What is the relevant legislative framework?
The relevant legislation on cartel regulation is the Law on Protection of Competition No. 4054 of 13 December 1994 (the ‘Competition Law’). The applicable provision for cartel-specific cases is Article 4 of the Competition Law. The provision is akin to, and closely modelled on, Article 101(1) of the Treaty on the Functioning of the European Union (‘TFEU’). It prohibits all agreements between undertakings, decisions by associations of undertakings, and concerted practices which have or may have as their object or effect the prevention, restriction or distortion of competition within a Turkish product or services market or a part thereof. The provision does not give a definition of ‘cartel’, its scope extends beyond cartel activity.
The Competition Law applies to all industries, without exception. There are sector-specific block exemptions regarding certain agreements such as; motor vehicle sector and in the insurance sector.
Australia’s competition legislation is the Competition and Consumer Act 2010 (Cth) (CCA). The cartel provisions are contained in Part IV, Division I of the CCA.
Cartel conduct is prohibited per se, regardless of competitive effects. The CCA establishes corresponding civil liability provisions and criminal offences for making, or giving effect to, a contract, arrangement or understanding (CAU) between competitors or potential competitors containing a “cartel provision”.
A provision of a CAU will be a “cartel provision” if it is between two or more parties who are actual or potential competitors in relation to the supply, acquisition or production of the relevant goods or services and the provision has either:
- the purpose or effect of fixing, controlling or maintaining the price of goods or services supplied by any or all of the parties; or
- the purpose of:
- preventing, restricting or limiting the production, capacity, supply or acquisition of goods or services by any or all of the parties;
- allocating customers or territories supplied by any or all of the parties; or
- rigging bids.
The criminal cartel offences have an additional “fault element” requiring proof that the accused had the requisite knowledge or belief of the essential elements of the offence. The offence must be established beyond reasonable doubt. (By comparison, civil liability requires the elements to be established on the (lower) balance of probabilities.)
There are a number of exceptions to cartel conduct, including for or in relation to:
- joint ventures;
- related bodies corporate;
- the acquisition of shares or assets;
- conduct that constitutes exclusive dealing or resale price maintenance;
- collective bargaining conduct notified to the Australian Competition & Consumer Commission (ACCC) (not bid-rigging);
- conduct subject to a grant of authorisation; and
- the collective acquisition of goods or services (exception applies to price fixing only).
The CCA also contains other exceptions which apply to but are not specific to cartel conduct, including for acts or things specifically authorised by Commonwealth or State laws, provisions for the conduct of partnerships, certain employment conditions, and provisions relating exclusively to the export of goods of services (but only if full particulars are provided to ACCC within 14 days of the CAU).
Part X of the CCA enables parties to international liner cargo shipping conference agreements to obtain partial and conditional exemptions from the cartel provisions. To benefit from the exemption, the relevant conference agreements must be registered.
The Federal Competition Act (Ley Federal de Competencia Económica or “FCA”), together with the Federal Criminal Code (Código Penal Federal or “FCC”), punish collusion both as a violation of antitrust laws and a criminal offense.
Collusion, or cartel behaviour, is codified both in the FCA as “absolute monopolistic practices” which are illegal on a per se basis and may consist in contracts, agreements, arrangements, or combinations between or among competitors, the intent or effect of which is any of the following:
(i) To fix, raise, agree upon or manipulate the purchase or sale price of goods or services supplied or demanded in the market, or to exchange information with the same intent or effect;
(ii) To impose the obligation to produce, process, distribute or market only a restricted or limited amount of goods, or to render a specific volume, number, or frequency of restricted or limited services;
(iii) To divide, distribute, assign or impose portions or segments of the current or potential market of goods and services, by means of a determinable group of customers, suppliers, time or spaces;
(iv) To set, agree upon or coordinate bids or to abstain from bidding or tendering in public auctions or bidding processes; or
(v) To exchange information for the purpose or effect in any of the above practices.
