The Cartels and Leniency Review: Cyprus
Enforcement policies and guidance
i Statutory framework
As a Member State of the European Union (EU), Cyprus adheres to the policies and law of the EU on matters pertaining to competition and follows relevant case law.
The primary piece of legislation governing competition law, including cartel activity, in the Republic of Cyprus is the Protection of Competition Law 13(I)/2008, as amended by Law 41(I)/2014 (the Competition Law),2 which superseded the previous versions of the Protection of Competition Law (from 1989 to 2000). The Competition Law aimed to regulate and protect free competition within Cyprus in conformity with Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (subsequently Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)), as amended by Council Regulation (EC) 1419/20016 of 25 September 2006.
Although the Competition Law does not define the term 'cartel', Section 3(1) of the Competition Law (which mirrors Article 101(1) of the TFEU) provides that all agreements between undertakings, all decisions by associations of undertakings and any concerted practices that have as their object or effect the prevention, restriction or distortion of competition within Cyprus shall be prohibited, and in particular those that:
- directly or indirectly fix purchase or selling prices or any other trading conditions;
- limit or control production, markets, technical development or investments;
- share markets, geographically or otherwise, or sources of supply;
- apply dissimilar conditions to equivalent transactions thereby placing certain undertakings at a competitive disadvantage; and
- make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which, by their nature or according to commercial usage, have no connection with the subject of the contracts.
Agreements prohibited under Section 3(1) of the Competition Law are considered to be void ab initio.
However, in accordance with Section 4(1) of the Competition Law (the equivalent of Article 101(3) of the TFEU), in the absence of a prior decision to the contrary by the Commission for the Protection of Competition (CPC), an agreement, decision or concerted practice that falls within the ambit of Section 3(1) of the Competition Law shall be permissible and not prohibited if it cumulatively satisfies the conditions set out below:
- with the reasonable participation of consumers, the agreement decision or practice contributes to a resulting benefit in the development of production or distribution of goods, or the promotion of technical or financial development;
- it does not impose restrictions on the undertakings concerned unless they are absolutely necessary for the achievement of the above-mentioned purposes; and
- it does not afford the undertakings concerned the possibility of eliminating competition from a substantial part of the product market concerned.
Pursuant to Section 5 of the Competition Law, the Council of Ministers, following a prior reasoned opinion of the CPC, may issue an order, exempting specific categories of practices from the application of Section 3 of the Competition Law. Such an order must be published in the Cyprus Government Gazette (the Official Gazette).
In addition to exemption orders issued by the Council of Ministers, there are a number of block exemption regulations issued at EU level, pursuant to Article 101(3) of the TFEU, which are directly applicable in Cyprus.
ii The authority
The CPC was initially established in 1990 with the enactment of the Protection of Competition Law 207/89, which was superseded with the adoption of the Competition Law, which re-established the CPC as the responsible authority for the application of Regulation 1/2003, and Articles 101 and 102 of the TFEU, where necessary.
The CPC's powers are, inter alia, the following:
- to investigate and take decisions on the infringement of Sections 3 or 6 of the Competition Law and Articles 101 or 102 of the TFEU;
- to decide whether all the conditions of Section 4 of the Competition Law are met so that an agreement, decision or concerted practice that falls under Section 3(1) of the Competition Law is valid;
- to decide whether all the conditions of Article 101(3) of the TFEU are met so that an agreement, decision or concerted practice that falls under Article 101 of the TFEU is valid;
- to decide whether the concerted practice for which an order has been requested pursuant to Section 5(1) of the Competition Law falls within the category of concerted practices provided for in the order and is thus exempt from Section 3 of the Competition Law;
- to decide whether the concerted practice for which there is an invocation of the Community Regulation, pursuant to Section 5(2) of the Competition Law, falls within the category of concerted practices provided for in the Community Regulation;
- to decide on interim measures under the relevant provisions of the Competition Law;
- to impose terms and behavioural or structural remedies, according to the infringement, necessary to bring the infringement to an end;
- to conduct investigations in a specific sector of the economy or in specific types of agreements;
- to set, by a decision, the criteria for examination of cases in priority for infringements of Sections 3 or 6 or Articles 101 or 102 of the TFEU and to examine cases based on these priority criteria, taking into account the public interest, the possible effect on competition or consumers, and the limitation periods;
- to issue press releases to inform anyone who has an interest in the CPC's areas of competence; and
- to issue informal guidance to public bodies about the CPC's areas of competence and powers, without binding effect on later decisions.
