Act No. 155 / 2009 Coll.
Act amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the Amendment of Certain Acts (Act on the Protection of Competition), as amended
Valid
Effective from 01.09.2009
Text versions:
01.09.2009
04.06.2009
155
THE LAW
of 7 May 2009
amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the Amendment of Certain Acts (Law on the Protection of Competition), as amended
Parliament has decided on this law of the Czech Republic:
Amendment to the Competition Act
Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain laws (Act on the Protection of Competition), as amended by Act No. 340 / 2004 Coll., Act No. 484 / 2004 Coll., Act No. 127 / 2005 Coll., Act No. 361 / 2005 Coll., Act No. 71 / 2007 Coll. and Act No. 296 / 2007 Coll., is amended as follows:
1. Paragraph 1 (8), including footnote 3a, is deleted.
2. In Article 3 (1), the words "which lead or may lead to 'are replaced by the words" the object or effect of which is'.
3. In Article 3, at the end of paragraph 1, the sentence "Agreements which have a negligible impact on competition are not considered prohibited."
4. In Paragraph 3 (2), the words "which lead or may lead to 'are replaced by the words" the object or effect of which is'.
5. In Article 4, at the end of the text of paragraph 1, the words "or the exception for the agricultural area 5 'shall be added.
footnote 5:
"(5) Article 36 of the EC Treaty, Council Regulation (EC) No 1184 / 2006 on the application of certain rules of competition to the production and trade of agricultural products (codified version)."
6.
7. In Paragraph 7 (1), "6 'is replaced by" 5'.
8. Paragraph 7 (2) and (3) reads as follows:
"(2) Instead of the decision referred to in paragraph 1, the Office shall decide to terminate the procedure on condition that the parties to the proceedings of the Office jointly propose commitments in favour of the restoration of effective competition which are sufficient to protect competition and the fulfilment of which has been remedied and that the prohibited agreement did not result in significant distortions of competition. In such a decision, the Office may also lay down the conditions and obligations necessary to ensure that such commitments are fulfilled. If the Office does not find the proposed commitments sufficient, it shall communicate the reasons in writing to the participants and continue the proceedings.
(3) The parties to proceedings may propose in writing the commitments referred to in paragraph 2 to the Office no later than 15 days from the date on which the Office delivered to them a written notification, in which the Office shall communicate the essential facts of the case, their legal assessment and the references to the main evidence thereof contained in the administrative file (hereinafter referred to as "the notice of reservations'); the subsequent proposals shall be taken into account by the Office only in cases of special consideration. The parties to the proceedings shall be bound by their proposal to the Office and to each other or, where appropriate, to third parties, and shall not, from the submission of the application to the decision of the Office referred to in paragraph 2, comply with the agreement as originally set out therein. '.
9. Paragraph 7 (4) is deleted and paragraph 5 is renumbered paragraph 4.
10. in Article 7 (4) (b), the words "with the measures imposed" shall be replaced by the words "with the commitments referred to in paragraph 2."
11. in Article 11 (3):
"(3) Instead of the decision referred to in paragraph 2, the Office shall decide to terminate the procedure on condition that the parties to the proceedings of the Office jointly propose commitments in favour of the restoration of effective competition which are sufficient to protect competition and the fulfilment of which has been remedied and that the abuse of a dominant position did not result in a material distortion of competition. In such a decision, the Office may also lay down the conditions and obligations necessary to ensure that such commitments are fulfilled. If the Office does not find the proposed commitments sufficient, it shall communicate the reasons in writing to the participants and continue the proceedings. ';
12. In the first sentence of Article 11 (4), the word "measure 'is replaced by the word" commitments'; the words "reservations concerning their conduct 'are replaced by the words" communication of reservations'; the words "subsequent submission or amendment of proposed measures' are replaced by the words" subsequent proposals'.
13. Paragraph 11 (5) is deleted and paragraph 6 is renumbered paragraph 5.
14. in Paragraph 11 (5) (b), "with the measures imposed" shall be replaced by "with the commitments referred to in paragraph 3."
15. in Article 12 (5) and (6):
"(5) The combination is also the creation of a competitor, which is jointly controlled by several competitors and which has long been performing all functions of a separate economic unit (the" jointly controlled undertaking ').
(6) To the extent that the establishment of a jointly controlled undertaking setting up a concentration pursuant to paragraph 5 is intended or has the effect of coordinating the competitive behaviour of its competitors who remain independent on the market, such coordination shall be assessed in accordance with the criteria set out in Article 3. ';
16. In Article 12, the following paragraph 7 is inserted after paragraph 6:
"(7) Two or more connections which are contingent upon each other and which are related in substance, time and personnel, shall be treated as one single link. ';
Paragraphs 7 and 8 shall be renumbered paragraphs 8 and 9.