The FCC also describes the aforementioned conducts as criminally punishable. Generally speaking, the FCA and the FCC are the only statutes that codify and prohibit cartel conducts, although bid-rigging is also an offense under the Anticorruption Act (Ley General de Responsabilidades Administrativas). Thus, the agencies enforcing this statute may impose fines to those who engage in this conduct, even if the agencies empowered to enforce the FCA and/or Federal Prosecutors (pursuant to the FCA) have not investigated and fined the conspiracy themselves.
The FCA and the FCC would apply to cartels in any industry, except that the activities exclusively reserved to the Mexican Government (nuclear power, currency, etc.), unions, IP rights, and associations for the sale of Mexican products abroad, are exempt from antitrust scrutiny. No other general exemptions from antitrust laws would prevent the investigation of a cartel in any industry or activity.
The relevant legislation in Brazil that establishes the punishment of cartel behavior is Law No. 12,529/2011 (the “Antitrust Law”). According to the Antitrust Law, cartels are arrangements between competitors that may be explicit or tacit involving matters such as prices, production quotas or territorial division aiming at limiting, restraining or in any way harming free competition or free enterprise.
Cartel is also a criminal offense in Brazil, as established mainly by Law No. 8,137/1990, which addresses crimes against the economic order, tax and consumer relations and the respective penalties. Whereas at the administrative level companies, associations and individuals may be condemned for their participation in cartel conduct, at the criminal level only individuals may be convicted. In addition to Law No. 8,137/1990, Law No. 8,666/93 sets forth penalties for bid rigging and Law No. 12,846/2013, which is the anticorruption law, also addresses bid rigging and fraud involving public contracts.
The Finnish competition rules are laid down in the Competition Act (948/2011). The Competition Act has, since its enactment in 1992, been subject to several amendments. The most recent substantive overhaul, which came into force 1 November 2011, resulted in the full harmonisation of the substantive provisions of the Competition Act with articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
The Competition Act has just recently been subject to review and the government proposal was approved on 7 March 2019. The amendments include, inter alia, broader inspection rights for the Finnish Competition and Consumer Authority ("FCCA"), more efficient information exchange between national competition authorities and new rules concerning enforcement prioritising, and will enter into force in the near future, expectedly still in the course of 2019.
Also, as of 26 December 2016, the legislation concerning antitrust damages has been reworked, and as a result Act on Antitrust Damages Actions (1077/2016) was introduced. This enactment implement the EU Directive on Antitrust Damages (2014/104/EU) the aim of which is to ensure anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation.
The Competition Act does not apply to agreements or arrange¬ments concerning the labour market. This exclusion has been interpreted narrowly to exclude only agreements or arrangements that directly concern the terms of employment. Moreover, as a general rule, the prohibition against restrictive agreements laid out in article 5 of the Competition Act does not apply to arrangements between the producers of agricultural products, groups of such producers or agricultural sector-specific groups that concern the production, sell¬ing, joint storage, handling or refining of agricultural products, pro¬vided that the arrangement concerned fulfils the criteria confirmed on the basis of article 42 TFEU, based on which articles 101 and 102 TFEU are not applicable. The Competition Act does, however, apply to such arrangements if they constitute an abuse of dominant position or significantly distort effective competition in the market for agricultural products.
There are two main cartel offences under Canada’s Competition Act, RSC, 1985, c C-34 (the “Act”): conspiracy (section 45), which involves price fixing, market or customer allocation and output restrictions, and bid rigging (section 47).
Section 45 prohibits any agreement between competitors to (i) fix, maintain, increase or control the price of a product or service, (ii) allocate sales, territories, customers or markets, and (iii) fix, maintain, control, prevent, reduce or eliminate production or supply of a product. Section 45 only prohibits agreements between competitors related to supply or production; it does not prohibit agreements to purchase a product or service. Moreover, “competitors” include all current competitors, but also potential competitors who, but for the agreement, would have been competitors. Finally, it is the agreement itself which constitutes the offence, whether or not it was implemented or followed.
There are three main defences available:
(i) Ancillary restraint defence (subsection 45(4)), which permits an agreement that would otherwise be contrary to section 45, but which is directly related and reasonably necessary for giving effect to a broader lawful agreement (e.g. an agreement between two partners in a production JV to determine the price of the JV output). The precise scope of this defence has not yet been interpreted by the courts.