The detection and prosecution of cartels constitute a priority for the CPC.5 In this context, the CPC operates a 'cartel hotline' for the submission of information in relation to illegal agreements, recognising both that such information is important for detecting and breaking up illegal cartels6 and the difficulty in detecting cartels because of tacit collusion between undertakings.
Nevertheless, the chairperson of the CPC in a recent statement to the Finance Committee of the House of Representatives noted that the CPC's programme, designed to root out cartels on the island, has failed because of the nature of Cypriot culture and the country's closed society, which does not consider informing acceptable.7
In recent years, according to the publicly available decisions, the CPC has examined a number of alleged infringements of Section 3 of the Competition Law and Article 101 of the TFEU, concerning both horizontal and vertical agreements. With regard to the examination of alleged horizontally infringing behaviour (i.e., cartels), the CPC only found prima facie infringements of Section 3 and Article 101 in Decision No. 20/2020, concerning a complaint made by SYKADE, the Cyprus Association of Convenience Stores, against Fereos Ltd, Cosmos Trading Ltd, Giorgos Katsafalos Limited, BAT (Cyprus) Ltd and Cassandra Trading Ltd. The prima facie infringements constituted in essence the exchange of sensitive information, including price catalogues and price-fixing. The parties offered behavioural commitments to the CPC that had the effect of removing the prima facie infringements, hence this was not an infringement decision ultimately.
Cooperation with other jurisdictions
The internationalisation of cartel enforcement is a necessity in light of the interdependence of the global market and the multi-jurisdictional activity of undertakings. To this end and pursuant to the Competition Law,8 the CPC may cooperate with regulatory or other authorities of Member States of the EU that exercise control in specific sectors of the economy of Cyprus and offer its assistance, upon their request. The CPC can request the assistance of the above regulatory or other authorities when exercising its powers under Section 23 of the Competition Law.
Clearly, the CPC cooperates with the European Commission in matters pertaining to cartel regulation and is obliged to cooperate closely with the European Commission in instances where cartel activity spans more than one Member State, accordingly triggering Article 101 of the TFEU.9
Moreover, the Competition Law provides that the CPC may conclude memoranda of cooperation with other national competition authorities. Indicatively, the CPC signed a memorandum of cooperation with the Hellenic Competition Commission whereby the two sides commited to enhance their existing cooperation within the European Competition Network (ECN) to enforce national and EU competition rules and also laying down key principles for exchanging information regarding activities of businesses or undertakings in each geographical territory.10
The CPC in accordance with the Competition Law can exercise its jurisdiction extraterritorially over any conduct outside Cyprus if that conduct prevents, restricts or distorts competition in violation of Section 3 of the Competition Law.
The CPC forms part of the ECN, which was established by Regulation (EC) No. 1/2003, as a system in which the competition authorities of Member States have parallel competence to apply the competition rules. The ECN constitutes a forum for discussion and cooperation in applying and enforcing EU competition policy. It provides a framework for cooperation between the European competition authorities in cases in which Articles 101 or 102 of the TFEU are applied, and a basis for creating and fostering a common competition culture in Europe. The EU Commission and competition authorities from EU Member States cooperate with each other through the ECN by:
- informing each other of new cases and prospective enforcement decisions;
- coordinating investigations, where necessary;
- helping each other with investigations;
- exchanging evidence and other information; and
- discussing various issues of common interest.
The CPC is also a member of the International Competition Network and the European Competition Authorities.
