Act No. 262 / 2017 Coll.
Act on Compensation in the Field of Competition and Amendment to 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, (Act on Compensation in the Field of Competition)
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Law
Effective from 01.09.2017
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262
THE LAW
of 20 July 2017
on compensation for damages in the field of competition and amending 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, (Act on Compensation for Competition)
Parliament has decided on this law of the Czech Republic:
REFUND TO COMPETITION SCHEME
GENERAL PROVISIONS
Subject matter
This law incorporates the relevant European Union1) and regulates certain issues related to the obligation to compensate for damage caused by infringement of competition rules laid down by the competition law, the legislation of another Member State of the European Union relating to the protection of competition or European Union rules, by an agreement between competitors or by abuse of the dominant position of competitors (hereinafter referred to as "restriction of competition ') and the exercise of the right to compensation for damage caused by the restriction of competition in such cases.
Definition of certain terms
(1) For the purposes of this Act:
(a) by a direct customer, a person who has acquired directly from a person restricting the competition of goods or services subject to restrictions;
(b) by an indirect customer, a person who has acquired not directly from or containing a person restricting competition but from his or her direct customer or downstream customer of goods or services which were subject to a restriction;
(c) by increasing the price, the difference between the price actually paid and the price which would otherwise have been normal in the absence of a restriction on competition;
(d) the competition authority
1. the European Commission,
(2) the Office for the Protection of Competition or another body designated pursuant to a directly applicable European Union provision for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union2); and
3. the authority designated by another Member State pursuant to the directly applicable European Union Regulation referred to in point 2,
(e) by a cartel, a horizontal agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or affecting the relevant parameters of competition, by means of practices such as, in particular, the setting or coordination of buying or selling prices or other trading conditions, including intellectual property rights, the allocation of production or selling quotas, the sharing of markets and customers, including the distribution of markets, restrictions on imports and exports, or anti-competitive practices directed against other competitors;
(f) a programme of leniency relating to the application of Article 101 of the Treaty on the Functioning of the European Union under the law governing the protection of competition (3), under the relevant provisions of national law of the Member States or under European Union rules on the basis of which a secret cartel participant cooperates independently of other participants in that cartel in an investigation of the competition authority by voluntarily providing information on the cartel and its role in it, for which the participant is waived, on the basis of a decision by the competition authority, which would otherwise be imposed on him for his participation in the cartel, or is reduced;
(g) the cooperating pest, the person for whom, on the basis of the leniency programme, the competition authority has decided to waive the imposition of a fine;
(h) by an amicable settlement of the final arrangement of rights and obligations resulting from any procedure enabling the dispute concerning claims to be settled amicably, in particular the conclusion of an out-of-court agreement, a settlement agreement under the Civil Code or the conclusion and approval of a judicial settlement under the Civil Code.
(2) Confidential information under the protected obligation of confidentiality is:
(a) a declaration voluntarily submitted by a competitor or a natural person to the competition authority, or a record of such a declaration, describing the knowledge of the competitor or natural person concerning the cartel and their role therein, made expressly for the purpose of waiving the imposition of a fine or of reducing the fine under the leniency programme; the statement does not include information existing without regard to the management of the competition authority, whether or not that information is part of the file,
(b) a declaration voluntarily submitted by a competitor to the competition authority, in which the competitor grants or confirms its participation in the restriction of competition and its responsibility for the restriction of competition, or states that it does not contest its participation and responsibility, made expressly to enable the competition authority to carry out the relevant proceedings;
(c) the documents and information which have been drawn up specifically for the purposes of administrative proceedings or the exercise of supervision by the competition authority, the documents and information for that purpose drawn up by that authority and the declaration referred to in point (b) which has been withdrawn.
SPECIFIC PROVISIONS ON THE REFUND TO EDUCATION AND LENDING
Presumption of damage caused by the cartel
It is considered that the restriction of competition in the form of a cartel causes damage.
