LAW OF THE REPUBLIC OF MOLDOVA

of July 11, 2012 No. 183

About the competition

The parliament adopts this organic law.

This law realizes provisions of articles 101-106 of the Agreement on functioning of the European Union of March 25, 1957, the Regulations of the Council of Europe (CE) No. 1/2003 of December 16, 2002 about application of the competition rules established by articles 81 and 82 of the Agreement published in the Official magazine of the European Union No. L 1 of January 4, 2003, and partially Regulations of the Council of Europe (CE) No. 139/2004 of the January 20, 2004 about control over economic concentration of the companies published in the Official magazine of the European Union No. L 24 of January 29, 2004.

Chapter I General provisions

Article 1. Subject and purpose of this law

(1) This law establishes the legal basis of protection of the competition, including the prevention and suppression of anti-competitive activities and unfair competition, implementation of economic concentration of the companies in the market, and also the legal basis of activities and competence of Competition council and responsibility for violations of the law in the field of the competition.

(2) the Purpose of this law is regulation of the relations connected with protection, maintenance and stimulation of the competition for promotion of legitimate interests of consumers.

Article 2. Scope of this law

(1) Provisions of this law are applied to acts - actions or failure to act which purpose are or effects of which are or can be restriction, preventing or misstatement of the competition, and also to the actions on unfair competition made:

a) the companies registered in the Republic of Moldova or in other states and also physical persons;

b) the central or local authorities of public management, in that measure in which they by means of the made decisions or the approved acts perform interventions in the market, exerting direct or indirect impact on the competition, except as specified, when similar measures are taken in pursuance of other laws or for protection of the main public concerns.

(2) Operation of this law extends also to the persons equated to bodies of the public power, performing functions of the public power or using public property who are authorized by the law to render socially useful services.

(3) the Companies to which management of services of general economic interest is entrusted and the companies having nature of fiscal monopoly fall under provisions of this law, and in particular under competition rules, in that measure in which application of these provisions does not interfere, legally or actually, to accomplishment of the special orders assigned to them.

(4) Provisions of this law are applied to the acts provided by part (1), performed in the territory of the Republic of Moldova, and also beyond its limits if they implicate or can have in the territory of the Republic of Moldova.

(5) This law does not extend to employment relationships.

(6) the Competition council is national authority in the field of the competition, authorized to apply provisions of this law according to the obligations established by this law.

(7) If in the international treaty which participant is the Republic of Moldova other provisions are established, than provided by this law provisions of the international treaty are applied.

Article 3. Basic principles of the competition

(1) the State provides freedom of business activity, protection of fair competition, and also the rights and interests of the companies and citizens from anti-competitive activities and unfair competition.

(2) use of the rights by the companies for the purpose of restriction of the competition and infringement of legitimate interests of consumers is not allowed.

(3) Food prices are established in the course of free competition on the basis of the demand and supply if the special law does not provide other.

(4) the Government has the right to dispose and/or apply temporary measures for prevention or even blocking of excessive increase in prices in those sectors of economy in which the competition is limited or is absent, and also in exceptional circumstances, such as crisis situations or large imbalance between the demand and supply. These measures are taken by the order of the Government for the term of 6 months which can consistently be prolonged for the periods no more than 3 months until the circumstances proving adoption of the resolution by the Government remain.

(5) In the cases provided in part (4), intervention of the Government is performed with the notification of Competition council for the purpose of the analysis of effects of the taken measures for the competition.

Article 4. Basic concepts

The basic concepts used in this law are autonomous concepts of the sphere of the competition and are used in value:

the agreement - any expression (in oral or written form) general will concerning behavior in the market shown by two or more independent companies;

the horizontal agreement - the agreement or coordinated actions between two or several companies working at one and those/same levels/market levels;

the vertical agreement - the agreement or coordinated actions between two or several companies, each of which works, according to the agreement or coordinated actions, at the different production rates or is sold, the parties relating to conditions, in case of which can buy, sell or resell certain products;

economic activity - any activities consisting in product offering on certain market;

association of the companies - the non-profit organization formed voluntarily by two or several companies in the procedure established by the law irrespective of its form of business, type of financing, procedure for decision making, binding or voluntary nature of these decisions, and also public nature of the functions which are carried out by it;

permission - action which the Competition council is given by the consent to the applicant on realization of intention on economic concentration or on provision of government assistance by issue of the allowing document in the form of the decision;

total turnover - total cost of sales of the products implemented by the company during the accounting period. The total turnover is equated:

a) for the banks, organizations granting loans - to the amount of the income on percent and the amount of the income which are not relating to percent;