(ii) Regulated conduct defence (subsection 45(7)), which allows a party to avoid conviction under section 45 on the basis that the conduct was required or authorized under federal or provincial regulation.
(iii) Export defence (subsection 45(5)), which applies, under certain conditions, when the agreement or arrangement relates only to the export of products from Canada.
With respect to bid rigging, section 47 prohibits any agreement between one or more persons on a decision not to bid, to withdraw a bid or to establish the price or other terms of the bid. The only exception is if the agreement was disclosed to the person calling for tenders at or prior to the time of the bid.
There are also exemptions, including for agreements between affiliates, as defined in the Act, (subsections 45(6)(a) and 47(3)).
The Anti-Monopoly Law (AML) provides clear and detailed provisions for cartels. In the meantime, The Price Law, The Law on Tendering and Bidding and other laws are also applicable to special types of cartel. The Law on Tendering and Bidding stipulates criminal acts such as collusive bidding. Prior to 2017, The Anti-Unfair Competition Law also contained provisions relating to cartels, but these provisions were deleted in the 2017 revision.
The four Anti-Monopoly Guidelines on the Automobile Industry, on the Abuses of Intellectual Property Rights, on the Leniency System and on the Commitment drafted by the Anti-Monopoly Commission (AMC) of the State Council have completed internal procedures and will be announced in 2019 spring. These guidelines contain a large number of cartel's new regulatory policy. In addition, the newly established State Administration for Market Regulation (SAMR) is drafting The Regulation on Prohibition of Monopoly Agreements and other regulations, in order to replace the previous regulations issued by the National Development and Reform Commission (NDRC) and the State Administration for Industry and Commerce (SAIC). If successful, it will be promulgated in 2019. According to the draft published recently, it includes some new regulations such as the Safe Harbor.
Under federal law, Section 1 of the Sherman Act (15 USC § 1) prohibits ‘every contract, combination... or conspiracy... in restraint of trade.’ State antitrust laws such as the Donnelly Act (New York) also ban cartel activity within their respective states. A criminal cartel offense is comprised of four elements: (1) an agreement, (2) between two or more competitors, (3) that restrains trade, and (4) that affects either interstate commerce or import commerce.
In the US, there are a number of industry-specific defences or exemptions from antitrust scrutiny. These defences and exemptions include: a labour exemption for unions; the state action doctrine (exempting conduct by the states that is ‘clearly articulated and affirmatively expressed as state policy’ and ‘actively supervised by the state itself’); petitions to the government (Noerr-Pennington doctrine); agricultural cooperative price setting (Clayton Act and Capper-Volstead Act); agreements between ocean common carriers filed with the Federal Maritime Commission (Shipping Act); export trade associations (Webb-Pomerene Act) and sports league broadcasting (Webb-Pomerene Act) and baseball.
The relevant legislation concerning cartels is the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54 of April 14, 1947, “Antimonopoly Act”). More specifically, cartels are regulated as “unreasonable restraint of trade” under Article 2, paragraph 6 of the Antimonopoly Act, and unreasonable restraint of trade is defined as “business activities, by which any enterprise, by contract, agreement or any other means irrespective of its name, in concert with other enterprises, mutually restrict or conduct their business activities in such a manner as to fix, maintain or increase prices, or to limit production, technology, products, facilities or counterparties, thereby causing, contrary to the public interest, a substantial restraint of competition in any particular field of trade”.
There are industry-specific exemptions in sectors such as aviation and maritime, where exemptions from cartel legislation under the Antimonopoly Act are granted conditional to the fulfilment of certain requirements such as relevant regulators’ approval.
Generally, anti-competitive behavior in Malaysia is governed by the Malaysian Competition Act 2010 (‘CA’) which applies to all commercial activities in Malaysia or any commercial activity transacted outside Malaysia but has an effect on competition in any market in Malaysia save for those licensed commercial activities regulated under 4 industry sectors which have been excluded by the CA, namely telecommunication, energy, oil and gas (upstream activities) and aviation, all of these sectors are being governed by their respective governing legislation and licensees therein being regulated or controlled by their respective regulators.