Scope and method of compensation
(1) The damage is replaced in full; Paragraph 2953 of the Civil Code does not apply. The damage shall be reimbursed in full if the injured party is also replaced by a depreciation of the money that has occurred in view of the time elapsed since the damage occurred. Compensation shall not lead to overcompensation.
(2) If it is necessary to make good the damage in full, the injured party may also require the pest to pay interest so that the amount of compensation takes into account the depreciation of the money that occurred from the damage to the due date of the compensation.
(3) If the payment of interest on late payments would not result in full compensation for the period after the payment of its compensation, the injured party may, in addition to the interest on late payments, also claim interest on the corresponding amount, taking into account the depreciation of the money. However, the injured party may not require payment of interest taking into account the depreciation of the money for a period for which the injured party cannot claim interest on late payment of the pest.
(4) If the amount of compensation cannot be accurately determined, it shall be determined by the court, according to the individual circumstances of the case.
Damage caused by several pests and their settlement
(1) If there are more pests to reduce competition by acting jointly, they will replace the damage jointly and severally; the court cannot decide that the pest will make up for the damage due to its involvement in the harmful consequences.
(2) Those who are obliged to make good the damage together and severally with others will deal with it by participating in the damage suffered.
(1) In case of damage caused by several pests, the co-operating pest shall replace the damage only to its direct or indirect customers or suppliers; other victims shall be compensated only if claims for compensation from other pests involved in the damage are not available.
(2) The co-operating pest shall not be obliged to make good any damage to the victims other than its direct or indirect customers or suppliers where claims for damages to other pests are barred.
(3) When settling among pests, the cooperating pest shall not be obliged to compensate more than the amount of damage caused by its direct or indirect customers and suppliers; This does not apply if damage is caused to victims other than direct or indirect customers or suppliers.
(1) In the event of damage caused by several pests, the pest, which is small and medium-sized business4), is replaced by damage caused by the restriction of competition only to its direct or indirect customers or suppliers, provided that:
(a) its market share in the relevant market throughout the period of restriction of competition is less than 5%; and
(b) in order to compensate jointly and severally, it would pose an irreversible threat to economic viability and to the loss of the whole asset value.
(2) A pest which is a small and medium-sized enterprise, meeting the conditions laid down in paragraph 1, shall also compensate the injured parties other than its direct or indirect customers and suppliers where:
(a) to manage or force others to participate in the restriction of competition;
(b) it has previously proved to restrict competition; or
(c) claims for damages are not available from other pests involved in the damage.
(3) A pest which is a small and medium-sized enterprise meeting the conditions laid down in paragraph 1 shall not be obliged to make good any damage to its victims other than to its direct or indirect customers or suppliers where claims for compensation for damage to other pests are barred.
(1) In the event of damage caused by several pests, its compensation shall be reduced by the share of the pest involved in the amicable compensation corresponding to its participation in the cause of the damage suffered. The remaining part of the compensation for damage to the pest involved in the amicable settlement shall be compensated only if the claims for compensation from other pests are not available; This can be explicitly excluded in the conciliation.
(2) The pest involved in the amicable settlement shall not be obliged to reimburse the remaining part of the compensation referred to in paragraph 1 if the claims for compensation against other pests are barred.
(3) The pest involved in the conciliation shall not be obliged to deal with other pests; This does not apply if the damage caused by the victim is not caused by a settlement settlement.
(4) A pest which has made good damage to the injured party on the basis of an amicable settlement may, in the event of an obligation to compensate for damage to another injured person, require that its share be reduced in the mutual settlement between pests. The reduction shall be decided by the court with regard to the amount of compensation granted on the basis of an amicable compensation.
Specific provisions on limitation periods
(1) The limitation period for the exercise of the right to compensation under this law shall be five years; Paragraph 629 and 636 of the Civil Code shall not apply.
(2) The limitation period shall begin to run from the date on which the person entitled became aware of the damage, the person liable for compensation and the restriction of competition, or should have, and may have, been aware of these facts, but first from the date on which the restriction on competition was terminated.
