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Applicable Legislation

•Primary Law: Art.101 and 102 TFEU.
•Secondary Law: Council Regulation 1/2003 applies to all air transport services, including on routes between the EU and third countries. The latter was achieved through the adoption of Council Regulation 411/2004 on 26 February 2004, (Official Journal L 68, 6.3.2004, p. 1-2).

Council Regulation (EC) No 487/2009 of 25 May 2009 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (Codified version) (Official Journal L 148, 11.6.2009).

•Commissions’ antitrust regulations specific to air transport have been gradually repealed and no such regulation is in force today. General antitrust regulations are however applicable.
•General notices and communications on antitrust are applicable., but not  to antitrust in the air transport sector.
Article 101 TFEU
•According to Article 1(1) of Regulation 1/2003 agreements which are caught by Article 101(1) and which do not satisfy the conditions of Article 101(3) are prohibited, no prior decision to that effect being required. According to Article 1(2) of the same Regulation agreements which are caught by Article 101(1) but which satisfy the conditions of Article 101(3) are not prohibited, no prior decision to that effect being required. Such agreements are valid and enforceable from the moment that the conditions of Article 81(3) are satisfied and for as long as that remains the case.
Article 101 (3)
•The application of the exception rule of Article 101(3) is subject to four cumulative conditions, two positive and two negative:
•(a) The agreement must contribute to improving the production or distribution of goods or contribute to promoting technical or economic progress,
•(b) Consumers must receive a fair share of the resulting benefits,
•(c) The restrictions must be indispensable to the attainment of these objectives, and finally
•(d) The agreement must not afford the parties the possibility of eliminating competition in respect of a substantial part of the products in question.
Article 102 TFUE
•Article 102 TFUE prohibits abuses of a dominant position. In accordance with the case-law, it is not in itself illegal for an undertaking to be in a dominant position and such a dominant undertaking is entitled to compete on the merits. However, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market. Article 102 is the legal basis for a crucial component of competition policy and applies to undertakings which hold a dominant position on one or more relevant markets. Such a position may be held by one undertaking (single dominance) or by two or more undertakings (collective dominance).
SSNIP Test
•Before deciding whether companies have significant market power which would justify government intervention, the test of Small but Significant and Non-transitory Increase in Price (SSNIP) is used to define the relevant market in a consistent way. It is an alternative to ad hoc determination of the relevant market by arguments about product similarity.
•The SSNIP test is crucial in competition law cases accusing abuse of dominance and in approving or blocking mergers. Competition regulating authorities and other actuators of anti-trust law intend to prevent market failure caused by cartel, oligopoly, monopoly, or other forms of market dominance.
Means of Compliance
•fines and periodic penalty payments;
•effective supervision;
•simplify administration.
Competent Authorities
•Article 101 (previously Article 81) of the new EU Treaty prohibits agreements and concerted practices between firms that distort competition within the Single Market. Fines of up to 10% of their worldwide turnover may be imposed on the guilty parties. The prohibition of cartels was already in the 1957 Treaty of Rome and the 10% cap has been introduced in 1962 by the first implementing Regulation for competition enforcement (Regulation No 17).
•All cartel decisions by the Commission may be appealed against before the General Court of the European Union and then before the European Court of Justice. They can, therefore, be closely scrutinised by these two courts, which are empowered to annul decisions in whole or in part and to reduce or increase fines, where this is deemed appropriate.
Leniency
•The Commission’s leniency policy encourages firms to provide the Commission with insider information on cartels. The first firm to do so is granted total immunity from fines. Other firms that follow suit may be granted a reduction in the amount of the fine. This policy is very effective in uncovering cartels but does not prevent the Commission from conducting investigations on its own initiative. The first leniency notice was adopted in 1996 and has since been revised and further refined in 2002 and 2006.
Settlement
•Settlement decisions are only foreseen in cartel cases. They are adopted pursuant to Articles 7 and 23 of Regulation (EC) Nº 1/2003, which are the standard legal basis for Commission Decisions acting against violations of Articles 81 and 82 EC. Therefore, settlement decisions establish the existence of an infringement, describing and proving all the relevant parameters thereof, require the termination of the infringement and impose a fine. They constitute a precedent valid to establish recidivism for subsequent similar infringements and preclude the adoption of another decision for the same facts and pursuant to the same legal basis by the Commission or any EU National Competition Authority.
•By introducing a settlement submission, the parties commit to follow the settlement procedure subject to the condition that the Commission Decision ultimately reflects the contents of the settlement submission and it does not impose a fine higher that the maximum fine indicated in it.
Commitment
•Commitment decisions are adopted on the basis of Article 9 of Regulation (EC) Nº 1/2003. They do not establish an infringement or impose a fine, but bring a suspect behaviour to an end by imposing on companies the commitments offered to meet the Commission concerns. Commitment decisions render the commitments legally binding and conclude that there are no longer grounds for action by the Commission. Therefore, they do not constitute precedents to establish recidivism for subsequent infringements. Commitment decisions are not appropriate in cartel cases.
Fines- Basic Amount
•The maximum fine for each firm is 10 % of its total turnover in the preceding business year (Regulation EC No 1/2003).
•The basic amount is calculated as a percentage of the value of the sales connected with the infringement, multiplied by the number of years the infringement has been taking place.
•The percentage of the value of sales is determined according to the gravity of the infringement (nature, combined market share of all the parties concerned, geographic scope, etc.) and may be as much as 30 %.
•The Commission then adds to this initial calculation a further amount that is applied to all cartel cases and, at the Commission’s discretion, to certain other types of infringement. This will be between 15 and 25 % of the value of annual sales, irrespective of the duration of the infringement.
Adjustments to the basic amount
•The basic amount may be adjusted by the Commission, downwards if it finds that there are mitigating circumstances, or upwards in the event of aggravating circumstances.
•Firms that commit similar infringements again will now be fined more heavily. The Commission will penalise re-offending, taking into account not only its own earlier decisions but also rulings by national authorities. Firms that re-offend could now face a 100 % increase in their fine for each subsequent infringement.
Inability to pay claims by cartel members
•The 2006 Fines Guidelines provide that in, exceptional cases, the Commission may, upon request, take account of an undertaking’s inability to pay. In assessing whether a company would risk going bankrupt as a result of the fine, among other things the Commission assesses a company’s financial situation on the basis of its financial statements from recent years but also including projections for the current and the two following years. The Commission looks at the company’s liquidity, solvency and other financial ratios that are commonly used to assess a company’s solidity or the lack thereof. It also assesses the company’s relations with banks and shareholders. In the recent bathroom fittings case, 10 companies claimed inability to pay. The claims of five companies were found to be justified and fine reductions were granted.

