Significant Market Power In The Sale Of Agricultural And Potrav. Products

Original Language Title: o významné tržní síle při prodeji zemědělských a potrav. produktů

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=69621&nr=395~2F2009~20Sb.&ft=txt

395/2009 Sb.



LAW



of 9 June. September 2009



significant market power in the sale of agricultural and food

products and its abuse



Parliament has passed the following Act of the Czech Republic:



TITLE I OF THE



INTRODUCTORY PROVISIONS



§ 1



Introductory provisions



This Act regulates the



and the method of assessing and preventing) the abuse of significant market power in the

the sale of agricultural and food products (hereinafter referred to as "significant

market power "), and



(b)) the supervision of compliance with this Act.



§ 2



The definition of certain concepts



For the purposes of this Act, means the



and supplier of ^ 1) competitor), which delivers the goods for the purpose of sale and

service to the customer,



(b)) the customer competitor that is removing the goods for resale

the sale.



TITLE II



ABUSE OF SIGNIFICANT MARKET POWER



§ 3



Significant market power



(1) Significant market power is such a position the customer against the supplier,

the result of the situation on the market becomes dependent on the supplier

the customer in relation to the possibility to deliver their goods to consumers and when

Subscriber's against the supplier can force unilaterally favourable business

the conditions.



(2) Significant market power shall be assessed in particular with regard to the structure of the

the market, barriers to entry to the market, the market share of the supplier and the customer,

their financial strength, size of the business network of the customer, the size and

the location of the individual stores.



(3) it is not to the contrary, it is considered that significant market power has

the Subscriber whose net turnover exceeds 5 billion. CZK.



§ 4



Prohibition of abuse of significant market power



Abuse of significant market power against suppliers is prohibited. Abuse

significant market power is, in particular, systematic



and violations of the rules applicable to) invoice referred to in annex

No 1 of this Act,



(b)) violation of general terms and conditions referred to in annex No. 2

This law,



(c) violations of obligations) arising from the contract between the supplier and

customer, which shall include in particular the conditions referred to in annex No. 3

This law,



(d) failure to comply with the terms of sale) referred to in annex 4 of this

the law,



(e) the application of practices prohibited in) supplier-customer

relations referred to in annex 5 of this Act,



(f) violations of other practices) supplier-customer relations,

which means, in particular conventions referred to in annex 6 of this

the Act, whose aim or effect is a substantial distortion of

competition in the relevant market.



TITLE III



SUPERVISION OF COMPLIANCE WITH THE LAW



§ 5



Supervision of compliance with the act done by the Office for the protection of

competition (hereinafter referred to as "the authority"). The scope of the authority is determined by other legal

Regulation ^ 2).



§ 6



(1) if the Office finds ex officio proceedings, that there was a misuse of the

significant market power, this fact in the decision and this

by a decision of such conduct in the future, disable it.



(2) instead of the decision referred to in paragraph 1, the Office shall decide on the suspension

proceedings, provided that the participants in the management of the Office jointly proposed commitments

in favor of restoring effective competition, which are sufficient

for the protection of competition, which will remove the objectionable

status, and that the abuse of market power does not result in a substantial distortion

competition. In this decision, the authority may also provide

the conditions and obligations necessary to ensure compliance with these obligations.

If the Office finds sufficient grounds for the proposed commitments, in writing

communicate to the participants and continues in the control.



(3) the obligations referred to in paragraph 2, the parties may propose in writing

The Office not later than 15 days from the date when the Authority deliver written

the memorandum, in which the authority shall communicate the basic facts of the case,

their legal reviews and links to the main evidence about them, contained in the

docket (hereinafter referred to as the "communication of reservations"); the Office will take into account proposals later

only in cases worthy of special attention. Interested parties are

bound by design against the Office and with each other, or against third

persons, and from the submission of the proposal for a decision of the authority referred to in paragraph 2 shall not

to proceed in a way that is subject to the reservations office.



(4) after the termination of the proceeding referred to in paragraph 2, the authority may reopen the proceedings

referred to in paragraph 1, if the



and) have significantly changed the conditions for the issue of the decision

in accordance with paragraph 2 of the operative,



(b) the Parties shall act in the) contrary to their commitments in accordance with paragraph

2, or



(c)), the decision was made on the basis of false or incomplete

documents, data and information.



TITLE IV



The FINE



section 7 of the



On the management-led Authority in cases of abuse of significant market power, as well as

even on its investigative privilege, shall apply mutatis mutandis the provisions of other

the legal regulation of the ^ 3).



