155/2009 Sb.



LAW



of 7 November. in May 2009,



amending the Act No. 143/2001 Coll., on the protection of competition and the

amendments to certain acts (the Act on the protection of competition), as amended by

amended



Parliament has passed the following Act of the United States:



Amendment of the Act on the protection of competition



Article. (I)



Act No. 143/2001 Coll., on the protection of competition and amending

Some laws (law on the protection of competition), as amended by law

No. 340/2004 Coll., Act No. 484/2004 Coll., Act No. 127/2005 Coll., Act

No 361/2005 Coll., Act No. 71/2007 Coll. and Act No. 296/2007 Coll.,

be amended as follows:



1. in article 1, paragraph 8, including footnote 3a shall be deleted.



2. In article 3, paragraph 3. 1 the words "that lead to or may lead to a" are replaced by

the words "whose object or effect is."



3. In paragraph 3, at the end of paragraph 1, the following sentence "agreements whose impact on the

competition is negligible, they are not considered disabled. ".



4. In article 3, paragraph 3. 2, the words "that lead to or may lead to a" are replaced by

the words "whose object or effect is."



5. in paragraph 4 of the text at the end of paragraph 1, the words "or the exception

for area agriculture ^ 5). ".



Footnote # 5 reads as follows:



"5) Article. 36 of the EC Treaty, of Council Regulation (EC) no 1184/2006 on the application of

certain rules of competition to the production of agricultural products

and trade (codified version).



6. section 6 is repealed.



7. In article 7 (2). 1 with the number "6" is replaced by "5".



8. In article 7, paragraphs 2 and 3 shall be added:



"(2) instead of the decision under paragraph 1, the Office shall decide on the suspension

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

in favour of the restoration of effective competition, which are sufficient

for the protection of competition, which will remove the objectionable

status, and that the prohibited agreement does not result in substantial deterioration

competition. In this decision, the authority may also impose

conditions and obligations necessary to ensure fulfilment of those commitments.

If the Office finds the proposed commitments sufficient reasons in writing,

communicate to the participants and continues in the proceedings.



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

The authority no later than 15 days from the date when the Authority deliver written

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

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

the administrative file (hereinafter referred to as the "communication of reservations"); to later proposals

the authority shall take into account only in cases worthy of special attention. The participants in the

the proceedings are to be bound by its proposal to the authority as well as with each other,

or against third parties, and from the submission of the proposal to the decisions of the Office

referred to in paragraph 2 shall not, in its original version of the agreement. ".



9. in article 7, paragraph 4 shall be deleted and paragraph 5 shall be renumbered

paragraph (4).



10. In paragraph 7 (2). 4 (b). (b)), the words "with the stored measures" be replaced by

the words "with its obligations under paragraph 2."



11. in article 11, paragraph 3 is added:



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

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

in favour of the restoration of effective competition, which are sufficient

for the protection of competition, which will remove the objectionable

status, and that the abuse of a dominant position does not result in substantial

distortion of competition. In this decision, the authority may also

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

commitments. If the Office finds sufficient grounds for commitments,

shall inform the participants and continues driving. ".



12. In article 11 (1) 4 the first sentence, the word "Measures" be replaced by

"The commitments", the words "reservations about their actions" shall be replaced by the words "communication

reservations "and the words" the submission or later changes of the proposed measures "

replaced by the words "a later draft."



13. in article 11, paragraph 5 be deleted and paragraph 6 is renumbered

as paragraph 5.



14. in section 11 (1) 5 (b). (b)), the words "with the stored measures" be replaced by

the words "with the obligations referred to in paragraph 3".



15. in section 12, paragraphs 5 and 6 are added:



"(5) the merger is also establishing a competitor, which is jointly controlled by

more competitors and who fulfils all the functions of an autonomous

the economic unit (hereinafter referred to as "jointly controlled undertaking ').



(6) in so far as it has a foundation jointly controlled undertaking

the founding of the concentration referred to in paragraph 5 as its object or effect the

the coordination of the competitive behaviour of competitors to controlling who

the market continues to remain independent, such coordination will be assessed in

accordance with the criteria referred to in paragraph 3. '.



16. In article 12, paragraph 6, the following paragraph 7 is added:



"(7) two or more connections that are mutually conditioned and which together

factually, time and personnel related, shall be treated as a link

the only thing. ".



Paragraphs 7 and 8 shall be renumbered as paragraphs 8 and 9.