 

Concerted Practices

Scope and the Burden of Proof

 

This paper aims to identify the scope of Article 101 TFEU, in respect to concerted practices. When such a case arises, the key issue is the burden of proof. The titles under which the paper is structured are as follows:: 1.Introduction, A. Scope, B. Prisoners’ Dilemma; 2.Plausible Explanations; 3.Burden of Proof; 4.Aditional evidence on concentrations; 5.Conclusions.

                                               1.Introduction                                              

 

  1. A.     Scope

The term is used sometimes to refer to the whole of old Article 81 EC, now 101 TFEU, in contrast to unilateral practices which are caught by old Article 82 EC, now Article 102 TFEU; other times it is used to refer just to practices in contrast to contracts, i.e. explicit agreements. Here questions arise to the burden of proof.

Article 101 TFEU applies to agreements and coordinated practices. That is, Article 101 TFEU requires at least a concurrence of wills or a meeting of minds between the undertakings concerned. If the market conduct of an enterprise is not the result of either an agreement or at least a conscious common intention of coordination among competitors, Article 101 TFEU is not

applicable.

As the ECJ stated in ICI[1], Article 101 TFEU draws a distinction between the concept of “concerted practices” and the concepts of “agreements between undertakings” or “decisions by associations of undertakings”. As explained by the ECJ, the reference to concerted practices in Article 101 is intended to bring within the scope of the prohibition a form of coordination between undertakings which, without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.

