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Подробности Подробности Год версии 1998 Даты вступление в силу: 1 октября 1998 г. Принят: 11 марта 1998 г. Тип текста Законодательство, связанное с ИС Предмет Товарные знаки, Фирменные наименования, Антимонопольное законодательство, Конфиденциальная информация (коммерческая тайна), Исполнение законов об ИС, Прочее Примечания Относительно положений об охране прав интеллектуальной собственности смотрите статьи 27, 29, 41 и 46.

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Основной(ые) текст(ы) Основной(ые) текст(ы) Английский Competition Act, 1998        
 Competition Act, 1998

Competition Act

Passed on March 11, enters into force October 1, 1998

TABLE OF CONTENTS

Section

Chapter 1: General Provisions

Purpose of Act............................................................... 1

Abuse by Undertaking of Dominant Position in

Restrictions to Activities of Undertakings with Special

Obligations of Undertakings with Special or Exclusive

Duties of Minister of Finance and City and Rural

Presentation or Ordering of Misleading Information

Misuse of Employee or Representative of Another

Right of Competition Board to Demand

Inspection of Seat of Undertaking or Location of

Subjects of Act .............................................................. 2

Scope of Application of Act.......................................... 3

Chapter 2: Prohibition on Agreements and Concerted Practices

Prohibition on Agreements and Concerted Practices

which Restrict Competition........................................... 4

Permissibility of Agreements and Concerted Practices. 5

Exemptions ................................................................... 6

Block Exemptions ......................................................... 7

Invalidity of Agreements Restricting Competition........ 8

Chapter 3: Application for Exemption

Submission of Application for Exemption .................... 9

Requirements for Application for Exemption ............... 10

Processing of Application for Exemption ..................... 11

Decision to Grant Exemption........................................ 12

Chapter 4: Undertaking Dominating Market

Definition of Undertaking Dominating Market............. 13

Market ........................................................................... 14

Chapter 5: Undertaking with Special or Exclusive Rights or

Natural Monopoly

Undertaking with Special or Exclusive Rights.............. 15

Definition of Natural Monopoly.................................... 16

or Exclusive Rights or Natural Monopoly..................... 17

Rights or Natural Monopoly ......................................... 18

Chapter 6: State Aid

Definition of State Aid .................................................. 19

Conditions for Grant of State Aid ................................. 20

Grant of State Aid ......................................................... 21

Municipality Governments............................................ 22

Permission to Grant State Aid....................................... 23

Repayment of State Aid ................................................ 24

Reporting on State Aid.................................................. 25

Chapter 7: Merger Control

Merger........................................................................... 26

Merger Notice ............................................................... 27

Chapter 8: Unfair Competition

Prohibition on Unfair Competition................................ 28

for Publication............................................................... 29

Disparagement of Competitor or its Goods................... 30

Misuse of Confidential Information .............................. 31

Undertaking................................................................... 32

Unfair Restriction or Promotion of Sale of Goods ........ 33

Chapter 9: State Supervision

State Competition Supervisory Authorities................... 34

Competence of Competition Board............................... 35

Right of Competition Board to Demand Information.... 36

Documentation.............................................................. 37

Activities of Undertaking.............................................. 38

Proceedings of Matter ................................................... 39

Termination of Proceedings of Matter .......................... 40

Obligation to Maintain Business Secrets....................... 41

Chapter 10: Liability

Liability for Violation of this Act.................................. 42

Liability for Non­Fulfilment of Request or Decision .... 43

Appeal of Decisions ...................................................... 44

Liability of Legal Person for Administrative Offence... 45

Preparation of Administrative Offence Report.............. 46

Proceedings Concerning Administrative Offences........ 47

Compensation for Damage............................................ 48

Chapter 11: Implementing Provisions

Amendments to Code of Administrative Offences........ 49

Amendments to Commercial Code ............................... 50

Implementation of Act .................................................. 51

Repeal of Act ................................................................ 52

Entry into Force of Act ................................................. 53

Chapter 1

General Provisions

Purpose of Act

1.—(1) The purpose of this Act is to safeguard free competition upon the extraction of

natural resources, manufacture of goods, provision of services, sale and purchase of products

and services (hereinafter goods), and to prevent and eliminate the restriction of competition in

other economic activities based on the interests of free enterprise.

(2) This Act also applies if the action or omission directed at restricting competition

takes place outside the territory of Estonia but restricts competition in the territory of Estonia.

Subjects of Act

2.—(1) The subjects of this Act are undertakings. The provisions applicable to

undertakings pursuant to this Act also extend to non­profit associations, foundations and other

persons who participate in a market or act in the interests of undertakings.

(2) The provisions of this Act extend to State agencies and local government agencies

if the decisions or activities of such agencies restrict competition.

(3) For the purposes of this Act, undertakings which belong to the same group of

companies or other undertakings which are connected through control are deemed to be one

undertaking.

(4) For the purposes of this Act, the following are deemed to be control over another

undertaking:

1. control of a parent company over a subsidiary;

2. a situation where an undertaking has the right to appoint or remove a majority of the

members of the directing bodies of another undertaking; or

3. a situation where an undertaking, by an agreement and together with some of its

stockholders or shareholders, has a majority of votes in another undertaking.

Scope of Application of Act

3.—(1) This Act is applied to safeguard competition between persons who participate

or intend to participate in a market. A market is an area in the whole territory of Estonia or a

part thereof in which goods which are regarded as interchangeable by the buyer by reason of

price, quality, technical characteristics, conditions of sale or use, consumption or other

characteristics are circulated.

(2) The Competition Board has the right to define the market for each specific good.

