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competition in light of secondary legislation relating to group exemp-
tion and personal exemption, or they can consult the Board. However,
it would be more appropriate to explain the grounds for this removal.
Negative clearance was also removed from the EU competition
legislation through Regulation No. 1/2003. Therefore, full compliance
is established with EU law through this amendment.
Competition Advocacy
.
The Board is entitled to give opinions to
institutions, organizations or professional associations with the status
of public entity regarding administrative acts, which may have similar
consequences to competition violations, or seek the nullity of such acts
before tribunals in order to establish and foster a competitive environ-
ment.
The Board is used to providing such opinions to public organiza-
tions. Thus, such amendment creates a legal ground for the Board’s
behavior.
Re-establishment of Competition after Violation
.
In case there is
a violation of competition, the Board may decide on “
behaviors to be
adopted or not by undertakings or associations of undertakings or to
structural remedies such as the transfer of shares or some lines of busi-
ness in order to re-establish competition
”.
The Competition Act does not foresee “structural remedies” for the
re-establishment of competition. Thus, the biggest difference provided
within the Draft Act is that the Board can take “
structural remedies
” as
well. Such regulation is appropriate since it clarifies the nature of com-
mitments and clarifies the Board’s powers.
Furthermore, all transactions contrary to the Competition Act are
invalid. The same provision is also stated in the Draft Act (Art. 30 of
the Draft Act). “Invalidity” should be understood as “absolute nullity”
in competition law. Therefore, the transaction will be considered as
never having happened, and thus the competition environment before
the transaction took place should be re-established. Powers granted to
the Board show how competition may be re-established.
Conciliation
.
The Draft Act gives the possibility to undertakings,
which violated competition rules, to collaborate with the Board. In
fact, this possibility was already granted by secondary legislation. The
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NEWSLETTER 2014