The question therefore arises as to what extent, if any, parallel behaviour in an certain market is the result of a meeting of minds or whether, on the contrary, it is the result of the autonomous will of each undertaking? .

The ECJ stated in ICI that: “by its very nature, then, a concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants”.

Therefore, concentration implies a form of cooperation that: (1) protects the undertakings concerned from the risks of competition; and (2) usually becomes apparent from the behaviour of the participants (for example, from parallel conduct with regard to their pricing policy).

 

                        B. Prisoners’ Dilemma or Game Theory.

According to game theory, if in a game the worst solution for each player is to ignore the behavior of the other players, since such behaviour will affect the outcome of the game, the players will end up cooperating. They will either decide from the very first moment that reaching an agreement is the most advantageous solution, or they will reach the conclusion that it is necessary to cooperate by trial and error. In such a case, the players will cooperate “as if” they had reached an agreement. For game theory it does not matter whether such cooperation is reached through an express agreement or by tacit cooperation (acting “as if” there was an agreement). What matters is whether the conditions of the game create the incentives for the players to cooperate.

The position of the ECJ in ICI must be read in light of the subsequent cases, and mainly in light of Woodpulp II. In Woodpulp II, the ECJ reformulated its previous statement in ICI. The ECJ again said that account must be taken “of the nature of the products, the size and the number of the undertakings and the volume of the market in question”, but with an important difference. The goal of such an analysis is no longer to establish what “the normal conditions of the market” are but to ascertain whether or not the parallel conduct can be explained otherwise than by concentration. Thus, the case law must be seen as an evolution whose outcome is clear. Parallelconduct is not prohibited, and it does not create a presumption iuris tantum of collusion. Nevertheless, parallel conduct can be considered sufficient proof of collusion if concentration is the only plausible explanation.

 

                                                2. Plausible explanations

The list of plausible explanations is not exhaustive, but to date, two main circumstances

have been considered to be plausible explanations for parallel behaviour: (1) price

leadership; and (2) market structure.

As said before, it is legitimate for economic operators to adapt themselves intelligently to the existing and anticipated conduct of their competitors[2].

Consequently, if there is a price leader in the market, competing undertakings could try to adapt themselves to the leader’s commercial policy. Such parallel pricing behavior in an oligopoly, for instance, producing homogeneous goods would not in itself amount to concentration within the meaning of Article 101 TFEU[3].

A price leader could be characterised as an economic operator which due, for example, to its market share, is able to act independently of its competitors, knowing that they would almost certainly follow suit (“dominant price leadership”). Another possibility is so-called “barometric price leadership”, where the firm taking the lead is not dominant but is widely accepted as the best performing operator in the sense of meeting demand and adapting to evolving market conditions (i.e. cost increases).

The conclusion could be quite different if additional evidence is adduced, such as evidence of contacts between undertakings on desirable price changes prior to the adoption of a new price, or of an exchange of information that reinforces such contacts. In any event, an agreement between competitors to follow or to choose a price leader will be regarded as concentration within the meaning of Article 101 TFEU.

Another possibility is that the very structure of the market leads to parallel conduct (in oligopolistic markets).

The ECJ has implicitly acknowledged that, in some markets (i.e oligopolistic), competitors are interdependent. Accordingly, in Woodpulp II the ECJ appointed a group of economic experts to examine the characteristics of the affected market during the period covered by the Commission’s contested decision. After examining the market in the relevant period, the experts concluded that the normal operation of the market was a more plausible explanation for the uniformity of prices than concentration[4]. The ECJ accepted this as a plausible explanation for the parallel conduct and upheld the applicants’ argument that the Commission had not sufficiently proved concentration within the meaning of Article 101 TFEU. It is worth noting that, in Woodpulp II the experts did not say that the normal operation of the market was the sole plausible explanation for the uniformity of prices. For the ECJ, it was enough that there were other explanations apart from collusion. Concentration thus cannot be inferred from the mere existence of parallel conduct.

