Competition Law

Competition Risk Assessment

Before entering into an agreement, changing a business model, or undertaking a market activity, its potential impact on competition should be assessed. The analysis depends not only on the wording of the agreement, but also on the position of the parties, the structure of the relevant market, and the manner in which the business decision is actually implemented.

The initial assessment includes:

• identification of the parties and the nature of their business relationship;
• identification of the products or services concerned;
• analysis of the geographic area in which competition takes place;
• assessment of the parties’ market positions;
• analysis of the purpose and potential effects of the agreement;
• review of restrictions relating to prices, territories, customers, or sales channels;
• assessment of exchanges of commercially sensitive information;
• assessment of the conditions for individual or block exemption;
• assessment of whether a merger notification is required;
• recommendations for amendments aimed at reducing legal risk.

Agreements Between Competitors

Agreements between actual or potential competitors involve particularly significant competition-law risks where they concern prices, market allocation, customers, production, or terms of business. Prohibited conduct may exist even in the absence of a formally concluded written agreement where the conduct of the undertakings demonstrates the existence of an agreement or concerted practice.

The Law Office provides legal advice concerning:

• agreements on prices and other terms of sale;
• allocation of markets, territories, or customer groups;
• restrictions on production, sales, or investment;
• coordination of conduct towards customers and suppliers;
• joint purchasing or selling arrangements;
• joint ventures and other forms of cooperation;
• specialisation, research, and development arrangements;
• exchange of information between competitors;
• cooperation within business and professional associations;
• joint bidding in tenders and public procurement procedures.

Particular attention is given to association meetings, statistical reports, price lists, and other forms of communication through which competitors may directly or indirectly exchange commercially sensitive information.

Vertical Agreements and Distribution

Agreements between undertakings operating at different levels of the production or distribution chain may improve sales and product availability, but certain provisions may restrict distributors’ commercial freedom or foreclose the market to other undertakings.

Legal support includes the analysis and drafting of:

• distribution agreements;
• agency and intermediary agreements;
• franchise agreements;
• selective and exclusive distribution agreements;
• exclusive purchasing agreements;
• long-term agreements with suppliers and customers;
• arrangements concerning sales territories;
• rules governing online sales and advertising;
• restrictions on active and passive sales;
• recommended, maximum, and minimum resale prices;
• post-contractual non-compete obligations.

The purpose of the analysis is to determine whether particular restrictions constitute a permissible means of organising distribution or may result in a prohibited restriction of competition.

Individual and Block Exemptions

Certain agreements restricting competition may nevertheless be permissible where they contribute to improving production or distribution, promote technical or economic progress, and allow consumers a fair share of the resulting benefits.

The Law Office provides support in:

• assessing whether the conditions for exemption are satisfied;
• determining the applicability of block exemption rules;
• analysing the parties’ market shares;
• identifying contractual provisions that may exclude the availability of an exemption;
• amending agreements to reduce competition-law risk;
• preparing the economic and legal justification for an agreement;
• submitting applications for individual exemption;
• communication with the Competition Council throughout the proceedings.

Dominant Position

A dominant market position is not prohibited in itself. Legal risk arises where an undertaking uses its market power in a manner that restricts competition, excludes other market participants, or imposes unfair terms on business partners.

Assessment of a dominant position may include:

• definition of the relevant product or service market;
• definition of the relevant geographic market;
• analysis of market shares;
• assessment of economic, regulatory, and technological barriers to market entry;
• analysis of competitors’ positions and customers’ bargaining power;
• access to infrastructure, distribution channels, or other important resources;
• assessment of affiliated undertakings and collective dominance.

Abuse of a Dominant Position

The Law Office advises undertakings with significant market power on the limits of permissible market conduct and assists other market participants in seeking legal protection where they are affected by an abuse of market power.

Legal support includes matters concerning:

• direct or indirect imposition of unfair prices;
• imposition of other unfair trading conditions;
• discriminatory treatment of business partners in comparable transactions;
• refusal to supply or provide access to products, services, or infrastructure;
• unjustified tying of different products or services;
• making the conclusion of contracts conditional upon acceptance of supplementary obligations unrelated to their subject matter;
• predatory pricing and other exclusionary practices;
• rebates, discounts, and loyalty schemes;
• limitation of production, markets, or technical development;
• creation of barriers to competitors entering or remaining on the market.

Concentrations Between Undertakings

Mergers, acquisitions of control, acquisitions of a business or business unit, and certain joint ventures may constitute a concentration that must be notified to the Competition Council where the statutory requirements and applicable thresholds are met.

