Croatia: Participation Of Associations In Cartels: Another Twist In The Saga

In 2014 the Competition Agency issued a decision on the Association of Orthodontists cartel –to date, one of the most controversial cases it has considered.


The Association of Orthodontists adopted a price list which included minimum prices for various dental services. The price list was published on the association's website, promoting price harmonisation across the industry. The agency concluded that the association's adoption of a minimum price list amounted to a prohibited agreement.

The party filed suit against the agency's decision in the High Administrative Court. The court set aside the agency's decision, finding that the agency had erred during the establishment of the relevant facts and applying substantive law. It held that:

"The Minimum Price List does not represent an agreement within the meaning of the Competition Act, particularly because it does not, directly or indirectly, establish the lowest price of dental care services, considering that its establishment falls within the exclusive competence of the Chamber, rather than of the plaintiff (i.e. Association)."

The court concluded that another organisation was vested with the right to regulate prices and continued:

"Therefore, such a document (the price list) is not legally binding either with respect to its content or its legal status, nor can it be applied in practice, since the doctors of dental medicine are obliged, in determining the lowest prices of their services, to adhere to the price list adopted by the Chamber." 1

Shortly afterwards, the agency announced that it believed that the court's reasoning denied the concept of a 'prohibited agreement' defined by the Competition Act and EU law, indicating that if the ruling remained in force, it could have harmful effects on the interests of consumers and undertakings. The agency's position was supported by various experts within the competition law community.

Agency opposes court for first time

Prompted by its initial understanding of the scope of prohibited agreements in the context of associations of undertakings, for the first time in its 18-year history the agency took an extraordinary legal remedy and instituted proceedings for examination of the court ruling. The agency argued that it, rather than the court, was correct –that is, the price list adopted by the Association of Orthodontists represented a prohibited (horizontal) agreement.

The agency went a step further and publicly announced that "the ruling of the court makes room for price agreements in professional and other interest associations of undertakings". Moreover, it stated that "the Agency will remain consistent in the application of the provisions of the Competition Act to prohibited agreements in the field of competition, in line with the criteria deriving from [EU law]".

However, the agency did not rely on Article 101 of the Treaty on the Functioning of the European Union as a basis for instituting the proceedings, but rather based its case solely on national rules. Thus, it is odd that the agency did not consider whether the court (which is one of the national bodies charged with interpreting of the Competition Act) has the right –albeit only in national cases –to interpret prohibited agreements more leniently than the European Commission and the EU courts would on the basis of EU law. If the court has such a right, the entire case may have required a less emotional approach.

Proceedings in HURA

In the meantime, the agency became involved in a similar case. In infringement proceedings against the Croatian Association of Communications Agencies (HURA) based on Article 8 of the Competition Act,2 it was established that HURA had drawn up its Guidelines for Successful Pitching. The agency raided HURA's premises and in the course of proceedings established that:

  • the guidelines were publicly available on HURA's website and all HURA members were bound to apply them;
  • the primary objective of the guidelines was to ensure the "regularity" of the pitching process, primarily by limiting the number of agencies in the pitch (three plus one) and setting the deadlines for competitive selection (eg, HURA members were obliged to register any call for a pitch in the established "information exchange system" within 48 hours);
  • if a HURA member circumvented the guidelines, other members were obliged to report this (which implied their awareness and collusion);
  • proceedings for violation of the guidelines would be initiated by HURA;
  • members were obliged to abandon any pitching process not in compliance with the recommended HURA guidelines; and
  • the members were subject to penalties for non-compliance with the recommendations, in the form of:
  1. a reprimand;
  2. public reprimand;
  3. a ban from certain events organised by HURA; and
  4. ultimately, revocation of membership.3

Although the case shared many features with the case against the Association of Orthodontists, the outcome was surprising. After the proceedings against HURA were opened, HURA voluntarily proposed commitments to eliminate the possible anti-competitive effects of its behaviour. The agency found the commitment to remove the disputed provisions to be sufficient and adequate to restore competition on the market, and consequently accepted the commitment.4


In HURA the agency for the first time accepted the proposed commitments in a case conducted under the qualification of a prohibited horizontal agreement. Moreover, in this case all characteristics of a prohibited horizontal agreement were present. By accepting the commitments, the agency abandoned its previous position in favour of a more lenient one.

HURA is of immense importance for practitioners. Article 49 of the Competition Act, which regulates commitments, does not explicitly exclude the possibility of proposing measures in proceedings conducted for the purpose of establishing cartels; however, before HURA it was believed that, in practice, such attempts would inevitably fail. The consideration of commitments within the scope of cartel proceedings has now become a reasonable option, which the parties might try to use in even the most challenging proceedings. HURA sets a precedent which may compel the agency to explain carefully its rejection of commitments in future, regardless of the type of proceedings.


1. Another organisation established by law

2. As with the Association of Orthodontists proceedings, the proceedings were not conducted on the basis of Article 101 of the Treaty on the Functioning of the European Union.

3. See

4. HURA committed to remove from the guidelines all provisions raising competition concerns within 30 days – specifically, the provisions:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions