The competent competition authority can inspect an undertaking's premises (during working hours), and documents and accounting books, which can also be sealed or seized for up to 72 hours. The representatives or employees of an undertaking may also be asked about facts or documents related to the case under investigation. With court authorization, the Authority may even enter the private premises of administrators, managers, directors, or employees.
On its own initiative or upon the request of a third party, the Authority may investigate certain sectors of the economy to determine whether competition is restricted. The Authority will first conduct a preliminary investigation to determine if grounds for an extended investigation exist. The Authority may at any time during the investigation take interim measures deemed necessary to avoid grave breaches of competition. The Authority may also take measures related to the structure of undertakings.
The decisions of the Authority may be revoked based on the grounds mentioned above.
Mergers are also investigated through preliminary and extended procedures. To prevent grave and irreparable damage to the participating companies or to third parties, the Authority may issue a temporary merger authorization, defining conditions and obligations for effective competition.
The preliminary procedure applies when a merger does not create or reinforce a dominant position in the relevant market. The Authority has to decide on the merger within two months from the date of notification, which can be extended by another two weeks. If the participating companies do not receive a decision from the Authority, the authorization is considered granted.
The extended procedure applies if there is a threat of a dominant position being created or reinforced. The Authority must investigate the case and issue a decision within three months from the start of the procedure. The Authority may also temporarily approve the merger, but only if justified to avoid irreparable damages to the participating companies or third parties, and to protect competition. The Authority's decisions may be revoked if:
- they are based on incorrect or improperly obtained data; or
- the undertakings involved in the merger breach the obligations set out in the authorization for the merger.
The Authority may fine the undertakings up to 1% of their prior annual turnover if they: do not provide correct data within the time limits set, refuse to comply with inspections, or do not provide all the necessary documents or company books.
A sanction amounting to 2% to 10% of the undertakings' prior annual turnover will be imposed if the provisions on prohibited agreements or abuses of a dominant position and the relative interim measures taken by the Authority during their investigation were not respected, the proper parties were not notified of the merger accordingly, or a prohibited merger was effected.
In any case, the fines will at least equal the profits obtained as a result of breaching the provisions of the Competition Law.
The Authority may also impose daily fines on the undertakings of up to 5% of their average daily turnover for the prior fiscal year.
Undertakings involved in a prohibited agreement could be partially or totally relieved of their fines if they cooperate with the investigations by the Authority.
The sanctions imposed by the Authority may also apply to individuals for amounts of up to L5 million (about $48,000).
The Authority's decisions by may be appealed within 30 days before the competent court in Tirana, while persons directly affected by prohibited agreements or abuse of dominant position may request any award of damages before the Tirana District Court, and independently from the complaints before the Authority.
Part I of this briefing appeared in the November 2005 edition of IFLR.