Act No. 50 / 2016 Coll.
Act amending Act No 395 / 2009 Coll., on Significant Market Power for the Sale and Abuse of Agricultural and Food Products
Valid
Effective from 06.03.2016
50
THE LAW
of 13 January 2016
amending Act No 395 / 2009 Coll., on significant market power in the sale and misuse of agricultural and food products
Parliament has decided on this law of the Czech Republic:
Act No 395 / 2009 Coll., on significant market power in the sale and misuse of agricultural and food products, is amended as follows:
1. Head marking I to V shall be deleted, including the headings.
2. paragraphs 1 to 3, including the headings and footnotes 1 shall read:
Preliminary provisions
(1) This Act provides for:
(a) the method of assessing and avoiding misuse of significant market power in connection with the purchase of foodstuffs for resale on the territory of the Czech Republic or the services related to such purchase or sale of foodstuffs;
(b) supervision of compliance with this law.
(2) Under this law, the abuse of significant market power, which was carried out abroad, is also assessed if its effects have occurred or may occur in the Czech Republic.
Definition of certain terms
For the purposes of this Act:
(a) by the supplier, where he sells foodstuffs for resale or receives or provides services related to the sale of foodstuffs;
(b) by the purchaser, the entrepreneur or the purchasing alliance referred to in (c), where they purchase foodstuffs for resale or receive or provide services related to the purchase of foodstuffs; the customer is also considered to be the customer who provides such purchase or service to another customer under a command-type contract;
(c) buying alliances between groups of customers, arising from a contract, other legal action or other legal fact which provides cooperation between customers in connection with the purchase of foodstuffs for the purpose of resale or the reception or provision of services related thereto, or which have been established for the purpose of such cooperation, irrespective of whether or not that grouping has a legal personality;
(d) a food or a product defined as a food directly applicable by European Union1).
Significant market power
(1) Significant market power is a customer's position whereby a customer may, without a fair reason, impose an advantage on suppliers in connection with the purchase of food or the acceptance or provision of services related to the purchase or sale of food.
(2) Significant market power shall be assessed in particular with regard to the structure of the market, barriers to entry and the financial strength of the customer.
(3) Where the customer is an entrepreneur who provides for the purchase of food or services related to the purchase or sale of food for another customer under a command-type contract, its significant market power shall be assessed together with the status of the customer for which it operates.
(4) Significant market power is deemed to have:
a) a customer whose turnover for the sale of food and services related thereto in the Czech Republic exceeds CZK 5 billion for the last completed financial year of 12 months,
(b) a customer who is a controlled person whose turnover for the sale of food and services related to it in the Czech Republic does not exceed CZK 5 billion for the last completed financial year of 12 months if its turnover for the sale of food and services related to it in the Czech Republic together with the turnover for the sale of food and services related to it in the Czech Republic exceeds CZK 5 billion for the last completed financial year of 12 months; or
c) a shopping alliance where the combined turnover of its members for the sale of food and services related to it in the Czech Republic exceeds CZK 5 billion for the last completed financial year of 12 months.
(1) Regulation (EC) No 178 / 2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. "
3. The following Section 3a is inserted after Section 3, including the title:
Forms of the contract
A contract between a customer with significant market power and a supplier shall be negotiated in writing and shall include, in addition to essential parts:
(a) the method of payment of the purchase price and the period for payment of the purchase price, the amount of the discount on the purchase price or the method of determination, if provided, and the payment of the purchase price may not exceed 30 days from the date of receipt of the invoice, the amount of all the supplier's cash performance, the total of which may not exceed 3% of the supplier's annual sales for the last completed financial year of 12 months for food delivered to the individual customer in the year in which the financial performance took place;
(b) the time or method of its determination for the delivery of the object of the purchase and for the determination of its quantity for the specified period or the determination of the quantity of the individual supply of the object of the purchase;
(c) where services related to the purchase or sale of foodstuffs are accepted and provided, the means of cooperation in their reception and provision in the scope, extent, manner and time of performance, price or destination;
(d) the period of guaranteed validity of the purchase price which may not exceed 3 months from the date of the first delivery of the food for which the purchase price was agreed;
(e) the method of transferring the claim which is governed by the relevant provisions of the Civil Act. ";
4. Paragraph 4, including the title and footnote 2, reads as follows:
Prohibition of abuse of significant market power
(1) Abuse of significant market power is prohibited.