Chapter 2

Prohibition on Agreements and Concerted Practices

Prohibition on Agreements and Concerted Practices

which Restrict Competition

4.—(1) Contracts, other transactions and agreements (hereinafter agreements) or

concerted practices which have as their object or effect the restriction, prevention, limitation

or distortion of free enterprise and competition are prohibited. Such agreements or activities

are deemed to restrict competition if they directly or indirectly:

1. fix pricing conditions, including the purchase or selling prices of goods, tariffs,

mark­ups, rebates, interest rates, rent or lease payments to be applied to a third person;

2. limit production, markets, technical development or investment;

3. share markets, including sources of supply;

4. restrict access to markets to third persons or attempt to exclude third persons from

markets;

5. disseminate information which distorts competition;

6. apply dissimilar conditions to equivalent agreements with third undertakings, thereby

placing them at a competitive advantage or disadvantage;

7. make the entry into agreements subject to acceptance by the other parties of

supplementary obligations which, by their nature or according to commercial usage, have no

connection with such agreements; or

8. restrict competition in a manner not specified in clauses l.—7. of this subsection.

Permissibility of Agreements and Concerted Practices

5.—(1) Agreements or concerted practices are deemed not to restrict, prevent, limit or

distort competition such that free enterprise may be distorted if:

1. the combined significance of the parties entering into an agreement or developing

concerted practices does not exceed five per cent of the turnover of the market influenced by

such agreement or concerted practices; and

2. the combined significance of similar agreements entered into by an undertaking with

several other undertakings or of concerted practices of such parties does not exceed five per

cent of the turnover of the market influenced by such agreements or concerted practices.

(2) The conditions of subsection (1) of this section shall be fulfilled during the entire

term of the agreement or concerted practices.

Exemptions

6. At the request of an undertaking, the Director General of the Competition Board or

his or her deputy may grant by a decision an exemption in respect of entry into an agreement

specified in Section 4 of this Act if such agreement:

1. contributes to improving the supply of services or production or distribution of

goods, protecting the environment or promoting technical or economic progress;

2. allows consumers a fair share of the resulting benefit;

3. does not bring about restrictions on third persons which are not indispensable to the

attainment of the objectives specified in clause 1. of this section, and

4. does not bring about a substantial restriction of competition in the market.

Block Exemptions

7.—(1) Block exemptions are permission granted by the Government of the Republic

on the proposal of the Minister of Finance to enter into a certain category of agreement which

complies with the conditions provided for in Section 6 of this Act and restricts or may restrict

competition.

(2) A block exemption is established for a specified term and determines:

1. the name of the category of agreement to which the block exemption applies;

2. restrictions or conditions which shall not be included in such agreements;

3. conditions which must be included in such agreements, and restrictions and

conditions which may be included in such agreements;

4. other conditions which such agreements shall comply with.

(3) A block exemption granted on the basis of subsection (1) of this section does not

apply to an agreement if:

1. the agreement or a condition thereof is considered an abuse by an undertaking of a

dominant position within the market, provided for in Section 14 of this Act;

2. competition is virtually non­existent in the market influenced by the agreement for a

party to the agreement or the parties to the agreement jointly.

Invalidity of Agreements Restricting Competition

8. Agreements or conditions thereof which have as their object or effect that specified

in Section 4 of this Act and which are not granted an exemption on the basis of Section 6 or 7

of this Act are void, except agreements or conditions thereof which comply with Section 5 of

this Act.

Chapter 3

Application for Exemption

Submission of Application for Exemption

9.—(1) In order to obtain an exemption provided for in Section 6 of this Act, an

application shall be submitted to the Competition Board before entry into an agreement or

within six months after entry into an agreement which requires an exemption. Such

agreement or a condition thereof which restricts competition is invalid until the exemption is

granted.

(2) An application for an exemption concerning an agreement which was not contrary

to this Act at the time of entry into such agreement shall be submitted within three months

after circumstances due to which the agreement or a condition thereof is contrary to this Act,

become evident. Such agreement or condition thereof is invalid from the time the

circumstances become evident until the exemption is granted.

(3) One party or the parties to the agreement jointly shall submit an application for

exemption.

(4) An applicant for exemption or the other party to the agreement which is the basis of

a submitted application for exemption may withdraw the application for exemption at any

time until the exemption is granted, by submission of a written application.

Requirements for Application for Exemption

10.—(1) An application for exemption shall be submitted to the Competition Board

together with all necessary information in accordance with the instructions established by the

Minister of Finance, whereupon, at the request of the Competition Board, explanations shall

be given and the originals of documents or copies or transcripts thereof shall be submitted for

examination, the authenticity of which shall be confirmed by the signature of the submitter.

(2) If information contained in an application for exemption or information relating to

the application is incomplete, incorrect or misleading, the Competition Board shall notify the

applicant thereof in writing and shall demand submission of all information and determine a

deadline for submission thereof. In such case, the terms provided for in Section 11 of this Act

shall commence from the date the Competition Board sends a written notice to the applicant

confirming receipt of all information.

(3) The person for whose benefit an exemption is granted and the person who applies

for the decision to grant an exemption shall notify the Competition Board of substantial

changes in the information presented in the application for exemption within seven calendar

days after receipt of the relevant information.

(4) An applicant for exemption shall designate information he or she deems to be a

business secret or shall submit such information separately as an annex. Information subject

to public disclosure is not a business secret.

Processing of Application for Exemption

11.—(1) The Director General of the Competition Board or his or her deputy shall

make one of the following decisions concerning an application for exemption:

1. to grant the exemption if he or she finds that the agreement which is the basis of the

application complies with the conditions provided for in Section 6 of this Act;

2. to refuse the exemption if he or she finds that the agreement which is the basis of the

application does not comply with the conditions provided for in Section 6 of this Act;

3. to initiate supplementary proceedings concerning the application for exemption if he

or she finds that it is doubtful whether the agreement which is the basis for the grant of

exemption pursuant to Section 6 of this Act qualifies for an exemption and it is necessary to

obtain additional information or conduct a supplementary examination in order to decide to

grant or refuse the exemption;

4. to declare that the agreement does not require an exemption if he or she finds that the

agreement is not an agreement provided for in Section 4 of this Act;

5. to terminate the proceedings without granting an exemption if the agreement does

not require an exemption on the bases provided for in Section 5 of this Act or if a block

exemption has been granted to the category of agreement, the application for exemption is

withdrawn, or the applicant for exemption or the other party to the agreement has not

submitted all necessary information by the deadline specified therefor by the Competition

Board for a second time.