Jurisdictional limitations, affirmative defences and exemptions
The Competition Law expressly prohibits all agreements between undertakings, all decisions by associations of undertakings and any concerted practices that have as their object or effect the prevention, restriction or distortion of competition within Cyprus. The decisive factor, therefore, is whether the conduct in question adversely affects competition within Cyprus, rather than where the conduct in question takes place or to whom it is attributed. Physical presence of the individuals of undertakings concerned is thus not a prerequisite for application of Section 3 of the Competition Law.
In the event that concerted practices affect trade between Member States of the EU, the CPC has the authority to implement Article 101 of the TFEU, and if an infringement of Article 101 is established, the CPC can impose sanctions on the undertaking in accordance with the Competition Law.11
Restrictive agreements that fall within the ambit of Section 3 of the Competition Law may be permissible, without a prior decision of the CPC, if they cumulatively satisfy the following conditions, in accordance with Section 4 of the Competition Law:
- they contribute, with the reasonable participation of the consumers, in the resulting benefit, in the development of production or distribution of goods or in the promotion of technical or financial development;
- they do not impose restrictions on the undertakings concerned unless they are absolutely necessary for the achievement of the above-mentioned purposes; and
- they do not afford the undertakings, to which the agreement relates, the possibility to eliminate competition from a substantial part of the market product concerned.
Moreover, an agreement or concerted practice of a holding company and a subsidiary company, if they constitute a single economic entity and the subsidiary has no real freedom to direct its own activities, and the agreement or concerted practice relates exclusively to the allocation of activities between the holding company and the subsidiary company (or two or more subsidiary companies provided they constitute a single economic entity with the holding company) is excluded from the definition of the term 'collusion' in the Competition Law under Section 2 and accordingly exempt from the provisions of the Competition Law.
Furthermore, Section 7 of the Competition Law provides that agreements relating to wages and terms of employment and working conditions for undertakings entrusted with the operation of services of general economic interest or having the character of a revenue producing monopoly are excluded from the prohibition of Section 3 of the Competition Law.
Specific categories of agreements or practices falling within the ambit of Section 3 of the Competition Law may also be exempted under one of the block exemption regulations issued pursuant to Article 101(3) of the TFEU or one of the exemption orders issued by the Council of Ministers in accordance with Section 5(1) of the Competition Law. Such exemptions include, inter alia, the following:
- certain categories of agreements on research and development;
- certain categories of agreements in the insurance sector;
- certain categories of agreements in the automobile industry;
- certain categories of agreements relating to technology transfer;
- certain categories of agreements relating to the production of or trade in agricultural products;
- certain agreements related to technical cooperation in the field of air transport; and
- certain agreements, decisions and concerted practices in the road transport industry.
In addition, EU Regulation No. 330/201012 applies to vertical agreements between an association of undertakings and its members or between an association and its suppliers.
The leniency regime implemented by the CPC in Cyprus and provided for by Section 24 of the Competition Law is based on secondary legislation via the issuance of Regulatory Administrative Act No. 463/2011 by decision of the Council of Ministers in accordance with Section 46 of the Competition Law. The regime is formally titled the Leniency Programme Immunity from and Reduction of Administrative Fines in cases of Restrictive Collusions Infringing Section 3 of the Law or/and Article 101 of the TFEU (Leniency Programme) Regulations of 2011 (the Leniency Programme) and was issued in the Official Gazette on 11 November 2011.
The Leniency Programme follows the ECN Model Leniency Programme and lays down the legal framework that defines the leniency or full exemption from administrative fines of an undertaking or associations of undertakings wishing to cooperate with the CPC to uncover illegal cartels, which are prohibited by Section 3 of the Competition Law and Article 101 of the TFEU. In essence, the Leniency Programme provides the opportunity for an exemption or reduction of the applicable administrative fine to undertakings that wish to end their participation in cartels and assist the CPC with evidence of the cartel's existence and conduct, on the terms provided under the Competition Law.
The Leniency Programme codifies the procedure, the conditions and the criteria for granting an undertaking or association of undertakings an exemption or reduction of the administrative fine imposed by the CPC.
