On 23 February 2022, the Protection of Competition Law of 2022 (Law 13(I)/2022)[1] entered into force in the Republic of Cyprus, repealing the former Protection of Competition Laws of 2008 and 2014. Upon its one-year anniversary, this article reflects back on some of the main changes brought about by this new piece of legislation.
Key Changes
The Protection of Competition Law of 2022 transposes Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018, which aims to empower the competition authorities of EU Member States to be more effective enforcers and to ensure the proper functioning of the internal market.[2]
In light of the objective of the new legislation, the substantive provisions of the previous legal framework remain intact and the changes mainly concern:
- The procedure for lodging a complaint;
- The strengthening of the powers and responsibilities of the Commission for the Protection of Competition (CPC), including the power to summon natural or legal persons for interviews;
- The designation and protection of business secrets and confidential information;
- The procedure for accessing a case file;
- The nature of the proceedings before the CPC and the admissibility of evidence;
- The independence of the CPC and its mutual cooperation with other national competition authorities;
- The level and type of administrative fines;
- The evidential value of the CPC’s final decision in the context of possible damages actions.
Interviews
The Protection of Competition Law of 2022 not only maintains and codifies the powers already held by the CPC but in addition it now enables the CPC to summon for an interview any representative of an undertaking or association of undertakings, any representative of other legal persons, and any natural person, for the purpose of obtaining statements and information, in so far as they may possess information relevant to the application of Section 3 and/or 6 and Article 101 TFEU and/or Article 102 TFEU. Failure to comply with a summons issued by the CPC may lead to the imposition of administrative fines.
Right to Access
A novelty of the Protection of Competition Law of 2022 is that it codifies and specifies the procedure for access to the case file, shedding some sought after light on the matter. The CPC has also published a guidance regarding the procedure for access to the case file.[3]
Under the Protection of Competition Laws of 2008 and 2014, the CPC was not bound to communicate the whole file formed by the CPC on the case to the investigated undertaking or association of undertakings. It was merely bound to communicate to it all of the documents of the file on which it intended to base its decision, with the exception of those documents constituting business secrets.
Following the entry into force of the Protection of Competition Law of 2022, any undertaking or association of undertakings that has been notified of a Statement of Objections or was notified of the grounds on the basis of which it is considered that an infringement of the provisions of the law is suspected, has a right of access to non-business secrets and non-confidential information and to documents forming part of the administrative file of the case. No undertaking, association of undertakings or third party shall have a right of access to internal documents.
An undertaking or association of undertakings may now also request access to business secrets or confidential information. The CPC may grant such access in whole or in part only by reasoned decision in cases where access to it is necessary for the exercise of the rights of defence of an undertaking or association of undertakings to which a Statement of Objections has been communicated and only to a person in respect of whom such access is strictly necessary for the exercise of the rights of defence.
Furthermore, the Protection of Competition Law of 2022 clarifies that in cases where the information before the CPC does not give rise to a reasonable suspicion for possible infringement of Section 3 and/or 6 and Article 101 TFEU and/or Article 102 TFEU, the CPC may, upon request and before taking a decision, grant natural or legal persons who had lodged the relevant complaint access to the non-business secrets and non-confidential information in the file of the case.
It is evident that these changes not only strengthen one’s right of defence, but they also extend the ambit of a complainant’s right of complaint. Unlike under the previous legal framework, a complainant now has the right to access the case file before adoption by the CPC of its decision. While in the past a complainant had to wait for the CPC’s end result before it could challenge the findings of the CPC through an administrative action in court, it now has the opportunity to access the case file and voice any views prior to adoption of the CPC’s decision.
Irrebuttable Presumption
The Protection of Competition Law of 2022 also aligns the legislation with the Law on Actions for Damages for Infringements of Competition Law (Law 113(I)/2017)[4], through a significant change of the evidential value of a final decision of the CPC in cases of a finding of an infringement of the provisions of Section 3 and/or 6 of the said law and Article 101 TFEU and/or Article 102 TFEU.
A final CPC decision finding an infringement constitutes an irrebuttable presumption and it can be relied on by any person who has suffered damage as a result of the infringement in accordance with the provisions of the Law on Actions for Damages for Infringements of Competition Law. ‘Final decision’ is a decision of a national competition authority or a reviewing court finding an infringement of competition law, which cannot or can no longer be subject to an ordinary appeal. Under the Protection of Competition Laws of 2008 and 2014, such a decision constituted a rebuttable presumption.
*The article was first published on 28 February 2023
For more information please speak with Polyvios Panayides, Ioanna Kyriakidou or your usual contact at Chrysses Demetriades & Co LLC.
[1] http://www.cylaw.org/nomoi/enop/non-ind/2022_1_13/full.html
[2] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L0001
[3]http://www.competition.gov.cy/competition/Competition.nsf/All/06B70CCCBC8A8994C225887700383CFC?OpenDocument
[4] http://www.cylaw.org/nomoi/enop/non-ind/2017_1_113/full.html