(2) The Director General of the Competition Board or his or her deputy shall make one

of the decisions provided for in clauses (1)1. or 2. of this section within two months after

submission of all information.

(3) If the Director General of the Competition Board or his or her deputy decides to

commence supplementary proceedings on the basis of clause (1)3. of this section, he or she

shall notify the applicant for exemption in writing and make a final decision to grant or refuse

the exemption or declare that the agreement does not require an exemption within six months

after the submission of complete information.

(4) The Competition Board may extend the deadlines provided for in subsections (2)

and (3) of this section only with the written consent of the applicant for exemption.

Decision to Grant Exemption

12.—(1) A decision specified in subsection 11(1) of this Act shall be in writing and

contain justification for the decision.

(2) A decision to grant an exemption may contain conditions or obligations for the

parties to the agreement the fulfilment of which is mandatory for the exemption to be valid.

(3) The Director General of the Competition Board or his or her deputy may grant an

exemption for up to five years, whereupon the term of the exemption may be extended by a

decision to grant an exemption upon expiry of the specified term.

(4) A party or the parties to an agreement to whom an exemption is granted shall

submit an application for extension of the exemption at least six months before expiry of the

exemption specified in the decision.

(5) The Director General of the Competition Board or his or her deputy may revoke or

amend a decision to grant an exemption if:

1. substantial changes take place in the information or conditions which are the basis of

the decision;

2. a party or parties to the agreement violate the obligations or conditions imposed on

them by the decision; or

3. the decision is based on incomplete, incorrect or misleading information.

(6) All decisions made pursuant to clause 11(1)1. of this Act and subsection (5) of this

section are published in the Riigi Teataja.

Chapter 4

Undertaking Dominating Market

Definition of Undertaking Dominating Market

13.—(1) For the purposes of this Act, an undertaking dominating the market is an

undertaking which accounts for at least 40 per cent of the turnover in the market or whose

economic position enables the undertaking to operate in the market to an appreciable extent

independently of competitors, suppliers and buyers.

(2) For the purposes of this Act, two or more economically linked undertakings are

undertakings which jointly dominate a market if they jointly control at least 40 per cent of the

turnover in the market or whose economic position enables them to operate in the market to

an appreciable extent independently of competitors, suppliers and buyers. For the purposes of

this provision, an economic link is, for example:

1. an agreement between undertakings which gives an appreciable technological or

commercial advantage to the parties thereto compared to other undertakings in the relevant

market;

2. an undertaking owns sufficient part of the stocks, shares, votes or control over the

management board of another undertaking (or a combination of such circumstances) which

enables the undertaking to significantly influence the decisions or economic activities of the

other undertaking.

(3) Undertakings with special or exclusive rights or a natural monopoly specified in

Sections 15 and 16 of this Act are also undertakings dominating the market.

Abuse by Undertaking of Dominant Position in Market

14. Any direct or indirect abuse by an undertaking of a dominant position within a

market, i.e. abuse by one undertaking or several undertakings, which jointly have a dominant

position in the market to restrict competition which directly or indirectly consists in:

1. imposing unfair pricing conditions or other unfair trading conditions, including the

unjustified sale of goods below the cost price which prejudices the activities of another

undertaking in the market or excludes another undertaking from the market;

2. limiting production, services, markets, technical development or investments to the

prejudice of consumers;

3. applying dissimilar conditions upon entry into equivalent agreements with other

undertakings, thereby placing some of them at a competitive advantage or disadvantage;

4. upon entry into agreements making one agreement conditional on another agreement

that is unrelated to the first agreement, into which the other party would not enter voluntarily;

5. forcing an undertaking to merge with the undertaking or another undertaking or to

enter into an agreement or concerted practices;

6. unjustified refusal to sell goods to another undertaking;

7. unequal treatment of undertakings which participate in sales offers or purchase bids;

or

8. restricting competition in a manner not specified in clauses 1.—7. of this section, is

prohibited.

Chapter 5

Undertaking with Special or Exclusive Rights or Natural Monopoly

Undertaking with Special or Exclusive Rights

15.—(1) For the purposes of this Act, special or exclusive rights are permission granted

to an undertaking by the State or a local government which enables the undertaking to have a

competitive advantage in the market over other undertakings or to be the only undertaking in

the market.

(2) State agencies and local governments have the right to grant special or exclusive

rights to undertakings pursuant to legislation.

(3) If legislation on the basis of which special or exclusive rights are granted does not

provide the procedure for the grant of special or exclusive rights, a public competition for the

grant of such rights shall be arranged pursuant to the procedure established by the

Government of the Republic.

Definition of Natural Monopoly

16. An undertaking has a natural monopoly if it owns, possesses or operates a network

or infrastructure which other persons cannot duplicate or for whom it is economically

inexpedient to duplicate and which gives the undertaking a dominant position in the market.

Restrictions to Activities of Undertakings with Special or

Exclusive Rights or Natural Monopoly

17.—(1) The State agency or local government which grants special or exclusive rights

to an undertaking may establish the procedure for regulation of prices or the prices to be used

or impose other conditions or obligations on the undertaking so that the buyers of goods of

such undertaking or sellers of goods to such undertaking are not placed in a substantially

worse situation than they would be in if competition were present in that area of activity.