17. in Paragraph 13 (b) (4), the word "creating" shall be replaced by "founding."
18. In Article 14 (5), the words "the transfer of part of the undertaking to another competitor 'are deleted.
19. in Paragraph 14 (6), the words "and credit and other financial institutions, except insurance undertakings," shall be inserted after the words "U banka";
20. In Paragraph 15 (2), the words "to gain control of a jointly controlled undertaking 'are replaced by the words" to establish a jointly controlled undertaking'.
21. in Article 16 (1), the words "set therein" shall be replaced by the words "electronically via a public data network, while simultaneously setting."
22. In the third sentence of Article 16 (6), the words "the President of the Office or 'shall be inserted after the words" the authorisation of the concentration' and the words "a judicial decision 'shall be replaced by the words" a decision of the President of the Office or a court'.
23. After Paragraph 16, the following Section 16a is inserted:
Simplified clearance procedure
(1) A simplified proposal for authorisation of a concentration, containing the elements laid down in the implementing legislation ("simplified procedure"), may be submitted in the case of a concentration where:
(a) none of the competitors involved are active on the same relevant market, or their combined market share is less than 15%, and none of the competitors are vertically downstream on the relevant market in which another of those competitors is active, or their market share is less than 25% on each such market; or
(b) the competitor shall have sole control over the joint venture in which he has so far participated in joint control.
(2) The Authority shall immediately notify the initiation of the simplified procedure in electronic form through the public data network and shall set a time limit for the submission of objections to the concentration; Paragraph 16 (1) shall not apply.
(3) If, in the simplified procedure, the Authority concludes that the concentration is subject to authorisation and that it needs additional information for its proper assessment, it will, within 20 days of the initiation of the procedure, send an invitation to the parties to submit a full proposal for authorisation of the concentration. the time limit for the decision pursuant to Article 16 (2) shall begin to run from the date of receipt of the complete application for authorisation of the concentration of the Office. Otherwise, the Authority shall, within the same time limit, issue a decision authorising a concentration, the justification of which shall only include the names of the merging competitors, the relevant market or, where appropriate, the sector in which the merging competitors operate and the fact that the decision was issued in a simplified procedure.
(4) If, within the time limit referred to in paragraph 3, the Authority has not issued a decision authorising a concentration, the Authority shall authorise the concentration by the end of that period.
(5) Unless otherwise provided by this law, the simplified procedure shall be followed in accordance with the general provisions on assessment of concentrations. '.
24. In the first sentence of Article 17 (4), the words "fulfilment of obligations' are replaced by the words" commitments', the words "economic 'are inserted after the words" effective' and the words "notification pursuant to Article 16 (2) that the Office is continuing the proceedings' are replaced by the words" notice of reservations'.
25. in Article 17 (4), the fifth sentence is deleted;
26. in Paragraph 18 (3):
"(3) The Authority may decide, on a proposal from competitors, to authorise an exemption from the prohibition on the implementation of concentrations referred to in paragraph 1 if they or third parties otherwise suffer serious damage or other serious harm. An application for an exemption may be submitted by competitors at the same time as the full application for a concentration authorisation pursuant to Paragraph 15 (3) (b) or at any time during the procedure. The proposal shall be written, reasoned and shall imply the extent to which an exemption is requested. The Office may invite the parties to the proceedings in writing to provide further evidence for the decision granting the exemption or for such facts. The period from the date of receipt of such a call to the date on which that obligation is fulfilled shall not be counted against the time limits referred to in paragraph 4. ';
27. in Paragraph 18 (4), after the third sentence, the sentence "The Office may also decide to grant an exemption in respect of certain acts covered by the proposal; in the rest the Office shall reject the proposal."
28. Paragraph 20 (2) reads as follows:
"(2) In cases where the situation on individual markets indicates that competition is distorted, the Authority shall carry out an examination of competition conditions on such markets (hereinafter referred to as" sectoral investigations ") and propose measures to improve them, in particular by issuing reports containing recommendations for improving competition conditions. '.
29. In Article 20, paragraphs 3 and 4 are added:
"(3) In carrying out the surveillance referred to in paragraph 1 (a) and carrying out the sectoral investigations referred to in paragraph 2, the Office shall, mutatis mutandis, act in accordance with Article 21e, 21f and 21g and may initiate an ex officio procedure.
