UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY: ALBANIA UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY: ALBANIA Full Report UNITED NATIONS New York and Geneva, 2015 NOTE UNCTAD serves as the focal point within the United Nations Secretariat for all matters related to competition policy. UNCTAD seeks to further the understanding of the nature of competition law and policy and its contribution to development and to create an enabling environment for an efficient functioning of markets. The work of UNCTAD is carried out through intergovernmental deliberations, capacity-building activities, policy advice, and research and analysis on the interface between competition policy and development. Voluntary peer reviews of competition law and policy carried out by UNCTAD fall within the framework of the Set of Multilaterally Agreed Principles and Rules for the Control of Restrictive Business Practices, adopted by the General Assembly in 1980. The Set seeks, among other things, to assist developing countries in adopting and enforcing effective competition law and policy suited to their development needs and economic situation. The views expressed in this report are those of the authors and do not necessarily reflect the views of the United Nations Secretariat. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Material in this publication may be freely quoted or reprinted, but acknowledgement is requested, together with a reference to the document number. A copy of the documentation containing the quotation or reprint should be sent to the UNCTAD secretariat. This publication has not been formally edited(cid:17)(cid:3) (cid:56)(cid:49)(cid:38)(cid:55)(cid:36)(cid:39)(cid:18)(cid:39)(cid:44)(cid:55)(cid:38)(cid:18)(cid:38)(cid:47)(cid:51)(cid:18)(cid:21)(cid:19)(cid:20)(cid:24)(cid:18)(cid:20) Copyright © United Nations 2015 All rights reserved. ACKNOWLEDGEMENTS UNCTAD Voluntary Peer Reviews of Competition Law and Policies are conducted at annual meetings of the Intergovernmental Group of Experts on Competition Law and Policy or at five-yearly United Nations Conferences to Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices. The substantive preparation is carried out by the Competition and Consumer Policies Branch of UNCTAD. This report was prepared for UNCTAD by Kiril Pangelov, Director of Legal Analyses and Competition Policy Directorate at the Bulgarian Competition Authority. The substantive backstopping and review of the report was the responsibility of Graham Mott and former Head of the Consumer Policies Branch, Hassan Qaqaya. UNCTAD would like to acknowledge the enriching assistance of Albanian Competition Authority officials, particularly Lindita Milo (Lati), Servete Gruda, Koco Broka, Diana Dervishi, Ermal Nazifi, Pajtim Melani, Daniela Mehmeti, and all other officers who contributed to this report, as well as all the persons, representatives of different public and private sector institutions who were interviewed. 3 ACRONYMS GDP : Gross Domestic Product LPG Liquefied Petroleum Gas OECD : Organization of Economic Cooperation and Development SAA : Stabilization and Association Agreement TFEU : Treaty on the Functioning of the European Union UNCTAD : United Nations Conference on Trade and Development 4 Table of Contents Page I. Political, Economic and Historical Context 7 1.1. Political Development 7 1.2. Economic Development 8 1.3. Accession to the European Union 11 II. Development of Albanian Competition Policy 11 2.1. First competition law of 1995 12 2.2. Second Competition law of 2003 13 2.3. Reform in competition law (2010) 14 III. Institutional Framework 15 3.1. Legal status and competence of the Authority 15 3.2. Composition and organization of the Albanian Competition Authority 16 3.3. Independence of the Authority 19 3.4. Operations of the Authority 20 3.5. Administrative Resources 24 IV. Substantive competition law 26 4.1. Legal sources of the Albanian competition law 26 4.2. General objectives and applicability of Albanian competition law 28 4.3. Substantive antitrust provisions 29 4.4. Substantive provisions on mergers and acquisitions 34 V. Procedural aspects of Albanian competition policy 38 5.1. Handling of complaints 38 5.2. General rules of infringement proceedings 39 5.3. Investigation of competition cases 40 5.4. Procedural status of parties involved in infringement proceedings 44 5.5. Decision-making on competition cases 47 5.6. Specific rules of the notification proceedings 51 5.7. Judicial review of the authority’s decisions 53 5.8. Civil proceedings on private competition enforcement 55 VI. Sanctioning Policy 57 6.1. Sanctions for substantive competition law infringements 57 6.2. Sanctions for procedural competition law infringements 58 6.3. Sanction setting method 59 6.4. Leniency policy 61 6.5. Execution of sanctions 64 5 VII. Sector-related competition policy 64 7.1. Energy sector 65 7.2. Telecommunications sector 67 7.3. Banking sector 69 7.4. Insurance sector 71 7.5. Public procurement and concessions 73 7.6. Transport sector 75 7.7. Fuels market 77 VIII. Findings and recommendations 79 6 (cid:561). Political, economic and historical context 1.1. Political development Albania is a South-East European country situated on the west coast of the Balkan Peninsula. In the west it is separated from Italy by the Strait of Otranto and the Adriatic and Ionian seas. Boasting a total area of 28,748 sq km, Albania has land borders with Montenegro to the north, the former Yugoslav Republic of Macedonia and Kosovo (United Nations Administrative Region, Security Council resolution 1244 (1999)) to the east and Greece to the south. The capital city, Tirana, is located in the central part of the country. Albania gained its independence from the Ottoman Empire as a result of the Balkan War in 1912. In its subsequent political development, Albania changed its form of State several times by replacing the constitutional monarchy with republican forms of government. After World War II, the Albanian Resistance movement, headed by the Communist Party of Enver Hoxha, took control of the country. Albania became a communist State under the name of the Socialist People’s Republic of Albania. Originally Enver Hoxha maintained good relations with the former Union of Soviet Socialist Republics and other countries of the Eastern Socialist bloc, but after Stalin’s death Albania reoriented its policy mainly to China’s Mao Zedong. After the end of Mao’s ruling, contacts with China weakened, and Albania became increasingly isolated and maintained minimal international relations with the outside world. The communist regime in Albania fell in the early 1990s; the first democratic parliamentary