It entered into force on 29 July 2023 novel Act No. 143/2001 Coll., on the protection of economic competition and about changing some laws. This amendment aims to specification of requirements for the functioning of the Office for the Protection of Economic Competition (hereinafter "ÚOHS"Or"Office") and its representatives, protecting the identity of whistleblowers anti-competitive behavior and the overall strengthening of the position of the anti-monopoly office and the protection of economic competition. In addition, the amendment is also intended to ensure that the Office always has sufficient resources, both financial and human and technical. Changes in competition law, which the amendment brings, are also a reaction to the European directive from 2018, namely to Directive (EU) 2019/1 of the European Parliament and of the Council on strengthening the position of competition authorities in the member states so that they can enforce the rules more effectively, and to ensure the proper functioning of the internal market. The deadline for incorporating the directive into Czech law already expired on February 4, 2021.
ÚHOS fulfills an important function with regard to the functioning of the market. It is a central state administration body whose task is to support a protect competition against its unauthorized restriction.[1] It also oversees the awarding of public contracts and concessions, monitors public support and ensures that significant market power is not abused. For the proper functioning of the Office, it is necessary for it to keep up with new (unfair) practices not only in the field of economic competition and at the same time to have the most effective investigative tools that will help it to detect actions in violation of the law.
Among the most mentioned changes brought by the amendment, we could include a new investigative tool, which will allow the ÚOHS to use police wiretaps.
Police wiretapping and protection of competition
The general regulation of wiretapping and recording of telecommunications traffic can be found in Section 88 and Section 88a Act No. 141/1961 Coll., Criminal Code. It serves as a tool of law enforcement authorities, which is carried out in secrecy under the conditions set by law and is used to clarify criminal activity. In the light of the right to privacy guaranteed by the Constitution, this is a significant intervention, but it is acceptable if all the conditions stipulated by law are properly met. According to the commentary on the criminal code, under the term "telecommunications operation" itself[2] we can imagine communication carried out either via telephone, walkie-talkie, fax or electronically sent messages.
The Office for the Protection of Economic Competition is now authorized to exercise supervision regarding the conclusion of a secret horizontal agreement or concerted action, which aim to disrupt economic competition in some way, use as one of the pieces of evidence a record of telecommunications traffic or a record that was taken for the purpose of monitoring persons and things seized in criminal proceedings for a criminal offense pursuant to Section 248, paragraph 2 of the Criminal Code and handed over to the Office by the authority criminal proceedings after the end of the preliminary proceedings, or for any of the criminal offenses according to part two of Title VI, Part 3 of the Criminal Code (Criminal offenses against binding rules of the market economy and circulation of goods in contact with foreign countries) and handed over to the Office when handing over or transferring the matter according to the criminal order.[3]
As can already be seen, the Office as such will not be the one conducting the wiretapping. According to the chairman of the ÚOHS doc. JUDr. PhDr. Petra Mlsny, Ph.D. the Office will not even ask for wiretapping. The police of the Czech Republic will be able to provide them only in situations where it is an investigation of criminal offenses against economic competition. At the same time, the ÚOHS will not have access to interceptions older than the effective date of the amendment. It will therefore be possible to use only those that are acquired within the framework of criminal proceedings up to after July 29, 2023. The records that the Police of the Czech Republic will share with the Office for the Protection of Economic Competition will be excluded from the possibility of viewing the file.[4] This measure is intended to guarantee respect for the rights of individuals.
Police wiretapping is intended to help uncover the creation of prohibited cartels and other anti-competitive behavior. Furthermore, they can be used to determine the mutual links between competitors, the extent of influencing the market through prohibited practices or the very content of secret agreements that are created for the purpose of disrupting the market. At the same time, the law enforcement authority will decide on the submission of wiretapping by the Police of the Czech Republic to the Office, if it considers that the antimonopoly office will be more suitable for investigations in specific cases. This "collaboration" could lead to the fact that on the basis of objective responsibility, which legal entities have in competition law, the antimonopoly office could punish cartels that in the past, due to the systemic impossibility of proving the subjective side of the crime, the law enforcement authorities could not punish.