(3) The limitation period shall not run during the investigation or proceedings of the competition authority concerning the same restriction of competition and for a period of 1 year from the date on which:
(a) the final decision given by the competition authority or by a court to impose such a restriction on competition has become final; or
(b) the investigation or proceedings of the competition authority have been brought before the courts in a different manner.
(4) The limitation period shall not run during the procedure for making evidence available under this law or under the legislation of another Member State of the European Union.
(5) The limitation period shall not end for more than 1 year from the date on which the person entitled became aware that the claim for compensation is not available from those who:
(a) are not a cooperative pest;
(b) are not an SME; or
(c) have not participated in the conciliation.
SPECIFIC PROVISIONS ON THE MANAGEMENT
Procedure for the disclosure of evidence
(1) Before initiating the proceedings for compensation for damage caused by the restriction of competition, the President of the Chamber, acting on a proposal from the appellant, who shall, with certainty appropriate to the facts available, certify the credibility of his right to compensation for damage caused by the restriction of competition, shall, if necessary and proportionate in order to exercise the right of the appellant to compensation, by order, impose an obligation on the person who:
(a) it has under its control the documents or other means by which the state of the case may be established, defined individually or collectively by their common characteristics as required in the application (hereinafter referred to as "documents") in order to make them available to the applicant; or
(b) have documents under his control to inform the appellant of where the documents are, in his knowledge, located.
(2) A person shall also be deemed to have had the documents under his control if he / she had the right to obtain an extract, a copy or a copy of the documents or if he / she had the right to know the contents of the documents differently.
(3) In addition to the requirements laid down in paragraphs 42 (4) and 79 (1) of the Civil Code, an application for disclosure of documents or communications in accordance with paragraph 1 (hereinafter referred to as the "document disclosure proposal ') shall contain as precise a description as possible of the documents as is appropriate to the facts available.
(4) The Court of First Instance shall inform the competition authority of the request for access to documents, which would be competent to investigate the restriction of competition, and shall grant it a period within which to submit observations on the application.
(1) The proceedings for the application for disclosure of documents shall be the case before the court which would have jurisdiction to hear the case.
(2) The parties to the application for disclosure of documents shall be the appellant, those who would be, if it were a matter of substance, and those to whom, according to the proposal, the obligation to make documents available or where they are located.
(3) When deciding on an application for disclosure of documents, the President of the Chamber shall order the hearing if the case cannot be decided on the basis of written submissions and the parties to the written evidence submitted.
(4) The decision on the application for disclosure of documents shall be enforceable as soon as the time limit for execution has expired; the period begins to run from the legal authority of the decision.
(1) In order to ensure compensation or other damage which could arise from the disclosure of documents, the applicant is obliged to lodge a security of CZK 100 000 at the latest on the same day that he lodged the application in court.
(2) If the President of the Chamber concludes that the security lodged is manifestly insufficient to ensure compensation or other damage which could arise by making documents available, he shall without delay invite the applicant to lodge within 8 days a supplementary security of the amount which he shall lay down, taking into account the circumstances of the case, in the absence of undue difficulty in accessing the documents. Where several applicants have submitted a proposal to make documents available, the security and the supplementary security shall be lodged jointly and severally.
(3) If the security and the supplement of the security are not lodged, the President of the Chamber rejects the application for disclosure of documents.
(4) If the application for disclosure of documents has been definitively rejected, refused or terminated, the court shall return the security lodged. Where the court has ordered disclosure of documents, the security shall be refunded if the time limit for action for damages or other damage resulting from the disclosure of documents has expired or if the court's decision on the action has become final and it follows from that decision that the security will not be used to satisfy the right to compensation or other damage resulting from the disclosure of documents.
(1) The obligation to make good the damage or damage caused by the disclosure of documents shall not be waived unless the damage or other damage has occurred otherwise.
(2) An action for damages or other damage resulting from the disclosure of documents must be brought within 6 months of the date on which the obligation to make documents available is fulfilled. the delay cannot be forgiven. The court which decided to make the documents available shall be responsible for the action.
