Yesterday, the media reported on a resolution by the Consumers' Association in response to the decision of the Competition Authority. No. 26/2014, Misuse by Mjólkursamsalan ehf. of its dominant market position. The resolution calls on competition authorities, among other things, to apply the sanctions provisions of competition law to individuals more widely.
On the authority's website, under the heading Frequently Asked Questions – Illegal Collusion, an answer can be found to the question of whether individuals can be held liable for breaches of competition law. The answer can also be found below.
In 2007, the criminal liability of individuals for breaches of competition law was further defined. The amendments made the criminal liability of individuals clearer and provided for more detailed provisions on division of labour and cooperation between the competition authorities and the police in the investigation of offences against competition law.
The criminal liability of individuals for breaches of competition law is limited to offences involving illegal agreements, which are considered the most serious breaches of competition law. The reason for this is that in cases where collusion is suspected, significant interests of consumers and business are at stake, as illegal collusion between companies can result in serious economic harm. Under the current competition law, an individual, i.e. an employee or director of a company, who carries out, encourages or has carried out concerted action, may be subject to fines or imprisonment for up to six years. Specifically, the criminal liability covers collusion on prices, discounts, surcharges or other commercial terms, collusion on the division of markets and the restriction of production, collusion on the making of offers, collusion to refrain from dealing with certain companies or customers, and the provision of information on these specific matters. It also includes collusion between companies that aims to prevent them from competing with each other.
Abuse of a dominant position cannot be penalised in the same way for individuals. The explanatory memorandum to the bill stated:
It is a fact that the abuse of a dominant position, pursuant to Article 11 of the Competition Act, can cause significant damage to society, and there are grounds for arguing that such abuse should be punishable in the same way as illegal collusion. However, it is considered that the application of such a penal provision could be problematic, as it may be necessary to carry out a complex economic analysis to determine whether the company in question holds a dominant position. Furthermore, in exceptional cases, it may be difficult for a company to determine whether it holds a dominant position within the meaning of Article 11 of the Competition Act. Furthermore, it should be borne in mind that Article 11 of the Act prohibits conduct that may be normal and even pro-competitive where a company is not in a dominant position. On this basis, there is no reason to impose a penalty for the abuse of a dominant position. The conclusion is consistent with the competition law of most Western countries, which provides for penalties for competition offences, e.g. the United Kingdom, Norway and the United States.
Individuals who commit competition law infringements are only subject to a public investigation following a complaint by the Competition Authority to the police. The Competition Authority assesses on a case-by-case basis, taking into account the gravity of the infringement, whether to refer a case to the police. It is important that the Competition Authority maintains consistency in the handling of comparable cases. It should also be noted that the Competition Authority may decide not to prosecute an individual if he or the company he works for has taken the initiative to provide the Competition Authority with information or evidence concerning infringement of competition law which can lead to the proof of the infringements or is considered a significant contribution to the evidence already in the possession of the Competition Authority.
The Competition Authority is authorised to hand over to the police authorities any data and information it has obtained relating to the offences under investigation. Likewise, the police may hand over to the Competition Authority any data and information that may be relevant. The Competition Authority is also authorised to take part in police operations concerning the investigation, and the police are likewise authorised to take part in the operations of the competition authorities.
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