An antitrust investigation against supplier of medical devices dropped (navigating client against the Commission’s „fishing expeditions“)

Zoran Sretić led a team in 2017 that advised and represented the client to eliminate an imminent risk of opening investigation by the Commission for the Protection of the Competition (the “Commission”) for suspected restrictive agreement, and to prevent consequential transactional costs, costs of being fined, and reputational risks.

Namely, a competitor filed a complaint to the Commission against the client and its supplier that operate retail and wholesale distribution of medicines and medical devices, respectively, for alleged territorial exclusivity by means of “naked” restrictive agreement. The client concentrated purchases of large quantities of medical devices imported by the Supplier. The Supplier refused to supply the competitor  and referred it to source its requirements from the client. The Commission requested our client to supply information on suspected existence of an anticompetitive agreement in the market for such medical devices. The Commission requested information from our client to supply information and data on alleged formal or de facto exclusive distribution, market sharing, and/or exclusive dealing with the supplier. The Supplier was investigated by the Commission too. However, the Supplier also started to supply the competitor soon after it found out about the complaint to the Commission.

The case was important, since in principle, implementing a restricitve agreement prior to its notification and clearence by the Commission is a selfstanding infringment of the Serbian competition law. Furthermore, economic operators may ,easily, end up in building a case for the Commission against them. Namely, the Commission has a practice of dishing vague, generic and ambiguous requests to supply information and documents backed-up with procedural fines for a failure to cooperate in investigation and with power to innitiate searches of business premises. Limits of investigation are not always clear, and it may go well beyond boundaries set by an initiaitve ( a so-called “fishing expedition”). In this case the Commission searched for clues against both vertical and horizontal territorial exclusivity and exlusive dealing, while, initiative aimed at vertical exclusive distribution. Economic operators may face fines if they do not cooperate even before the formal investigation is opened or trigger searches if they act suspiciously. Furthermore, due to the ex ante system of controls the Commission may punish an undertaking even if alleged restrictive agreement could be cleared against claimed efficiencies, subsequently.

Therefore, it was important to eliminate any interpretation of facts, which would frame our client in concepts of concerted practice or de facto restrictive agreement. After our own in-depth analyses of facts of the case we successfully navigate our client’s defense establishing that the supplier acted unilaterally, without agreement or in concert with the client. As a result of our work the Commission dropped further inquires and it did not initiate a formal antitrust investigation against the client.