(3) Reimbursement of damage or other damage by the applicant shall be satisfied by the security lodged; If the security is insufficient to satisfy all the victims, the court shall divide the security among them in proportion. This is without prejudice to the applicant's obligation to make good any damage or other damage which has not been secured by a security lodged.
(1) If there are no grounds for refusal or refusal of an application for disclosure of documents, the President of the Chamber shall, by order of the person in control of the documents, impose an obligation to make them available to the appropriate extent, or by order of the person in control of the documents, impose an obligation to communicate where they are, according to his knowledge, where they are located; the President of the Chamber shall set a time limit for the performance of his duties.
(2) The President of the Chamber shall, in particular, take account of:
(a) whether the documents to be made available may be necessary to establish the relevant facts and evidence in the substance of the case;
(b) the extent and costs of making available to obliged or third parties, including the prevention of indefinite searches of documents not required to exercise the rights of the applicant; and
(c) whether documents contain commercial, banking or similar legally protected secrets.
(3) The President of the Chamber shall invite the person to whom, according to the application for disclosure of documents, an obligation to comment.
(4) The determination of the scope of disclosure of documents shall be carried out in such a way as to investigate the obligation of confidentiality of the lawyer and other similar obligation of confidentiality provided for by law, by the law of another Member State of the European Union or by European Union law.
(1) Confidential information pursuant to Article 2 (2) (a) or (b) cannot be disclosed. The appellant may at any time, in justified cases, require that documents be submitted to the court to verify that they contain such information. If the applicant does not submit a request and the President of the Chamber considers that the documents may contain confidential information pursuant to Article 2 (2) (a) or (b), the President of the Chamber shall invite the applicant to submit the application within a specified time limit.
(2) If the President of the Chamber fails to carry out the verification referred to in paragraph 1 on the application of the appellant, he shall deal with the reasons for his action in the statement of the decision on the application for disclosure of documents.
(3) If the President of the Chamber makes the verification referred to in paragraph 1 to the applicant's request, he shall draw up a report on the course of the verification, including the conclusion of the verification. When viewing the file, the verification report shall not be consulted. The verification shall be carried out outside the negotiations without the participants being present. Only the competent competition authority may request cooperation in verification. The documents shall be returned to the person who submitted them after verification.
(4) The obligation to disclose confidential information pursuant to Article 2 (2) (c) may be imposed at the earliest after the legal power of the competition authority's decision to terminate the administrative procedure.
(5) The competition authority may be obliged to make the documents contained in its file available only if they cannot be otherwise established.
(1) Where disclosure of documents which are also included in the file of the competition authority is proposed, the President of the Chamber shall also take into account whether disclosure would be contrary to the requirement for effective public enforcement of competition law if:
(a) documents containing confidential information pursuant to Article 2 (2) (c);
(b) so requests by the competition authority in its opinion on the adequacy of the proposal for disclosure of documents; or
(c) it should require the competition authority to disclose the documents contained in its file.
(2) Where disclosure of documents, which are also included in the file of the competition authority, is proposed, the President of the Chamber shall also take into account whether the application for disclosure of documents is specific in the light of the nature, subject matter and content of the documents requested and is not merely an indefinite request concerning those documents.
(3) Documents containing confidential information pursuant to Article 2 (2) (c) may not be made available under the conditions laid down in paragraphs 1 and 2 until the end of the investigation or legal power of the competition authority's decision to terminate the administrative procedure.
(4) The documents contained in the file of the competition authority may be made available, under the conditions laid down in paragraphs 1 and 2, provided that they can otherwise only be procured with an effort which cannot be reasonably required.
(5) The President of the Chamber shall invite the originator of the document to be made available in accordance with the request for access to documents to comment on it.
(1) Where the important interests of the debtor or third parties so justify for the protection of commercial, banking or similar legally protected secrecy and where the latter so proposes, the President of the Chamber may, in a decision on the application for disclosure of documents:
(a) identify a limited number of persons to whom the documents will be made available;
(b) identify one or more impartial persons with the necessary preconditions to produce from the content of the documents a sufficiently detailed extract, in the form of a saving right to make documents which do not contain secrets, and to approve the disclosure of documents by making them available; or
(c) order other appropriate measures to protect those interests of the debtor or third parties.