(4) Where an infringement of the obligations laid down in Articles 3 (1), 11 (1) or 18 (1) is found, the Authority may impose corrective measures designed to restore effective competition on the market and may set a reasonable time limit for them to be fulfilled. The imposition of a remedy measure shall not preclude the parallel imposition of a fine under Article 22 (1) (b), (c) or (d) and Article 22a (1) (b), (c) or (d). '.
30. in Article 20a (4) (e), the words "and to the Advisory Committee on State Aid" shall be deleted;
31. Paragraph 21, including the title, reads:
Initiation
The procedure for the authorisation of a concentration and the procedure for the authorisation of an exemption from the prohibition on the implementation of a concentration shall be initiated on the basis of a proposal; other proceedings under this law shall be initiated ex officio. ';
32. Paragraph 21a, including the title, reads:
Interested parties
(1) In the procedure for the authorisation of a concentration and in the procedure for the authorisation of an exemption from the prohibition on the implementation of a concentration, the parties to proceedings are persons who are obliged to submit a request for authorisation of a concentration (Section 5 (2)).
(2) In other cases, the parties to the proceedings are those whose rights and obligations under this law are to be negotiated and decided.
(3) In proceedings concerning anti-competitive agreements as a result of the cumulative effect of vertical agreements concluded for the distribution of the same, comparable or interchangeable goods, where one of the parties to those agreements is always the same competitor which proposes their conclusion to other competitors, the Office may limit the scope of the parties to the proceedings to that competitor only.
(4) Where a legal person suspected of entering into a prohibited agreement, abuse of a dominant position or unlawful implementation of a concentration ceases to exist, proceedings under this law shall be conducted with its legal successors. ';
33.
Communication of reservations
After communication of the reservations, the Office shall allow the parties to the proceedings to be familiar with the documents of the decision and shall set a reasonable period within which the parties may propose to supplement the evidence; This period shall not be less than 14 days. The later mentioned facts and evidence shall not be taken into account; This does not apply if it is a fact or evidence that the participant could not have previously claimed. ';
34. after Article 21b, the following paragraphs 21c to 21h are inserted:
Inspection of the file
(1) Parts thereof which contain commercial, banking or similar legally protected secrets shall be excluded from access to the file; the file shall include, in addition to the documents containing such secrets, the documents from which the secret has been removed and, where appropriate, a sufficiently detailed extract which does not contain the secret.
(2) At the request of the Office, the person who testifies to the protection of commercial, banking or other similar legally protected secrets shall submit, in addition to documents containing such secrets, the documents from which the secret has been removed or, where appropriate, a sufficiently detailed extract which does not contain such secrets.
The burden of proof
(1) Where the parties to the proceedings in respect of prohibited agreements contend that they are covered by an exemption under Article 3 (4) or Article 4, they shall be required to propose evidence to demonstrate that the conditions for the application of such an exemption are met. If the parties do not indicate such evidence, the Office may consider it established that these conditions are not met.
(2) Where the parties propose undertakings pursuant to Article 7 (2) or Article 11 (3) or Article 17 (4), they shall propose evidence to demonstrate that the fulfilment of those undertakings is sufficient to restore or, where appropriate, maintain effective competition. If the parties do not indicate such evidence, the Office shall not be obliged to demonstrate that such commitments are not sufficient to restore or maintain effective competition, as appropriate.
(3) Where the Office so requests, the party to the proceedings shall be required to propose evidence to demonstrate compliance with the obligations referred to in Article 7 (2) or Article 11 (3) or Article 17 (4), the measures imposed pursuant to Article 18 (5) and the remedies provided for in Article 20 (4). If the participants do not identify such evidence, the Authority may consider that such commitments and measures have not been fulfilled.
Request for information
(1) Competitors are required to provide the Office with complete, correct and true supporting documents and information, including trade books, other trade records or other records, which may be relevant for the purpose of clarifying the subject-matter of the proceedings (hereinafter referred to as "trade records") at its written request.
(2) Upon request of supporting documents and information, including commercial records, the Office shall state the legal reason and purpose of the investigation and shall state that the Office may impose a fine pursuant to Article 22c for failure to provide them or not to allow them to be verified.
(3) The obligation to provide the Office, at his written request, with the documents and information at their disposal, free of charge, shall also lie with the public authorities; supporting documents and information obtained by public authorities, including law enforcement authorities, may be used as a basis for decisions of the Office. In the request for information, the Office shall specify the provisions of the law on which it relies, the scope of the information it requests and the purpose for which it requests the information.