The CPC grants immunity from administrative fines that would otherwise be imposed on an undertaking that reveals its involvement in an alleged concerted practice if:
- the undertaking is the first to submit evidence that is sufficient to initiate an inspection (dawn raid) according to Sections 31 or 32 of the Competition Law, concerning an infringement of Section 3 of the Competition Law or Article 101 of the TFEU; or
- the undertaking is the first to submit evidence that allows the CPC to find an infringement of Section 3 of the Competition Law or Article 101 of the TFEU.
Undertakings that do not qualify for immunity may benefit from a reduction in fines if they provide evidence that represents significant added value to that already in the CPC's possession, and they have terminated their participation in the cartel.
The CPC's power to grant immunity to an applicant or reduce the fine normally imposed when a cartel is found to exist is decided according to and depending on the time each applicant approached and provided evidence to the CPC. However, no provision of the Leniency Programme should be expected to affect or prejudice the discretion of the CPC in the exercise of its competence and powers under the Competition Law.
Regulation 5 of the Leniency Programme sets out the following conditions for applicants to qualify for immunity from administrative fines:
- to cooperate fully, actively and on a continuous basis with the CPC, from the date of submission up until the completion of the procedure and in particular:
- to provide the CPC, willingly and promptly, with all relevant information and evidence it possesses or is available to it, or that subsequently comes into its possession, in relation to the alleged collusion;
- to remain at the CPC's disposal to answer, willingly and promptly, any request that may contribute to the establishment of the relevant facts;
- to make current (and, if possible, former) employees and directors available for interviews with the CPC or any member of the service of the CPC;
- not to destroy, falsify or conceal relevant information or evidence relating to the alleged restrictive collusion; and
- not to disclose the fact or any of the contents of its application before the CPC has issued a statement of objections in the case, unless otherwise agreed;
- to terminate its involvement in the alleged infringement at the time it submits the evidence mentioned in Regulation 6, the latest, except for what would, in the CPC's view, be reasonably necessary to act otherwise to preserve the integrity of the inspection being carried out pursuant to Section 31 of the Competition Law (which provides for dawn raids by the CPC); and
- not to have incited other undertakings to participate in the infringement (where an undertaking has incited others, it may apply for a reduction in the administrative fines imposed, if it meets the relevant conditions and requirements of the Leniency Programme).
Regulation 6 of the Leniency Programme provides that an undertaking that applies for immunity from an administrative fine must provide the CPC with the following information and evidence:
- a signed statement by the undertaking that shall include, insofar as it is known to the applicant undertaking at the time of the submission:
- a detailed description of the alleged restrictive collusion and in particular its aims, activities and functioning; the product or service concerned; the geographic scope; its duration and estimated market volumes affected by it; the specific dates, locations, content of and participants in the alleged collusion; and all relevant explanations in connection with the evidence provided in support of the application;
- the name and address of the legal entity submitting the application for immunity from the administrative fine, as well as the names and addresses of all the other undertakings participating, or that participated, in the alleged restrictive collusion; and
- the name, position, office location and, where necessary, home address of all individuals who, to the applicant's knowledge, are or have been involved in the alleged restrictive collusion, including those individuals who have been involved on the applicant's behalf;
- an indication of the other national competition authorities of the EU (or any other authority) that have been approached or are intended to be approached or to which the applicant has submitted a similar application or so intends in relation to the alleged restrictive collusion; and
- any other evidence relating to the alleged restrictive collusion that the applicant has in its possession or available to it at the time of the submission, in particular any evidence that concerns the period of the infringement.
