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The Supreme Court of the Slovak Republic upheld the correctness of the AMO SR decision in the matter of banks cartel

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On May 21, 2013 the Supreme Court of the Slovak Republic (hereinafter „the Supreme Court“) upheld the correctness of the decision of the Antimonopoly Office of the Slovak Republic (hereinafter „the Office“) in the matter of banks cartel in relation to one of the banks – Slovenská sporiteľňa, a. s.. The Supreme Court changed the verdict of the Regional Court Bratislava (hereinafter „the Regional Court“) so thus it dismissed the complaint of Slovenská sporiteľňa, a. s. against the Office in the matter of banks cartel. The Supreme Court thus upheld the Office´s decision from 2009 in relation to Slovenská sporiteľňa, a. s. By this decision the Office fined three banks (Slovenská sporiteľňa, a. s., Všeobecná úverová banka, a. s. and Československá obchodná banka a. s.) for concluding a cartel, aim of which was to exclude competitor, AKCENTA CZ, a. s. (hereinafter „AKCENTA“) from the market, obtain its clients, or retain their ownv ones. The Office assessed the conduct of banks as very serious infringement of competition rules, as it referes to markets (clients) allocation, which is classified as hard-core cartel. The Office imposed a fine of € 3 197 912 on Slovenská sporiteľňa, a. s., € 3 810 461 on Všeobecná úverová banka, a. s  and a fine of € 3 183 427 on Československá obchodná banka a. s..

All three banks appealed against the first instance and later against second instance decision. The Regional Court, which decided in the appeals of all three fined banks, annuled the Office´s decision and returned it to the Office for next proceedings. As the main reason the court mentioned that the conduct of banks cannot be unlawful, as AKCENTA runs a business in Slovakia without a requested licence.

The Office appealed to the Supreme Court maintaining a position that AKCENTA was competitor of banks on the Slovak market of cashless foreign exchange operations and the fact, whether it has the licence or not, the Office did not consider relevant for assessing of conduct of the banks from the point of view of competition rules. Crucial was, that generally accepted principles of assessing and deciding in the matter of cartel agreements were infringed.

This opinion was supported also by the Court of Justice of the European Unioun, which in its answers to prejudicial questions of the Supreme Court emphasized that “Article 101 TFEU must be interpreted in such meaning that the fact that an undertaking that is affected by a cartel agreement whose object is the restriction of competition was allegedly operating illegally on the relevant market at the time when the agreement was concluded is of no relevance to the question whether the agreement constitutes an infringement of that provision“. European Court of Justice specified, that competition rules have to protect not only competitors and consumers, but market and competition as well and it is for public authorities – and not private undertakings or associations of undertakings – to ensure compliance with the competition rules.

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