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.
