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

The Act of 25 April 2017 transposed EU Directive No 2014/104 (the Damages Directive) into national law by introducing new Articles 62a to 62o. From then on, any person having suffered harm caused by an infringement of competition law is entitled to compensation and the offender is liable to pay default interest regardless of when the claim is brought to the court. Article 62a relates to access to  …

Enforcement by ordinary courts

Cartel cases can either be investigated (1) by the CPA based on the Competition Act, in which case investigatory powers are set up in said Act and proceedings follow the Administrative Procedure Act or (2) by the police as a criminal offense with more intrusive investigatory powers under the Criminal Procedure Code.

When the CPA is in charge, which occurs in the majority of cases, the Agency may chose to investigate a sector or certain period for agreements (Article 26). The Agency may require information and require an undertaking to comply in a given time period (Article 27). Moreover, the Agency can conduct an inspection of premises based on the undertaking’s consent or a judicial authorization (Article 28 (a)). Such authorizations are issued by the Ljubljana District Court if the judge is convinced by the Agency’s evidence of reasonable grounds for suspecting a violation of Article 6 or 9 of the Act, or 101 or 102 of the TFEU and that relevant evidence will be found in conducting the inspection (Article 28(3)).

During an inspection, Article 29 entrusts Agency employees with the power to:

- access premises, land and means of transport at any location where the undertaking performs the activity suspected to be a violation;

- examine books, business records and other documents relevant to the activity, on any support or storage;

- make and take copies of such documents;

- seal any business premises or documents when and for the time period necessary for the inspection;

- seize items, business books and documents for up to 20 business days;

- request oral or written explanations from the staff and record it.

Complaints and investigations

Proceedings before the CPA can be initiated by the Agency of its own motion from information it has gathered (Article 23). The commencement of proceedings must be formalized in a decision stating the grounds and reasons for starting proceedings.

Who may be considered a party is limited in proceedings before the CPA. According to Article 16, only the undertakings against which proceedings have been initiated are parties to the proceedings. Persons who submitted an initiative, complaint or communication are not deemed parties. Any person claiming the right to intervene in the proceedings to protect its own interests may lodge an application within 30 days of the publication of the opening of proceedings (Article 16(3)). Parties have the right to consult documents in the case file (Article 18) and to be heard on facts and evidence presented against them (Article 19).

The Agency has two years to make a finding of the existence of violation and require the undertaking to eliminate such violations (Article 37). Before issuing such a decision, the Agency notifies the parties of its findings through a summary of the relevant facts including evidence relevant for making a decision and leaves up to 45 days for parties to present their comments (Article 36). At any point in the proceedings, parties may offer commitments for the Agency to make binding upon them so as to rectify the circumstances giving rise to competition concerns (Article 39).

Proceedings before the CPA

Pursuant to Article 38 of the Act, where a likely infringement to Article 6 or 9 will cause serious and irreparable damage to the effectiveness of competition on the market, the Agency may issue interim measures for the duration it chooses. 

The Party can challenge the interim measure in the 3 days from its notification. The court must render its ruling on such an action without delay, and no later than 15 days after receiving the application.

Interim relief

The Act of 25 April 2017 transposed EU Directive No 2014/104 (the Damages Directive) into national law by introducing new Articles 62a to 62o. From then on, any person having suffered harm caused by an infringement of competition law is entitled to compensation and the offender is liable to pay default interest regardless of when the claim is brought to the court. Article 62a relates to access to evidence and provides that the injured party may request the disclosure of evidence or information from the offender or a third party, where they are deemed to hold data necessary for the success of a claim filed with the court. Conversely, an offender may request disclosure of evidence or information from the victim or a third person which is necessary to challenge the claim.

The disclosure of evidence or information granted by the court must be proportionate and balance the legitimate interests of all parties. Access to privileged communications is however denied (Article 62a(7)). Specific information taken from the CPA's file may only be disclosed when proceedings are terminated.  This includes, in particular, withdrawn settlement submissions. Confidential information as defined in Article 18(5) of the Act, statements made in the context of a leniency application and submissions in the context of a settlement agreement may never be disclosed. Refusal to provide or destruction of evidence the disclosure of which is ordered by the court exposes a natural person to a fine of EUR 5,000 and a legal person to a fine up to EUR 100,000 (Article 62f).

Pursuant to Article 62g, the court is bound by the final decision of the CPA relating to the infringement. Decisions made by the competition authorities of other Member States constitute a rebuttable presumption that an infringement has been committed. The statute of limitations for lodging a claim is set at five years running from the termination of the infringement and the knowledge, by the claimant: i) that the practice complained of constitutes an infringement of competition law, ii) that it caused damage and iii) of the identity of the offender. In any event claims are time-barred within a period of ten years of occurrence of the damage. The statute of limitations may be interrupted by an investigation or proceedings launched by the CPA

Furthermore, Article 62k(2) lays down a rebuttable presumption that cartels cause damage. The defendant is allowed to invoke the passing-on defense, but must establish her/his claim. Conversely, the claimant must establish that the overcharge resulting from the cartel has been passed on to her/him, unless she/he is an indirect purchaser. In such a case, the latter may benefit, under certain conditions of a presumption of passing on.

In late 2017, class actions were introduced into Slovenian law. From 21 April 2018, victims of competition law infringements, or other specific types of infringement with mass effects, are able to collectively seek redress before the courts through the intermediary of a representative or a senior state attorney. Although they will not be treated as parties to the proceedings, they will be entitled to submit observations and request to be included in or excluded from the group. Individual actions brought in parallel with a collective action will be suspended until the latter is closed and the collective judgment will be binding on the court hearing the individual case when it resumes. The court will first assess the admissibility of the action before ruling on the merits. Where the action is founded, it will order the offender(s) to put an end to the infringement and/or pay compensation directly to the members of the group or to the State.

Global Competition Law

664. Enforcement by ordinary courts

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Les notions juridiques connexes

664. Enforcement by ordinary courts

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