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LAW OF THE REPUBLIC OF MOLDOVA

of July 11, 2012 No. 183

About the competition

(as amended on 25-07-2023)

The parliament adopts this organic law.

This law shifts provisions of articles 101-106 of the Agreement on functioning of the European Union of March 25, 1957, partially – provisions of the Directive (EU) of 2019/1 European parliament and Council of December 11, 2018 about provision to authorities of EU member states, competent in the field of the competition, means for increase in their efficiency in case of application of the law and on guaranteeing proper functioning of the domestic market published in the Official magazine of the European Union by L 11 of January 14, 2019 shifts provisions of Regulations (EU) No. 1/2003 of Council of December 16, 2002 about application of the competition rules provided by articles 81 and 82 of the Agreement published in the Official magazine of the European Union by L 001 of January 4, 2003 and the Regulations (EU) No. 139/2004 of Council of the January 20, 2004 about control over economic concentration of the companies published in the Official magazine of the European Union by L 024 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.

(6) When implementing of the powers conferred to it by this law including powers on investigation, the Competition council provides respect for the general principles of the right of the European Union in questions of the competition and the Convention on human rights protection and fundamental freedoms.

(7) Application of this law is performed taking into account applicable law of European Court and other interpreting documents of institutes of the European Union.

(8) If term is not established by this law, procedures of consideration of cases of violation of the law about the competition are performed by Competition council in reasonable time.

Article 4. Basic concepts

For the purposes of this law the following concepts used in the field of the competition mean:

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

the horizontal agreement – the agreement or coordinated actions realized between two or several independent companies functioning at the same level (the same levels) of the market;

the vertical agreement – the approved agreements or actions, agreed between two or several independent companies, each of which acts according to the agreement or coordinated actions on different levels of production or distributor chain, the parties concerning conditions, on which can buy, sell or resell certain products;

economic activity – any activities consisting in product offering in certain market;

consolidation of the companies – the consolidation in any form which does not have or aiming at profit earning which two or several companies irrespective of their form of business, type of financing, procedure for decision making, obligation or non-obligation of these decisions, and also publicity of the functions which are carried out by consolidation enter voluntarily;

permission – action which the Competition council resolves the applicant realization of its intention on economic concentration or on provision of government assistance by issue of the allowing document in the form of the decision;

shipping conference – the agreements or actions approved between two or several competitors, pursuing the purpose approval of their competitive behavior in the market or rendering influence on significant parameters of the competition by means of the actions including establishment or approval of purchase prices or sale or other trade conditions including in connection with intellectual property rights, allocation of quotas for production or sale, the Section of the markets and clients, manipulation bidding procedures, restriction of import or export or the anti-competitive actions directed against other competitors;

the statement for indulgence – voluntary oral or written informing Competition council by the company or physical person or from their name, or the record of such informing, the representing statement of the data which are available for this company or physical person about shipping conference and about role in it of the company or physical person prepared especially for transfer to body in the field of the competition to the purpose of receipt of immunity from penalties or decrease in penalties within indulgence policy not including proofs which exist irrespective of procedures of application of the law and irrespective of whether there is such information (earlier existing information) in Competition council;

total turnover – total cost of sales of the products implemented by the company during the accounting period including at world level. 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;

the competitor – the independent company operating in the corresponding market;

the potential competitor – the independent company which is not operating in the corresponding market, but in case of permanent growth of relative prices by 10 percent will probably perform necessary additional 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 their actions actually limit possibilities of each of them on unilateral influence on the main conditions of goods turnover in the corresponding market, is stimulated by scientific and technical progress and growth of welfare of consumers;

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

the consumer – the direct or indirect user of products, including the producer using products for conversion, the wholesale seller, the retail seller or the final consumer;

control – opportunity to exert on certain company decisive impact, following from the following rights, agreements or any other means, separately or in combination, taking into account the corresponding legal and actual circumstances, such as:

a) property rights to everything or part of assets of the company or use of them;

b) the rights or agreements which provide decisive influence on structure, voices or decisions of governing bodies of certain company.

