The long-awaited new Law repealing and replacing the previous legal framework relating to the protection of competition in Cyprus has been adopted. The new Law is entitled “The Protection of Competition Law of 2021”, Law 13(I)/2022, (the «Law») and aims to transpose Directive (EU) No. 2019/1 (ECN+ Directive) (the «Directive»). The Directive’s main objective is the empowerment of the National Competition Authorities («NCAs») in effectively enforcing Articles 101 and 102 TFEU and ensuring fair and open competition in the internal market. Moreover, the Directive recognises the importance of the uniform application of EU Competition Law in parallel to national law. To that end, it empowers NCAs by providing them with the necessary tools for the enforcement of Competition Law and ensures that the critical guarantees of independence and impartiality are in place.
Considering the Directive’s objectives, the Law does not amend the substantial provisions of the previous legal framework. It mainly focuses on reinforcing the powers of the Cyprus Commission for the Protection of Competition (the «CPC») and providing it with the essential resources to carry out its mandate effectively. Importantly, the new Law divides the CPC’s powers in relation to conducting investigations and imposing administrative fines for infringements of competition rules into two Chapters. More specifically, the CPC is granted the power to summon persons for the purpose of acquiring statements and information in relation to ongoing investigations. With regard to the imposition of administrative fines, the Law introduces a new provision regulating their payment and the potential interests due in cases of delays.
The CPC is additionally given the ability to issue notices, recommendations and guidelines for the purpose of informing interested parties in relation to its competencies, issues concerning the procedures before it, the processing of personal data provided to it in the context of investigations, as well as matters pertaining to the method of evaluating the factors affecting the level of administrative fines.
The Law also provides the Service of the CPC (the «Service») with the power to submit explanatory reports to the CPC in relation to requests made by parties involved in cases for the marking of information as confidential or as business secrets. Explanatory reports may further be submitted by the Service to the CPC in relation to commitments proposed by parties involved in potential Competition Law infringement proceedings for the alleviation of the former’s concerns.
Procedural issues are also addressed by the Law, specifically relating to safeguards for the submission of complaints and accessing the case file, as well as procedures concerning the protection of confidential information, business secrets and personal data. Concerning the submission of complaints, it is noted that the complaint document itself has been simplified, and persons wishing to lodge a complaint are provided with instructions so as to ensure its correct and complete submission.
It is important to mention that for the purpose of fulfilling the Directive’s objective for uniform application of competition rules, the Law further facilitates the cooperation between the CPC and other NCAs of EU Member States. More specifically, it introduces provisions relating to the mutual assistance in the context of investigations (e.g., collection of information and unannounced on-the-spot inspections), the sharing of documents related to the cross-border application of EU Competition Law and the execution of decisions imposing fines.
As mentioned above, the Law was adopted for the purpose of transposing the Directive into the legal order of Cyprus. However, it is noteworthy that prior to its approval by the House of Representatives of the Republic of Cyprus, the Law in its draft form had mainly instigated debates and disagreements concerning its provisions relating to the qualifications of the CPC’s Chairperson. In particular, the debate was focused on whether the Chairperson should be a person with legal background and experience, or whether economists should also be able to be appointed.
Considering that the Law confers additional investigatory powers to the CPC, the discussions were expected to primarily focus on the issue of the potentially inadequate guarantees for a fair trial and the need to enhance the internal and external checks and balances within the Cyprus enforcement system. This is believed to be essential given that the CPC combines several roles when enforcing Competition Law in Cyprus (i.e., Investigator, Prosecutor and Adjudicator) and there is insufficient judicial review of CPC’s decisions by Courts.