elections in 1992 were won by the Democratic Party of Albania, and Sali Berisha assumed the presidency of the republic. Albania began to seek closer ties with the West in order to eliminate the international isolation of the country and to improve its economic situation. As a result of the Albanian Rebellion of 1997, new parliamentary elections were held that brought the Socialists party and their allies to power. Sali Berisha resigned, and Rexhep Meidani was elected President of Albania. In November 1998 the new Albanian Constitution was approved by national referendum and led to the establishment of a democratic system of State government under the form of a unitary parliamentary republic, based on the rule of law and protection of the fundamental human rights. The country was governed by the Socialist Party from 1997 to 2005 when the Democratic Party won again the parliamentary elections. In 2005 the former Albanian President Sali Berisha became Prime Minister in the newly established Government and remained in office for two subsequent mandates until September 2013. Gradually Albania has overcome its international isolation and is now a member of some of the most important global and regional international organizations and institutions such as the United Nations (1955), the Organization for Security and Cooperation in Europe 7 (1991), the European Bank for Reconstruction and Development (1991), the International Monetary Fund (1991), the World Bank (1991), the Organization of Islamic Cooperation (1992), the Council of Europe (1995), the World Trade Organization (2000), the Central European Free Trade Agreement (2007) and the North Atlantic Treaty Organization (2009). Albania is a potential candidate for membership of the European Union. 1.2. Economic development The Albanian economy is in transition from a centrally commanded economic organization to a free market economy. During the 46-year communist regime, Albania had a very rigorously centralized economy controlled by the Government without any forms of market mechanisms.1 All essential aspects of the country’s economic life – investments, production, trade, pricing, setting of the workers’ wages, etc. – were determined by the State on the basis of the so-called “five-year plans”. The planned character of the Albanian economy and its social development was explicitly provided for in the Constitution of 1976 (art. 25). It recognized private property only as the personal belongings of people and their earnings from wages (art. 23). All means of production were State-owned (art. 16) and trade was explicitly ruled as a State monopoly (art. 27). The economic isolation of the country was very much aggravated by the Constitution statement that in establishing socialism, Albania relied mainly on its own forces (art. 14). Lack of investments and innovations, inefficiencies and mismanagement of national industries, trade and agriculture were the main characteristics of the Albanian economy during the years of communist rule. The international isolation of the country, the lack of foreign aid, and higher rates of population growth gradually lead to a total collapse of the socialist economy in Albania. At the end the communist regime Albania was ranked among the poorest countries in Europe in terms of GDP per capita amounting to only $1,881 (1991) and $1,825 (1992).2 At that time extreme poverty and informal economy were widespread in Albanian society although they were not officially recognized until 1991.3 As a multidimensional phenomenon, poverty in Albanian society was not limited to basic livelihood elements such as food, clothing and housing, but also encompassed a lack of hope, exclusion from economic and social life, an inability to support family and maintain social traditions, lack of adequate infrastructure, low security, low quality of health and limited education services.4. The economic and social conditions that persisted during the 1900s led to significant emigrant waves, especially to neighbouring Italy and Greece. 1 M Muço, 1997, Economic Transition in Albania: Political Constraints and Mentality Barriers, North Atlantic Treaty Organization Individual Fellowship Programme 1995–1197, June. 2 International Monetary Fund, 2006, World Economic Outlook Database, April. 3 United Nations, 2010, Albania National Report on Progress Toward Achieving the Millennium Development Goals. 4 World Bank, 2001, A Qualitative Assessment of Poverty in 10 Areas of Albania, Washington, D.C. 8 After decades of central planning, the Albanian economy was not adequate to serve the needs of its society and to provide good quality living standards for the Albanian population. It was then recognized that a reorientation towards market-based systems was the only option for achieving economic progress. Therefore, in the mid-1990s a long and difficult period of transition was started from a planned to a market economy. Many important structural reforms have been launched since then: privatization of the State-owned industrial plants (the so-called combinants);5 liberalization of the prices and currency exchange rates; deregulation of trade; restitution of agricultural land; establishment of commercial banking; implementation of tax reforms; establishment of a new legal framework, especially governing property ownership; creating conditions for entrepreneurship and protecting market competition.6 Country data (2013) Population 2.8 million Territory (sq. km.) 28,75 km2 GDP (current in United States 12.90 billion dollars) GDP growth (annual percentage) 1.3% Currency Lek Income level Upper middle income Inflation (annual percentage) 1.9% Unemployment (annual percentage) 16.9% Life expectancy at birth 77 years Source: World Bank, World development indicators, 2013 As a result of the structural reforms in the mid-1990s Albania made impressive economic progress, achieving one of the fastest rates of GDP annual growth in Europe: 9.4 per cent (1994), 8.9 per cent (1995) and 9.1 per cent (1996). However, in 1997 Albania was hit by a severe crisis due to widespread fraudulent investment operations (financial pyramids), which caused the Albanian Rebellion of 1997 and for several months threw the country into anarchy, violence and plundering. At that time Albania undertook several additional reforms 5 This term refers to conglomerates of State-owned businesses in the former communist countries that encompass several different types of economic activity carried out under a common administration. 6 S Gruda and L Milo (Lati), 2010, SMEs development and competition policy in Albania, Portal on Central Eastern and Balkan Europe [PECOB’s] Papers Series, School of Economics, Tirana University. 9