§ 8



Administrative offences of legal persons and natural persons-entrepreneurs



(1) Legal or natural person, operating as a competitor commits

the administrative tort by



and) contrary to section 4 of this Act, exploited its significant market power,



(b) fails to comply with an obligation under §) 6 (1). 2 of this Act,



c) fails to comply with corrective measures imposed by the authority in accordance with other legal

Regulation or other obligation set out by decision of the Office, or



(d)) breaks the seal located in the course of the investigation in accordance with other legal

the prescription.



(2) for the administrative offence referred to in paragraph 1 (b). and (b))), (c)) saves a penalty

up to Czk 10 0000 0000 or 10% of the turnover achieved by the competitor for the

the last completed financial year and for the administrative offence referred to in paragraph 1

(a). (d) a fine of up to 300 000) Usd or 1% of the net turnover

a competitor for the last completed financial year.



§ 9



Common provisions in administrative deliktům



(1) a legal person under the administrative tort does not match, if he proves that

made every effort, that it was possible to require that the infringement of the

a legal obligation.



(2) in determining the acreage of the fine legal person shall take into account the seriousness of the

the administrative tort, in particular to the way a criminal offence and its consequences, and

the circumstances under which it was committed.



(3) the responsibility for the administrative offence shall cease, if the administrative authority about him

has commenced proceedings in the 5 years from the date on which it learned, no later than

However, within 10 years from the day when it was committed.



(4) administrative offences under this law in the first instance hearing

The Office.



(5) The liability for the acts, which took place in the business of physical

^ 4 persons) or in direct connection with the applicable provisions of the Act

on the liability of legal persons and sanctions.



(6) liability of legal persons for the administrative offence shall pass to the legal

the successor of this person only if the successor no later than

the time when the legal succession or knew of the circumstances

and their circumstances could know that the legal person before the

legal succession negotiations, which made the characters filled the administrative

tort.



(7) if the defunct legal person more successors in title, shall be responsible for

the administrative tort of each of them. In the area of the fine, to take into consideration,

to what extent have switched to the legal successor of the income, benefits, and other

benefits of committed misconduct, and continues to do so, if any

of the successors in title in the activities in which the administrative offence has been committed.



(8) the Lapse if the legal person of the administrative offence committed, to

the entry into force of the decision, which was responsible for this administrative tort

fine, the obligation to pay the fine on the legal

the successor to the defunct legal persons. If it is, successors more

responsible for payment of the fine jointly and severally.



§ 10



Riot fine



(1) Competitors can store fined up to 300 000 Usd or

1% of the turnover achieved by the competitor for the last completed

accounting period, if fails to comply with the obligation under another legal

^ 5 regulation).



(2) you can save and fined repeatedly. The total amount of repeatedly

levied the fines may not exceed Eur 10 0000 0000 or 10% of the net

the turnover competitor for the last completed financial year.



(3) fined you can save up to 1 year from the date when the obligation to

infringed.



THE HEAD OF THE



The EFFECTIVENESS of the



§ 11



This Act shall take effect on the first day of the third calendar month

following the date of its publication.



Vaidya in the r.



Fischer v. r.



Annex 1



THE RULES TO BE APPLIED WHEN INVOICING



1. Each purchase products must be the subject of invoicing. The invoice contains

the basic requirements under other legislation.



2. The invoice shall bear the date on which the payment must be made.

Furthermore, it must be listed specifying the conditions, that may occur

in the case of payments made later than the date resulting from the General

terms of the sale, as well as the height of the uplatňovatelných on the day of payment of fines

following the date of payment indicated on the invoice. For the day of payment is

considered to be the date when the customer gives appropriate resources available

the supplier or his successor in title.



3. On the invoice must be shown any reduction in the price provided in the day

the sale of a product or the provision of services directly associated with this
the sale, with the exception of unpredictable rainfall.



Annex 2



GENERAL BUSINESS CONDITIONS



1. the Customer is obliged to provide general business conditions

the supplier on request. These general terms and conditions are the basis

trade negotiations.



2. General terms and conditions shall include:



-conditions of purchase;



-price conditions;



-reduction in prices;



-conditions for reimbursement.



3. General business conditions may contain differences according

categories of suppliers. In this case, the obligation to provide

General conditions of sale provided for in point No. 1 concerns the General

business terms and conditions, which are applied to suppliers belonging to the

in the same category.



4. any supplier may agree with the customer's specific business

conditions not covered by the obligation referred to in point 1.



