In its recent controversial decision, the Croatian Constitutional Court potentially reduced procedural powers of the Croatian Competition Agency ("CCA") to a significant degree, holding it to a much higher standard of proof when proving the existence of cartels.
In 2013, six of the largest personal protection and security service providers in Croatia held a private meeting to discuss several issues, including the establishment of a minimum cost of their services, setting it at HRK 32.50 (EUR 4) per hour. The meeting was featured in a magazine article. Soon after the article was published, the CCA commenced proceedings and found that the undertakings that attended the meeting had entered into a cartel agreement by fixing the costs of their services. The CCA found that several of the undertakings subsequently proceeded to quote the hourly rate of HRK 32.50 (EUR 4) in several tenders. The security companies appealed to the High Administrative Court of Croatia, which confirmed the decision of the CCA, fining the companies HRK 5.3 million (approx. EUR 710,000).
The fined undertakings filed a complaint to the Croatian Constitutional Court arguing i.e. that the standard of proof for establishing the existence of a cartel agreement had not been met and therefore, their right to a fair trial had been violated. The Constitutional Court upheld the complaint. It held that a magazine article alone could not serve as primary evidence in a cartel case (i.e., that circumstantial evidence must be much broader) and that the burden of proof to establish the existence of an operating cartel agreement lies with CCA.
This ruling of the Croatian Constitutional Court sheds new and unconventional light on the standard of proof that CCA has to meet in order to fine undertakings (in earlier cartel cases, even slight indications were typically sufficient for finding an infringement). The new interpretation may become a powerful tool for defence counsels in competition law matters; however, it potentially makes public enforcement and supervision of competition law compliance by the CCA harder and potentially less efficient.