(2) State agencies and local governments determined by a specific Act or, in the

absence of a specific Act, the Government of the Republic and local governments may

establish the procedure for regulation of prices or the prices to be used or impose other

conditions or obligations on an undertaking which has a natural monopoly so that the buyers

of goods of such undertaking or sellers of goods to such undertaking are not placed in a

substantially worse situation than they would be in if competition were present in that area of

activity.

Obligations of Undertakings with Special or

Exclusive Rights or Natural Monopoly

18.—(1) An undertaking with special or exclusive rights or a natural monopoly shall:

1. permit access to the network or infrastructure by other undertakings under reasonable

and non­discriminatory conditions for the purpose of provision or sale of services;

2. draw a clear distinction in accounting between primary and secondary activities (for

example production, transportation, marketing and other activities of the undertaking) thereby

ensuring the transparency of accounting, and disclose all expenses to consumers and their

representatives;

3. purchase things and order construction work and services necessary for the exercise

of special or exclusive rights or a natural monopoly pursuant to the procedure provided for in

the Public Procurement Act (RT I 1995, 54, 883; 1997, 9, 79).

(2) An undertaking with special or exclusive rights or a natural monopoly may refuse

access to the undertaking’s network or infrastructure to other undertakings if the refusal is

based on the following objective reasons:

1. the safety and security of the equipment connected with the network or infrastructure

or the efficiency and security of the operation of such network or infrastructure are

endangered;

2. maintenance of the integrity of the network or infrastructure or inter­operability of

services is endangered;

3. equipment to be connected to the network or infrastructure is not in conformity with

established technical standards or rules;

4. the undertaking applying for access lacks the technical and financial capabilities and

resources to efficiently and safely, to the necessary extent, provide services through or with

the assistance of the network or infrastructure; or

5. as a result of access, data protection provided by law is not ensured.

Chapter 6

State Aid

Definition of State Aid

19.—(1) For the purposes of this Act, State aid is a financial advantage granted by the

State, a city or rural municipality or through their resources which distorts or threatens to

distort competition by favouring certain undertakings or the production or sale of certain

goods, including financial aid, postponement of payment of tax arrears, debt write­offs and

the grant of loans under essentially more favourable terms than usually given to other

undertakings.

(2) For the purposes of this Act, State aid, except export aid, is of minor importance if

it does not exceed 1.5 million kroons per undertaking over three subsequent years.

Conditions for Grant of State Aid

20.—(1) In addition to State aid of minor importance, only the following types of State

aid may be granted:

1. State aid having a social character provided that such aid is granted without

discrimination related to the origin of the products concerned;

2. State aid to make good the damage caused by natural disasters or other exceptional

occurrences;

3. State aid to promote the economic development of areas where the standard of living

is abnormally low or where there is serious unemployment;

4. State aid to facilitate the development of certain economic areas where such aid does

not adversely affect trading conditions to an extent contrary to the common interest;

5. to remedy a serious disturbance in the economy; or

6. to promote culture and heritage conservation.

(2) State aid specified in subsection (1) of this section:

1. shall be granted for a specified period of time and shall be terminated when it no

longer complies with the relevant criterion specified in subsection (1) of this section;

2. shall be granted to the extent needed to achieve an objective specified in

subsection (1) of this section.

(3) The Government of the Republic establishes the procedure for the grant,

notification and repayment of State aid.

Grant of State Aid

21.—(1) State aid, except State aid set out in a State, city or rural municipality budget,

State aid provided by other Acts and State aid of minor importance, may be granted only with

the prior written permission of the Minister of Finance which is published in the Riigi

Teataja.

(2) An application for permission to grant State aid specified in subsection (1) of this

section shall be submitted to the Minister of Finance with the necessary information pursuant

to the instructions established by the Minister of Finance.

(3) If the information submitted in an application is incomplete or contains incorrect or

misleading information, the Minister of Finance shall notify the applicant thereof in writing,

demand submission of all information and determine a deadline for submission thereof. In

such case, the terms provided for in subsections 23(2) and (3) of this Act commence from the

date that all information is submitted to the Minister of Finance.

(4) A rural municipality or city government shall notify the Minister of Finance of State

aid set out in the draft budget of the rural municipality or city, except State aid of minor

importance, before the draft budget is presented to the council.

Duties of Minister of Finance and City and Rural Municipality Governments

22.—(1) The Minister of Finance shall apply uniform and impartial treatment to all

undertakings in the market and their goods taking into account all circumstances upon making

decisions concerning State aid regardless of whether the grant of State aid is allowed or not on

the basis of Sections 20 and 21 of this Act.

(2) The Minister of Finance shall apply all the criteria specified in Section 20 of this

Act in all his or her decisions concerning permission to grant State aid.

(3) Rural municipality and city governments are prohibited to prescribe State aid which

does not comply with Section 20 of this Act in a draft budget.

(4) The Minister of Finance monitors the grant and use of State aid set out in city and

rural municipality budgets, except State aid of minor importance, and shall, if necessary,

make a proposal to employ measures to ensure the compliance of State aid with Section 20 of

this Act.

Permission to Grant State Aid

23.—(1) The Minister of Finance shall make one of the following decisions concerning

an application for State aid:

1. to grant permission if he or she finds that the application complies with the

provisions of Section 20 of this Act;

2. to refuse permission if he or she finds that the application does not comply with the

provisions of Section 20 of this Act;

3. to initiate supplementary proceedings concerning the application for State aid if he or

she finds that it is doubtful whether the agreement which is the basis for the grant of

permission pursuant to Section 20 of this Act qualifies for State aid, and it is necessary to

obtain additional information in order to decide to grant or refuse permission.

(2) The Minister of Finance shall make a decision concerning an application for the

grant of State aid within two months after submission of all necessary information.