5. With the exception of the different provisions in the terms and conditions

or agreed between the parties in accordance with paragraph 6 of this annex,

the period of payment of the amounts due on the 30th day after the date of

acceptance of the goods or perform the desired performance.



6. Time limit for payment for each vendor must not be longer than 30 days

from the date of delivery.



7. Payment terms must contain conditions for invoicing and interest from

arrears due the following day after the date of payment indicated on the invoice.

If the amounts due are paid after this date. Penalties of

arrears are due without having to remind them.



8. the provision of the information specified in the first paragraph can be implemented

by all means, which are commonly used in the field.



9. The company, whose annual accounts are subject to audit, publish

information on the periods of maturity of their suppliers.



Annex 3



THE CONDITIONS REFERRED TO IN THE CONTRACTS BETWEEN THE SUPPLIER AND THE CUSTOMER



1. The contract between the supplier and the customer shall specify the obligations to

which the parties have committed themselves to set the price after termination of their business

the negotiations. The contract is concluded in writing and cannot be changed without the written

the consent of both parties.



2. the contract is made out as either a single document or as a whole

consisting of annual framework contract and the annexes.



3. the contract provides:



-the conditions for the sale of products, as resulting from the trade negotiations in the

compliance with the general terms and conditions;



-the conditions to which the subscriber undertakes to provide to the vendor,

on the occasion of the sale of its products to the consumer, or to

their next sales trader, each service, which aims to support

their sale and which do not result from sales and purchase obligations,

While it is necessary to indicate the subject, the expected date of implementation, the way

implementation, the reward and the products to which they apply;



-other obligations which are part of the business relationship between the

the supplier and the customer, and for every item you need to specify the

the expected date of implementation and the methods of implementation;



the time-limit for the submission of proposals on price changes;



-the conditions and the deadline for the change of the agreed quantity, the quality and the implementation of

supplied products.



4. the obligations resulting from the previous points are involved in determining the

the agreed price.



Annex 4



CONDITIONS OF SALE



1. The Subscriber shall not sell or announce that it will sell the product,

how it acquired, at a price lower than its actual purchase price.



2. the actual purchase price is the net unit price specified on purchase

invoice, reduced by all other financial income agreed

supplier and increased the sales tax, where applicable, other relevant taxes

This sale to consumers and for the transport, if this

implemented on the customer account.



3. the provisions of the preceding points apply:



-voluntary or forced sales, whose reason is their

or change the business activity;



-for products that have the same properties and whose other supply

carried out at a reduced price, with the actual purchase price is then

the price shown on the replaced a new purchase invoice;



-in the said period the consumption of products from the time when they are vulnerable

the rapid deterioration of quality, under the condition that the offer at a reduced price

It is not the subject of any ads or ad outside the places of sale;



-products whose sales has a pronounced seasonal character, for

the final period of the season sales and in the time between the two sales

seasons.



Annex 5



PROHIBITED PRACTICES IN SUPPLIER-CUSTOMER RELATIONS



1. Every Subscriber is responsible for and shall compensate for damage caused

by:



-gets or is trying to get any benefit from the supplier, or

a payment that is not actually provided by the commercial service

or is manifestly disproportionate in relation to the value of the services rendered. For

such allotment (financial) is considered, in particular:



• contributions to the financing of the common interest, unjustified, and without

adequate consideration;



• implementation of business promotion, purchase or investment, in particular in the framework of the

restoration shops or in the context of the expansion of the business network or building and

traffic zalistovacích, clearing or purchase the headquarters;



• artificial cumulation of turnovers or the requirement to adapt to the business

conditions received other customers;



-abide by, or tries to submit vendor obligations

create a significant imbalance between the parties as regards their rights

and obligations, and in particular in the area of contractual fines and penalties;



-receives or attempts to obtain, as a prior condition of submission

orders, any performance without its consideration was

a written undertaking regarding the fair shopping volume and the necessary

If the supplier's service, which is the subject of a written

the agreement;



-receives or attempts to obtain a benefit under the threat of a complete or

partial immediate interruption of business relations, zneužívajíce

conditions relating to prices, payment deadlines, ways of selling or

services, which do not result from purchase or sales;



-suddenly, albeit only partially, stabilized the business relationship,

without written notice, taking into account the duration of the business relationship

While respecting the minimum notice period set out in the

General terms and conditions, which are based on practices in the

trading. If the business relationship relates to the supply of products sold

under the brand name of the merchant, the minimum period of notice is doubled

than in the case when the product is not supplied under the brand name of the trader.