(2) The abuse of significant market power is in particular:
(a) the negotiation or application of contractual terms which create a significant imbalance in the rights and obligations of the Contracting Parties;
(b) the negotiation or acquisition of any payment or other performance for which a service or other consideration has not been provided or is disproportionate to the value of the consideration actually paid;
(c) the application or acquisition of any payment or discount the amount, object and extent of which has not been agreed in writing prior to the supply of food or services to which the payment or discount relates;
(d) the negotiation or application of price conditions whereby the tax document for payment of the purchase price for the supply of foodstuffs will not contain the final amount of the purchase price after any discounts agreed on the purchase price, except for pre-agreed quantitative discounts;
(e) the negotiation or application of payments or other consideration for the acceptance of foodstuffs for sale;
(f) the negotiation or application of the maturity of the purchase price of foodstuffs longer than the period referred to in Article 3a (a);
(g) the negotiation or application of the right to return purchased foodstuffs, except for a material breach of the contract;
(h) requesting compensation for penalties imposed by the inspection authority on the supplier without the existence of fault;
(i) discrimination against a supplier consisting of the negotiation or application of different contractual terms for the purchase or sale of services related to the purchase or sale of foodstuffs in comparable transactions, without a fair reason;
(j) carrying out an audit or other form of inspection of the supplier by the customer or by the natural person or legal person authorised by him at the expense of the supplier, including requiring food analyses at the expense of the supplier; or
(k) failure to respect the results of official controls on foodstuffs carried out by the authorities of the state control (2) by the customer.
2) Act No. 110 / 1997 Coll., on Food and Tobacco Products and amending and supplementing certain related laws, as amended. '
footnote 2 shall be renumbered footnote 3.
5. The title above Section 5 reads:
"Supervision of law enforcement."
6. In Section 5, the word "Supervision 'is replaced by" Supervision'.
7. In Article 5, the current text becomes paragraph 1 and the following paragraph 2 is added:
"(2) The complaint for the initiation of proceedings concerning infringements of obligations imposed by this law or by a decision given on its basis shall be postponed by the Office, unless it is found justified. In assessing the justification, it shall be based on the degree of seriousness of the conduct under consideration, taking into account in particular the nature of the conduct, the manner in which it is carried out and the number of operators concerned. It shall make a written record of the postponement of the complaint, stating the reasons for it, and shall inform the provider thereof. ';
8. Paragraph 6 (2) and (3) read:
"(2) Instead of the decision referred to in paragraph 1, the Office shall decide to terminate the procedure on condition that the party to the proceedings of the Office has proposed commitments the fulfilment of which has been remedied and that abuse of significant market power has not been classified as serious by the Office. 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 commitments proposed sufficient, it shall inform the party in writing of the reasons and continue the proceedings.
(3) A party 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 it a written notification, in which the Office shall communicate the essential facts of the case, its legal assessment and the references to the main evidence thereof contained in the file (hereinafter referred to as "the notice of reservations'). A party to the proceedings shall be bound by its proposal against the Office or, where appropriate, against third parties, and shall not, from the submission of the application to the Office's decision pursuant to paragraph 2, proceed in the manner which is the subject of a communication of the Office's reservations. ';
9. in Article 6 (4) (b), the words "parties to proceedings" shall be replaced by the words "party to proceedings";
10. The following Section 6a is inserted after Section 6:
Where a breach of the prohibition provided for in Article 4 is found, the Authority may decide to impose corrective measures designed to eliminate the unlawful situation and to set a reasonable time limit for its fulfilment. ';
11. in Article 7, the word "abuse" is replaced by "abuse" and the words "other legislation (3)" is replaced by "competition law."
footnote 3 is deleted.
