Act No. 360 / 2012 Coll.
Act 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, and Act No. 40 / 2009 Coll., 5 Criminal Code, as amended
Valid
Law
Effective from 01.12.2012
Text versions:
01.12.2012
29.10.2012
360
THE LAW
of 19 September 2012
amending Act No. 143 / 2001 Coll., on the Protection of Competition and amending certain laws (Law on the Protection of Competition), as amended, and Act No. 40 / 2009 Coll., 5 Criminal Code, 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 amending 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., Act No. 296 / 2007 Coll., Act No. 155 / 2009 Coll. and Act No. 188 / 2011 Coll., is amended as follows:
1. in Paragraph 1 (1), the word "or 'is deleted from point (b), point (c) is replaced by the following:
"(d) public authorities in the exercise of public administration, local authorities in the exercise of self-government and in the delegated exercise of public administration and public interest authorities in the delegated exercise of public administration (" public authorities ")."
2. Paragraph 1 (2), including footnotes 1, 1a and 1b, reads as follows:
"(2) The Act also provides for the procedure for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (hereinafter referred to as" the Treaty ') by the authorities of the Czech Republic and certain matters relating to their synergies with the European Commission1 (hereinafter referred to as "the Commission') and the authorities of the other Member States of the European Union in the procedure under Council Regulation (EC) on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (hereinafter referred to as" the Regulation ') and the Council Regulation (EC) on the control of mergers (hereinafter referred to as "the Merger').
1) Article 17 et seq. of the Treaty on European Union.
(1a) Council Regulation (EC) No 1 / 2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.
(1b) Council Regulation (EC) No 139 / 2004 of 20 January 2004 on the control of concentrations between undertakings. ';
3. In Article 1 (4), the words "European Communities under Articles 81 and 82 'are replaced by the words" European Union under Articles 101 and 102'.
4. Paragraph 4 (1), including footnote 5, reads:
"(1) The prohibition provided for in Article 3 (1) shall not apply to agreements which cannot affect trade between Member States of the European Union pursuant to Article 101 of the Treaty, but which fulfil the other conditions laid down by block exemptions adopted pursuant to Article 103 (1) of the Treaty for the implementation of Article 101 (3) of the Treaty by the relevant Commission or Council Regulations (EU block exemptions) or by the exception in the field of agriculture (5).
5) Article 42 of the Treaty. Council Regulation (EC) No 1184 / 2006 of 24 July 2006 applying certain rules of competition to the production and trade of agricultural products (codified version). '
5. In Paragraph 18, the sentence "The imposition of measures to restore competition shall not preclude the parallel imposition of a fine pursuant to § 22 (1) (d), (e) or (f) or § 22a (1) (d), (e) or (f)."
6. the following Title IVa is inserted after Title IV:
SUPERVISORY TO PUBLIC MANAGEMENT AUTHORITIES
(1) Public authorities must not distort competition by favouring a particular competitor or otherwise.
(2) If the Office finds that there has been a distortion of competition in proceedings under paragraph 1, it shall state that fact in the decision.
(3) Where the distortion of competition is committed by a local authority in the exercise of its own administration or in the delegated exercise of its administration, the Office shall send the competent authority responsible for the exercise of supervision under the special legislative act 19a) the final decision referred to in paragraph 2 and, at its request, the administrative file.
19a) Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended. Act No. 129 / 2000 Coll., on Counties (Regional Establishment), as amended. Act No. 131 / 2000 Coll., on the Capital City of Prague, as amended. '
7. in Article 20 (1), the following point (b) is inserted after point (a):
"(b) supervise that public authorities do not distort competition;"
Point (b) shall be renumbered (c).
8. In Paragraph 20a (1) of the Introductory Part of the provision, "81 'is replaced by" 101' and "82 'is replaced by" 102'.
9. In Paragraph 20a (2), "Community 'is replaced by" Union' and "81 'is replaced by" 101'.
10. in Paragraph 20a (3) (b), the word "Community" shall be replaced by the words "European Union."
11. in § 20a (3) (e), § 20a (4) (c) and § 21h (1), (3) and (4), "81 or 82" is replaced by "101 or 102";
12. in Article 20a (3) (h), the words "the European Communities" shall be replaced by the words "the European Union" and the words "83 to 86" shall be replaced by "103 to 106";
13. in Paragraph 20a (3) (i), "85" is replaced by "105."
14. In Paragraph 21, the current text becomes paragraph 1 and the following paragraph 2 is added:
"(2) The Office may, after preliminary examination of a case under Article 20 (1) (a), not initiate ex officio proceedings if its management is not of public interest in view of the low degree of injurious effect of the conduct on competition; taking into account in particular the nature of the conduct and the manner in which it is carried out, the importance of the market concerned and the number of consumers concerned. The Office shall make a written record of the non-initiation of proceedings indicating why it did not initiate proceedings. ';
15. In Article 21b, the sentence "In the statement of reservations, the Office shall also inform the parties of the amount of the fine which it intends to impose on the parties." and in the second sentence, "14" is replaced by "15."