17. in paragraph 13 (b). (b)) in point 4 shall the word "creating" shall be replaced by

"founding".



18. in § 14 para. 5, the words "of the transfer of part of an undertaking on the

another competitor ' shall be deleted.



19. in § 14 para. 6, after the words "on the banks", the words "and of credit and

other financial institutions, with the exception of insurance undertakings ".



20. in article 15, paragraph 2. 2, the words "to gain control of together

controlled undertaking "shall be replaced by the words" constitute together

the controlled undertaking '.



21. in section 16(1). 1 the words "down in it" shall be replaced by

"electronically via a public data network, while at the same time

provides ".



22. In article 16(1). 6 the third sentence, after the words "merger canceled"

the words "the Chairman of the authority, or" and the words "of the Court decision"

replaced by the words "the decision of the President of the Office or court".



23. in article 16, the following new section 16a, which including the title reads as follows:



"§ 16a



A simplified authorisation procedure for connection



(1) a simplified proposal to allow concentration, containing the particulars

laid down by an implementing Regulation (hereinafter "the simplified

control "), may be filed in the case of mergers, where



and none of the competitors) on him participating in the same

the relevant market, or is their combined market share on this market

less than 15%, and at the same time, none of the competitors participating on it

are not active on the market downstream of the relevant market, vertically, on which

It acts different from those of competitors, or is their share of each

such a market of less than 25%, or



(b)) a competitor shall take sole control of a joint venture in

which have not yet participated in the joint control.



(2) the authority shall immediately notify the launching simplified procedure in

electronic form via a public data network and shall set

for filing an opposition against this connection; § 16 para. 1 shall not apply.



(3) if the Office, in a simplified procedure leads to the conclusion that the concentration

is subject to authorisation and to its proper assessment of needs additional

information, sends it to the 20 days from its start, the parties to the prompt

to submit a complete proposal to allow connections; the deadline for making the decision

According to § 16 para. 2 starts to run from the date of receipt of a complete proposal on the

to enable the connection of the Office. Otherwise, within the same period, the Office shall issue to the

the decision to allow a connection, whose preamble contains just a label

merging with competitors, the relevant market or sector in which

linking to competitors and the fact that the decision was

released in simplified proceedings.



(4) if the Office within the time limit referred to in paragraph 3 shall not issue the authorisation decisions

connection, the expiry of this period, the authority has enabled connection.



(5) unless otherwise provided by this Act, the procedure shall be in

a simplified procedure in accordance with the General provisions on the assessment of the concentration. '.



24. In § 17 paragraph 2. 4 the first sentence, the words "the fulfilment of the commitments" shall be replaced by

the word "commitments", after the word "effective" is added after the word "economic" and

the words "notification according to § 16 para. 2 that the Office in the procedure continues "

replaced by the words "the communication of reservations".



25. in section 17(2). 4, the fifth sentence deleted.



26. in section 18 paragraph 3 reads:



"(3) the authority may, on a proposal from the competitors decide to allow exceptions to the

the prohibition on the implementation of the concentration referred to in paragraph 1, if they or third

persons otherwise there is a serious injury or other serious injury. The proposal for the

enabling exceptions can submit at the same time, competitors with full proposal

merger pursuant to § 15 para. 3 (b). (b)) or at any time during the

control. The proposal must be justified in writing and must indicate in the

extent to which the exemption is sought. The Office may intervene in the proceedings

writing prompt to indicate additional information necessary for the issuing of

the decision to allow the exception or about such facts furnish

more evidence. Period from the date of receipt of such calls until the day when this

the obligation is met, the time limits referred to in paragraph 4 shall not be counted. ".




27. in section 18 para. 4, the third sentence shall be inserted after the sentence "the authority may decide to

the granting of exemptions also in relation to certain acts covered by the proposal

concerned; in the rest of the Office rejects. ".



28. in § 20 paragraph 2 reads as follows:



"(2) in cases where the situation on the individual markets suggests that the

competition is distorted, the Office performs on such markets investigation

conditions of competition (hereinafter referred to as "sector inquiries") and proposed measures

to improve their services, in particular, produces reports, whose content are

recommendations for improving the conditions of competition. ".



29. in section 20, the following paragraphs 3 and 4 are added:



"(3) in the exercise of supervision pursuant to paragraph 1. and) and the implementation of the

the sectoral inquiries pursuant to paragraph 2, the authority shall proceed mutatis mutandis under section

21E, AWACS and 21 g and may initiate proceedings ex officio.



