Chillin'Competition

[The global Human Rights Logo, above, was created by Predrag Stakić from Serbia]

Some in the EU claim that EU Courts are permissive of the alleged flaws of the institutional/procedural system for the enforcement of the competition rules. The prosecutor-and-judge debate is one of the most longstanding in contemporary competition law. Whereas the Menarini Judgment from the European Court of Human Rights seemed to indirectly endorse the EU system, some continue to question whether the ECHR’s requirements are complied with by a system where the Courts do not always exercise “full review”. In anticipation of possible future challenges, you will in fact have noted that, following Menarini, the expression “marginal review” has disappeared from EU competition law Judgments. The extent to which there was a problem, or to which there may have been a change, in this regard is further discussed here.

Now, what happens when the EU mode is exported to/imported by other jurisdictions with allegedly different checks and balances? Well, here’s a story that is currently making the headlines in the Balkans and that has triggered some unprecedented developments, including a common constitutional challenge on the part of the national Bar, Human Rights Organizations and criminal law academics, public accusations on the part of the competition authority against individual lawyers, alleged breaches of private correspondence and other black-novel-like developments. Who said competition law couldn’t be adventurous…

A quick recap follows:

In April 2017 the Serbian competition authority announced that, following a public consultation, it would pass a new competition statute replacing the 2009 competition act (amended in 2013 to be brought closer to the EU system) given “the need for increased efficiency and to facilitate easier competition enforcement in Serbia”.

In the course of May 2017 the authority conducted an unprecedented number of raids and opened an unusual number of investigations. These developments occurred just days before the entry into force of a New Administrative Act on June 1 2017; the Act –we are told- introduces substantial changes elevating the protection of human rights and due process safeguards incorporating the EU and ECHR acquis. It was then pointed out by some (then) commentators that the authority appeared to have used its vast powers under the current competition law prior to the entry into force of increased procedural guarantees.

This then led several organizations (including the Chamber of Commerce and Industry) to propose a total revamp of Serbian competition law.

An initiative to study a possible Constitutional challenge was then prepared by the boutique law firm Gecić Law [our friend Bogdan Gecić and his team are admittedly our sources of  information] together with the Association for the Protection of Constitutionality and Legality (UZUZ) and the Lawyers’ Committee for Human Rights (YUCOM). This initiative somehow came to the knowledge of the authority (we understand that there are now proceedings aimed at ascertaining how that privileged document was gathered), which issued this unusual announcement, essentially arguing that the law firm instigating criticism of the current law and administrative practices would be reported to the Ethics Committee of the Bar (for the reaction of the affected firm, see here). Following that there were some issues about news sites taking down pieces about all this, but that’s mainly gossip.  Then, the Bar responded by joining the Constitutional challenge.

Back to substance: the Constitutional Challenge finally materialized last week. An English translation of the document is available here: Contitutional-challenge_convenience-translation It essentially assesses the legality of the enforcement system under the criteria laid down in Menarini and other ECtHR case law.  The way in which this is done is interesting and it is a good appetizer for what is likely to come the day the EU finally adheres to the ECHR.  Should this challenge succeed, that would be a quick way of winning every single ongoing case, which seems like a pretty tempting shortcut.  And we are told that more actions are underway.

To be continued…