(3) If the Minister of Finance decides to commence further proceedings concerning an

application for the grant of State aid, he or she shall notify the applicant thereof in writing and

make a final decision concerning the grant of State aid within six months after receipt of all

information.

(4) In conducting further proceedings on the basis of subsection (3) of this section, the

Minister of Finance shall take into account all written and oral explanations given by the

planned beneficiary of State aid and other parties with a legitimate interest in the matter.

(5) If the Minister of Finance does not make a decision within the term provided for in

this section, permission for the grant of State aid is deemed to be granted.

(6) A decision to grant State aid may contain conditions and obligations for the

beneficiary of State aid the fulfilment of which is mandatory upon the use of State aid.

(7) The Minister of Finance may revoke or amend his or her permission to grant State

aid if:

1. substantial changes take place in the information which is the basis of such

permission;

2. an undertaking violates the conditions or obligations imposed on it; or

3. the permission is based on incomplete, incorrect or misleading information.

Repayment of State Aid

24.—(1) The Minister of Finance may require the repayment of State aid or the

revocation of permission to grant State aid or make a corresponding proposal if:

1. the Minister of Finance is not notified of the State aid pursuant to subsection 21(4) of

this Act;

2. State aid is used for purposes other than the use or purpose set out in the information

concerning the State aid;

3. a condition or obligation established pursuant to subsection 23(6) of this Act is not

fulfilled; or

4. the decision to grant State aid is based on incomplete, incorrect or misleading

information.

(2) The Minister of Finance has the right to demand a justified interest rate on the

amount of repaid State aid in all cases where State aid is repaid pursuant to subsection (1) of

this section.

Reporting on State Aid

25.—(1) Grantors of State aid, that is distributors, payers, guarantors of loans, tax

administrators, etc., shall present a report on the grant and use of State aid once a year by the

date and in the form established by the Minister of Finance, including State aid contained in

the State, city and rural municipality budgets and other State aid granted pursuant to an Act

and State aid of minor importance.

(2) The Minister of Finance shall prepare a report within twelve months after the end of

a calendar year on all State aid granted during that year of which he or she has been notified

pursuant to the provisions of this Chapter.

Chapter 7

Merger Control

Merger

26.—(1) For the purposes of this Act, a merger is deemed to arise where undertakings

merge as defined in the Commercial Code (RT 1 1995, 26­28, 355; 1996, 52­54, 993; 1997,

16, 258; 48, 774; 77, 1313; 1998, 2, 48; 23, 322) or where an undertaking acquires control

over another undertaking by some other means.

Merger Notice

27.—(1) The Competition Board shall be notified of a merger in advance if:

1. the aggregate annual turnover of the merging parties exceeds 100 million kroons; or

2. the merging parties separately or jointly have control over more than 40 per cent of

the market.

(2) A merger notice shall be submitted to the Competition Board together with the

merger agreement, merger report and merger decision, if these exist, in accordance with the

Commercial Code, the Non­Profit Associations Act (RT 1 1996, 42, 811) or the Foundations

Act (RT 1 1995, 92, 1604; 1996, 42, 811), and other necessary information pursuant to the

instructions established by the Minister of Finance, whereupon, at the request of the

Competition Board, the documents shall be submitted as originals or copies certified by the

undertaking or its representative.

(3) If information contained in a merger notice or its annexes is incomplete, incorrect or

misleading, the Competition Board shall notify the notifying party thereof in writing and shall

demand the provision of all information and determine a deadline for provision thereof.

(4) A merger may not be implemented earlier than within one month after the

submission of all information to the Competition Board unless otherwise agreed with the

Competition Board in writing.

(5) The notifying party shall designate information he or she deems to be a business

secret or shall submit such information separately as an annex.

Chapter 8

Unfair Competition

Prohibition on Unfair Competition

28.—(1) Unfair competition means any act which restricts free enterprise and is

contrary to good morals and customs, including:

1. the publication of misleading information, or presentation or ordering of misleading

information for publication;

2. the disparagement of a competitor or a competitor’s goods;

3. the misuse of confidential information;

4. the misuse of an employee or representative of another undertaking;

5. unfair restriction or promotion of the sale of goods.

(2) Unfair competition is prohibited.

(3) The provisions of the Advertising Act (RT 1 1997, 52, 835) apply to misleading,

offensive or denigratory information as a method of advertising.

Presentation or Ordering of Misleading Information for Publication

29.—(1) Misleading information means the publication, or presentation or ordering of

false information for publication either concerning oneself or another undertaking which is a

participant in the same market or the undertaking’s goods which may leave a misleading

impression of an offer, given ordinary attention by the buyer.

(2) Information specified in subsection (1) of this section primarily refers to

information concerning the origin, qualities, method of production, means or sources of

supply, price, tariff, discounts, prizes awarded, reasons for sale and the amount of stock of the

goods offered, as well as preferential rights, financial status and other qualities of the

undertaking.

(3) Markings concerning the producer, origin or other qualities of goods are also

misleading if a mark, information, description or a name is used on the goods, its packaging

or accompanying documents or elsewhere which may be misleading as regards the place of

production, the producer or the qualities of the goods, given ordinary attention by the buyer.

Disparagement of Competitor or its Goods

30. Disparagement of a competitor or its goods means the dissemination of false

information concerning another undertaking or goods sold by another undertaking in the same

market which harms or may harm the reputation or economic activities of the other

undertaking.

Misuse of Confidential Information

31.—(1) Confidential information means any technical, technological or other business

information the publication of which is not mandatory, and information concerning

commercial negotiations, transactions, market research and other circumstances:

1. which is disclosed to other persons only on a confidential basis;

2. the confidentiality of which the undertaking considers necessary for a justified

reason;

3. which is not generally available to buyers or potential buyers concerning such

undertaking; or

4. which is not available on the basis of an inquiry by or in the name of an undertaking

operating in the market.

