Tržišna koordinacija preduzeta s ciljem narušavanja konkurencije

Abstract

Restriction of competition by object is characterised with those types of business practices which reveal a sufficient degree of harm to competition. These are the most serious forms of business practices such as: price fixing, market sharing, output restrictions. But, restriction of competition can not be established simply considering the form of the practice. It means that it is not enough to recognise existence of price fixing to decide that competition is distorted by object. An analysis has to be done. But analysis of what? It is absolutely not analysis of restrictive effects because no actual anticompetitive effect need to be demonstrated where the practice by its very nature is sufficiently deleterious nor competition authorities can rely on restrictive effects as a proof that competition is restricted by object. Restrictions of competition by object and by effects are alternative. At the other side, assessment of restrictive impact of the practice must not be purely hypothetical. Assessment of the content of the business practice done in the economic and legal context of relevant market is a good starting point to determine boundaries of investigation but is not a final solution since the subject of assessment must be defined. The very acceptable direction in resolving of the puzle is to answer the question regarding the objectives of the practice and ask what is a rationale of the practice i.e. more precisely: can the practice produce pro- competitive effects? If it is plausible for the practice to be objectively justified by producing pro-competitive effects, the practice can not be determined as a restrictive by object (that does not exclude the possibility that the practice is restrictive due its effects if a comparison carried out in further procedure shows that restrictive effects outweigh pro-competitive ones or that prevention of competition is not indispensable for achieving of pro-competitive effects). That is why restrictions of competition by object are not per se prohibited. There are instances where price fixing, market sharing or output limitations are not deemed as practices that are restrictive by object because determined rationale of the practice indicates that the practice undertaken can be justified. For example, it can not be considered as a restriction of competition by object where an agreed output limit is equal to a maximum of capacity and production volume of a joint venture or to the agreed amount of outsourced products (if other so called hardcore restrictions are not present). Such objective explanations and other legitimate aims of competition restriction appearing in the pending case must be considered because restriction of competition by object must be interpreted strictly. Consequently, in the situation of a sufficiently deleterous practice where is not allowed for restriction of competition by object to be proved by existence of anti- competitive effects, it can be proved by absence of pro-competitive ones. Only that practice for which from experience derives conclusion that regularly restricts competition appreciably and which does not produce and is not capable to produce any pro-competitive effect restricts the competition by object. If pro- competitive effects can justify restriction an assessment of restrictive effects and comparison of former and latter is inevitable.