(2) The person referred to in paragraph 1 (a) and (b) may not be designated without its consent.
(3) In the decision, the President of the Chamber shall impose an obligation to protect commercial, banking or similar legally protected secrets to persons who are familiar with the secret. In the decision, the President of the Chamber shall order the appellant to:
(a) pay the remuneration to the persons referred to in paragraph 1 (b) as determined in the decision; the amount of the remuneration or the manner in which it is calculated, its maturity and, where appropriate, other conditions of remuneration, shall be determined by the President of the Chamber in the decision; and
(b) replace the costs effectively incurred by the measures referred to in paragraph 1 (a). (c) ordered in the decision; the costs and the conditions for their replacement shall be determined by the President of the Chamber in the decision.
(4) The appellant and the persons referred to in paragraph 1 are required to maintain confidentiality on documents.
(5) The documents made available, including extracts thereof, may be used by the appellant only for the purposes of the substance of the case or for the purposes of a further proposal for disclosure of documents.
(1) Under the conditions laid down in this Part, the President of the Chamber shall require the documents to be made available or to be communicated where they are located, also after the initiation of the proceedings on the substance of the case.
(2) Under the conditions laid down in this Part, the President of the Chamber shall require the documents to be made available or to be communicated where they are located.
(a) in the proceedings for the application for disclosure of documents initiated prior to the initiation of the proceedings relating to the substance of the case, also on the proposal of the defendant who would have been the defendant in the proceedings relating to the substance of the case; and
(b) following the opening of proceedings in the substance of the case on the defendant's application,
if that person certifies, with certainty appropriate to the facts available, that this is necessary to his or her success in the matter.
(1) Where a final obligation is imposed to make documents available or to disclose where they are located, the President of the Chamber shall, without further proposals in the proceedings, proceed in such a way that the obligation to make documents available is to disclose where they are located and the obligation to protect commercial, banking or similar secrets which are legally protected, or to affect its failure to comply.
(2) After the final imposition of the obligation to make documents available, the applicant and those whose rights and obligations are to be discussed shall be parties to the application for disclosure.
Fines
(1) To anyone who has committed an unlawful act without serious cause by:
(a) has infringed, by a final judicial decision, the obligation to make documents available or to disclose where they are located; or
(b) make it impossible or difficult to fulfil the obligations referred to in (a);
the President of the Chamber may impose a fine of up to CZK 10 000 000 or up to 1% of his net turnover in the last financial year.
(2) If the person who committed the offence is part of the competitor (5), the percentage fine on net turnover obtained during the last completed financial year shall be calculated by the competitor.
(3) The President of the Chamber shall take into account, when deciding whether to impose a fine, and when determining its amount, in particular the amount of damage to be caused by the restriction of competition in order to prevent the consequences of an infringement, the additional fulfilment of the obligation to disclose documents or to disclose where they are located, as well as the additional removal of the consequences of the infringement.
(1) The President of the Senate may, by order of order, impose a fine of up to CZK 1 000 000 on a person who has committed an unlawful act in breach of the court's legally imposed obligation to protect commercial, banking or similar legally protected secrets.
(2) The President of the Chamber shall take into account, in deciding whether to impose a fine and in determining the amount thereof, in particular the amount of damage caused or threatened in connection with an offence, the aim of preventing the consequences of the offence and the further elimination thereof.
(3) He who has committed an offence will make up for the damage caused by it. Obligations shall be waived if they prove that the damage could not have been prevented even if all the efforts that may be required of them had been made.
(1) The fine may be imposed within 3 years of the date when the President of the Chamber began to take action to decide on the fine, but no later than 5 years after the unlawful act took place.
(2) The fine is the income of the State budget.
