Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Before issuing any decision, the CCA may order interim relief pursuant to Article 51 in cases of urgency due to the risk of serious and irreparable damage to competition if it finds prima facie evidence of the existence of anticompetitive acts prohibited by law which must be removed immediately. The decision on interim measures may suspend all actions of the undertaking concerned, insist on meetin …

Interim relief

Investigations may be initiated in response to a complaint from a natural or legal person, a professional association, an economic interest group, an association of undertakings, a consumer association, the Government, central administration authorities, or local and regional self-government units. In any case, the complainant does not hold the status of a party to the proceedings, but may ask to be heard as witness. Therefore, the proceedings are always deemed to be initiated ex officio by the CCA (Article 38(1)). When it decides to instigate proceedings, the CCA takes a procedural order on institution of the proceedings, which is not amenable to appeal and is served to the party against which the proceedings are directed. The concerned party has between 8 and 30 days to reply to the order and comply with the information requests it may contain. For the collection of data, the CCA is empowered to request in writing: the submission of all necessary information or the making of oral statements and the inspection of business premises, immovable and movable assets, business books, databases and other documentation (Article 41). Under Act 80/2013, the CCA is now required to obtain a warrant from the High Administrative Court to be able to seize or seal property and must set out a list of the places/vehicles etc. to be inspected, the legal basis for the inspection, the persons conducting the raid and the time frame of the raid. Electronic devices such as computers, servers and telephones are now considered as data storage devices and their owners are under the formal duty to allow access.

Since the 2009 Competition Act, the CCA may also conduct surprise inspections of business premises and even of the homes of directors, managers and other members of the staff of the undertaking, upon production of a warrant issued by the Administrative Court. During surprise inspections, agents of the CCA may enter and inspect any premises, land and means of transport at the seat of the undertaking against which the procedure is being carried out as well as in any other location where the undertaking concerned performs its business activities; examine the books and other records related to the business, irrespective of the medium on which they are stored; take or obtain in any form copies of or extracts from such books or records, irrespective of the medium on which they are stored; seize the necessary documentation and retain it as long as it takes to make photocopies where due to technical reasons it is not possible to make photocopies during the inspection; seal any premises and/or books or records for the period and to the extent necessary for the inspection; ask any representative or member of staff of the undertaking for explanations on the facts or documents relating to the subject-matter and purpose of the inspection and record the answers; ask any representative or member of staff of the undertaking to submit a written statement on the facts or documents relating to the subject-matter and purpose of the inspection and set the deadline in which this statement must be submitted. However, Article 45 specifies that communications between the undertaking concerned and its lawyers are excluded from the surprise inspection to the extent they constitute confidential or privileged information.

Finally, to fully comply with EU Regulation No 1/2003, Act 80/2013 now imposes on the Croatian Competition Agency a duty to provide assistance with EU Commission dawn raids conducted on the territory of Croatia. The CCA may also authorize the authorities of other Member States to participate in such dawn raids or even take action itself on behalf of those authorities. 

Complaints and investigations

After the agents have drawn up the inspection report, to which the undertakings can submit comments, the CCA issues a written Statement of Objections, allowing the parties to express their views on all relevant facts and circumstances of the case. They may submit their comments within one month and access to case files upon written request.

  Before the Statement of Objections is notified, a party to the proceedings may offer commitments to the CCA, designed to eliminate competition concerns and restore effective competition. If such commitments are deemed satisfactory by the CCA, it will give notice of its intention to accept them and publish a summary of the case and the main content of the proposed commitments on its website. Interested parties may submit written replies within twenty days. If the Agency is still satisfied with the commitments it will by means of a decision make them binding on the undertakings concerned during a specified time period (Article 49).

  As a rule, if the proceedings establish a distortion of competition, hearings will be held to allow the parties as well as the complainant, if he/she so requires, to make their views known.

  Under the previous Competition Act, the CCA had no jurisdiction to impose fines. For this purpose, it had to file an action before a misdemeanor court. However, as the CCA's decision establishing the infringement could be challenged at the same time before the Administrative Court, misdemeanor courts would stay their judgment on fines until the Administrative Court had ruled, which could make the statute of limitations lapse. The 2009 Competition Act now empowers the CCA to directly impose fines. Article 52 sets the fine proceedings: after establishing the offense, the CCA must communicate to the undertaking concerned a Statement of Facts detailing the facts and their legal assessment and inviting the undertaking to present any additional evidence and to submit a defense in writing within a time period of 15-30 days. A hearing is also conducted, after which the Council decides on the imposition of the fine and determines its amount. Then the CCA closes the proceedings.