The CA is centred around 2 key prohibitions, being:
- Anti-competitive agreements (‘Chapter 1 Prohibition’); and
- Abuse of dominant position in the market (‘Chapter 2 Prohibition’).
Chapter 1 Prohibition are contained in Section 4 of the CA which prohibits any horizontal or vertical agreement between enterprises that has the ‘object’ or ‘effect’ of an agreement which significantly prevents, restricts or distorts competition in the market. Furthermore, if a horizontal agreement has any of the following objects namely to:-
(a) fix, directly or indirectly, a purchase or selling price or any other trading conditions;
(b) share market or sources of supply;
(c) limit or control-
ii. market outlets or market access;
iii. technical or technological development; or
iv. investment or
(d) perform an act of bid rigging,
then such an agreement is deemed to have the object of significantly preventing, restricting or distorting competition (also known as ‘per se’ prohibition). Therefore, cartel activities fall under Chapter 1 Prohibition.
An enterprise which is a party to an agreement may relieve its liability for the infringement of the prohibition under Section 4 of the CA based on the following reasons:
(a) there are significant identifiable technological, efficiency or social benefits directly arising from the agreement;
(b) the benefits could not reasonably have been provided by the parties to the agreement without the agreement having the effect of preventing, restricting or distorting competition;
(c) the detrimental effect of the agreement on competition is proportionate to the benefits provided; and
(d) the agreement does not allow the enterprise concerned to eliminate competition completely in respect of a substantial part of the goods or services.
The Federal Law on Cartels and Other Restraints of Competition (the Cartel Act) is the legislation regulating cartels in Switzerland. The regulatory framework is complemented by several federal ordinances. Further, there are general notices and communications of the Competition Commission (the Commission).
The Economic Competition Law, 5748-1988 (the "Competition Law") stipulates in Section 2(a) that a binding arrangement (cartel) is an arrangement made between persons conducting businesses in which at least one of them restricts himself in a manner that raises a risk of harm to competition.
Section 2(b) of the Competition Law stipulates conclusive presumptions that, to the extent that they exist, there is a risk of harm to competition. The said presumptions are dealing with the following matters: (1) the price that will be required, offered or paid; (2) the profit that will be gained; (3) the division of the market, in whole or in part, according to the place of occupation or according to the persons or type of persons to be employed; and (4) the quantity or quality of the assets or services in the business.
In 2015, the Supreme Court of Israel determined that, except in exceptional circumstances, Section 2(b) of the Competition Law would apply only to horizontal arrangements and in fact excluded the above conclusive presumptions from vertical arrangements.
The Israeli legislatures adopted Section 2 of the Competition Law from Rome Statute of the International Criminal Court. The Antitrust Tribunal and the various courts in Israel, which are required to interpret the Competition Law, are assisted in a regular basis by foreign rulings, particularly from the United States, the European Union, Australia and Canada.
Section 3 of the Competition Law specifies statutory exemptions that exclude certain arrangements from the application of the Competition Law. The statutory exemptions are, as follows: (1) an arrangement that all of its bindings were determined by law; (2) an arrangement that all of its bindings are related to the right to use certain assets; (3) an arrangement between a person who grants a right in the land and a person who purchases such right, that all of its bindings are related to the type of assets or services in which the purchaser of the right will engage in that land; (4) an arrangement that all of its bindings are related to the growing and marketing of locally grown agricultural produce of certain types; (5) an arrangement to which the parties are a company and its subsidiary; (6) an arrangement that all of its bindings are related to international air transport or to integrated international transport, by air and by land; (7) an undertaking of a business seller in its entirety to the purchaser of the business not to engage in the same type of business, where the undertaking is not contrary to reasonable and accepted practices; and (8) an arrangement to which a workers' organization or an employers' organization is a party and all of its bindings are related to the employment of employees and the conditions of employment.