(3) If the person who has committed an unlawful act and to whom a fine is to be imposed is part of the competitor, the payment of the fine shall be imposed jointly and severally to anyone who is part of the competitor, unless it cannot be reasonably requested.
(1) If the President of the Chamber fails to impose a fine, the order shall stop the proceedings; the order shall be reasoned by the President of the Chamber.
(2) If the obligation is not fulfilled even after a fine has been imposed, the President of the Chamber shall, under the conditions laid down in paragraphs 20 to 22, impose another fine or suspend the procedure by order.
(3) If, after the termination of the proceedings, the President of the Chamber becomes aware of the facts which might justify the imposition of a fine, he shall issue a resolution on the continuation of the proceedings and shall continue the proceedings without further proposals; no appeal is admissible against the order.
The order imposing a fine or terminating proceedings shall be enforceable as soon as the time limit for performance has expired; the period begins to run from the legal authority of the resolution. The time limit for payment of the fine shall be determined by the President of the Chamber in the decision.
Compensation of pests committed jointly and severally
Proceedings for damages caused by the restriction of competition
Jurisdiction
The regional courts at first instance are responsible for proceedings for damages caused by the restriction of competition.
Suspension of proceedings
(1) If the parties to the Court of First Instance are informed that they are in a position to make good the action which is intended to result in an amicable settlement, the Court of First Instance shall stay the proceedings on the substance of the case for a maximum period of two years.
(2) On expiry of the period determined by the court or if one of the parties has informed the court that the negotiations which are intended to result in an amicable settlement are no longer conducted, the court shall continue the proceedings on its own motion.
(1) The Court of First Instance is bound by a judgment of another court, the Office for the Protection of Competition and the European Commission on the restriction of competition and on who committed it.
(2) Where a decision has been taken to restrict competition and who has committed it by a competition authority in another Member State, it shall be deemed to have been made in the proceedings for compensation and that the person has committed it if it is not demonstrated otherwise.
(1) Where a party to proceedings has infringed, without serious cause, the final decision of the court imposing an obligation to make documents available, to disclose where they are located or to make them impossible to fulfil those obligations, the evidence to prove it is to be proved.
(2) Where a legally imposed obligation to protect commercial, banking or similar legally protected secrets has been infringed, the court may decide that the execution of the proof of the documents concerned by the infringement is not admissible.
Transfer of price increases
The defendant, who was intended to cause damage by limiting competition, may, in proceedings for compensation, argue that the applicant has transferred the price increase in whole or in part to customers or suppliers.
Indirect customer and transfer of price increase
(1) It is considered that a full or partial increase in the price has been passed on to the applicant if it proves that:
(a) there has been a restriction on competition for the defendant;
(b) the restriction of competition has led the defendant to increase the price for the defendant's direct customers; and
(c) it has itself acquired, derived from, or containing, goods or services affected by the restriction of competition from that direct customer or downstream customer.
(2) Paragraph 1 shall not apply where the defendant certifies that the transfer of the price increase has not taken place in whole or in part.
(1) Documents containing confidential information pursuant to Article 2 (2) (a) or (b) which have been obtained solely in the exercise of the right of access to the file are not admissible.
(2) Documents containing confidential information pursuant to Article 2 (2) (c) which have been obtained solely in the exercise of the right of access to the file shall not be admissible until the end of the investigation or the legal power of the competition authority's decision to terminate the administrative procedure.
(3) It shall not be permitted to carry out the proof or other documents obtained solely in the exercise of the right of access to the file, other than those referred to in paragraphs 1 and 2, unless they are invoked by the person who so obtained or by his successor in title.
(4) The Tribunal shall, on application, suspend proceedings until such time as the execution of the proof referred to in paragraph 2 is admissible if this does not preclude the purpose of the proceedings.
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Regulation Information
| Citation | Act No. 262 / 2017 Coll., on compensation for damages in the field of competition and amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain laws (Law on the Protection of Competition), as amended, (Law on compensation for damages in the field of competition) |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.08.2017 |
|---|---|
| Effective from | 01.09.2017 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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