On-the-spot investigations at business premises
(1) Competitors are obliged to submit to the Office's investigation on land and in all the premises, rooms and means of transport used in their competitive activities (hereinafter referred to as "commercial premises").
(2) In the course of the investigation, the staff of the Office and, where appropriate, other Authorised Authorities shall be entitled to:
(a) enter the commercial premises of the competitors under investigation;
(b) verify that the documents and records are commercial records;
(c) to inspect commercial records which are located or accessible from commercial premises, irrespective of the form in which they are stored;
(d) copy or obtain copies or extracts from commercial records in any form;
(e) seal business premises, cabinets, boxes or records located in them for the period and to the extent necessary to carry out the investigation;
(f) require a competitor and persons in employment or other similar relationship to him or her or, where appropriate, persons to whom he or she has entrusted a particular activity, to the extent necessary, to carry out the investigation, as well as an explanation of the commercial records.
(3) The competitor shall provide the Office with the necessary synergies in the conduct of the investigation to exercise its authorisation under paragraph 2 and to abide by that authorisation.
(4) In order to investigate in commercial premises, staff of the Office shall be entitled to request access to such premises, to open closed cabinets or containers, or to otherwise arrange access to commercial records. Any person in whose premises such business premises are located shall be required to submit to such premises an inquiry; If they do not fulfil this obligation, the staff of the Office shall be entitled to arrange for access to them.
(5) Before the initiation of the investigation, the Office shall inform the competitor whose business premises the on-the-spot investigation is to take place of the legal reason and purpose of the investigation and shall inform him of his rights and obligations under this law, including the possibility of imposing a fine.
On-the-spot investigations in non-commercial premises
(1) Where there are reasonable grounds for suspecting that commercial records are located in non-commercial premises, including those of natural persons who are the statutory authorities of a competitor or their members, or who are in a professional or similar relationship (hereinafter referred to as "non-commercial premises'), the investigation may, with the prior consent of the court (15), take place in such premises.
(2) The provisions on on-the-spot investigations in commercial premises shall be applied mutatis mutandis, except for Article 21f (2) (e).
Community element management
(1) If the Office initiates proceedings for infringement of Article 81 or 82 of the Treaty, it shall proceed with the proceedings and investigations under the provisions of Title VI of this Law and decisions under the provisions of Sections 7 and 11 (2) to (6).
(2) Where the Office conducts investigations pursuant to Article 20 (6), Article 21 (4), Article 22 (1) or (2) of the Regulation or Article 12 (1) or Article 13 (6) The Merger Regulation, according to Titles VI and VII of this Act.
(3) Where the Office has initiated proceedings for infringement of Article 81 or 82 of the Treaty and, in the same case, the Commission shall initiate proceedings for the adoption of a decision pursuant to Title III of the Regulation, the Office shall terminate the proceedings.
(4) Where the Office has initiated proceedings for infringement of Article 81 or 82 of the Treaty and has already dealt with the same matter or has begun to deal with the competition authority of another Member State, the Office may suspend the proceedings or, pending the decision of such a competition office, may suspend the proceedings.
(5) When imposing fines and remedies in the investigations or proceedings referred to in paragraphs 1 and 2, the Office shall act in accordance with Article 20 (4) and Title VII of this Law.
(6) Where the Commission decides to carry out an investigation pursuant to Article 21 of the Regulation, the Commission or the Office shall bring an application before the courts for the initiation of proceedings in matters of competition protection (15).
15) § 200h of Act No. 99 / 1963 Coll., Civil Code, as amended. '
35. In Title VII, the words "FINES AND REPEAT MEASURES 'are replaced by the words" ADMINISTRATIVE DEPARTMENTS'.
36. Paragraph 22, including the title, reads:
Transfers
(1) A natural person commits an offence as a competitor by:
(a) breach the seal placed in the course of the investigation pursuant to Article 21f (2) (e);
(b) conclude an agreement contrary to Article 3 (1);
(c) in breach of Article 11 (1), abuse its dominant position;
(d) conduct a concentration contrary to Paragraph 18 (1);
(e) fails to fulfil an obligation under Article 7 (2) or Article 11 (3) or to comply with a measure under Article 18 (5); or
(f) fails to comply with the corrective measures imposed by the Office pursuant to Article 20 (4) or any other obligation laid down by a decision of the Office.