(4) where it is found violation of the obligations provided for in § 3 (1). 1, § 11

paragraph. 1 or § 18 para. 1, the Office may impose corrective measures, which

the purpose is to restore effective competition on the market, and to provide the

reasonable period of time to meet them. The imposition of measures to remedy the

does not preclude the concurrent imposition of a fine pursuant to section 22(2). 1 (b). b), c), or

(d)) and § 22a para. 1 (b). b), c) or (d)). ".



30. in section 20a para. 4 (b). e), the words "and to the Advisory Committee on

State aid ' shall be deleted.



31. paragraph 21, including the title reads as follows:



"section 21



Initiation of proceedings



The authorisation procedure for connection and authorisation procedure for exemptions from the prohibition on

the implementation of the concentration are initiated on the basis of the proposal; other proceedings

under this Act are initiated ex officio. ".



32. section 21a including title:



"§ 21a



Parties to the proceedings



(1) in proceedings for the merger and in the authorisation procedure for exemptions from the prohibition on

implementation of joins are party to the proceedings, persons who are required to

to submit a proposal for the merger (§ 5 para. 2).



(2) in other cases, the parties are those whose rights and

the obligations laid down by this Act to be in the management of the branch and

decided.



(3) in proceedings relating to anti-competitive agreements, as a result of

the cumulative effect of vertical agreements for the distribution of

the same, of comparable or assimilated goods, when one of the parties

These agreements is always the same competitor that their conclusion, other

competitors suggests, the Office may restrict the parties only on the

This competitor.



(4) If a legal person is suspected of being the conclusion of a disabled

agreements, abuse of dominant position or illegal implementation

concentration lapses, leads the proceedings under this Act with its legislation

successors. ".



33. section 21b, including the title reads as follows:



"§ 21b



The communication of reservations



After objections, the authority will allow the parties to become acquainted with the documents

decision and shall set a reasonable time limit within which interested parties may

propose additional evidence; This time limit shall be not less than 14 days.

To later above and evidence shall be disregarded; This does not apply,

If the facts or evidence that the participant could not assert

before. ".



34. Section 21b are inserted after section 21 c-21 h, which including the following titles:



"§ 21 c



The inspection of the file



(1) for the inspection of the file are excluded those parts that contain

commercial, banking or other similar legally protected secrets; the dossier shall

include in addition to the documents containing such secrets as well as of the Charter of

where was this mystery, or a sufficiently detailed

the listing, which does not contain the secrets.



(2) at the request of the Office of the person subject to protection of commercial, banking or

other similar legally protected secrets, shall in addition to the

documents containing such secrets to submit as the instruments from which

This secret was removed, or the purchase of such documents

a sufficiently detailed statement that does not contain the secrets.



§ 21d



The burden of proof



(1) if the parties to the proceedings in the case of prohibited agreements argue that they

covered by the exception under § 3 para. 4 or § 4 shall propose

evidence to establish that the conditions for applying such exceptions are

met. Where the participants in such evidence does not mark, the Office may be considered

satisfied that these conditions have not been fulfilled.



(2) if the parties are to propose commitments pursuant to § 7 para. 2 or § 11

paragraph. 3 or § 17 para. 4, are required to propose evidence to demonstrate,

the implementation of these obligations is sufficient to restore or maintain the

effective competition. If such evidence does not mark the participants,

the Office is not obliged to prove that these commitments are not sufficient to

restoring or maintaining effective competition.



(3) If the Office, the party to proceedings shall be obliged to propose

evidence to demonstrate the performance of the obligations pursuant to § 7 para. 2 or § 11 (1) 3

or § 17 para. 4, measures imposed pursuant to § 18 para. 5, and measures to

the remedy under section 20 (2). 4. Where the participants in such evidence does not mark,

the Office may be regarded as proven, that such commitments and measures are being met

were not.



section 21e



Request for information



(1) the Competitors are required to provide a written request to the Office on its

within the time limit laid down is complete, correct and true data and information,

including trade books, other business records or other records,

which may be relevant for the clarification of the subject of the proceedings (hereinafter referred to as

"business records").



(2) when requesting documents and information, including business records, Office of

shall state the legal reason and purpose of the investigation and shall draw attention to that for their

failure to provide or the location of their examination, the Office may impose a fine on

pursuant to section 22 c.