Several legal tools accessible during the investigation procedure were introduced in 2021 such as “settlement in cartel cases” (Article 8) or “access to leniency statements and settlement submissions”. 

Proceedings before the CCA

Before issuing any decision, the CCA may order interim relief pursuant to Article 51 in cases of urgency due to the risk of serious and irreparable damage to competition if it finds prima facie evidence of the existence of anticompetitive acts prohibited by law which must be removed immediately. The decision on interim measures may suspend all actions of the undertaking concerned, insist on meeting of particular conditions or impose other measures reasonably necessary to eliminate the risk and damage to competition. The duration of such measures may not as a rule exceed a period of six months.

Damages claims relating to infringements of the Competition Act fall under the jurisdiction of the commercial courts (Section 69(2)). On 30 June 2017, Croatia transposed EU Directive No 2014/104 of 26 November 2014 on damages actions for competition law infringements. Section 1 of the new Act establishes a right to full compensation for any person having suffered damage caused by a breach of competition law by an undertaking or association of undertakings. Under Section 5, compensation covers material loss, non-material loss and legal default interest. There is a rebuttable presumption that a cartel infringement causes damage. Section 6 also provides that a party to the action may petition the court to order the disclosure of documents or evidence held by another party although documents covered by the legal privilege are protected against disclosure orders. A party may also claim disclosure of evidence contained in the case file of the Competition Council if that party establishes that there is no other way to obtain the information in question (Section 8). Some evidence may only be disclosed after the procedure has been completed by a decision of the Competition Council or otherwise, namely: submissions compiled or made by a natural or legal person for the purposes of the procedure before the Competition Council; written records compiled and sent to the parties by the Competition Council during the proceedings; withdrawn settlement proposals. Some documents in the competition file may however never be disclosed; this relates to statements made in a leniency application or settlement submissions (Section 9). The Act sets penalties for persons who: fail to comply with the obligations imposed by a court order protecting confidential information; violate the limitations on the use of certain types of evidence; fail to act upon the decision of the court ordering the disclosure of evidence, destroy or attempt to destroy evidence. Furthermore, under Section 11, a decision of the Competition Council or of the High Administrative Court of Croatia establishing a competition law infringement constitutes indisputable proof of the fault in the context of a damage claim. The same decision by the competition authority of another Member State or of a review court constitutes a rebuttable presumption of the infringement. Claims for damages may not be filed more than five years after the termination of the infringement or the date on which the injured party discovered the infringement, the damage and the identity of the perpetrators of the offense. Proceedings opened by the Competition Council relating to the infringement at issue or tentative settlement discussions between the parties may interrupt the Statute of Limitations. According to Section 14 of the Act, where the infringement has been committed by several undertakings, the latter may be held jointly and severally liable to repair the damage caused by their joint action. SMEs' and leniency beneficiaries' liability is however limited to their direct or indirect customers or suppliers, under certain conditions. Under Section 15, the defendant in a damages claim may prove that the claimant has passed on the overcharge resulting from the cartel arrangement. However, an indirect purchaser who seeks compensation benefits from a presumption that the overcharge has been passed on to him/her when it is established that the defendant has committed a competition law infringement, that such breach led to excessive prices being charged to the direct purchaser and when the indirect purchaser bought the goods or services at issue. Finally, Section 18 relates to the effects of settlement agreements reached by the claimant and some participants of the cartel vis-à-vis the other cartel participants.

Pursuant to Article 14 (2) the Agency may impose behavioral remedies and/or structural remedies which are proportionate to the infringement committed and which are necessary to bring the infringement to an end. Structural remedies can only imposed either where there is no equally effective behavioral remedy or where any equally effective behavioral remedy would be more burdensome for the undertaking concerned than the structural remedy (OG 41/21). 

Global Competition Law

97. Interim relief

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Les notions juridiques connexes

97. Interim relief

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise