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Antimonopoly Office of the Slovak Republic Annual Report 2001
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Despite Office’s standpoint not being binding, the said possibility gives undertakings an opportunity to
consider concluding an agreement that, if entered into force, would be deemed by the Office to be an
agreement restricting competition and therefore violating the law.
The act also introduced a so called “leniency programme” for imposing fines to undertakings that were
parties to the agreement restricting competition. This programme is based on the fact that the Office
will not impose any fines to an undertaking or decrease the fine by at least 75% of the respective fine
that would otherwise have been imposed, if the undertaking had not met at the same time the
conditions outlined in the act, i.e. the undertaking was a party to the agreement restricting competition,
was the first who adduced decisive evidence of the existence of the agreement restricting competition,
put an end to undertaking's involvement in agreement restricting competition, put the agreement
restricting competition no later than at the time at which the undertakin disclosed the agreement to the
Office, did not compel another undertaking to participate in the agreement restricting competition and
did not act as an initiator of conclusion of the agreement restricting competition, provided the Office
with all the relevant information and maintained continuous co-operation throughout the investigation,
has not gained any material benefit resulting from the breach of provisions of this act. The purpose of
this programme is to motivate undertakings to put an end to their involvement in any agreement
restricting competition and provide the Office with evidence of the existence of such an agreement as
soon as possible, what could prevent them from being imposed a fine for breaching an act or their
fines would be at the significantly lower level.
Abuse of a dominant position
In the area of abuse of a dominant position the new act extends the demonstrative list of cases that
constitute abuse of a dominant position. Also the threat of restriction of the production, sale or
technical development of goods to the detriment of users became the practice of abuse of a dominant
position. Thus, the ban of threat means the ban of dominant’s pressure against other undertaking with
the aim to acquire inappropriate advantages, meanwhile the undertaking faced to the threat has no
other possibility to acquire the subjected fulfilment performed by a dominant.
Demonstrative list has been also extended by a practice of temporary abuse of economic strength in
order to exclude competition, so called "predatory behaviour”.
We can talk about such a conduct when the undertaking with the economic strength reduces prices
for the certain period in order to exclude competitors from the market or to create barriers to entry the
market.
Another new form of abuse of a dominantposition adjusted by the act is abuse of a dominant position
by
Undertakings with the smaller economic strength are not able to resist the pressure of price reducing
for the longer time and gradually they might be forced to leave the market, what might enable the
undertaking applying predatory prices to increase prices disproportionately.
refusing the access to an essential facility, although the said practice had been penalised even under
the former Act No. 188/1994 Coll.
Essential facility, as referred to in this act, is a location, right, facility, infrastructure or its part combined
with services related to such infrastructure which have auxiliary nature to economical activities in a
market that is separate, but relating to the market in which the owner or administrator of the essential
facility operates and the duplicate creation of such facility is objectively impossible or unsubstantiated
by any new competitor. Access to the essential facility may be refused, provided that it is justified by
qualified criteria outlined in the act.The conditions determined by the act provide for the access to the
essential facility to be granted on a non-discriminative basis.
Another change related to abuse of a dominant position is that the new act left out the assumption that
unless it proves otherwise, the undertaking should hold a dominant position in the market whenever its
market share is 40 % or more. Although the said provision provided a simple way of determining
whether the undertaking was or was not in a dominant position, it was often omitted that this limit
outlined by the act served only as an assumption for determining a dominant position in the market, as
the actual market share itself does not give a picture of undertaking’s sufficient economic strength yet.
Based on the economic analysis it is possible to prove that the undertaking having the share in the
market higher than is the limit set out by the act cannot hold a dominant position in the market. This
fact works also vice-versa, the undertaking having the lower share in the market may have the
economic strength, which enables him to behave independently.
Concentrations
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