Section 16 of the Leniency Programme provides the criteria that undertakings must comply with to be eligible for the reduction in fines. In specific, undertakings must provide the CPC with evidence of the alleged infringement that represents significant added value with respect to the evidence already in the CPC's possession, and must meet the cumulative conditions set out in Regulation 5. The concept of 'significant added value' is defined in the Leniency Programme as evidence that, by its very nature or level of detail, strengthens the CPC's ability to prove the alleged restrictive collusion or written evidence originating from the period to which the facts pertain of greater value than evidence subsequently established. Evidence directly relevant to the facts in question shall generally be considered to have a greater value than that with only indirect relevance; similarly, the degree of corroboration from other sources, required for the evidence submitted to be relied upon against other undertakings involved in the case, shall have an impact on the value of that evidence, therefore compelling evidence shall be attributed a greater value than evidence such as statements that require corroboration if contested.
If an investigation has already commenced, the first undertaking to become a leniency applicant is eligible for a reduction of the administrative fine of between 30 per cent and 50 per cent if it provides evidence of significant added value, and for the second applicant a reduction of between 20 per cent and 30 per cent at the discretion of the CPC. Any subsequent application by an undertaking becomes eligible for a fine reduction of up to 20 per cent.
The Leniency Programme also provides for a marker system13 that holds an undertaking in a queue when applying for leniency and in essence provides the undertaking adequate time for the collection of the information necessary to qualify as eligible for immunity or leniency without losing its position to other undertakings in the leniency queue. The Leniency Programme also provides the conditions for the marker system to be activated14 and the information that must be provided by an undertaking when applying to the CPC for a marker.15
The Leniency Programme applies only to corporate entities and does not cover natural persons16 and also prohibits joint applications for immunity from an administrative fine or the reduction of an administrative fine by two or more undertakings or by an association of undertakings.17
In the framework of the ECN, the CPC cooperates with the European Commission and the national competition authorities of other Member States on issues concerning Leniency Programmes. In accordance with Regulation 30 of the Leniency Programme, the fact that a specific undertaking benefits from the Leniency Programme does not confer immunity from or a reduction in administrative fines imposed by the European Commission or national competition authorities in other Member States on the basis of the data that the undertaking has given to the CPC. The undertaking may submit similar applications to the European Commission or to other national competition authorities in Member States where the restriction of competition under examination has an impact.
The Competition Law only provides for administrative sanctions for antitrust violations.
Pursuant to Section 24 of the Competition Law, for every infringement of Section 3 of the Competition Law or Article 101 of the TFEU committed by undertakings or associations of undertakings, the CPC may, by decision, take the following measures:
- impose administrative fines, depending on the gravity and duration of the infringement:
- not exceeding 10 per cent of the total turnover of the undertaking; or
- not exceeding 10 per cent of the sum of the total turnover of every undertaking that is a member of the infringing association of undertakings, where the turnover corresponds to the preceding financial year;
- oblige the undertakings or associations of undertakings concerned to terminate, within a fixed time limit, the infringement in question and desist from any future repetition and if the infringement is terminated before the issuing of a decision by the CPC, the latter may issue a declaratory decision condemning the infringement;
- impose any terms and measures (whether behavioural or structural, depending on the infringement ascertained) necessary to bring the infringement to an end; or
- impose an administrative fine up to 5 per cent of the average daily turnover during the preceding financial year for each day the infringement continues if the undertakings or associations of undertakings concerned do not comply with the CPC's decision.
If the CPC intends to issue a decision demanding the cessation of an infringement of Section 3 of the Competition Law or Article 101 of the TFEU, and the undertakings or associations of undertakings concerned offer to undertake commitments to address the concerns in the CPC's preliminary assessment, the CPC may issue a decision making these commitments binding on the undertakings or associations of undertakings concerned. The CPC's decision may be issued for a specified period and has to conclude that there are no longer grounds for further action.
For completeness, the Competition Law does provide for criminal offences, albeit not for antitrust violations. Pursuant to Section 31(11) of the Law, criminal offences are only committed by persons who:
- are subject to an investigation or to an obligation to reply to a questionnaire and refuse or omit to comply with their obligations under the Competition Law to cooperate with the investigative officer by facilitating him or her, providing information or any declaration as to the veracity of the information they provide to the investigating officer; or
- conceal, destroy or falsify information, records, books, accounts or other records related to the business that is the subject of an inspection pursuant to the Competition Law, or provide to the CPC or its investigating officer false, incomplete, inaccurate or misleading information, declarations, records, books, accounts or other records related to the business, or refuse or omit to provide to the Commission or its investigating officer information, declaration, record, books, accounts or other record related to the business.