(2) Misuse of confidential information means the use of confidential information of

another undertaking if such information is obtained unlawfully or the use thereof is contrary

to an agreement entered into with the other undertaking.

Misuse of Employee or Representative of Another Undertaking

32. Misuse of an employee or representative of another undertaking means influencing

him or her to act in the interests of the influencing party or a third person in order to achieve a

competitive advantage.

Unfair Restriction or Promotion of Sale of Goods

33.—(1) Unfair restriction of the sale of goods means:

1. restriction of the amount of goods or services to be sold to a buyer or subjecting such

sale to any condition unless this is absolutely necessary for using such good or is related to a

special offer or arises from legislation; or

2. calling for implementation of a prohibition on sale or purchase against some other

undertaking operating in the same market.

(2) Unfair promotion of the sale of goods means subjecting the sale thereof to the

obligation to purchase other goods or to find a new buyer.

Chapter 9

State Supervision

State Competition Supervisory Authorities

34.—(1) The Competition Board supervises the implementation of this Act, except in

respect of credit institutions, securities brokers and insurance companies.

(2) State supervision over credit institutions, securities brokers and insurance

companies is exercised by the State supervision authority in the relevant field whereupon the

Competition Board has the right to present opinions as recommendations and exercise control

over all mergers.

(3) The rights and obligations of the Competition Board under this Act to exercise State

supervision over competition also extend to the State supervision authorities specified in

subsection (2) of this section.

Competence of Competition Board

35.—(1) The Competition Board is competent to perform all acts assigned to it by this

Act and to take measures to protect competition.

(2) The Competition Board analyses the competitive situation, designs measures to

promote competition, makes recommendations to improve the competitive situation, makes

proposals to pass or amend legislation and develops co­operation with competition

supervisory authorities of other States and associations of States.

Right of Competition Board to Demand Information

36.—(1) The Competition Board has the right to demand information from

undertakings, State agencies, local government agencies and natural persons in order to:

1. monitor the situation of competition and markets;

2. conduct proceedings concerning agreements and concerted practices;

3. grant exemptions;

4. monitor the activities of undertakings dominating the market;

5. monitor mergers;

6. conduct proceedings concerning violations or possible violations of this Act;

7. exercise other supervision over implementation of this Act.

(2) The information specified in subsection (1) of this section shall be demanded in

writing with a deadline for submission of not less than ten calendar days, whereupon the

purpose and legal basis of the request shall be specified and the sanctions provided for the

provision of incomplete, incorrect or misleading information or failure to provide information

shall be referred to.

(3) The Competition Board has the right to take oral explanations from the persons

specified in subsection (1) of this section or their representatives and to prepare a report to be

signed by the person preparing the report and the person giving the explanations.

Right of Competition Board to Demand Documentation

37.—(1) In order to exercise supervision over competition, the Competition Board has

the right to demand from undertakings, State agencies, local government agencies and natural

persons the originals, copies or transcripts of the documents, drafts thereof and other materials

necessary for exercising supervision over competition, the authenticity of which shall be

certified by the signature of the person submitting such materials. Upon submission of a copy

or transcript, the Competition Board has the right to request the original document to check

the correctness of the copy or transcript.

(2) At the request of the person who submits the material, the Competition Board shall

issue a letter of confirmation to the person concerning receipt of the material. The person has

the right to have the originals of the documents, drafts and other materials submitted by him

or her returned by the Competition Board after the supervisory proceedings are completed.

Inspection of Seat of Undertaking or Location of Activities of Undertaking

38.—(1) An official or representative of the Competition Board authorised by a

directive of the Director General of the Competition Board or his or her deputy has the right,

without prior warning or special permission, to inspect the seat or location of the activities,

that is, the territory, buildings, rooms and transport vehicles of the undertaking both during

working hours and at any time the location of the activities is used in order to establish any

violation or possible violation of this Act. The seat of an undertaking or the location of the

activities of an undertaking may also be inspected at any other time with the consent of such

undertaking.

(2) At the seat of the undertaking or the location of the activities of an undertaking

under inspection, the person conducting such inspection shall present to the undertaking, its

representative or employee an extract of the directive issued by the Director General of the

Competition Board or his or her deputy concerning the commencement of the proceedings

and authorisation of the person conducting the inspection.

(3) Upon an inspection provided for in subsection (1) of this section, an official or

representative of the Competition Board has the following rights and obligations:

1. the right to immediately examine documents relating to the activities of the

undertaking, drafts thereof and other materials, and to obtain, at the expense of the person

under inspection, originals or copies or transcripts thereof, the authenticity of which shall be

certified by the signature of the person submitting them;

2. the right to receive oral explanations from the undertaking, its representatives or

employees;

3. the obligation to prepare a summary of the inspection in two original copies which

shall be signed by the undertaking under inspection, its representative or employee and of

which a copy shall be given to the signatory.

(4) The inspection provided for in subsection (1) of this section shall be conducted with

the knowledge of the undertaking, its representative or employee, and they have the right to

be present at the inspection.

Proceedings of Matter

39.—(1) The Director General of the Competition Board or his or her deputy shall,

within ten calendar days after receipt of a complaint or application concerning a possible

violation of law, decide:

1. to commence proceedings of the matter and appoint an official to conduct the

proceedings;

2. to refuse to commence proceedings of the matter if it becomes evident from the

materials of the complaint or application that the proceedings of the matter are not within the

competence of the Competition Board or that this Act has not been violated.

(2) The Director General of the Competition Board or his or her deputy has the right to

commence proceedings of a matter on his or her own initiative to analyse the competitive

situation in a market, define a market or perform other duties arising from this Act within the

competence of the Competition Board.