b) for the insurance companies - to total cost added gross - awards, including reinsurance awards;

economic concentration - the transactions leading to long-term changes concerning control over the involved companies and thereof - to change of structure of the market;

competitors - the independent companies, being active participants of the corresponding market;

potential competitors - the independent companies which are not active in the corresponding market, but in case of permanent growth of relative prices by 10 percent will probably perform additional necessary investments or will make other costs for transformation for occurrence on the corresponding market in time constituting no more than 3 years;

the competition - the existing or potential economic rivalry between two or several independent companies in the corresponding market when actions of those significantly limit possibilities of each of them to influence unilaterally the main conditions of goods turnover in this market, is stimulated by nauchnotekhnichesky progress and growth of welfare of consumers;

unfair competition - any action of the companies performed in the course of the competition, contradicting the commonly accepted fair practice of economic activity;

consumers - direct or indirect users of products, including the producers using products for conversion, wholesale sellers, retail sellers or final consumers;

control - opportunity to exert decisive impact on the company, following from the rights, agreements or other tools separate or combined, taking into account the corresponding legal and actual circumstances, in particular from:

a) property rights or rights to complete or partial use of assets of the company;

b) the rights or agreements which allow to exert decisive impact on structure, vote or decisions of governing bodies of the company.

Control is acquired by persons or the companies which are owners or users of the rights acquired as a result of the conclusion of the relevant agreements or which, though are not owners or users specified is right, have the right to perform following from this right;

the decision of association of the companies - any declaration of will expressed by association of the companies or its governing bodies irrespective of its form or binding or voluntary nature;

exclusive rights - the rights granted by competent public authority based on the legal, normative or administrative act which effect consists in restriction of carrying out economic activity in certain geographical zone for one or several companies and which considerably influences capability of other companies to carry out such activities in this zone. The rights granted in any form including by means of concessionary documents, to limited number of the companies on the basis of objective, proportional and non-discriminatory criteria which allow any concerned party corresponding to these criteria to have these rights cannot be considered as exclusive rights;

group of companies - the company exercising control, and all companies directly or indirectly controlled by it;

decisive influence - capability to determine strategic and tactical behavior of the company;

check - the procedural instrument of receipt of necessary data and documents in the place of their stay used by Competition council to identification of violations of this law or the Law on government assistance No. 139 of June 15, 2012;

the company - any subject, including association of the companies involved in economic activity irrespective of its legal status and method of financing;

the company having nature of fiscal monopoly - the company to which exclusive rights on carrying out special activities for the purpose of income acquisition for the state were appropriated;

dependent enterprises - the companies which belong to the same group of companies or are controlled by the same person or the same persons;

the involved companies - the companies participating in economic concentration;

the independent companies - others, than dependent, the companies;

the notification - the statement to Competition council for permission of intention to perform transaction on economic concentration or about provision of government assistance;

the corresponding geographical market - zone with the companies involved in the supply and demand in the corresponding market of product in which conditions of the competition are rather homogeneous and which differs from the next geographical zones because of significant difference of competition conditions in them;

the corresponding market - the market within which it is necessary to estimate specific problem of the competition, determined by ratio of the corresponding market of product with the corresponding geographical market;

the corresponding market of product - the market of products which are considered by consumers as interchanged or replaced by other products thanks to their appointment, physical and functional characteristics and the price;

dominant position in the market - the provision caused by economic power of the company, allowing it to interfere with maintenance of workable competition in the corresponding market, giving opportunity to be effective substantially irrespective of competitors, the clients and eventually from consumers;

anti-competitive activities - the anti-competitive agreements, decisions of association of the companies, coordinated actions, abuse of dominant position prohibited by the law of action or failure to act of bodies of the public power, limiting the competition;

coordinated actions - form of coordination of actions between the independent companies and/or independent groups of the companies by means of which practical cooperation of these companies, without the conclusion of the agreement between them as such, competitive risks intentionally replace;

predatory price - the price is lower than average variable cost, practiced by the company which is in dominant position for the purpose of elimination of competitors from the corresponding market;

product - goods, works, services, including financial services, held for sale, exchange or other methods of inclusion in civil circulation;

considerable restriction of the competition - negative impact on at least one of competition parameters in the market, such as price, production, product quality, variety of products or innovation;

services of general economic interest - sale of products:

a) which are intended for citizens or are implemented for the benefit of society in general;

b) which are not delivered any more or cannot be delivered in satisfactory procedure and in the conditions, such as the price, objective characteristics of quality, duration and access to service corresponding to public interest as it is determined by the state, the companies which perform activities in normal market conditions, that is delivery of which the company if followed the commercial interests, would not undertake or would not take in the same degree or on the same conditions;

c) which obligation of provision is established by public body by means of the legal, normative or administrative act or by means of the agreement or packet of the acts or agreements determining the obligations of this company and public body characteristic of provision of such services;

falsification of offers - implementation by the competitive companies by means of the biddings or other forms of tender of offers of anti-competitive agreements concerning the prices, separation of the markets, sources of supply or product quality.

