Competition Litigation Comparative Guide

• Published date: 17 January 2023
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: MGG Legal
• Author: Dr. Dino Gilha

1 Legal framework

1.1 Which laws regulate competition in your jurisdiction?

Competition in Croatia is mainly regulated by:

• the Competition Act, which entered into force on 1 October 2010;
• the Act on Amendments to the Competition Act, which entered into force on 1 July 2013;
• the Act on Amendments to the Competition Act, which entered into force on 24 April 2021; and
• 11 ancillary provisions (regulations) necessary for their implementation. These regulations, adopted by the government at the proposal of the Competition Agency, are as follows:
• • the Regulation on the Definition of the Relevant Market (OG 9/2011);
  • the Regulation on the Block Exemption Granted to Certain Categories of Vertical Agreements (OG 37/2011);
  • the Regulation on the Block Exemption Granted to Certain Categories of Horizontal Agreements (OG 72/2011);
  • the Regulation on the Block Exemption Granted to Certain Categories of Technology Transfer Agreements (OG 9/2011);
  • the Regulation on the Block Exemption Granted to Agreements on Distribution and Servicing of Motor Vehicles (OG 37/2011);
  • the Regulation on the Block Exemption Granted to Agreements in the Transport Sector (OG 78/2011);
  • the Regulation on Agreements of Minor Importance (OG 9/2011);
  • the Regulation on Notification and Assessment of Concentrations (OG 38/2011);
  • the Regulation on the Method of Setting Fines (OG 129/2010, 23/2015);
  • the Regulation on Immunity from Fines and Reduction of Fines (OG 129/2010, 96/17).

In the application of Croatian competition law - and particularly in case of legal gaps or uncertainties relating to the interpretation of the law - the criteria of EU competition law will be applied. The EU acquis includes primary and secondary EU law, together with the case law of the General Court and the Court of Justice of the European Union.

Other sources of competition law in Croatia include:

• the Procedures for Damages for Infringements of the Competition Law Provisions Act (OG 69/17); and
• the Prohibition of Unfair Trading Practices in the Business-to-Business Food Supply Chain Act (OG 117/17, 52/21).

The General Administrative Procedural Act (OG 47/09, 110/21) also applies to proceedings before the Competition Agency; while the Administrative Disputes Act (OG 20/10, 143/12, 152/14, 94/16, 29/17, 110/21) sets out the procedure for judicial review of decisions of the Competition Agency before the High Administrative Court.

Other sources of competition law in Croatia include the provisions of sector-specific laws in industries where the Competition Act constitutes lex generalis, such as:

• the Electronic Communications Act (OG 76/22);
• the Media Act (OG 59/04, 84/11, 81/13);
• the Electricity Market Act (OG 11/21);
• the Gas Market Act (18/18, 23/20); and
• the Heat Energy Market Act (OG 80/13, 14/14, 102/14, 95/15, 76/18, 86/19).

1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?

The Competition Agency is an autonomous and independent legal entity with public authority, which is responsible for protecting competition in all markets within the framework and competence established by:

• the Competition Act;
• Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU);
• EU Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 TFEU; and
• EU Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

A party can challenge a decision of the Competition Agency before the High Administrative Court, which is competent to conduct judicial review of the work of the Competition Agency.

The commercial courts are competent to hear claims for damages based on infringements of competition law (Article 69a of the Competition Act).

2 Private claims

2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?

The Competition Agency has exclusive competence for the enforcement of competition law in Croatia. The following entities can request the initiation of proceedings that fall under its remit (Article 37 of the Competition Act):

• natural and legal persons;
• professional associations and economic interest groups and associations of undertakings;
• consumer associations;
• the government;
• central administration authorities; and
• local and regional self-government units.

Anyone who has suffered damages as a result of a breach of competition law is entitled to claim damages.

2.2 What is the legal basis for bringing a claim for breach of competition law?

With regard to the enforcement of competition law, the Competition Act applies along with Articles 101 and 102 of the Treaty on the Functioning of the European Union and EU Regulation 139/2004 on the control of concentrations between undertakings.

Article 69a of the Competition Act and the Procedures for Damages for Infringements of the Competition Law Provisions Act apply to compensation claims for breach of competition law.

3 Parties

3.1 Who has standing to bring a claim for breach of competition law?

In competition law proceedings, the following entities have the status of parties to the proceedings:

• the undertakings against which the proceedings have been brought by the Competition Agency; and
• all undertakings that are party to the concentration (Article 36 of the Competition Act).

In proceedings concerning compensation for damages, the parties are:

• anyone who has suffered damages as a result of a breach of competition law, on the side of the claimants; and
• undertakings or associations of undertakings, on the side of the defendants.

3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?

Croatian competition law applies to anyone that falls within the concept of an 'undertaking' and that distorts competition within the territory of Croatia or outside the territory if the practice distorting competition has effects within the territory of Croatia (Articles 2 and 3 of the Competition Act).

3.3 Can a claim for breach of competition law be brought against individuals, or only companies?

Claims for breach of competition law can be brought against undertakings. 'Undertakings' within the meaning of competition law include:

• companies;
• traders;
• associations of undertakings, tradespeople, craftspeople and other legal and natural persons engaged in the production of and/or trade in goods and/or provision of services;
• state authorities and local and regional self-government units that directly or indirectly participate in the market; and
• all other natural or legal persons - such as associations, sports associations, institutions and IP rights holders - that are active in the market.

The definition of an 'undertaking' is not affected by any of the following factors:

• legal status;
• the method of financing and the intent to make or the effect of making a profit;
• the place of establishment or residence either within or outside Croatia; and
• whether the activity in the market is performed directly or indirectly, permanently, temporarily or as a one-off operation in the market.

It also encompasses entities that:

• are entrusted, pursuant to separate laws, with the operation of services of general economic interest;
• have the character of a revenue-producing monopoly; and
• are allowed, by special or exclusive rights granted to them, to undertake certain economic activities (Article 3 of the Competition Act).

4 Collective actions

4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?

Collective action is regulated by the Civil Procedure Act (OG SFRJ 4/77, 36/77, 6/80, 36/80, 43/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91, and OG 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 96/08, 123/08, 57/11, 148/11, 25/13, 89/14, 70/19, 80/22).

Associations, bodies, institutions and other organisations established in accordance with the law which, within their registered or regulated activities, deal with the protection of collective interests and rights of citizens established by law can - if such authorisation is explicitly recognised and under conditions prescribed by that law - file a lawsuit for the protection of collective interests and rights against a natural or legal person that, by performing a specific activity or in general through its work or conduct (including omissions), severely infringes or threatens such collective interests and rights.

However, Croatian competition law has no special provisions for collective action. Hence, at the moment, it does not seem possible to bring a collective action for breach of competition law.

4.2 Do collective actions proceed on an 'opt-in' or an 'opt-out' basis?

See question 4.1.

4.3 Do collective...