The relevant legislative framework in Spain governing illegal agreements between undertakings, including cartels, is contained in the Competition Act 2007 [3 July 2007]. The Competition Regulations 2008 [27 February 2008] implement specific sections of the Competition Act 2007, including, inter alia, procedural questions related to the leniency programme. Spanish competition authorities must also apply Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) in cases where restrictive practices potentially affect trade between EU Member States.
In particular, Article 1 of the Competition Act 2007 sets out a general prohibition on all agreements between undertakings, decisions by associations of undertakings and concerted practices which either have the object of, or which may lead to the effect of, restricting competition in all or part of the Spanish market. Agreements, decisions or concerted practices falling under the scope of such provision are illegal and void unless an exemption applies to them. That may be the case if they are deemed to improve the production or distribution of goods, or to promote technical or economic progress, subject to stringent requirements. Furthermore, according to Article 4 of the Competition Act 2007, the prohibition under Article 1 does not apply to agreements, decisions or concerted practices that result from the application of rules that have been enacted and have the force of law.
Additional Provision 4 of the Competition Act 2007 defines a cartel as any agreement or concerted practice between two or more competitors which has the aim of coordinating their conduct in the market or influencing competition by means of practices such as fixing or coordinating prices, allocating quantities, sharing markets or customers, including bid-rigging, restricting imports or exports or taking actions against other competitors. As a result of a recent modification of the Competition Act 2007, the concept of ‘cartel’ does not contain a condition that the agreement was kept secret.
Concerning the leniency programme, which is only available for cartels, although it was in place since 2008, the Leniency Notice 2013 was published by the former competition authority in order to enhance its transparency and predictability. Mere exchanges of sensitive commercial information referring to future parameters are usually considered by Spanish competition authorities as showing that there is a cartel.
At national level, cartels are prohibited under article 5 of the Competition Law no. 21/1996 as republished and further amended and supplemented ('Competition Law'), which provides that:
'[a]ny agreements between undertakings, decisions of associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition on the Romanian market or part thereof, in particular those which:
a) directly or indirectly fix purchase or selling prices or any other trading conditions;
b) limit or control production, markets, technical development or investments;
c) share markets or sources of supply;
d) apply unequal conditions to equivalent transactions in their relations with trading partners, thereby creating a competitive disadvantage;
e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.'
EU-level enactments are also applicable to cartels affecting the Romanian market and the Romanian Competition Council ('CC') is vested with the power to directly enforce the provisions of article 101 of the Treaty on the Functioning of the European Union ('TFEU').
The CC has not issued particular secondary legislation in the field of cartels, but has nonetheless created a legislative framework regulating investigation and prosecution of cartels affecting the Romanian market.
The two principal pieces of legislation that govern cartel activity are the Competition Act 1998 and the Enterprise Act 2002, both as amended by the Enterprise and Regulatory Reform Act 2013. Under Regulation (EC) No.1/2003, UK competition authorities and courts are also entitled to apply Article 101 of the Treaty on the Functioning of the European Union (TFEU) (although see further below on Brexit).
Chapter I of the Competition Act, which is modelled on Article 101 TFEU, prohibits agreements, decisions or concerted practices between undertakings that may affect trade in the UK, and have as their object or effect the restriction, distortion or prevention of competition. There is an exemption under section 9 of the Competition Act (equivalent to Article 101(3) TFEU), which broadly applies where efficiencies flowing from the agreement outweigh the anticompetitive effects. However, it is highly unlikely that cartel conduct (such as price fixing) would ever qualify for such an exemption.
It is also a criminal offence under the Enterprise Act for an individual to agree or implement certain prohibited cartel activities (price fixing, market sharing, limitation of production or supply and bid rigging). This is subject to certain defences and exclusions (e.g. it is a defence if the individual did not intend for the arrangements to be concealed from customers or the CMA, or if the individual sought legal advice regarding the agreements prior to their implementation).
Article 101(1) TFEU contains the general prohibition on anti-competitive arrangements between undertakings. Regulation 1/2003 contains the main implementing and procedural rules. Further procedural rules are set out in Regulation 773/2004 and complemented by the Commission’s Best Practices Notice. In additional to these EU-level provisions, national competition laws apply (these are covered in other chapters of this book).