(3) the obligation to provide free of charge the authority at his written request

documents and information that are available, and the public authorities have

power; documents and information obtained by the public authorities, including authorities

law enforcement, can be used as a basis of decision

The Office. The request for information, the authority is required to provide

provisions of the Act, that its request is based, a range of data the

the provision is required and the purpose for which the information is required.



§ AWACS



On-spot investigations at the business premises



(1) the Competitors are obliged to submit to the Office's investigations on the grounds and

in all buildings, premises and means of transport, which

used in their activities in competition (hereinafter referred to as "business

the premises ").



(2) in the framework of the investigation are employees of the authority, or other Authority

authorised persons, are entitled to



and) enter into premises of competitors, for which the investigation

is in progress,



(b)) to verify whether, in the case of documents and records a business

records,



(c)) access to business records that are in the business premises

are or are accessible, regardless of the form in which

are stored,



(d)) to take or obtain in any form copies of or extracts from

business records,



e) to seal business premises or cupboards, the Clipboard, or business

records are located at the time and to the extent necessary for the implementation of

the investigation,



(f)) to require from a competitor and persons in employment or other

a similar relationship to him, or people, that competitor commissioned

to perform certain activities on his behalf, to the extent necessary

assistance necessary to carry out the investigation, as well as an explanation of the

business records.



(3) the Competitor is required to provide the Office in carrying out the investigation

the necessary assistance for the performance of his entitlement under paragraph 2 and performance

These permissions.



(4) for the purposes of the investigation at the business premises are employees of the Office

the authority to ordain to these areas access, open closed cabinets

or mailbox, or in any other way accessible to business

records. Each object, in which such premises are located,

is obliged to tolerate the investigation in these areas; If this fails to

obligation, are employees of the Office are entitled to regularize access to them.



(5) before the initiation of the investigation, the Office shall communicate to the competitors, in whose business

the premises has the on-spot investigation take place, legal reason and purpose of the investigation

and instruct him about his rights and obligations under this Act, including the

options for the imposition of fines.



§ 21 g



On-spot investigation in non-business premises



(1) if there is reasonable suspicion that business records are in other

than business premises, including the apartments of the natural persons that are

the statutory authorities of the competitor or their members or

competitors in employment or similar relationship (hereinafter referred to as "other than

business premises "), can the investigation with the prior consent of the Court ^ 15)

also occur in such areas.



(2) the provisions on the investigations on the spot at the business premises are used

Similarly, except the provisions of § AWACS para. 2 (a). (e)).



§ 21 h



With community control element



(1) if the Office initiates the proceedings for the infringement of article 81 or 82 of the Treaty,

progresses in the conduct of proceedings and the conduct of investigations in accordance with the provisions of title

(VI) of this Act and make decisions on the provisions of § 7 and § 11 (1) 2

up to 6.




(2) where the authority carries out an investigation pursuant to article. 20 (2). 6, art. 21, art. 4,

article. 22 paragraph 1. 1 or 2 of regulation or article. 12 paragraph 1. 1, or article. in article 13(3). 6

The merger regulation, it shall proceed in accordance with titles VI and VII of this Act.



(3) where the authority has started proceedings for an infringement of article 81 or 82 of the Treaty and in the

the same things the Commission shall initiate proceedings in order to adopt a decision pursuant to

Title III of the Regulation, the Office shall control stops.



(4) if the Office initiated the procedure for infringement of article 81 or 82 of the Treaty and

the same things already addresses or to deal with the competition authority of another

Member State, the Office may stop or until the decision of the

such a competition authority.



(5) in the imposition of fines and remedial measures in investigations or proceedings

referred to in paragraphs 1 and 2, the authority shall proceed pursuant to section 20 (2). 4 and under title

VII of this Act.



(6) if the Commission decides to carry out an investigation pursuant to article. 21 of the regulation, it shall

The Commission or the Office of court bringing proceedings in matters of the protection of

competition ^ 15).



15) of section 200 of Act No 99/1963 Coll., the code of civil procedure, as amended by

amended. ".



35. In the heading of title VII, the words ' fines and remedial measures "

replaced by the words "ADMINISTRATIVE OFFENCES".



36. section 22, including the title reads as follows:



"§ 22



Misdemeanors



(1) a natural person as a competitor commits a violation by



and breach of the seal located in) during the investigation, in accordance with § AWACS para. 2 (a).