Therefore, the ÚOHS will only fulfill the function of a kind of passive recipient of the recording, which must be secured through the Police of the Czech Republic anyway. In addition, he will most likely only be a passive recipient in rare cases. The entire process that the Office will lead to records of telecommunications traffic, in the form in which it was approved in the amendment, is already destined to require a judicial review in many cases. However, it will be interesting to see how the cooperation between PČR and ÚOHS will proceed and whether the use of wiretapping will really be an exceptionally used investigative tool.
Identity of whistleblowers
The amendment also aims to strengthen protection against whistleblowers of possible violations of competition rules, by concealing their identity. However, this does not create any obligation for the Office, only a possibility. At the same time, it is necessary that the whistleblower himself requested the confidentiality of his identity at the same time as submitting the information at the latest and that his legitimate interests could be threatened or damaged by its disclosure. Furthermore, the Office should proceed in its activities in such a way as not to defeat the purpose of concealing the identity of the whistleblower.[5] Documents from which the classified identity of the whistleblower could be ascertained are excluded from viewing the file. It is questionable whether this change will lead to an increase in detected cases of anti-competitive conduct, because the ÚOHS may protect the whistleblower's identity, but according to the wording used in the law, this is not his duty, which does not give the whistleblower any guarantee that his identity will not be revealed.
Strengthening the role of whistleblowers generally addresses Act No. 171/2023 Coll., on the protection of whistleblowers, so-called whistleblowers, which was announced in the Collection of Laws in June 2023. The subject of this law is the protection of whistleblowers who have become familiar with information indicating illegal conduct in connection with the performance of work or other similar activities. You can find more information about this in our article "Whistleblowing – application of the Whistleblower Protection Act according to Czech and Slovak law".
Independence and impartiality
The change also took place Act No. 273/1996 Coll., on the powers of the Office for the Protection of Economic Competition, where a provision was added which, with regard to the purpose that ÚOHS fulfills and the principle on which it is based, we should probably take it for granted. It's a given that The office must act independently and impartially in the performance of its mandate and may not accept instructions from public authorities or other persons. Furthermore, it is established that with the performance of the function of the Chairman of the Office they are incompatible other high-level (political) positions, such as the post of senator, deputy, judge or any other position in public administration. Prohibition of membership in political parties or political movements still remains.[6]
Offer of commitment and restoration of competition
The possibility to offer the Office an undertaking that will lead to the restoration of competition on the market, provided that the Office finds that someone has violated it, has also been extended. Now they can authorities and other state institutions also offer a commitment, until now only companies could do so.
záver
The amendment to the Law on the Protection of Economic Competition was expected for a long time, and the changes should have taken place regardless of the need to implement the European directive.
There is no need to doubt the need streamlining activities of the Office for the Protection of Economic Competition and at the same time strengthening its impartiality. However, it seems that the time pressure associated with that European directive has caused that the changes in the amendment are not fully completed in our opinion and in practice will quite possibly cause more problems than would be desirable. For example, the possibility of using police wiretapping seems at first glance to be a huge breakthrough and an indisputable advantage, which will from now on be a powerful weapon of the Office in the fight against unfair practices in the competitive market. But will this really be the case and will the new instrument contribute to the protection of competition? The ÚOHS itself will not even be able to request records of telecommunications traffic, even if it becomes more than clear to it that the law is being violated. But we will see whether the application of this amendment in practice will not surprise us and we will not face a turning point in the activities of the Office for the Protection of Economic Competition.
Source: epravo.cz
Under what conditions can wiretapping be carried out? In what cases and under what conditions can the ÚOHS use them? What conduct is capable of distorting economic competition? What is the protection of economic competition? We will advise you!
Mgr. Lucie Špičková, Attorney
[1] § 1 of Act No. 273/1996 Coll., on the powers of the Office for the Protection of Economic Competition
[2] Šámal P. et al., Criminal Code I. § 1 to 156, Commentary. 7th edition. Prague, CH Beck, 2013
[3] § 21ga of Act No. 143/2001 Coll., on the protection of economic competition and on the amendment of certain laws
[4] § 21c of Act No. 143/2001 Coll., on the protection of economic competition and on the amendment of certain laws
[5] § 21ba of Act No. 143/2001 Coll., on the protection of economic competition and on the amendment of certain laws
[6] § 1 of Act No. 273/1996 Coll., on the powers of the Office for the Protection of Economic Competition