The Law Office provides support through:

• determining whether the proposed transaction constitutes a concentration;
• analysing the acquisition of direct or indirect control;
• reviewing the parties’ turnover and statutory notification thresholds;
• determining the applicable notification deadline;
• coordinating merger notifications in multiple jurisdictions;
• defining the relevant market;
• assessing the transaction’s impact on competition;
• preparing the merger notification and supporting documentation;
• communication with the Competition Council;
• responding to requests for additional information;
• proposing remedies or conditions to address potential competition concerns;
• aligning transaction agreements with applicable prior-approval requirements.

The need for notification is assessed at an early stage of the transaction so that obligations towards the Competition Council can be coordinated with the proposed timetable for signing and completion.

Business Associations and Information Exchange

Membership in chambers of commerce, business associations, and professional organisations facilitates legitimate cooperation, but may raise competition concerns where members exchange information on future prices, volumes, customers, or business plans.

The Law Office provides support in:

• preparing rules and procedures for associations;
• legal review of meeting agendas and supporting materials;
• determining which information may lawfully be collected and disclosed;
• anonymisation and aggregation of market data;
• preparation of guidelines for meetings between competitors;
• legal review of recommendations, price lists, and industry standards;
• training members and employees on appropriate communications with competitors.

Public Tenders and Joint Bidding

Coordination of bids, prices, or allocation of contracts between competitors may constitute a serious infringement of competition rules. At the same time, joint bidding may be permissible where undertakings individually lack the capacity to perform the contract.

Legal support includes:

• assessing the permissibility of joint bids;
• analysis of consortium agreements;
• regulation of relationships between members of a bidding consortium;
• review of information exchanged during preparation of a bid;
• assessment of subcontracting arrangements between competitors;
• advice on communications before and during procurement procedures;
• representation in cases involving suspected bid rigging.

Competition Compliance

A preventive competition compliance programme helps employees and management identify potentially problematic situations before an infringement occurs. Such a programme should be tailored to the activities, size, and market position of the particular undertaking.

The Law Office provides support through:

• assessment of competition risks arising from the business model;
• preparation of internal rules and practical guidelines;
• review of agreements and standard business documentation;
• establishment of rules governing communications with competitors;
• procedures for participation in business association meetings;
• training for management, sales, procurement, and other employees;
• establishment of procedures for reporting potential infringements;
• periodic competition compliance reviews;
• legal advice before introducing new products or sales models.

Proceedings Before the Competition Council

The Law Office represents undertakings that submit requests for the initiation of proceedings, undertakings against which proceedings have been initiated, and other parties with a legal interest in the outcome.

Representation may include:

• preparation of requests for the initiation of proceedings;
• responses to decisions initiating proceedings;
• preparation and presentation of facts, evidence, and legal arguments;
• economic and legal analysis of the relevant market;
• responses to requests for information;
• protection of confidential and commercially sensitive information;
• representation at oral hearings;
• proposing witnesses, expert witnesses, and other evidence;
• submissions concerning preliminary findings;
• negotiations concerning measures designed to address competition concerns;
• legal analysis of decisions issued by the Competition Council;
• judicial review of final decisions.

Responding to Requests and Investigations

A request from the Competition Council for information requires a careful and timely response. It is necessary to cooperate with the competent authority, preserve relevant documentation, and at the same time protect confidential business information and the party’s procedural rights.

The Law Office provides support through:

• analysis of the content and scope of the request;
• identification of relevant documentation and responsible personnel;
• preparation of a complete and timely response;
• review of business records and electronic communications;
• identification of confidential information and substantiation of requests for confidential treatment;
• preparation of employees for providing the required information;
• communication with the Competition Council;
• assessment of further procedural and reputational risks.

Damages for Infringements of Competition Law

An infringement of competition rules may cause damage to competitors, customers, suppliers, and other market participants. Compensation may be sought before the competent court, subject to establishing the infringement, the damage suffered, and the causal link between them.

The Law Office provides support in:

• assessing the legal basis for a damages claim;
• analysing decisions of the Competition Council;
• collecting relevant business and financial documentation;
• determining the period and extent of the damage suffered;
• cooperation with economic and financial experts;
• drafting claims or statements of defence;
• representation in damages proceedings;
• negotiations aimed at amicable settlement of the dispute.

When to Contact Us

You may contact us before entering into an agreement with a competitor, distributor, or supplier, when planning an acquisition of another company, introducing a new sales model, or changing your pricing or discount policy.

Legal support is also advisable when you receive a request from the Competition Council, become aware of proceedings relating to your business, or believe that a competitor is abusing its market position. Timely legal analysis enables business objectives to be pursued while keeping legal risk under appropriate control.