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Competition law in Cyprus: 30 years of the CPC

Anastasios A. Antoniou

21st January 2021

The Cypriot competition authority, the Commission for the Protection of Competition (CPC), was established approximately thirty years ago. Despite the best efforts of its civil service and many of its members, the CPC has struggled to fulfil its mandate for most of its existence. Resignations and successive annulments of its composition substantially curtailed the CPC’s efforts to implement competition law over the past fifteen years. In recent years, however, the CPC has demonstrated it is on a path of recovery from past turbulence. 

The Protection of Competition Law of 2008, L. 13(I)/2008, as amended (the Competition Law), is the statutory basis for the current manifestation of the CPC. The Competition Law mirrors Articles 101 and 102 TFEU, creating equivalent prohibitions in the national legal order, while also providing for the prohibition of abuses of relationships of economic dependence.

The CPC is also tasked with the control of concentrations between undertakings. The Control of Concentrations Between Undertakings Law of 2014, L. 83(I)/14 (the Merger Control Law), provides for the notification of mergers, acquisitions and joint ventures that meet the jurisdictional thresholds. Clearance of a concentration falling within the ambit of the Merger Control Law is required prior to its implementation. Amongst the thresholds under the Merger Control Law is the relatively low threshold of two undertakings concerned, taken together, achieving a turnover of at least €3.5 million in Cyprus. This threshold often leads ‘foreign-to-foreign’ transactions, which otherwise have little impact on the Cypriot market, to requiring clearance by the CPC prior to their implementation.

The CPC enacted a leniency and immunity programme in 2011, in the form of subsidiary legislation (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 Regulations of 2011, 463/11, [2011] ΙΙΙ(Ι) OG 3189. The objective of the Leniency Programme, which largely mirrors the European Commission’s equivalent scheme— Commission Notice on Immunity from fines and reduction of fines in cartel cases, OJ C 298, 8 Dec. 2006, OJ C 144, 23 Apr. 2016—provides for the possibility of leniency or immunity from administrative fines for undertakings that cooperate with the CPC in its investigation of infringements of the Competition Law. A revised leniency framework intended to replace the Leniency Programme was placed in public consultation in 2020— Public consultation carried out by the CPC between 11/5/2020 and 12/6/2020 on draft subsidiary legislation prepared to replace the Leniency Programme.

Despite having the above-mentioned statutory instruments at its disposal, the CPC was overwhelmed by operational disruptions beyond its own control. One of its chairs was prosecuted for forgery of minutes of the CPC, while another two chairs resigned for different reasons. More crucially, over the span of just a decade, the appointments of three members of the CPC, including one of its chairs, were judicially annulled on distinct occasions.

Specifically, in 2007 the Supreme Court held that the composition of the CPC was unlawful due to one of its members concurrently serving on a municipality council—Cyprus Telecommunications Authority v. Republic, Supreme Court decision, [2007] 3 CLR 560, 2007 In 2011, the Supreme Court annulled the appointment of the chairman of the CPC, ruling that the relevant decision of the Council of Ministers made no reference to the criteria necessary for his appointment— Exxon Mobil Ltd and others v. Commission for the Protection of Competition, Supreme Court decision, [2011] 3 CLR, 2011. The most recent episode in this saga saw the Administrative Court annulling the appointment of another member of the CPC, for concurrently serving on the central committee of a political party. The Supreme Court eventually overturned this first instance judgment on appeal— Commission for the Protection of Competition, Supreme Court decision v. Cyprus Telecommunications Authority, Apps 2/16 and 7/16, 3 March 2017.

Annulments of appointments to public bodies are not a rare phenomenon in the Cypriot legal order and the aforesaid developments are not remarkable from an administrative law perspective. However, these annulments are a clear indication of a flawed approach in the manner in which successive Cypriot governments appointed members to the CPC. While these annulments were unrelated to competition law, they delivered a devastating blow to antitrust enforcement in Cyprus.

The CPC’s decisional practice was almost completely wiped out as a result of the said annulments. CPC decisions issued under annulled compositions were deemed void. These decisions comprised the majority of decisions that the CPC had issued at the material time. Moreover, several ex officio investigations that the CPC was conducting at the time of the successive annulments were halted.

Advancing the judicial interpretation of competition law is a dire necessity for Cyprus, a common law jurisdiction. This is not a straightforward task, given the current framework within which the CPC sits. The CPC is a public law authority and its decisions are acts subject to judicial review by administrative courts. This is the route through which litigants were able to quash decisions, by challenging the administrative law aspects of such decisions rather than any substantive competition law issues. This facet of the statutory architecture can be said to have adversely impacted the development of competition law in Cyprus.

Despite the issues discussed in this note, the CPC has over the past years demonstrated a determination to overcome its turbulent past decades. The tenacity in which the civil service of the CPC is pursuing investigations and dealing with cases over the past few years, under the leadership of the CPC’s Director, is producing tangible results. Illustratively, the CPC has been increasingly identifying abuses of a dominant position or a relationship of economic dependence, including cases which were re-investigated following the annulments of the CPC’s membership. It remains to be seen whether external factors will continue undermining the CPC or if the authority will continue rising to the occasion of pursuing its pivotal mission.

 

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Anastasios Antoniou is a partner at Antoniou McCollum & Co. He advises multinational companies and governments on competition, regulatory and transactional matters. Anastasios represents clients before courts and competition authorities in Cyprus and the EU, as well as arbitration tribunals.