INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE CZECH LENIENCY PROGRAMME

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INTERPRETIVE AND IMPLEMENTATION ISSUES OF THE
CZECH LENIENCY PROGRAMME
BRNO 12 NOVEMBER 2009        TOMÁ
FIALA   VEJMELKA WÜNSCH
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Should you seek leniency?

• Factors to be considered
• Likelihood of enforcement action
• Level of fines
• Damages in private civil actions
• Corporate resources
• Pressure within the industry

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Interpretive issues a few examples

• 1. Termination of participation in
  anticompetitive activity
• What constitute an action to terminate
  participation in the anticompetitive activity?
• What happens if lower-level employees would
  continue for short period in the activity?
• 2. Not the leader or originator of the activity
• What does it mean to be the leader or
  originator?
• What happens if there are two ring-leaders?
• IN GENERAL The leniency programme has to be
  interpreted in order to provide the maximum
  amount of incentives and opportunities

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Marker system and its application

• A marker affords the opportunity to save a place
  in a queue (elements of transparency and
  predictability)
• BUT, the Office has reserved a discretion to
  grant a marker (element of uncertainty)
• MOREOVER, the request for a marker needs to be
  justified (difficult to understand)
• The time period to perfect a marker must be
  adequate to allow the applicant to complete its
  internal investigation

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Cooperation obligations of the applicant
uncertainty of process

• What is the extent of the ongoing cooperation
  obligation how onerous it needs to be in
  practice?
• Under what circumstances can the conditional
  immunity be revoked?
• When can an applicant challenge an Offices
  decision to revoke conditional immunity?

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Conclusion

• Transparency and predictability basic elements
  of effective leniency programme
• The Czech leniency programme would benefit from
  further clarification from the Competition Office

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THANK YOU FOR YOUR KIND ATTENTION
Tomá Fiala Vejmelka Wünsch, s. r. o. Italská
27 CZ-120 00 Prague 2 T 420-222 25 30 50 F
420-222 25 30 90 E prague_at_vejwun.cz
W www.vejwun.cz