The Competition Protection Agency's Fining Policy As A Black Box

The Slovenian media company Pro Plus already experienced the tough approach being applied by the Slovenian Competition Protection Agency ("the Agency") at the beginning of this year, when the Agency sanctioned it with a fine for obstructing an Agency investigation (for more information please see here). According to media reports and as confirmed by the Company, Pro Plus has now been also fined with almost 10% of its 2013 annual turnover for a dominant position abuse on the television advertisement market.

Agency's fining policy

In accordance with the Slovenian Protection of Restrictions of Competition Act ("the Competition Act"), the Agency may impose a fine of up to 10% of a company's annual turnover for infringements of Article 9 of the Competition Act as well as of Article 102 of the Treaty on the Functioning of the European Union, both of which in a similar wording prohibit abuses of dominant position. However, apart from the general wording contained in the Competition Act, the Agency has not issued any regulation or document specifying its fining policy. As infringements of the Competition Act in their nature represent minor offences, the provisions of the applicable criminal laws serve as a last - and only - resort of guidance. According to the Slovenian Minor Offences Act, the fine shall be determined within the range prescribed by applicable law, taking into consideration factors such as the weight of the infringement, the level of the infringing entity's responsibility, as well as the reasons for and circumstances of the infringement. Additional aggravating circumstances that need to be taken into account in the fine determination process are the company's economic standing and any fines imposed for possible previous infringements. As to the mitigating factors, the Minor Offences Act simply states that they should also be taken into account; however, no specific circumstances are listed as references.

The fine determination "black box"

Apart from the above-mentioned general principles, there is no guidance as to how a precise amount of fine should be calculated. Consequently, the Agency is generally free to impose a fine of between 1 or 10% of the implicated undertaking's annual turnover, a range that leaves far too much leeway and legal uncertainty. A company that is under the Agency's scrutiny cannot foresee how its fine will be determined in the event that the Agency establishes that there has been an infringement on the...

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