 

                                                3. Burden of proof

To what extent, if any, the market characteristics amount to a concerted practice within the meaning of Article 101 TFEU?       The ECJ has acknowledged that, although each economic operator must determine its own commercial policy independently, it is legitimate for the economic operators to adapt themselves intelligently to the existing and anticipated conduct of their competitors[5]. However, if adapting intelligently to the existing and anticipated conduct of their competitors is legitimate, it is foreseeable that all the existing operators will adapt similar conduct, i.e. parallel conduct[6]. Such conduct could be easily read as an evidence of “coordination which becomes apparent from the behaviour of the participants”[7], mainly in oligopolistic markets.

The ECJ rightly acknowledged this, and ruled that parallel conduct as such is not caught by Article 101 TFEU and creates no presumption of collusion between the undertakings concerned.

–          Nevertheless, the Court’s case law seemed to provide for two  guidance of this substantive rule:

a)      First, in ICI the ECJ stated that, although parallel behaviour may not by itself be identified with a concerted practice, parallel conduct may amount to strong evidence of concentration if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market[8].

b)      Second, in Woodpulp II the ECJ ruled that parallel conduct cannot be regarded as proof of concentration unless concentration constitutes the only plausible explanation for such conduct.[9].

In spite of the fact that the language varies from one case to another, these two “exceptions” can be read as a single one: parallel conduct is not proof of concentration if the conduct of the enterprises can be explained by market conditions.

According to the case law of the ECJ, in order to establish that parallel behaviour is the result of concerted action, the evidence must be “sufficiently precise and coherent”[10]. In the light of the foregoing, in Woodpulp II Advocate General considered that this statement of the ECJ implied that it is necessary to establish a degree of certainty that goes beyond any reasonable doubt. He further added that, in “accordance with the principles governing the burden of proof, it is for the Commission to demonstrate that; the burden of proof cannot be shifted simply by a finding of parallel conduct[11]. Moreover, the Advocate General considered that, in any event, if a plausible alternative explanation is put forward by the parties, then concentration cannot be deemed to be established[12].

The position of Advocate General Darmon in Woodpulp II was quite clear: the burden of proof is always borne by the competition authority. Parallel conduct neithercreates a presumption of concentration nor shifts the burden of proof. In view of the conclusions of Advocate General Darmon, in Woodpulp II the ECJ ruled on this point as follows[13]:

“[70] Since the Commission has no documents which directly establish the existence of concentration between the producers concerned, it is necessary to ascertain whether the system of quarterly price announcements, the simultaneity or near-simultaneity of the price announcements and the parallelism of price announcements as found during the period from 1975 to 1981 constitute a firm, precise and consistent body of evidence of prior concentration.

[71] In determining the probative value of those different factors, it must be noted that parallel conduct cannot be regarded as furnishing proof of concentration unless concentration constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although [Article 101] of the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see the judgment in Suiker Unie, cited above, paragraph 174).

[72] Accordingly, it is necessary in this case to ascertain whether the parallel conduct alleged by the Commission cannot, taking account of the nature of the products, the size and the number of the undertakings and the volume of the market in question, be explained otherwise than by concentration.”

The position of the ECJ seems, at first glance, to follow Advocate General Darmon. However, this may not be a realistic interpretation of the existing case law.

First, competition authorities reason, sometimes, in a quite different way: parallel conduct is either proof of concentration, or at least creates a presumption of collusion. No matter how the case law defines the principles governing the burden of the proof in these cases, a competition authority will presume the existence of concentration if there is parallel behaviour. It will then be a hard task for the defendants to find “sufficiently precise and coherent” evidence that concentration is not the only plausible explanation. It is neither practical nor realistic to expect competition authority officials to presume that there is no concentration when facing with parallel behaviour.

Second, Woodpulp II must be read in the light of the previous case law. Indeed, in CRAM and Rheinzink, the ECJ stated: “The Commission’s reasoning is based on the supposition that the facts established cannot be explained other than by concerted action by the two undertakings. Faced with such an argument, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and which thus allow another explanation of the facts to be substituted for the one adopted by the contested Decision” (emphasis added).