Substantively, the key infringement is codified in Article 101(1), which provides that ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices that may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the internal market’ are prohibited.
There is an exemption under Article 101(3), which broadly applies when efficiencies flowing from the arrangement outweigh any anticompetitive effect, but in practice this is very unlikely to be available for cartel conduct, such as an agreement between competitors to fix prices, limit outputs or share markets.
The legislation on cartel prosecution is set out in Antitrust Law No. 27,442 (hereinafter the “Antitrust Law”) enacted on May 24, 2018. Anticompetitive conducts are also regulated by Decree No. 480/2018 and Resolution No. 359/2018 of the Secretary of Domestic Trade.
The relevant legislative framework for cartel prohibition in Norway is section 10 of the Norwegian Competition Act of 5 March 2004 (the "Competition Act") and Article 53 of the Agreement on European Economic Area ("EEA"). These provisions mirror Article 101 of the Treaty on the Functioning of the European Union ("TFEU"), and prohibit any agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition.
It follows from Norwegian case law and preparatory works that the case law of the European Court of Justice, the General Court, the European Commission, the EFTA Court and the EFTA Surveillance Authority ("ESA") is of relevance when enforcing section 10 of the Competition Act. The interpretation of the Norwegian provisions will therefore correspond with EU law.
The Competition Act and ancillary regulations also provide procedural rules related to the investigation of cartel behaviour. For civil or criminal procedures, the Dispute Act and Criminal Procedure Act offers further procedural rules. Protocol 4 on the Functions and Powers of the EFTA Surveillance Authority in the field of Competition ("Protocol 4") sets out the procedural rules for the enforcement of Article 53 of the EEA.
The Belgian rules on competition are to be found in Book IV of the Code of Economic Law (“CEL”).
Article IV.1 §1 CEL contains the general prohibition on anti-competitive practices:
“(…) all agreements between undertakings, all decisions by associations of undertakings and all concerted practices, the aim or consequence of which is to prevent, restrict or distort significantly competition in the Belgian market concerned or in a substantial part of that market are prohibited, and in particular those which consist in:
- directly or indirectly fix purchase or selling prices or any other transaction conditions;
- limit or control production, markets, technical development or investments;
- share markets or sources of supply;
- apply, with regard to business partners, unequal conditions for equivalent services, thus putting them at competitive disadvantage;
- make the conclusion of contracts subject to acceptance, by the other parties, of supplementary services which, by their nature or according to commercial usage, have no connections with the subject of such contracts.”
This article, as its equivalent at the European Union level, Article 101(1) Treaty on the Functioning of the European Union, is the legal basis for the cartel prohibition. As the scope of this publication is limited to cartels, i.e., agreements the object of which is to restrict competition, such as price fixing, or market sharing agreements between competitors, this contribution will not cover the possibility for a legal exception provided for under Article IV.1, §3, CEL – equivalent to the legal exception under Article 101(3) TFEU – or the specific provisions for importing the EU-level block exemption regulations, even where the agreement at hand does not influence trade between member states.
Articles IV.41-50 set out the investigation procedure for cartels including the decision-making procedure of the authorities. This also includes article IV.46 which lays down the rules for leniency. This is further regulated by the 2016 Leniency Guidelines (Clementierichtsnoeren van de Belgische Mededingingsautoriteit). Additionally, the Royal Decree of 30 August 2013 further elaborates on the cartel procedures.
The procedure with regard to settlements is regulated by the articles IV.51-57 and articles 10 and 11 of Royal Decree of 30 August 2013.
To start with, in Greece, both EU and national competition law apply to cartels. As far as EU competition law is concerned, the relevant provision is mainly article 101 of the Treaty on the Functioning of the European Union respectively (‘TFEU’). With regard to the Greek market, the main legislative text pertaining to the protection of free competition is Law 3959/2011, ‘Protection of Free Competition’ (the ‘Competition Act’), which abolished the long-lived Law 703/77, introduced when Greece was about to become a member of the European Economic Community (‘EEC’). Specifically, Law 703/1977 was abolished instead of being amended one more time because the legislator of Law 3959/2011 declared the intention to avoid the risk of conflicting rules and oversights and to produce a coherent statute that is easier to understand and to implement.