Chapter II Anti-competitive activities

Section 1 Anti-competitive agreements

Article 5. Prohibition of anti-competitive agreements

(1) Are prohibited, without adoption of the provisional solution, any agreements between the companies or associations of the companies, any decisions of associations of the companies and any coordinated actions (further - agreements), subject or consequence of which preventing, restriction or misstatement of the competition in the market of the Republic of Moldova or on part of this market is.

(2) the Agreements prohibited based on this Article are insignificant by right.

(3) Anti-competitive agreements are, in particular, the agreements directed on:

a) direct or indirect price fixation of purchase or sale or any other conditions of the conclusion of transactions;

b) restriction or control over production, trade, technical development or investments;

c) separation of the markets or sources of supply;

d) participation in the biddings or in any other forms of tender with false offers;

e) restriction or hindrance to access to the market or freedom of implementation of the competition by other companies, the agreement not to perform purchase from certain companies or sale by it without reasonable reasons;

f) application in the relations with commercial partners of unequal conditions to equivalent circumstances with creation thus disadvantageous competitive conditions for them;

g) the obuslovlivany conclusions of agreements adoption of additional obligations by partners which in character or according to trade practice are not connected with subject of these agreements.

(4) the Agreements signed between dependent enterprises are not recognized anti-competitive agreements.

(5) If it is determined that the subject of the agreement is preventing, restriction or misstatement of the competition, Competition council shall not determine availability of anti-competitive effects for proof the fact of restriction of the competition in understanding of this law.

Article 6. Exception of anti-competitive agreements

(1) the Prohibitions provided by parts (1) and (2) Articles 5, do not extend to anti-competitive agreements or to categories of anti-competitive agreements which correspond in total to the following conditions:

a) promote improvement of production or sale of products or promote technical or economic progress;

b) provide to consumers proportional part of the received benefit;

c) do not impose on these companies of restrictions which are not necessary for goal achievement, provided by Items and) and b);

d) do not give to these companies opportunity to eliminate the competition concerning considerable part of the corresponding products.

(2) the Agreements specified in Article 5, which correspond to the conditions provided by part (1) this Article or belong to the categories provided by part (3) this Article, are considered legal without the need for removal on them the relevant decision.

(3) Certain agreement categories can be directly excluded from the prohibition established in article 5 by acceptance by the Plenum of Competition council of the corresponding regulations according to part provisions (1) this Article.

(4) the Companies or associations of the companies referring in the cases connected using Article 5, as protection on the fact that anti-competitive agreements fall under individual exceptions according to provisions of this Article, shall prove that these agreements correspond to the conditions stated in part (1) this Article.

(5) If the anti-competitive agreement falls under exception on categories, its parties are exempted from the obligation provided by part (4), and shall prove only in case of protection that the agreement falls under exception on categories.

(6) If the Competition council determines that the agreements falling under categories of exceptions have or can have the effect which is incompatible with the conditions provided in part (1) this Article, it can on own initiative or in connection with the arrived claim to refuse use of the exception provided for these agreements. In this case the Competition council shall prove that agreements break part provisions (1) Article 5 and do not correspond to the conditions stated in part (1) this Article. The refusal in use of exception has no retroactive force.

(7) the Agreements specified in Article 5, which are consequence of application legislative or the regulation, are not prohibited without obligatory decision under them.

Article 7. Prohibition of malicious shipping conferences

(1) Malicious shipping conference is the anti-competitive horizontal agreement, except for agreements of small importance which directly or indirectly, separately or together with other factors which are under control of the parties is the subject:

a) price fixation of sale of products to the third parties;

b) restriction of production or sales;

c) distribution of the markets or clients;

d) participation in the biddings or other forms of tender of offers with false offers.

(2) Considering that malicious shipping conferences are the most serious anti-competitive agreements, it is considered that they in itself are capable to interfere, limit or distort the competition.

(3) Malicious shipping conferences cannot use exceptions, stipulated in Article 6.

Article 8. Anti-competitive agreements of small importance

(1) the Anti-competitive agreement is considered being of small importance and by that not limiting significantly the competition if:

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