This seems to be a much more practical approach. Competition authorities tend to presume that parallel conduct is the result of concentration if they see no clear evidence supporting an alternative explanation. It is then for the defendants to provide an alternative plausible explanation.

This does not mean that a competition authority must never look for alternative explanations. As an initial matter, a competition authority must also examine on its own initiative whether such an alternative explanation exists or not. However, if after a preliminary analysis the competition authority does not find a plausible alternative explanation, the burden of proof will shift to the defendants. It is then for the defendant undertakings to provide evidence which casts the facts established by the competition authority in a different light and which thus allows another explanation for those facts[14].

 

                                                4. Additional evidence of concentration

Nevertheless, the problem of the plausible explanation, the burden of proof or the structure of the market only arises if evidentiary support for the case is insufficient. Parallel conduct could be considered as proof of collusion if it can be connected with other evidence of collusion, in particular with facilitating practices or “plus factors”. These facilitating practices have been defined as activities that promote interdependent behaviour among competitors by reducing their uncertainty as to each other’s future action, or by diminishing their incentive to deviate from a coordinated strategy.

For instance, parallel conduct can be deemed to be proof of concentration if it is accompanied by evidence of any of the following:

Documents.

Taken together, a finding of parallel market conduct and documents which show that the practices were the result of concerted action are sufficient proof of concentration[15].

 

 

Contacts between competitors.

In its landmark Sugar case, the ECJ held that Article 101 TFEU strictly precludes any direct or indirect contact between operators that can influence the conduct on the market of an actual or potential competitor. In such a case, the defendants cannot explain the existence of the parallel conduct by the fact that they have adapted intelligently to the existing and anticipated

conduct of their competitors. Such contacts remove in advance the uncertainty as to the future conduct of the competitors, and thus protect the undertakings from the risks of competition.

These contacts could consist of, for example, meetings between competitors.

Disclosing to competitors the course of conduct that each undertaking

has decided to adopt (or contemplates adopting) on the market.

For example, announcements of price increases, together with parallel conduct, can be regarded as proof of concentration[16].

Exchange of Information.

Exchange of sensitive data can be considered proof of concentration, especially if the data are closely linked to the competitive conditions in respect of which the conduct of competitors is parallel.

Reciprocal supply agreements between competitors.

Reciprocal supply agreements between competitors could be regarded as proof of concentration, especially if, at the same time, the concerned undertakings refrain from supplying competitors’ clients[17].

Common board members.

Having representatives on the board of directors or any other management body of a competitor could be considered a device facilitating collusion.

Associations of enterprises.

If all (or the majority) of the undertakings investigated are members of an association of enterprises, this can be an element supporting an accusation of concentration by a competition authority.

Network of joint ventures coordinated by a parent company.

In the Optical fibers case, the Commission found that concentration in an oligopolistic market could result of a network of interrelated joint ventures with a common technology provider and a common parent company[18]..

The above non-exhaustive list of examples shows that, in the presence of parallel conduct, any device, practice or framework facilitating collusion can be considered sufficient supporting proof of concentration. In such cases, it is not enough for the defence merely to provide a plausible alternative explanation of the parallel conduct. The additional proof (exchange of information, documents, etc.) must also be rebutted.

Furthermore, it should be recalled that most of the facilitating practices can serve precompetitive as well as anticompetitive purposes. Therefore, the mere fact that some sort of facilitating practice exists should not alone lead to a conclusion of illicit collusion among the defendants.

 

                                                5. Conclusions

Since direct proof of illicit collusion is often difficult, when parallel behaviour is accompanied by facilitating practices, as a matter of practice, competition authorities tend to shift the burden of proof to defendant undertakings.

 

The key issue is to distinguish between situations in which strategic coordination implies some sort of illicit collusion and when it merely corresponds to spontaneous coordination resulting from the rational response of each member of the market to the perceived interdependencies.



