Decree No. 199 / 2001 Coll.
Ordinance of the Office for the Protection of Competition for a General Exemption from the Prohibition of Competition Agreements pursuant to § 3 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of research and development agreements
Valid
Order
Effective from 01.07.2001
Text versions:
01.07.2001
20.06.2001
199
DECLARATION
The competition authority
of 5 June 2001
authorising a general exemption from the prohibition of agreements distorting competition pursuant to Article 3 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of research and development agreements
According to Section 26 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, the Authority provides:
(1) The prohibition under Paragraph 3 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, hereinafter referred to as "the Act," does not apply to agreements fulfilling the conditions laid down in this Decree which enable its parties to carry out joint research and development or to jointly exploit the results of such research and development.
(2) The prohibition provided for in Article 3 (1) of the Act also does not apply to provisions contained in research and development agreements which do not constitute the subject of such agreements, provided that they are directly related and necessary for the implementation of those agreements (e.g. an obligation not to undertake other research and development in the area covered by the agreement).
For the purposes of this Order
(a) research and development shall be understood as the process of acquiring knowledge regarding goods or processes and carrying out theoretical analyses, systematic studies and experiments, including experimental production, technical testing of products and processes, the provision of equipment and the acquisition of industrial or other intellectual property rights for the intended results;
(b) contractual procedures shall mean technologies or processes developed in the framework of joint research and development;
(c) contract goods are goods or services which are developed in the framework of joint research and development or which are manufactured or provided using contractual procedures;
(d) the use of research and development results means the production, sale, distribution or promotion of contract goods or the use of contractual procedures, the transfer or grant of a licence to industrial or other intellectual property rights or the transfer of the know-how necessary for such production or use;
(e) technical knowledge means know-how or knowledge which is protected by industrial or other intellectual property rights;
(f) know-how means a set of unpatented technical, commercial and other essential and identified experience and knowledge not known or generally available. Information necessary for the manufacture of contract goods or the application of contractual procedures shall be considered to be material experience or knowledge. Such information shall be considered as an identified experience or knowledge which is sufficiently clearly described to enable it to be verified that it meets the criteria of secrecy and materiality. Description of the knowledge-how may be part of a research and development agreement, a separate agreement or recorded in another appropriate form,
(g) joint research or exploitation of research and development results means an activity jointly undertaken by the Parties to the Agreement, jointly entrusted to a third party, or an activity shared between the Parties to the Agreement;
(h) active sales means the activities of the seller consisting in seeking interested parties to purchase certain goods, in particular by promoting, maintaining a distribution warehouse or creating branches;
(i) passive sales shall mean the receipt of orders made by interested parties to purchase certain goods without, however, being sought by the seller;
(j) control shall mean the holding of a business or share in a capital of more than 50% or the right to appoint or withdraw a majority of the members of the statutory body, supervisory board, directors of a legal person or the possibility of otherwise exercising decisive influence over the management of a legal person;
(k) competing competitor means a competitor supplying goods which can be improved or replaced by contract goods, or a competitor who, after making a permanent increase in the price of such goods, would have incurred the necessary investment or other necessary costs in order to be able to supply such goods.
(1) The prohibition provided for in Article 3 (1) of the Act does not apply to research and development agreements where:
(a) all Parties to the Agreement shall have access to research and development results for further development or exploitation; research institutes, universities or other similar research and development competitors as usual and not using these results may agree to limit the use of results for further research;
(b) where the Agreement provides only for joint research and development and not for the joint exploitation of the results of such research and development, all parties to the Agreement shall be entitled to benefit from these results and from any previously existing know-how required for the purpose of such exploitation separately; the right to use research and development results may be limited to one or more branches of activity where the parties to the agreement are not competing competitors at the time the agreement is concluded;
(c) the joint use of research and development results shall apply only to results consisting of industrial or other intellectual property or of knowhow, which substantially contribute to technical or economic development and which are decisive for the manufacture of contract goods or the use of contractual procedures;
(d) the persons entrusted by the Parties to the Agreement with the use of the results of research and development are obliged to satisfy the demand of the Parties to the Agreement; This provision does not apply to joint distribution agreements,
(e) where the parties to the agreement are not competing competitors and the results of research and development are used together, the period of such exploitation shall not exceed 7 years from the first placing on the market of the contract goods and, after that period, the combined market share of all the parties to the agreement shall not exceed 25%; and
(f) where the parties to the agreement are competing competitors and the results of research and development are used together, the period of such exploitation shall not exceed 7 years from the first placing on the market of the contract goods and the joint share of all the parties to the agreement at the time of its conclusion shall not exceed 25% of the market for such goods.