(2) A fine of up to 300 000 CZK may be imposed for the offence referred to in paragraph 1 (a) and for the offence referred to in paragraph 1 (b), (c), (d), (e) or (f) for the fine up to 10 000 000 CZK. "
37. The following Sections 22a to 22c are inserted after Section 22, including the headings and footnotes No 16:
Administrative offences against legal persons and business natural persons
(1) A legal or business natural person as a competitor commits an administrative offence by:
(a) breach the seal placed in the course of the investigation pursuant to Article 21f (2) (e);
(b) conclude an agreement contrary to Article 3 (1);
(c) in breach of Article 11 (1), abuse its dominant position;
(d) conduct a concentration contrary to Paragraph 18 (1);
(e) fails to fulfil an obligation under Article 7 (2) or Article 11 (3) or to comply with a measure under Article 18 (5); or
(f) fails to comply with the remedies imposed by the Office pursuant to Paragraph 20 (4) or any other obligation imposed by the Office's decision.
(2) For the administrative offence referred to in paragraph 1 (a), a fine of up to 300 000 CZK or 1% of the net turnover achieved by the competitor for the last completed financial year and for the administrative offence referred to in paragraph 1 (b), (c), (d), (e) or (f) of the fine up to 10 000 000 CZK or 10% of the net turnover achieved by the competitor for the last completed financial year shall be imposed.
(3) Where, pursuant to paragraph 2, a fine is imposed by an association of competitors, up to 10% of the total net turnover achieved during the last financial year ended may be imposed by its members. Each member of the association shall be liable for payment of the fine thus imposed up to 10% of its net turnover for the last financial year.
Common provisions on administrative offences
(1) The legal person shall not be liable for an administrative offence if he proves that he has made every effort to prevent an infringement.
(2) In determining the amount of the fine to a legal person, account shall be taken of the seriousness of the administrative offence, in particular the manner in which it was committed and the consequences thereof and the circumstances in which it was committed.
(3) Liability for an administrative offence shall cease if the administrative authority has not initiated proceedings concerning it within 5 years of the date on which it became aware of it, but no later than 10 years from the date on which it was committed.
(4) Administrative offences under this law shall be dealt with at first instance by the Office.
(5) The provisions of the Liability and Punishment Act shall apply to liability for acts that have taken place in the course of or directly related to the business of a natural person.
(6) The liability of a legal person for an administrative offence shall be transferred to the legal successor of that person only if, at the latest at the time of the establishment of the legal successor, he or she knew, in view of the circumstances and in respect of his or her circumstances, that the legal person had committed an act which fulfilled the characteristics of the administrative offence before the establishment of the legal successor.
(7) If the deceased legal person has more than one legal successor, each of them shall be responsible for the administrative offence. The measure of the fine shall also take into account the extent to which the proceeds, benefits and other advantages of the administrative offence committed have been transferred to the legal successor and the continuation of any of the legal successors in the activity in which the administrative offence was committed.
(8) If a legal person who has committed an administrative offence has ceased to exist until the decision imposing a fine on him for that administrative offence has become final, the obligation to pay that fine shall be passed on to the legal successor of the deceased legal person. If there are more legal successors, they shall be jointly and severally liable for payment of the fine.
Order fine
(1) The competitor may be fined in order of up to CZK 300,000 or 1% of the net turnover achieved by the competitor during the last financial year if he fails to fulfil the obligation under § 21e (1) or § 21f (3).
(2) Order fines may also be imposed repeatedly. The total amount of repeatedly imposed fines may not exceed CZK 10 000 000 or 10% of the net turnover achieved by the competitor during the last completed financial year.
(3) Order fines may be imposed within 1 year of the date on which the obligation was infringed.
16) § 2 (2) of the Commercial Code, as amended by Act No. 85 / 2004 Coll. '.
38. Article 23 shall be deleted;
39. in § 26 (1), the words "and § 16a (1)" shall be inserted after the words "pursuant to § 15 (3)."
Transitional provision
Proceedings initiated before the date of entry into force of this Act shall be completed in accordance with Act No. 143 / 2001 Coll., as effective by the date of entry into force of this Act.
Entitlement to declare the full text of the law
The Prime Minister is hereby authorised to declare in the Collection of Laws the full text of Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain Laws (Law on the Protection of Competition), as is apparent from the Laws amending it.
Efficacy
This Act shall take effect on the first day of the third month following its publication.
Wolf
Klaus v. r.
Fischer v. r.
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Regulation Information
| Citation | Act No. 155 / 2009 Coll., amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the Amendment of Certain Acts (Law on the Protection of Competition), as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 04.06.2009 |
|---|---|
| Effective from | 01.09.2009 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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