(e)),



(b)) enters into an agreement in violation of § 3 para. 1,



c) contrary to section 11 (1) 1 exploited its dominant position,



(d) the connection is carried out) in violation of § 18 para. 1,



(e) fails to comply with an obligation under §) 7 (2). 2 or § 11 (1) 3 or fails to comply with

the measures referred to in section 18 para. 5, or



f) fail to comply with corrective measures imposed by the authority under section 20 (2). 4 or

another obligation laid down by decision of the Office.



(2) for the offense referred to in paragraph 1 (b). and you can impose a fine to) 300 000

And for the offense referred to in paragraph 1 (b). b), c), (d)), e) or (f))

up to 10 000 000 CZK. ".



37. under section 22 the following new section 22a to 22 c, including headings and

footnote # 16:



"§ 22a



Administrative offences of legal persons and natural persons-entrepreneurs



(1) a legal entity or individual entrepreneur as a competitor commits

the administrative offense by



and breach of the seal located in) during the investigation, in accordance with § AWACS para. 2 (a).

(e)),



(b)) enters into an agreement in violation of § 3 para. 1,



c) contrary to section 11 (1) 1 exploited its dominant position,



(d) the connection is carried out) in violation of § 18 para. 1,



(e) fails to comply with an obligation under §) 7 (2). 2 or § 11 (1) 3 or fails to comply with

the measures referred to in section 18 para. 5, or



f) fail to comply with corrective measures imposed by the authority under section 20 (2). 4 or

another obligation laid down by decision of the Office.



(2) an administrative offence referred to in paragraph 1 (b). and) saves a penalty to 300

USD or 1% of the turnover achieved by the competitor for the last

completed financial year and for the administrative offence referred to in paragraph 1 (b). (b)),

(c)), d), (e)), or (f) fine to 10 000 000 Czk) or 10% of the turnover

achieved by the competitor for the last completed financial year.



(3) If a fine imposed in accordance with paragraph 2 of the Association competitors, can

be imposed of up to 10% of the total net turnover achieved for

last completed financial year its members. Each Member of the Association shall be liable for

payment of the fine imposed in this way up to 10% of their net turnover

for the last completed financial year.



section 22b



Provisions common to administrative offences



(1) a legal person for an administrative offence is not liable if he proves that

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

a legal obligation is prevented.



(2) in determining the amount of the fine on a legal person shall take account of the seriousness of the

the administrative offense, in particular, 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 date on which 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

person ^ 16) 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 knew or given the circumstances

and their circumstances could know that before the formation of the legal person

legal succession had committed acts which filled the characters of the administrative

tort.



(7) If a defunct legal person more successors in title, shall be responsible for

administrative offence each of them. In the area of the fine will take into consideration whether or not to

to what extent were transferred to the legal successor of the income, benefits, and other

benefits of committed administrative offense, and continues to do so, if any

of the successors in the activity, which was an administrative offence has been committed.



(8) to lapse if the legal person who has committed an administrative offence, up to

the acquisition of the decision, in which it has been for this administrative offence

fine, the obligation to pay the fine on the legal

the successor to the defunct entity. If it is, successors in more

shall be responsible for payment of the fine jointly and severally.



section 22 c



Fine won



(1) Competitors can impose a fine of up to 300 000 Eur or

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

accounting period, if fails to comply with the obligation under section 21e of paragraph 1. 1 or §

AWACS para. 3.



(2) fined can be saved and reused. The total amount of repeatedly

the fines imposed shall not exceed 10 000 000 € or 10% of the net

the turnover for a competitor to the last completed financial year.



(3) fined can store up to 1 year from the date on which the obligation to

infringed.



16) § 2 (2). 2 of the commercial code, as amended by Act No. 85/2004 Coll. ".



38. Article 23 shall be deleted.



39. In § 26 para. 1, after the words "in accordance with § 15 para. 3 "the words" and section

16A para. 1. "



Article. (II)



Transitional provision



The proceedings initiated before the date of entry into force of this law shall be completed

pursuant to Act No. 143/2001 Coll., in the version in force until the date of entry into force of

of this Act.



Article. (III)



The publication of the full text of the Act



The Prime Minister shall be empowered, in the collection of laws promulgated the full text

Act No. 143/2001 Coll., on the protection of competition and amending

Some laws (law on the protection of competition), as is apparent from the

the laws of it changing.



Article. (IV)



The effectiveness of the



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

After the date of its publication.



Vaidya in the r.



Klaus r.



Fischer v. r.