(3) The Competition Board shall publish a notice concerning the decision to initiate

proceedings of a matter in at least one daily national newspaper. Third parties with an interest

in the matter or their representatives have the right to present their written opinion concerning

the matter. The Competition Board has the right to demand additional information from third

parties with an interest in the matter or to invite them to the oral discussion of the matter

provided for in subsection (5) of this section.

(4) The aim of the proceedings or the alleged violation of law shall be described to the

undertaking under inspection in a written notice and a term of not less than seven calendar

days shall be prescribed for submission of written opinions and materials; copies or

transcripts of materials (if they exist) which are the basis of the information shall be appended

thereto and a reference shall be made to the liability pursuant to this Act.

(5) If necessary, the oral discussion of a matter may be conducted on a date and in a

place prescribed by the Director General of the Competition Board or his or her deputy, of

which the undertaking shall be notified in writing. At the request of the undertaking under

inspection, the Director General of the Competition Board or his or her deputy is required to

conduct the oral discussion of the matter in one session.

(6) The undertakings, their representatives, officials of the Competition Board,

representatives of the Competition Board and persons invited by agreement of the

undertakings and the Competition Board may participate in the oral discussion of a matter.

A summary shall be prepared of the discussion, which shall be signed by the participants.

(7) The term for submission of written opinions and materials established by the

Director General of the Competition Board or his or her deputy shall not be less than ten

calendar days, and notice of the oral discussion of a matter shall be given not less than

ten calendar days in advance. At the reasoned request of an undertaking or its representative,

the Director General of the Competition Board or his or her deputy has the right to change a

determined term.

Termination of Proceedings of Matter

40.—(1) The Director General of the Competition Board or his or her deputy shall

make a final decision concerning a matter within three months after receipt of all information.

The undertaking under inspection shall be notified of the receipt of all information in writing.

(2) Before making a decision to establish a violation, the undertaking shall be notified

thereof in writing and a term of not less than ten days shall be determined during which the

undertaking may examine all materials, except the business secrets of other undertakings, and

present its position.

(3) Proceedings of a matter shall be terminated by a decision of the Director General of

the Competition Board or his or her deputy on:

1. non­establishment of an offence or:

2. establishment of an offence.

(4) A decision specified in subsection (3) of this section shall contain a justification

and, if necessary, recommendations, and the decision shall be given to the undertaking against

a signature or shall be mailed to it by post with advice of delivery.

(5) A decision specified in clause (3)2. of this section may contain a mandatory precept

for the undertaking or a proposal to a government agency or local government agency. The

term for fulfilment of a mandatory precept specified in clauses (6)2. or 3. of this section shall

not be less than one month from the date of receipt of the decision.

(6) One or several of the following obligations shall be imposed on an undertaking by a

mandatory precept provided for in subsection (5) of this section:

1. to terminate the violation;

2. to restore the situation which existed before the violation;

3. to take actions to eliminate the violation of this Act;

4. not to perform acts which may lead to a violation of the requirements of this Act.

(7) Proceedings of a matter shall be terminated by a decision of the Director General of

the Competition Board or his or her deputy or shall not be commenced if it becomes evident

that the same matter has been filed with a court or a court order in force concerning the matter

already exists.

(8) The Competition Board shall publish a decision made pursuant to this section

within three months of the entry into force of such decision in at least one daily national

newspaper.

Obligation to Maintain Business Secrets

41.—(1) The Competition Board does not have the right to disclose any business

secrets of an undertaking to any other person or to make such business secrets public.

(2) Complaints submitted to the Competition Board and decisions, reports and

summaries relating to the proceedings of a matter or the activity of an undertaking made by

the Director General of the Competition Board or any other official or representative of the

Competition Board are not business secrets.

(3) Upon establishing a violation of any of the provisions of this Act, the Competition

Board shall not use any information against an undertaking which, in accordance with the

provisions of this Act, may not be disclosed to such undertaking.

(4) The Competition Board shall omit business secrets from the texts of decisions

published pursuant to this Act.

(5) The Competition Board has the right to submit all information to a court at the

request of the court.

Chapter 10

Liability

Liability for Violation of this Act

42.—(1) The following persons are held liable for violation of this Act:

1. natural persons —pursuant to the Code of Administrative Offences;

2. legal persons —pursuant to Sections 43 and 45 of this Act.

(2) If a natural person acting on behalf of or in the interests of a legal person violates

this Act or legislation arising therefrom, both persons are held liable for the violation and an

administrative punishment may be imposed on both the legal person and the natural person.

(3) Upon imposition of a punishment for violation of this Act or legislation arising

therefrom on a legal person, the gravity and nature of the violation and other circumstances,

the extent of co­operation by the offender with the Competition Board and termination of the

prohibited activity before the imposition of a punishment shall be considered. No punishment

is imposed if more than three years have passed from the violation or termination of

performance of a contract or the contract becoming void.

Liability for Non-Fulfilment of Request or Decision

43.—(1) If an undertaking fails, without good reason, to submit information or

materials by the deadline demanded in a written demand of the Competition Board on a basis

provided for in Sections 27 or 36—39 of this Act, prevents the inspection of the location of its

activities, or, without good reason, refuses inspection prescribed by a directive of the Director

General of the Competition Board or his or her deputy or fails to appear, without good reason,

at an oral discussion, the Director General of the Competition Board or his or her deputy may

by a decision impose a fine of up to 2 000 kroons per calendar day, subject to mandatory

collection as of the day following the date of imposition of the fine until the day the

undertaking submits written information to the Competition Board or allows inspection (the

last day excluded).

(2) If an undertaking fails to fulfil or unsatisfactorily fulfils a mandatory precept set out

in a decision of the Director General of the Competition Board or his or her deputy as

provided for in subsection 40(6) of this Act by the date specified in the decision, the Director

General of the Competition Board or his or her deputy may by a decision impose a fine of up

to 5 000 kroons per calendar day, subject to mandatory collection as of the day following the

date of imposition of the fine until the day the undertaking fulfils the precept set out in the

decision and notifies the Competition Board thereof in writing (the last day excluded).

