic of Slovenia or on the market of the European Union or an important\
  \ part thereof, or significantly affects trade between Member States, resulting\
  \ in a significant pecuniary advantage for that undertaking or for those undertakings\
  \ or significant pecuniary damage to another undertaking, shall be punishable by\
  \ imprisonment for a term of between six months and five years. The offender who\
  \ has committed an offence against the prohibition of restrictive agreements referred\
  \ to in the preceding paragraph, who has reported the offence before it was discovered\
  \ or before he knew that it had been discovered and has cooperated in its investigation\
  \ and remedying, and who has neither forced others to participate in the restriction\
  \ of competition nor compelled them to continue to participate in it, may be acquitted\
  \ of the penalty.\n\nIn the light of the above, the Ministry considers that the\
  \ proposal is not suitable for further consideration.\n\n \nResponse from the Ministry\
  \ of Justice\n\nWe would like to clarify that Article 225 of the Criminal Code (hereinafter\
  \ \"CC-1\") already provides for the offence of unlawful restriction of competition.\
  \ This offence is committed by a person who, in the course of carrying out an economic\
  \ activity in contravention of the regulations governing the protection of competition,\
  \ violates the prohibition of restrictive agreements between undertakings, abuses\
  \ the dominant position of one or more undertakings or creates a prohibited concentration\
  \ of undertakings and thereby prevents or significantly impedes or distorts competition\
  \ in the Republic of Slovenia or in the market of the European Union or in an important\
  \ part thereof, or significantly affects trade between Member States, resulting\
  \ in a significant pecuniary advantage for the undertaking or for those undertakings,\
  \ or in a significant pecuniary loss to another undertaking. The perpetrator of\
  \ such offences is liable to imprisonment for a term of between six months and five\
  \ years.With regard to the price fixing agreements you highlight, the above description\
  \ explicitly criminalises the infringement of the prohibition of restrictive agreements\
  \ contrary to the rules governing the protection of competition. To the extent that\
  \ the KZ-1 refers to \"the rules governing the protection of competition\", this\
  \ is a so-called blanket norm, the content of which is filled in by a sectoral regulation.\
  \ In the present case, the Act on the Prevention of Restraints of Competition (hereinafter\
  \ referred to as the ZPOmK-1), which provides for the prohibition of restrictive\
  \ agreements in Article 6, according to which agreements between undertakings, decisions\
  \ of associations of undertakings and concerted practices of undertakings, the object\
  \ or effect of which is to prevent, restrict or distort competition in the territory\
  \ of the Republic of Slovenia, are prohibited and void. Among other things, it is\
  \ expressly prohibited to fix, directly or indirectly, purchase or selling prices\
  \ or other commercial terms and conditions.Article 73 of the ZPOmK-1 sets out offences\
  \ with relatively high fines in relation to these prohibited practices. For example,\
  \ a fine of up to ten per cent of the annual turnover of an undertaking in the preceding\
  \ business year is imposed on a legal person, a sole proprietor, a sole proprietorship\
  \ and a sole proprietorship, as well as on an individual engaged in a professional\
  \ activity, if it acts contrary to Article 6 of the ZPOmK-1. In addition to the\
  \ above, the person in charge of a legal person or the person in charge of a sole\
  \ proprietorship shall be liable to a fine of between EUR 5,000 and EUR 10,000.\
  \ However, if the nature of the offence committed is particularly serious due to\
  \ the amount of damage caused or the amount of unlawfully obtained material benefit,\
  \ or due to the perpetrator's intent or purpose to benefit, the responsible person\
  \ of a legal person or the responsible person of a sole proprietor shall be liable\
  \ to a fine of between EUR 15,000 and EUR 30,000.In the light of the above, we consider\
  \ that the legislation in the area under review is appropriate, since the mere violation\
  \ of the prohibition of restrictive agreements set out in Article 6 ZPOmK-1 firstly\
  \ constitutes an offence punishable by proportionate fines; however, if the conduct\
  \ in question goes beyond the scope of the ZPOmK-1 and the suspects or perpetrators\
  \ fulfil another of the prohibitive consequences prescribed by Article 225 of the\
  \ KZ-1, it constitutes a criminal offence punishable by imprisonment.\""
response date: 2019-06-04
response due date: null
sent date: 2019-03-08
title: Punishing cartels
upvotes: 31
url: https://predlagam.vladi.si/predlog/9929