The preceding provisions shall not preclude the possibility of dismissal without notice

in case, if the other party fails to fulfil part of their duties. If

interruption of business relation follows from the competition through

"the auction at a distance", the minimum length of the period of notice is

Double than the notice period resulting from application of the provisions of the

of this paragraph in the case that the length of the original period of notice is less than the

6 months, and at least one year in the other cases;



-issue a vendor payment conditions, which do not respect the upper limit

laid down in this law or that are clearly abusive given

on good practice and business habits, and they depart, without

objective causes and to the detriment of creditors from the time limit referred to in this Act.

Particularly abusive is considered, if the debtor is asking the lender to

changed (pushed) date of issue of the invoice or issued, due to formal

the deficiencies of the new invoice with different maturity;



-refuses or returns the item or automatically deducted from the sums referred to in the

vendor invoice corresponding to the non-compliance fines or reductions of the term

supplies, or inappropriate condition of the goods, in the case if such

debt is not the undeniable benefits, and enforceable, even without

that the supplier could check whether the relevant complaint corresponds to the

reality;



-transfers the penalties imposed by the control authority of the vendor without

evidence of fault. For particularly abusive, migration

sanctions imposed on products which, in the original packaging, with

except for evidence of culpability on the part of the supplier, on penalties

saved due to the sale of products after expiry of the period of consumption, sale

products in damaged packaging or otherwise impaired by incorrect

storage, handling or unloading at the place of sale;



-requires less time drawing the durability of the product supplier, than

What makes the law;



-carry out the mutual compensation of trade receivables without

the prior written consent of the supplier;



-does not provide its general sales conditions, under the conditions laid down in

This Act to each purchaser of products or any provider

the service, which so requests;



-refuses to include on the label of the product sold under the brand name of the trader

the name and address of the manufacturer, if this is requested in accordance with article;



-shall make sale of products manufacturing products under the brand name vendor

the merchant;



-requires inspections of the production premises of the supplier, whether

directly or by a third party, including requiring analyses and tests the products in
the time of validity of the permission to produce the appropriate State authority issued

or by an accredited person, with the exception of the production under own brand

the merchant, if this is taking on the responsibility of the manufacturer and the control

carried out at their own expense.



2. Subscriber shall not



and retroactive benefit) have in the form of discounts, commissions or agreements

business cooperation;



(b) cash zalistovací fee) before issuing the order;



(c)) have the option to return the goods before the expiry of the time limit or after the

(return), and in particular in the form of a reverse sales;



(d)) have the option of exchanging goods with the exception of proven defects and complaints;



(e) prohibit the Contracting Party) assignment to third parties of claims has

against him;



(f)) automatically benefit from the more favourable conditions of business

partner has approved the competitive enterprises.



Annex 6



OTHER PRACTICES IN SUPPLIER-CUSTOMER RELATIONS



Auction



1. a contract that the supplier against the customer undertakes to respect the price

the menu resulting from the reverse auction, organised in particular

electronically, it is invalid if it does not comply with at least one of the

the following terms and conditions:



-before the purchaser or the person auctioning that is organized in your

benefit, must inform the transparent and non-discriminatory manner

all potential participants about the determining elements for products

or the provision of services which it intends to obtain, for their purchase

the conditions and forms of its detailed selection criteria,

as well as on the rules, which will take place in the auction;



-at the end of the auction period will be the identity of the tenderer

declassified participant, which is in the auction and that it

so requests. If the submitter's selected menu fails his obligations,

No one is required to take the business operation in the last price, or

in the last submission.



2. the Purchaser or the person who organizes the auction in its favour,

register the progress of auctions and such records must retain for one year.

This record shall, if the Office will launch an investigation in the context of the

abuse of significant market power.



3. Reverse auctions at a distance organised by the collector or his representative

they are banned for agricultural products included on the list, which is

fixed by the Office, as well as for normal consumption of foods originating in the

the first stages of processing these products.



4. failure to comply with the provisions referred to in this annex shall bear the responsibility

the person who committed it, and this shall also replace caused

damage.



1) § 2 (2). 1 of Act No. 143/2001 Coll., on the protection of competition and the

on the amendment of certain laws (law on the protection of competition), in

as amended.



2) Law No 273/1996 Coll., on the scope of the Office for the protection of

the competition, in the wording of later regulations.



3) Law No. 143/2001 Coll., as amended.



4) § 2 (2). 2 of the commercial code, as amended by Act No. 85/2004 Sb.



section 21e, paragraph 5). 1 or § 27, paragraph. 3 of Act No. 143/2001 Coll.