[1] Case 48/69 Imperial Chemical Industries Ltd. v Commission [1972] ECR 619

[2] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie v Commission [1975] ECR 1663, para. 173-174.

[3] Commission Decision EEC/84/405 of 6 August 1984, Case IV/30.350 – zinc producer group, OJ L 220 [1984], pars. 75-76.

[4] Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307, para. 75 and the following.

[5] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, para. 173-174

[6] Case 172/80 Gerhard Züchner v Bayerische Vereinsbank AG [1981] ECR 1981 para 14 and the following

[7] Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECR 619, para. 65

[8]  Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECRR 619, para. 66.

[9] Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, A.Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307, para. 71.

[10] Joined Cases 29/83 and 30/83 Compagnie Royale Asturienne des Mines SA (CRAM) and Rheinzink GmbH v Commission [1984] ECR 1679, para. 20.

[11] Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307

[12] Idem.

[13] See Opinion of Advocate General Darmon in Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307,para. 96 and 196.

[14] See Joined Cases T-305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV, DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, Société artésienne de vinyle, Montedison SpA, Imperial Chemical Industries plc, Hüls AG and Enichem SpA v Commission (PVC II) [1999] ECR II-931, para. 728.

[15] Idem, para. 724-728.

[16] Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECR 619, para. 83 and the following.

[17] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie v Commission [1975] ECR 1663, para. 173-174.

[18] Commission Decision EEC/86/405 of 14 July 1986, Case IV/30.320 – optical fibers,OJ L 236 [1986]

►  Competition Council Issues New Order on Access to Investigation Files

For the purpose of observing the EU principles on competition, mainly with respect to uniform and consistent application of the European rules on competition, the Competition Act was amended substantially on 5 August 2010.

Following this amendment, various important enactments having as object the application of the Competition Act were issued by the Romanian Competition Council (“RCC”).

Recently, the conditions and procedure for access to files in which anti-competitive practices or economic concentrations are investigated have been enacted by RCC.

The act, entered into force on 2 March 2011, regulates the persons entitled to access the file, the information that may be accessed, the moment when such access may be granted, as well as the actual procedure to be followed.

In principal, the person having the right to access the investigation file is that whose conduct is scrutinized by RCC in an investigation report. However, in case of an economic concentration, it rests with RCC to decide if the access to file documentation will be granted only to the persons that have notified the economic concentration or will be extended to the other persons involved in the concentration.

In addition, the person filing a complaint before RCC shall have the right to access the file if, after performing its analysis, RCC intends to dismiss the complaint with-out initiating an investigation. However, it rests with RCC to decide whether the person filing the complaint will receive a non-confidential version of the report prior being heard by RCC in case an investigation has been initiated.

Further on, for the case when RCC intends to take interim measures prior to issuing a decision, it will inform the relevant person who will have the right to access all the preliminary documentation save for trade secrets and other confidential information concerning other parties.

Last but not least, the court of law expected to rule a claim for damages arising out of an anti-competitive practice has the right to request from RCC the documentation based on which the decision was issued. Subsequently, the court of law will be under the obligation to secure the confidentiality of trade secrets and other confidential information.

Concerning the file documentation that may be accessed, as a rule the internal documentation of RCC and its correspondence with other local or foreign authorities, as well as the trade secrets and other confidential information concerning the involved parties involved may not be accessed. However, if the person accessing the file considers necessary to know the restricted information in order to prepare its defense, it shall address to RCC’s Chairman who will decide if access to such information will be granted.

Concerning the confidentiality of the information provided, unless expressly requested by the parties, RCC shall not treat the information it receives as confidential. To this end, the person providing the information is required to file a request indicating what information needs to be kept confidential, why the information is to be kept confidential, and, the parties towards which the information is to be kept confidential. Further on, the person is also required to provide a separate non-confidential version of the information provided.

It shall rest with RCC to decide if the information will be treated as confidential or not.

Moreover, as a rule, RCC presumes the data referring to sales, market share and other similar information and which is older than 5 years is no longer confidential.