Appeal of Decisions

44.—(1) An undertaking has the right to file an appeal with a court against a decision

of the Director General of the Competition Board or his or her deputy on the imposition of a

fine specified in Section 43 of this Act pursuant to the procedure provided for in the Code of

Administrative Offences within one month from the date such decision is received.

(2) An appeal suspends execution of a decision on the imposition of a fine by the

Director General of the Competition Board or his or her deputy, unless the court decides

otherwise. If the court rules that the decision of the Director General of the Competition

Board or his or her deputy is lawful, the undertaking shall pay the fine as of the day following

the date of imposition of the fine until the day the appeal was made (the last day excluded)

and shall continue to pay the fine from the day following the passage of ten days from the

entry into force of the court order until the day the requirement or precept set out in the

decision is fulfilled (the last day excluded).

(3) If the court rules that the decision of the Director General of the Competition Board

or his or her deputy is unlawful, the collected fine shall be returned to the undertaking which

paid the fine, to the extent determined by the court.

Liability of Legal Person for Administrative Offence

45.—(1) For submission of incorrect, incomplete or misleading information or for

failure to give notice of a merger or to give notice of a merger on time to the Competition

Board, a fine of up to one per cent of the net turnover of the financial year of the offender

preceding the year that the decision to impose a fine is made shall be imposed, but not less

than 10 000 kroons.

(2) For concerted practices, enforcement of a prohibited agreement, failure to apply for

an exemption for an agreement which requires exemption within six months from entry into

such agreement, failure to fulfil a condition or obligation established in a decision of

exemption, for abuse of a dominant position of an undertaking in the market or for planning

such acts, a fine of up to five per cent of the net turnover of the financial year of the offender

preceding the year that the decision to impose a fine is made shall be imposed, but not less

than 20 000 kroons.

(3) For failure to fulfil the obligations provided for in Section 18 of this Act imposed on

an undertaking with special or exclusive rights or a natural monopoly, a fine of up to one per

cent of the net turnover of the financial year of the offender preceding the year that the

decision to impose a fine is made shall be imposed, but not less than 10 000 kroons.

(4) Administrative judges have the right to impose punishments for the administrative

offences provided for in this section.

Preparation of Administrative Offence Report

46.—(1) The Director General, his or her deputy, department heads, deputy department

heads and chief specialists of the Competition Board have the right to prepare reports of

administrative offences provided for in Section 45 of this Act.

(2) A report specified in subsection (1) of this section need not be prepared if the

situation in the market has been remedied and the losses, if any, have been compensated for.

(3) A report specified in subsection (1) of this section shall include the following

information:

1. the date and place of preparation;

2. the name and address of the agency in whose name the report is prepared;

3. the official title, given name and surname of the person who prepared the report;

4. the name or business name, registration number and seat of the administrative

offender;

5. the given name, surname and office of the representative of the administrative

offender;

6. the place, time and description of the administrative offence;

7. a reference to the provisions of this Act which are the basis for imposition of

administrative liability;

8. the explanation provided by the representative of the administrative offender or a

notation concerning the refusal to provide an explanation.

(4) The person who prepares the report and the administrative offender or his or her

representative shall sign the report. If the administrative offender or his or her representative

refuses to sign the report, a corresponding entry shall be made therein. Written notations of

the administrative offender or his or her representative concerning the report and on refusal to

sign the report shall be appended to the report.

Proceedings Concerning Administrative Offences

47.—(1) Proceedings concerning administrative offences by legal persons provided for

in this Act are conducted pursuant to the procedure provided for in the Code of

Administrative Offences (RT 1992, 29, 396; RT 1 1997, 66—68, 1109; 73, 1201; 81, 1361

and 1362; 86, 1459 and 1461; 87, 1466 and 1467; 93, 1561 and 1563; 93, 1564 and 1565;

1998, 2, 42; 17, 265; 23, 321) and the Code of Enforcement Procedure (RT 1 1993, 49, 693;

1997, 43/44, 723), unless otherwise provided by this Act.

Compensation for Damage

48. Proprietary or other damage caused by actions prohibited by this Act shall be

compensated for by way of civil procedure.

Chapter 11

Implementing Provisions

Amendments to Code of Administrative Offences

49. The references specified in clause 228(1)16. of the Code of Administrative

Offences are amended and worded as follows: “Section 137 2 , subsection 159(1)”.

Amendments to Commercial Code

50. The Commercial Code is amended as follows:

1. the following text is added to subsection 393(2):

“, with the exception of cases where the realised net turnover of the merging

commercial undertakings for the financial year exceeds one hundred million kroons or the

merging commercial undertakings have control over more than 40 per cent of the market”;

2. clause 9) is added to subsection 400(1) with the following wording:

“9) the confirmation from the Competition Board of receipt of all necessary

information concerning the merger, if the realised net turnover of the merging commercial

undertakings for the financial year exceeds one hundred million kroons or the merging

commercial undertakings have control over more than 40 per cent of the market.”.

Implementation of Act

51.—(1) This Act applies to all agreements and concerted practices which restrict

competition and are in force at the moment of entry into force of this Act and which are

carried out thereafter.

(2) An application for exemption concerning an agreement entered into before the entry

into force of this Act is deemed to be submitted without exceeding the deadline specified in

this Act if it is submitted to the Competition Board within six months after the entry into force

of this Act.

(3) The Minister of Finance shall make a report concerning the grant of State aid in

1996 and 1997 during 1999 pursuant to Section 25 of this Act.

Repeal of Act

52. The Competition Act (RT 1993, 47, 642; 1995, 26—28, 355; 1996, 49, 953) is

repealed.

Entry into Force of Act

53. This Act enters into force on October 1, 1998.


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