Such persons are subject to a sentence of imprisonment not exceeding one year or a fine not exceeding €85,000, or both. In the event of criminal prosecution for the above-mentioned offences, the Competition Law provides for specific defences.
Furthermore, Section 36 of the Competition Law provides for criminal prosecution for persons who omit to comply with a decision of the CPC or a decision of the CPC ordering the taking of interim measures and persons (inter alia, the chairperson, members of the CPC or CPC service staff) who contravene the duty of secrecy they are subject to. Failure to comply with CPC decisions are punishable with a sentence of imprisonment not exceeding two years or a monetary fine not exceeding €340,000, or both, while contravention of the duty to secrecy is punishable with a sentence of imprisonment not exceeding one year or a monetary fine not exceeding €305,000, or both.
The Competition Law also provides that where a legal person commits a criminal offence, as well as the legal person itself the following persons shall be liable:
- all the members of the managerial or administrative board or committee arranging the affairs of the legal person; and
- the general manager or director or managing director of the legal person, and the prosecution for the offence may be turned against the legal person and against all or any of the above persons.
Where an act or omission of a legal person results in the imposition of an administrative fine by the CPC, in addition to the legal persons themselves, the persons referred to at (a) and (b) above shall also be liable for the act or omission and for the payment of the administrative fine.
'Day one' response
The power of the CPC to conduct unannounced inspections (dawn raids) is set out in Section 31 of the Competition Law.
This includes the power to:
- enter any office, premises, land and means of transport of undertakings and associations of undertakings, as well as any other business premises with the exception of residences;
- examine the records, books, accounts and other records related to the business, irrespective of the medium on which they are stored;
- take or obtain, in any form, a copy or an extract from the records, books, accounts and any other document of business activity, irrespective of the medium on which it is stored and wherever kept;
- seal any business premises and records, books, accounts and other business records, for the period of and to the extent necessary for the inspection; and
- ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject matter and purpose of the inspection, and record the answers.
The conduct of an inspection on premises, land or means of transport other than those provided for in Section 31 of the Competition Law, or in residences, shall not be allowed except upon the issue of a duly reasoned judicial warrant. The CPC may apply to the courts to issue a warrant ordering such an inspection, as long as there are reasonable grounds to suspect that there are records, accounts or books related to the business, or other particulars relating to the investigation, in that place.
Inspections are conducted, and the relevant powers exercised, by competent officers of the service of the CPC at the request of the latter.
If deemed necessary by the CPC, its officers may be accompanied by other public officers or officers from the wider public sector, or persons with special knowledge, who may be employed by the CPC.
The CPC's order for an inspection is in writing and should accurately specify the subject matter and purpose of the inspection, fix the date on which it is to commence, set out the provision of the Competition Law on which this inspection power is based and provide the possible sanctions where the undertaking or association of undertakings refuses to comply with the CPC's order.
The undertaking or association of undertakings subject to inspection may consult its lawyer during the inspection, but the lawyer's presence is not legally required for the validity of the inspection or defence for non-compliance or defective compliance with the CPC's order.
The CPC, where appropriate, can request the assistance of the police to help it exercise its relevant inspection powers.
Where an undertaking or association of undertakings, either intentionally or negligently, produces required records, books, accounts or other business records in an incomplete or falsified state or where it refuses to comply with the CPC's order for inspection, the CPC may impose on the undertaking or association of undertakings an administrative fine of up to 1 per cent of the turnover of the preceding financial year.
The CPC may additionally impose on the undertaking or association of undertakings concerned an administrative fine of up to 5 per cent of the average daily turnover during the preceding financial year for each day it omits to comply with an order of the CPC to conduct an inspection.
The information received by the CPC in the exercise of its competence under the Competition Law may be used only for the purpose for which the inspection is allowed, except in those cases where the application of EU competition law proves necessary.
