The European Court of Justice has ruled in the matter of prejudicial questions of the Supreme Court of the Slovak Republic

14.03.2013
The European Court of Justice (hereinafter “the ECJ”) issued on February 7, 2013 the answers on prejudicial question of the Supreme Court of the Slovak Republic (hereinafter “the Supreme Court”) in the matter of the Antimonopoly Office of the Slovak Republic (hereinafter “the Office”) versus Slovenská sporiteľňa, a. s., in which he found that illegality of entrepreneurial activities whether true or alleged has no relevance in question, whether cartel is infringement of article 101 TFEU. The answers were greeted by the Office and presupposed with respect to preceding judiciary of ECJ.

With opinion that companies colluding to exclude a competitor from the market breach antitrust rules even if they target a company that is operating illegally, ECJ gave support to the Office´s opinion formulated in its first instance decision, in explications for Regional Court in Bratislava, for the Supreme Court as well as for ECJ in this prejudicial proceeding. ECJ specified that competition rules are intended to protect not only competitors or consumers, but also the structure of a market and, consequently, competition as such. ECJ pointed out, that it is a task of public authorities - and not private undertakings or their associations - to ensure compliance with the competition rules.

ECJ came to the same conclusion as the Office, which in 2009 ruled, that three Slovak banks (Slovenská sporiteľňa, a. s., Československá obchodná banka, a. s. and Všeobecná úverová banka, a. s.) infringed the article 81 of EC Treaty and national competition law. According the Office, banks infringed both Slovak and European competition rules when they agreed to shut a Czech non-bank financial institution AKCENTA CZ out of the Slovak market after the foreign company threatened to compete against them. Banks had agreed to close their current accounts opened by AKCENTA CZ and to refrain from dealing with the company in the future. Without banks’ accounts AKCENTA CZ could not conduct foreign currency transfers for its customers in Slovakia. The Office assessed such behaving as a very serious offence of competition rules and fined Slovenská sporiteľňa, a. s., by 3 197 912 EURO, Československá obchodná banka, a. s. by 3 183 427 EURO and Všeobecná úverová banka, a. s. by 3 810 461 EURO.

The banks submitted an appeal, later they appealed also the second instance decision of the Council of the Office. Regional Court in Bratislava annulled the Office´s decision relating to all three banks and returned it to the Office for further proceeding. As a main reason the court stated, that cartel conduct of banks cannot be unlawful, as the Czech company entered the market illegally, without the license of the National Bank of Slovakia. According to the Court the Office assessed incorrectly the fact, whether company not licensed to operate in Slovakia could be considered as a competitor.

The Supreme Court interrupted the proceeding in the matter of Slovenská sporiteľňa and referred the following prejudicial questions to ECJ:

1.      Is Article 101(1) TFEU … to be interpreted in such meaning that it is of legal relevance that a competitor affected by a cartel agreement between other competitors was operating on the relevant market illegally at the time when the agreement was concluded?

2.      For the purposes of interpreting Article 101(1) TFEU … is it of legal relevance that, at the time when the cartel agreement was concluded, the legality of that competitor’s conduct was not called in question by the competent supervisory bodies in the Slovak Republic?

3.      Is Article 101(1) TFEU … to be interpreted in such meaning that, in order to find that an agreement is restriction of competition, it is necessary to prove personal conduct on the part of a statutory representative or the personal assent in the form of a mandate of that representative, who has, or may have, taken part in that agreement, to the conduct of one of the undertaking’s employees, where the undertaking has not distanced itself from the conduct of that employee and, at the same time, the agreement has been implemented?

4.      Is Article 101(3) TFEU … to be interpreted as it also applies to an agreement prohibited under Article 101(1) TFEU … which by its nature has the effect of excluding from the market a specific individual competitor which has subsequently been found to have been carrying out foreign exchange transactions on the cashless foreign-exchange operations market without holding the appropriate license as required under national law?

The Court ruled that :

1.      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.

2.      Article 101(1) TFEU must be interpreted in such meaning that, in order to find that an agreement is restricting competition, it is not necessary to prove personal conduct on the part of statutory representative or the specific assent, in the form of a mandate, of that representative to the conduct of an employee of the undertaking who has participated in an anti‑competitive meeting.

3.      Article 101(3) TFEU must be interpreted in such meaning that it can apply to an agreement prohibited under Article 101(1) TFEU only when the undertaking which is reffering to Article 101(3) TFEU has proved that the four cumulative conditions laid down therein are met.

The proceedings against another bank - ČSOB - is open as NS SR annulled the Office´s decision from the reason which is in contradiction to the opinion expressed in ECJ ruling. Proceeding against VÚB was interrupted until ECJ decides on the prejuducial ruling in the matter of Slovenská sporiteľňa. The verdict of ECJ is binding for Slovak courts. 
Last update:02.12.2013