The new Competition Act adopted the central structure of the former one, keeping intact, with only minor grammatical and technical changes, its core substantive law provisions; namely, article 1 on restrictive agreements, and article 2 on the abuse of a dominant position (closely drafted in line with articles 101 and 102 TFEU). The amendments regarding concentrations are also mostly technical in nature, whereby the respective provisions, as well as all the subsequent ones, have undergone extensive renumbering. The new Competition Act introduced, however, other significant amendments concerning, inter alia, the organisation and operation of the Hellenic Competition Commission (‘HCC’), the prioritisation of cases, the administrative and criminal penalties for violations, as well as several procedural rules. The amendments served the following objectives:
- the harmonisation of Greek legislation with European standards and the modernisation of the operations of the HCC;
- the strengthening of the deterrent effect of sanctions;
- the empowerment of the authority to intervene in whole sectors of the economy;
- the institutional strengthening of the HCC; and
- the enhancement of the effectiveness of its actions.
The Competition Act does not deploy nor define the term ‘cartel’. Nonetheless, correspondingly to the wording of article 101 TFEU, the notion of ‘cartel’ is essentially included in ‘agreements and concerted practices between undertakings and all decisions by associations of undertakings’. Note that the Competition Act does not distinguish between hardcore and other types of cartels; However, the HCC, following the settled case law of the Court of Justice of the European Union (CJEU) and the Commission’s decisional practice on competition enforcement, considers price fixing, output limitations agreements, market sharing and allocation of sales areas or customer groups, as serious restrictions.
According to the Competition Act, the detection of a cartel incurs both administrative and criminal sanctions. In particular, apart from the imposition of fines by the HCC, cartel offenders also face criminal sanctions by the competent criminal courts.
There are no any industry-specific defences or antitrust exemptions from the Competition Act. The latter applies equally to government-sanctioned activity or regulated conduct.
The Indian competition law is governed by the Competition Act, 2002 (Competition Act), and the related rules and regulations. Section 3 of the Competition Act prohibits agreements that cause or are likely to cause an appreciable adverse effect on competition (AAEC) in India, and such agreements are void. Horizontal agreements, including cartels, between competitors which (a) fix prices, (b) limit/control production, supply, markets, technical development, investment or provision of services, (c) share markets or sources of production or provision of services, or (d) result in bid rigging or collusive bidding, are presumed to cause an AAEC under Section 3(3) of the Competition Act. This presumption does not apply to efficiency enhancing joint ventures.
The Competition Act defines “cartel” to “include an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services”.
The main provisions on Swedish competition law are found in the Swedish Competition Act (2008:549). Chapter 2 section 1 of the Competition Act contains a general prohibition against agreements between undertakings that have as their object or effect the restriction, distortion or prevention of competition. The prohibition mirrors Article 101 of the Treaty on the Functioning of the European Union (TFEU) and must be interpreted in light of EU case law. Furthermore, Article 101 TFEU is directly applicable to practices which may affect trade between EU Member States.
There is an exemption from the general prohibition against anti-competitive agreements under Chapter 2 section 2 of the Swedish Competition Act (corresponding to Article 101(3) TFEU), which applies where efficiencies flowing from an agreement outweigh its anticompetitive effects. However it is highly unlikely that this general exemption mechanism can benefit cartel cases. There are also specific exemptions from the prohibition that applies to categories of agreements. These exemptions correspond to and implement the so-called EU block exemption regulations. In addition, specific exemptions exist in relation to farming and taxi operations.
There are no separate provisions for investigating cartel conduct in specific industries and no sector-specific exemptions, save for the above mentioned.
Damages resulting from competition law infringements, including cartel-infringements, are governed by a separate act, namely the Swedish Competition Damages Act (2016:964)
The Cypriot competition rules are laid down in the Law for the Protection of Competition of 2008 (13(I)/2008) as amended by the Law 41(I)/2014 (“the Competition Act”). The Competition Act incorporates in the national law the substantive provisions of the articles 101 and 102 of the Treaty for the Functioning of the European Union (TFEU). Although the term ‘cartel’ is not mentioned as such in the Competition Act, cartels fall under the prohibition of anticompetitive agreements and concerted practices of section 3 of the Competition Act.
