Prohibited agreements of competitors on prices and their particularities in marinas case in the Republic of Croatia
Author: Dr. Božena Bulum
Key words: competition law, horizontal agreements on prices, nautical tourism ports, berth contract, relevant product market, relevant geographic market
Agreements of competitors on prices of goods and services are strictly forbidden by competition rules. Horizontal agreements on prices concluded by direct competitors are considered as particularly harmful to competition, because these agreements regularly lead to the elimination of competition on the relevant market. These agreements represent restrictions of competition by object, for that reason it is not necessary to examine their anti-competitive effects. Restrictions of competition by object are those that by their very nature have the potential of restricting competition. This presumption is based on the serious nature of the restriction and on experience showing that restrictions of competition by object are likely to produce negative effects on the market. Content of the agreement and its objective aims are relevant for the assessment whether that agreement has aim to restrict competition. In the case of horizontal agreements restrictions of competition by object usually include price fixing, output limitation and sharing of markets and customers as well as other restrictions of competition at the expense of the other competitors and consumers. These agreements are prohibited per se, regardless of whether or not their anti-competitive effects occurred. Although in the competition law the notion of agreement is interpreted extensively and prohibited are not only explicit agreements of the competitors on prices but also the tacit once, existence of these agreements in practice is often very difficult to prove. As Croatian competition law doesn’t include detailed rules on exchange information and agreements between competitors, Croatian Competition Agency in these cases uses the European Union acquis as an interpretative instrument for the application of the Croatian competition rules. Judgements of the Court of Justice of the European Union and General Court of the European Union are particularly important instruments for overcoming legal voids and uncertainties relating to the interpretation of Croatian rules on competition. In this paper we analyse the decision of the Croatian Competition Agency in which is determined the existence of a prohibited agreement of undertakings on the future prices of berths in marinas on the territory of the Republic of Croatia (case “Marinas”), as well as the judgement of the High Administrative Court of the Republic of Croatia and of the Croatian Competition Agency which were brought after that. Many disputable issues, factual and legal, which appeared in that case are being examined, such as existence of cartel agreement between marinas, determination of the relevant market, providing of nautical tourism services in ports open to public traffic and sports ports, role of the Croatian Association of Nautical Tourism etc. Relevant judgements of the Court of Justice of the European Union and General Court of the European Union which Croatian Competition Agency used as an interpretative instrument for the application of the Croatian competition rules are analysed such as C-48/69 ICI v Commission, C- 114/73 Suiker Unie v Commission, C-199/92 Hüls AG v Commission, C- 8/08 T-Mobile Netherlands BV and Others v Raad van bestuur van der Nederlandse Mededingingsautoriteit, etc., as well as previously issued decisions of the Croatian Competition Agency on horizontal agreements on prices such as Autobusni promet d.d. Varaždin i dr. („Kartel autobusnih prijevoznika), Biserka-ST d.o.o., Auto škola Centar d.o.o. i dr. („Autoškole u Splitu“), Hrvatski centar za razminiranje protiv AKD-Mungos d.o.o. i dr. („Razminirači“), Europapress Holding d.o.o. i NCL Media Grupa d.o.o. („EPH i NCL Media Grupa“), Tehnoplast d.o.o. i dr. („Upravitelji zgrada iz Splita“), Birdom d.o.o. i dr. („ Trgovci uredskim materijalom“), etc. The overriding goal of the present paper is to provide a critical evaluation of the decisions of the Croatian Competition Agency and High Administrative Court of the Republic of Croatia brought in “Marinas” case and Croatian rules applied in that case.