16. The heading of § 21c reads: "Special provisions on the file and the consultation thereof."
17. in Article 21c, the following paragraphs 3 and 4 are added:
"(3) The request to waive the imposition of a fine and the request to reduce the fine referred to in Article 22ba (5), as well as other supporting documents and information submitted to the Office in connection with them, shall be kept out of the file pending the notification of the reservations.
(4) Furthermore, those parts of the file which contain a request to waive the imposition of a fine and a request to reduce the fine pursuant to Article 22ba (5), as well as other supporting documents and information submitted to the Office in relation to them, shall be excluded from the inspection. only a party or his representative may refer to such parts of the file under the conditions laid down in paragraph 1. Paragraph 38 (4) of the Administrative Regulation shall not apply. ';
18. The heading of Section 21e reads: "Provision of information."
19. in Article 21e (1), the words "to provide the Office at its written request within the time limit laid down by it" shall be replaced by "to provide the Office."
20. in Article 21e (2), the words "When supporting documents and information, including commercial records," shall be replaced by the words "At the written request of the Office, competitors shall be required to provide the Office with supporting documents and information, including commercial records within the time limit set by the Office. On request."
21. In Article 21e (3), the words "and natural and legal persons who are not competitors" shall be inserted after the words "public authorities";
22. in Article 21f, the following paragraph 5 is inserted after paragraph 4:
"(5) The investigation shall be carried out on the basis of a written mandate issued by the President of the Office or by another person authorised to do so under the internal rules of the Office. The authorisation shall include, in particular, the name and, where appropriate, the name, surname, capacity and signature of the person authorised to issue it, the date on which the official stamp is drawn up and the legal provision under which the investigation is to be carried out, the name of the business premises of the competitor in which the investigation is to be carried out, the subject matter of the investigation and the date on which the investigation is to be opened, and, where appropriate, the names and surnames of the staff of the Office and, where appropriate, the other persons authorised to carry out the investigation. ';
Paragraph 5 shall become paragraph 6.
23. In Section 21h, the word "Community 'is replaced by" Union'.
24. in § 22 (1) (e) and § 22a (1) (e), the words "or § 11 (3)" shall be replaced by "§ 11 (3) or § 17 (4)."
25. Paragraph 22 shall be added at the end of the text of paragraph 2 "unless it is further stipulated that a fine shall not be imposed for the offence referred to in paragraph 1 (b) '.
26. Paragraph 22a shall be added at the end of the text of paragraph 2 "unless further provision is made that a fine shall not be imposed for the administrative offence referred to in paragraph 1 (b) '.
27. in Paragraph 22a, paragraphs 4 to 6 are added, including footnote 20:
"(4) For the administrative offence referred to in paragraph 1 (b) committed in connection with a procurement procedure or the conclusion of a contract for the performance of small-scale public contracts, a prohibition on the performance of public contracts for a period of 3 years under the Public Procurement Act shall be imposed, unless otherwise specified. The period for which the prohibition on the performance of public contracts is imposed shall begin on the date on which the decision imposing the prohibition on the performance of public contracts became final.
(5) For the administrative offence referred to in paragraph 1 (b) committed in the context of a concession procedure, the prohibition on the performance of a concession contract for a period of 3 years under the concession law shall be imposed, unless otherwise specified. The period for which the prohibition on the performance of a concession contract is imposed shall begin on the date on which the decision imposing the prohibition on the performance of the concession contract became final.
(6) The Office shall inform the Ministry of Local Development of the decision imposing a prohibition on the performance of public contracts under paragraph 4 or a prohibition on the performance of a concession contract under paragraph 5.
20) Article 144 of Act No. 137 / 2006 Coll., on Public Procurement, as amended. § 31a of Act No. 139 / 2006 Coll., on concession contracts and concession procedures (concession law), as amended by Act No. 417 / 2009 Coll. '
28. the following Section 22aa is inserted after Section 22a, which includes the title:
Administrative offences of public authorities
(1) The public authority commits an administrative offence by distorting competition contrary to Paragraph 19a (1).
(2) A fine of up to CZK 10,000 000 shall be imposed for the administrative offence referred to in paragraph 1. "
29. in Article 22b (1), the words "or the public authority" shall be inserted after the word "person," the word "not responding," the word "proof" shall be replaced by "proof," the word "spent" shall be replaced by the word "spent," and the word "prevented" shall be replaced by the word "prevented."
30. in Article 22b (2), the words "or a public authority" shall be inserted after the word "person," and at the end of the paragraph, the sentence "Further account shall be taken of the conduct of a legal person or public authority in the course of proceedings before the Office and their efforts to eliminate the harmful consequences of an administrative offence."