Also, the legal framework for the prohibition of cartels in Cyprus includes the Law 83(Ι) of 2014 for the Control of concentrations between Undertakings (“the Concentrations Act”) which contains the rules for the control of concentrations in order to ensure that they do not result in the distortion of effective competition in the market.
In addition to the Competition Act and the Concentrations Act, the Law 113(I)/2017 on Actions for Damages for Infringements of Competition Law came into force on 21 July 2017 and transposed into Cyprus law the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
The Competition Act in article 7, excludes from its application (i) agreements relating to wages, terms of employment and working conditions, and (ii) undertakings entrusted with the operation of services of general economic interest or state monopolies in so far as the application of the Competition Act obstructs the performance in law or in fact of the particular tasks assigned to them by the State.
The Council of Ministers can issue, after reasoned Opinion of the CPC, which render the section 3 of the Competition Act on the prohibition of restrictive practices inapplicable to specific practices. As on the European level, such Orders introduce block exceptions from the application of section 3 of the Competition Act for some categories of practices in the automotive, the transport, the agriculture and the insurance sector. There is also a number of orders giving block exceptions in certain sectors, subject to the satisfaction of certain conditions. These include certain categories of agreements, decisions and practices in the insurance sector, certain categories of agreements and concerted practices in the motor vehicle sector, vertical agreements and concerted practices, technical cooperation in the field of transport, agreements, decisions and concerted practices in the field of road transports, agreements, decisions and concerted practices between liner shipping companies, agreements between air transport undertakings concerning consultations on passenger tariffs on scheduled air services and slot allocations at the airports, agreements decisions and concerted practices in relation to the production or trade in agricultural products and liner conferences in maritime transport.
The laws and regulations governing antitrust and competition (cartel) in the United Arab Emirates are as follows:
(a) The Federal Law No. 4 of 2012 on the Regulation of Competition (“UAE Competition Law”), which has been in force since 23 February 2013 and which aims - according to Article (2) of the Law - to protect and promote competition and anti-monopoly practices through 1). Providing a stimulating environment for organizations to enhance efficiency, competitiveness and consumer interest and achieve sustainable development in the UAE and 2). Maintaining a competitive market governed by market mechanisms, in accordance with the principle of economic freedom, by prohibiting restrictive agreements, the acts and practices that lead to the abuse of the dominant position, controlling economic concentration operations as well as avoiding anything that would endanger, limit or prevent competition.
The UAE Competition Law is set into several chapters, which include the following:
Objectives of the Law
Applicability of the Law as well as the exclusions.
Anti- Competition Practices
Competition Regulation Committee
The Mandates of the Ministry of Economy in relation to Competition Practices.
The Activities & Businesses excluded from the Provisions of the UAE Competition Law.
(b) As the implementing regulations in UAE are mandatory to enforce Federal laws, the UAE Council of Ministers issued Resolution No. 37 of 2014 concerning the Implementing Regulation of the Federal Law No. 4 of 2012 on the Regulation of Competition (“Implementing Regulations”), which has been in force since October 2014. The Implementing Regulations sets out the procedures relating to applying for exemptions to the Competition Regulation Committee, approvals and examination of complaints.
The Implementing Regulations are arranged into several chapters, which include the definitions as well as the following:
Procedures Regulating Exclusions
Procedures Organizing Economic Concentration
Complaint Investigation Procedures
(c) Cabinet Resolution No. 13/2016 (“The Ratio Decision”) in respect of the market share threshold and Cabinet Resolution No. 22/2016 (“SME Decision”) in respect of small and medium establishments, which have been in force since August 2016 and which provided sufficient and key information to enable the compliance and enforcement of the provisions of the UAE Competition Law and the Implementing Regulation. This should provide proper guidelines on Ratio inquiries for competition laws and when major commercial transactions, such as large M&As, take place.