(2) In the cases referred to in points (e) and (f) of paragraph 1, the prohibition provided for in Article 3 (1) of the Act also does not apply to research and development agreements where the combined market share of all parties to the agreement does not exceed 25% at the time of the conclusion of the agreement and is subsequently increased beyond that limit, provided that:
(a) shall not exceed 30% for two calendar years following the year in which the limit of 25% was first exceeded; or
(b) it shall exceed 30% for one calendar year following the year in which the 30% threshold was first exceeded.
(3) The rules for determining the market share of the goods referred to in paragraph 2 shall not be combined in such a way that the duration of the general exemption exceeds two calendar years in such cases.
However, the prohibition under Article 3 (1) of the Act applies to research and development agreements which:
(a) the Parties to the Agreement shall restrict, or restrict, the research and development activities independently or in cooperation with third parties in the field not related to the field to which research and development relates or, after completion thereof, in the field covered by that research and development or in the field related thereto;
(b) prohibit the Parties to the Agreement from objecting to the absence of industrial or other intellectual property rights related to such research and development or, after the expiry of the R & D Agreement, from objecting to the absence of such rights as the Parties to the Agreement have in order to protect the results of research and development; that provision is without prejudice to the right to terminate the research and development agreement where one of the parties to the agreement objects to the absence of such rights,
(c) the Parties to the Agreement shall limit, after the completion of research and development, the quantities of contract goods produced or sold or to the extent of the contractual procedures, unless the Parties to the Agreement jointly exploit the results of research and development;
(d) determine, directly or indirectly, the prices of the contract goods, unless they are common distribution of the contract goods in the context of the joint exploitation of the results of research and development;
(e) seven years after the first placing on the market of the contract goods, the parties to the agreement shall designate the persons to whom the contract goods may be made available,
(f) where the Parties to the Agreement, after the completion of research and development, determine the territories on which they will supply the contract goods, prohibit or make it difficult for the Parties to sell the contract goods on a passive basis, in particular the exercise of industrial or other intellectual property rights, or, after 7 years of the first marketing of the contract goods, prohibit the active sale of the contract goods; or
(g) in the event that at least one of the Parties to the Agreement does not benefit from the results of joint research and development, the Parties to the Agreement prohibit the licensing of third parties for the manufacture of contract goods or the use of contractual procedures.
By its decision, the Competition Authority may withdraw the advantages of the general exemption provided for in this Decree if, as a result of market developments, the effects of an agreement subject to a general exemption do not comply with the conditions for authorising an individual exemption under Article 8 of the Law. In particular, these may be cases where:
(a) the Agreement substantially limits the scope of the implementation of research and development in the relevant sector to third parties as a result of limited research capacity;
(b) the Agreement substantially limits third parties' access to contract goods;
(c) the Parties to the Agreement shall not use the results of joint research and development without objectively justifiable reasons;
(d) the goods forming the subject of the agreement are not exposed to effective competition on the market by competing goods; or
(e) the Agreement excludes effective competition on the relevant R & D market.
For the purposes of this Decree, the party to the Agreement shall also mean the persons associated with it. A common person means a person who:
(a) control and control the Party to the Agreement;
(b) controls the same person who controls the Party to the Agreement;
(c) are controlled by one or more of the persons referred to in points (a) and (b), or
(d) are jointly controlled by one or more of the persons referred to in points (a) to (c) and by one or more third parties.
Market shares shall be based on the ratio of the sales volume of the goods covered by the agreement for the preceding calendar year to the total sales volume of the goods on the relevant market. Where information on the value of the sales volume of goods or services on a given market is not available, an estimate based on other reliable market information may be used to establish market shares.
This Decree shall take effect on 1 July 2001.
Chairman:
Ing. Bednář v. r.
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Regulation Information
| Citation | Decree of the Office for the Protection of Competition No. 199 / 2001 Coll., authorising a general exemption from the prohibition of agreements distorting competition pursuant to § 3 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of research and development agreements |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.06.2001 |
|---|---|
| Effective from | 01.07.2001 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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