31. in Paragraph 22b (6):
"(6) The liability for the administrative offence of a legal person who has ceased to exist shall be transferred to its legal successor. 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 shall take account of any successor in the activity in which the administrative offence was committed. ';
32. in Paragraph 22b, paragraph 7 is deleted;
Paragraph 8 shall become paragraph 7.
33. After Paragraph 22b, the following Section 22ba is inserted:
Withdrawal of the imposition of a fine and reduction of a fine
(1) If the Office recognises a competitor guilty of an administrative offence pursuant to § 22 (1) (b) or § 22a (1) (b),
(a) refrain from imposing a fine where the competitor:
1. as the first of all competitors, submit to the Office information and supporting documents relating to a classified horizontal agreement which the Office has not yet obtained and which justify carrying out a targeted on-the-spot investigation pursuant to Article 21f or Article 21g or demonstrate the existence of such an agreement under this law,
2. Grants to participate in this Agreement,
3. does not pressure other competitors to participate in this Agreement; and
4. in administrative proceedings, it actively assists in clarifying the case, in particular providing the Office with all the supporting documents available to it and information on this Agreement; or
(b) reduce the amount of the fine which has been notified by the parties in the notice of reservations by up to 50% if the competitor submits to the Office information and documents relating to a classified horizontal agreement, which have significant added evidence value in relation to the evidence value of the documents and information received by the Office and fulfils the conditions set out in points (a) (2) to (4); taking into account the ranking of the competitors, the time when the Office submits the information and documents on the classified horizontal agreement and the extent to which the information and documents strengthen their nature or detail to the Office's ability to demonstrate the classified horizontal agreement.
(2) Where the Office recognises a competitor guilty of an administrative offence pursuant to Article 22 (1) (b), (c) or (d), or Article 22a (1) (b), (c) or (d), it shall reduce the amount of the fine by 20% to which it has informed the parties in the notice of reservations if the competitor has admitted to commit an administrative offence and if the Office considers that, in view of the nature and gravity of the administrative offence, such a penalty is sufficient.
(3) Where the Office omits the imposition of a fine pursuant to paragraph 1 (a) or reduces the fine referred to in paragraph 1 (a). (b) or pursuant to paragraph 2, the same competitor may not be ordered to prohibit the performance of public contracts or to prohibit the performance of a concession contract.
(4) The imposition of a fine referred to in paragraph 1 (a) or the reduction of a fine referred to in paragraph 1 (b) or paragraph 2 may be waived only on application by the competitor.
(5) The request to waive the imposition of a fine pursuant to paragraph 1 (a) must be made at the latest by the date on which the notice of reservations referred to in Article 21b was received by the competitor. The application for a reduction in the fine referred to in paragraph 1 shall be accompanied by: (b) it must be submitted no later than 15 days after the date on which the notice of reservations pursuant to Article 21b was received by the competitor. Such applications may be withdrawn within 15 days of the expiry of the time limit for their submission. The request withdrawn and the supporting documents and information accompanying it shall not be taken into account in the proceedings.
(6) An application for a reduction in the fine referred to in paragraph 2 shall be submitted no later than 15 days after the date on which the notice of reservations referred to in Article 21b was delivered to the competitor.
(7) An application lodged later than that provided for in paragraph 5 or 6 shall be dealt with by the Office only in cases of special consideration. "
34. in Article 22c (1), the words "2 or" shall be inserted after the words "under Article 21e (1)."
35. in Article 22c, paragraph 3 is deleted;
36. The following Section 25b is inserted after Section 25a, including footnote 21:
The legislation on control 21) shall not apply to the action of the Office under this Act.
21) Act No. 552 / 1991 Coll., on State Control, as amended. '
Transitional provision
Proceedings which were not definitively terminated before the date of entry into force of this Act shall be completed in accordance with the existing legislation.
Amendment of the Penal Code
In Act No. 40 / 2009 Coll., Criminal Code, as amended by Act No. 306 / 2009 Coll., Act No. 181 / 2011 Coll., Act No. 330 / 2011 Coll., Act No. 357 / 2011 Coll., Act No. 375 / 2011 Coll., Act No. 420 / 2011 Coll. and Act No. 458 / 2011 Coll., the following Section 248a is inserted after Section 248, which includes the title:
Specific provisions on effective regret
The criminal liability for an infringement of competition rules pursuant to Article 248 (2) shall be the first to expire if the offender fulfils the conditions under another competition law to refrain from imposing a fine or to reduce the fine for participation in a price-fixing agreement, a market-sharing agreement or another competition-distorting agreement with his competitor. ';
EFFECTIVE
That law shall take effect on the first day of the second calendar month following its publication.
Germany
Klaus v. r.
Nausea v. r.
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Regulation Information
| Citation | Act No. 360 / 2012 Coll., 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, and Act No. 40 / 2009 Coll., 5 Penal Code, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.10.2012 |
|---|---|
| Effective from | 01.12.2012 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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