The Competition Authority today publishes guidance on the application of section 15 of the Competition Act on exemptions from the prohibition on undertakings' collusion.
At the turn of the year, fundamental changes to Article 15 of the Competition Act and the procedure for exemptions from the prohibition rules of Articles 10 and 12 of the Act will come into force. Instead of a system where an exemption is subject to the prior approval of the Competition Authority, a so-called self-assessment system will be introduced. This means that from the start of the new year, companies considering cooperation will have to assess for themselves whether such cooperation complies with competition law. Likewise, business associations will have to assess whether their activities meet the requirements of competition law. Consequently, at the turn of the year, the Competition Authority's power to grant exemptions from the prohibition on illegal collusion and anti-competitive practices for companies and company associations will also be abolished. The Competition Authority will be prohibited from issuing binding opinions on whether a company's cooperation meets the requirements of Article 15 of the Act.
The guidance published today sets out the key considerations that companies should bear in mind when assessing whether their restrictive cooperation meets the conditions of Article 15 of the Act. It is part of the effort to make it easier for companies to comply with the law.
The Competition Authority's guidelines take into account Guidelines of the EFTA Surveillance Authority („ESA“) on self-assessment by undertakings and serve to supplement those and the ESA's guidelines on the application of competition rules to horizontal and vertical cooperation between companies. Furthermore, solutions from Icelandic and European case law have been considered. In preparing the guidelines, the Competition Authority also sought submissions and held an open public consultation, where interested parties were given the opportunity to express their views.
Guidance on the application of Article 15 of the Competition Act can be found here (pdf).
Validity of older exemption decisions
(News updated 3 March 2021)
The changes which came into effect on the 15th.
Article of the Competition Act on 1 January last led to the fact that they
exemptions which had been granted by the Competition Authority on the basis of older
The provisions do not have the same effect as before.
With the implementation of a self-assessment system,
The role of the Competition Authority consists solely of having “ex post“
supervision to ensure that the competition law prohibition on consultation is not breached. This leads to
also that after 1 January 2021, there has been a legal basis for exemptions that
had previously been granted by decisions of the Competition Authority. After 1 January
In 2021, the relevant parties who benefited from the exemption under the old system were required to take
Self-assessment in accordance with Act no. 103/2020.
The Competition Authority believes again
It was inappropriate to grant companies that had received an exemption which had expired
to have the space to shoulder his responsibilities in the new year
legal framework. It will therefore be considered that a partnership for which an exemption had been granted
granted for the fulfilment of the exception conditions of Article 15 of the Competition Act, without further
for review, until 1 July 2021.
As before, measured
The Competition Authority, so that companies will immediately take responsibility for
discretion vested in forthcoming legislative amendments, i.e. to assess for oneself whether the conditions for an exemption from Articles 10 and 12 of the Competition Act are met
fulfilled for the relevant partnerships. It should be emphasised that in the aftermath
Following the amendment, the Competition Authority will not be able to issue binding
an opinion in advance on whether a specific course of action fulfils the statutory requirements.
There is a reason to
draw special attention to the fact that this change in the procedures and responsibilities of companies
and the association of companies is of great significance with regard to proof. The burden of proof for
because the companies' self-assessment had been satisfactory and the conditions of Article 15 of the Act
are fulfilled, will rest with the respective companies. Companies must be able to demonstrate
that the collaboration has, from the very beginning, and throughout its entire existence
being in place, fulfils all the conditions of Article 15 of the Competition Act and they are required to
to do so on the basis of written evidence, see further discussion in
Guidelines of the Competition Authority on the application of Article 15. Role
It will then be for the Competition Authority to assess solely whether the partners have
proof of the above will be provided, should it be investigated.
In assessing whether
A collaboration may, up to a certain point, have an effect which fulfils the conditions of Article 15 of the Competition Act.
in view of the exemption previously granted to the company in question
and acted upon, as well as other older decisions of the Competition Authority and after
cases decided by the Competition Appeals Tribunal and the courts.
However, the guidance value of older solutions is limited in a self-assessment system.,
cf. paragraphs 59–61 in the guidelines. It also includes evidential requirements, cf. paragraphs.
94.
It is therefore important to have it.
aware that exemptions which the Competition Authority granted on the basis of older
The provisions of Article 15 of the Competition Act cannot exempt the relevant undertakings from it.
to assess for itself whether the conditions of Article 15 are met, even if the matter concerns
an ongoing and ongoing collaboration which the supervisory authority has previously assessed in
frequent predecessor to Article 15 of the Competition Act. Particular attention must be paid to whether the Competition Authority has made the granting of an exemption conditional on specific
conditions aimed at changing the relevant cooperation or its framework to
in order to ensure that it fell under Article 15(1) of the Competition Act but
Partner companies cannot assume that the same conditions and
The Competition Authority's setting in an older system can ensure that a partnership meets the conditions.
Article 15 of the Competition Act after 1 January 2021. Will affiliated companies in
a self-assessment system to assess, depending on the circumstances at any given time, whether
Changes to the framework of the cooperation mean that it can enjoy
Exceptions to the prohibition of Articles 10 and 12 of the Competition Act.
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