12. In Article 7, the current text becomes paragraph 1 and the following paragraph 2 is added, including footnote 6:
"(2) The legislation on controls (6) shall not apply to the action of the Office under this Act.
6) Act No. 255 / 2012 Coll., Control Regulations. '.
13. in Paragraph 8 (1), the words "a legal or business natural person shall be replaced as a competitor" shall be replaced by "a collector having significant market power."
14. in Article 8 (1) (a) and (b), the words "this law" shall be deleted;
15. in Article 8 (1) (c), the words "other legislation" are replaced by the words "§ 6a";
16. in Article 8 (1) (d):
"(d) it does not agree on the compulsory requirement of a contract under Article 3a (a) to (e) or it does not agree on a contract in writing."
17. in Paragraph 8, the following paragraph 2 is inserted after paragraph 1:
"(2) A natural person, whether legal or legal, commits an administrative offence by:
(a) breach the seal placed in the course of an investigation under this Act; or
(b) in contravention of this law, it shall not provide the Office with complete, correct and true supporting documents or information, including trade books, other commercial records or other records which may be relevant for the purpose of clarifying the subject matter of the proceedings. ";
Paragraph 2 shall become paragraph 3.
18. in Paragraph 8 (3):
"(3) For the administrative offence referred to in paragraph 1, a fine of up to CZK 10 000 000 or 10% of the net turnover achieved by the customer during the last completed financial year shall be imposed and for the administrative offence referred to in paragraph 2 a fine of up to CZK 300 000 or 1% of the net turnover achieved by the legal or commercial person for the last completed financial year shall be imposed."
19. In Article 8, paragraphs 4 and 5 are added:
"(4) Where the fine referred to in paragraph 3 is imposed:
(a) the customer who is the controlled person is calculated from the sum of the net turnover of the controlled and controlling persons over the last completed financial year; or
(b) the purchasing alliance or its members shall be calculated on the basis of the total net turnover achieved by its members over the last completed financial year.
(5) If a fine is imposed on a purchasing alliance, its members shall be liable for payment of the fine imposed jointly and severally. '
20. in Article 9 (5), the word "this" shall be inserted after the word "the provision."
(21) footnote 4 is deleted, including the footnote reference.
22. Paragraph 9 (6) reads:
"(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. ';
23. in Paragraph 9, paragraph 7 shall be deleted;
Paragraph 8 shall become paragraph 7.
24. in Paragraph 10 (1):
"(1) A legal or business natural person who, contrary to this law, does not provide the Office with the necessary synergies in carrying out an investigation may be fined for up to 300 000 CZK or 1% of the net turnover achieved by him during the last completed financial year."
25. in Article 10 (2), the word "competitor" shall be replaced by the words "legal or legal person."
26. Paragraph 10 (3) is deleted.
27. Annexes 1 to 6 are deleted.
Transitional provisions
1. Proceedings which were not definitively terminated before the date of entry into force of this Act shall be completed and the rights and obligations relating thereto shall be assessed in accordance with Act No. 395 / 2009 Coll., as effective before the date of entry into force of this Act.
2. Contracts formed prior to the date of entry into force of this Act which do not contain the terms of the Act No. 395 / 2009 Coll., as effective from the date of entry into force of this Act, shall comply with the Act No. 395 / 2009 Coll., as effective from the date of entry into force of this Act, no later than 3 months after the date of entry into force of this Act.
Efficacy
This Act shall take effect on the 30th day following its publication.
Hamlet v. r.
Zeman v. r.
Sobotka v. r.
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Regulation Information
| Citation | Act No. 50 / 2016 Coll., amending Act No. 395 / 2009 Coll., on significant market power in the sale and misuse of agricultural and food products |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.02.2016 |
|---|---|
| Effective from | 06.03.2016 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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