The Amendment Of The Czech Competition Act In A Nutshell I: Are You Sure No One Is Listening?

• Published date: 21 July 2023
• Subject Matter: Antitrust/Competition Law, Media, Telecoms, IT, Entertainment, Antitrust, EU Competition , Mobile & Cable Communications
• Law Firm: Havel & Partners s.r.o.
• Author: Mr Robert Neruda, Petra Joanna Pipkov' and Ivo 'imeček

On Friday, 14 July 2023, the long-awaited amendment to the Czech Competition Act (CCA) was published in the Collection of Laws. Its main objective is to implement the ECN+ Directive (which is intended to strengthen the position of competition authorities). However, the Czech legislator used this to make a number of other changes to the CCA. As the deadline for transposition of the ECN+ Directive has already expired on 4 February 2021(!), a very short vacation legis period has been set - only 15 days after the promulgation of the amendment. Its entry into force is therefore only a matter of a few days (29 July 2023). In this forum we would like to gradually introduce you to the novelties brought by the amendment to the CCA: both those that are based on the ECN+ Directive and those that are purely the work of the Czech legislator, and the Office for the Protection of Competition (OPC).

We dedicate the first episode of the series " The amendment of the Czech Competition Act in a nutshell" to the most controversial change. This is the possibility for the OPC to use as evidence in cartel cases the recordings of telecommunication traffic, data on telecommunication traffic or recordings made during the surveillance of persons and things obtained by the law enforcement authorities under criminal law.

This provision was seemingly included in the amendment to the CCA only during the deliberations in the Chamber of Deputies. However, it was in fact already included in the version submitted by the CCA for consultations. During the consultations process, this provision became the target of criticism, among other things because of concerns about the preservation of the right to defence. The version approved by the Czech Government did not contain it anymore. However, it returned to the amendment as part of the amendments proposed by the MPs.

Thus, there is no explanatory memorandum to the new provision on the use of records as evidence, but there is an explanatory memorandum to the original draft provision. According to it, the OPC already routinely receives recordings of telecommunication traffic (wiretaps) when taking over documents from the law enforcement authorities, but so far it has not been able to use them, even though they could serve as essential evidence.

What can the OPC obtain from the law enforcement authorities and use as evidence of a cartel?

Telecommunications traffic is basically any communication using electronic equipment. This can be a mobile...