Every undertaking or association of undertakings subject to an inspection pursuant to the Competition Law and every person to whom questions are submitted or from whom explanations are requested are obliged to meet the reasonable demands of the investigating officer to provide (1) any facilitation, (2) any information, and (3) any declaration as to the veracity of the information provided.
When conducting a dawn raid, the CPC is not entitled to examine or take communications between the undertaking being investigated and its lawyers as these are protected by confidentiality and lawyer–client secrecy.
A private right of action for antitrust infringements exists in Cyprus pursuant to the Law on Actions for Damages for Infringements of Competition Law of 2017. The law in question transposes the provisions of the EU Damages Directive.18
Section 4 of the aforementioned Law provides that any natural or legal person or public authority that has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm.
Full compensation should place a person who has suffered harm in the position that person would have been in had the competition law infringement not been committed, by awarding general or special damages or loss of profit, as well as payment of interest, accrued from the moment that the harm was caused up to the point of the award of damages. Full compensation does not cover punitive damages.
Pursuant to Section 40 of the Law, in the case of an action for damages brought by any person who has suffered loss or financial injury from any acts or omissions of an undertaking or associations of undertakings in contravention of Section 3 of the Competition Law or Article 101 of the TFEU, an irrevocable decision of the CPC or of another competition authority or of the European Commission ascertaining the infringement shall constitute a rebuttable presumption of the truth of its content.
The person who has suffered any damage of this kind shall have the right to apply to the courts for an injunction to halt the infringement of Section 3 of the Law or Article 101 of the TFEU.
Collective or class actions are not expressly provided for under the Civil Procedure Rules, but, in theory and in practice, actions could be joined with the leave of the court.
Directive (EU) 2019/1 (the ECN+ Directive) empowering the competition authorities of Member States to be more effective enforcers and ensuring the proper functioning of the internal market has yet to be transposed into Cyprus law.
The Competition Law is expected to be repealed and a new law will be enacted, inter alia, to harmonise the Cyprus competition laws with the provisions of the ECN+ Directive, including the Leniency Programme.
To this end, draft legislation entitled the Protection of Competition Law of 2021 has been approved by the Council of Ministers19 and has been submitted to the House of Representatives. It is expected that in the course of 2022 the draft legislation will be discussed and adopted accordingly.
Accordingly, the CPC has issued draft leniency regulations entitled the Leniency Programme Immunity from and Reduction of Administrative Fines in cases of Restrictive Collusions Infringing Section 3 of the Law or/and Article 101 of the TFEU (Leniency Programme) Regulations of 2021, which were put to public consultation in 2020 and are expected to be adopted in accordance with the provisions of the prospective new law, and these will also serve to bring the Cyprus Leniency Programme into conformity with the ECN+ Directive.
The ECN+ Directive aims to ensure that when applying the EU antitrust rules national competition authorities have the appropriate enforcement tools to bring about a genuine common competition enforcement area. To that end, the Directive provides for minimum guarantees and standards to empower national competition authorities to reach their full potential.
1 Nicolas Constantinides is a partner at Tassos Papadopoulos & Associates LLC.
2 The Protection of Competition (Amendment) Law 2014 (Law No. 41(I)/2014), 28 March 2014.
3 See Section 23 of the Competition Law.
4 The Control of Concentrations of Enterprises Law 83(I)/2014.
8 Section 23B(3) of the Competition Law (as amended by Law No. 41(I)/2014).
9 Article 11 of the Council Regulation (EC) 1/2003.
11 Section 24 of the Competition Law.
12 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices.
13 Regulation 8 of the Leniency Programme.
14 Regulation 9 of the Leniency Programme.
15 Annex II of the Leniency Programme.
16 Section 24 of the Competition Law and Regulation 4 of the Leniency Programme.
17 Regulation 24 of the Leniency Programme.
18 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
19 Council of Minister Decision No. 91,591, dated 22 July 2021 and published in Official Gazette No. 4745 of 25 October 2021.