Control is received by persons or the companies which are owners of the rights or beneficiaries of the rights based on the relevant agreements or which, without being owners of such rights or beneficiaries of the rights based on such agreements, nevertheless have opportunity to perform the rights following from them;

the solution of consolidation of the companies – any declaration of will expressed by consolidation of the companies or governing bodies of consolidation of the companies irrespective of form of expression, obligation or non-obligation;

exclusive rights – the rights granted by the state to certain company through body of the public power any the legislative, regulating or administrative act on rendering services or implementation of activities in this geographical zone;

the special rights – the rights granted by the state to limited number of the companies the legislative, regulating or administrative act limiting in this geographical zone to two or more number of the companies, it is authorized to them to render certain service or to perform certain activities, or appointing several competitor companies as got permission to rendering certain service or to implementation of certain activities, or to providing any company (any companies) any legal or regulating benefits significantly influencing capability of any other company to render the same service or to perform the same activities in the same geographical zone on almost equivalent conditions;

group of companies – the company exercising control together with all companies which it directly or indirectly controls;

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

immunity from penalties – release from penalties which are usually imposed on the company for its participation in the agreement, with the purpose to reward it for cooperation with body in the field of the competition within indulgence policy;

the company – any subject performing economic activity irrespective of its legal status and method of financing;

the independent company – any company which can consist of several legally created subjects or physical persons, determining own business policy irrespective of other companies;

the company having nature of tax monopoly – the company which was granted exclusive rights on carrying out special activities for the purpose of income acquisition for the state;

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

the legislation on the competition – this law, the Law on government assistance No. 139/2012 and other regulations adopted in pursuance of the specified laws;

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 can differ from the next geographical zones due to significant differences in the conditions of the competition;

the corresponding market – the market within which it is necessary to estimate specific problem of the competition, determined by correlation 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 application, physical and functional characteristics and the price;

the policy of indulgence – the tool for application of Article 5, based on which the member of shipping conference irrespective of other companies participating in the agreement cooperates within the investigation made by Competition council voluntarily providing information on shipping conference and the role which is available for it as a part of shipping conference and receiving in exchange the immunity provided by the decision from penalties or decrease in penalties which shall be applied to it for its participation in shipping conference;

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

anti-competitive activities – the anti-competitive agreement prohibited by the law, the solution of consolidation of the companies, coordinated actions, abuse of dominant position, the actions 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, intentionally competitive risks substitute for themselves;

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

the offer on recognition in making of violation of the law about the competition – voluntary informing Competition council by the company or from his name which contains recognition of its participation in violation of the law about the competition or refusal of contest of such participation and accepting liability for the corresponding violation constituted giving to body in the field of the competition opportunity of application of the simplified or expedited procedure;

decrease in penalty – decrease in the amount of penalty which in case of usual conditions would be imposed on the company for the implementation of anti-competitive activities aiming to reward it for cooperation with Competition council within indulgence policy;

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

services of general economic interest – sales of products which in total answer the following conditions:

a) are intended for citizens or serve interests of society in general;

b) are not provided any more or cannot successfully be provided on the conditions (such as the price, objective characteristics of quality, continuity of provision of service and its availability) which are equitable to public interest as it is determined by the state, the companies which perform activities in normal market conditions that is provision of which the company would not undertake or would not undertake in the same degree or on the same conditions if it was guided by own commercial interests;

c) which obligation of provision is established by body of the public power by means of the normative or administrative act or by means of the agreement or several acts or agreements determining the obligations of the relevant company and body of the public power relating to rendering such services;

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

the single economic unit – parent entity and its affiliated enterprise in situation when the affiliated enterprise, though has separate legal personality, does not make independent decisions concerning the behavior in the market, and follows instructions of parent entity in all vital issues, and they thus form the single company so the anti-competitive behavior of affiliated enterprise can be charged to also parent entity.

Chapter II Anti-competitive activities

Section 1 Anti-competitive agreements

Article 5. Prohibition of anti-competitive agreements

(1) Are prohibited, needlessly in adoption of the provisional solution in this regard, any agreements between the companies or associations of the companies, any solutions of associations of the companies and any coordinated actions (further – agreements), subject or consequence of which restriction, preventing or misstatement of the competition, in particular agreements which is:

a) directly or indirectly establish purchase prices or sales or any other conditions of the conclusion of transactions;

b) limit or control production, trade, technical development or investments;

c) implementation of the Section of the markets or sources of supply allow;

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

e) allow in the relations with trading partners application of unequal conditions to equivalent obligations with creation for them thus disadvantageous competitive conditions;

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

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

(3) 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 ascertaining the fact of restriction of the competition in understanding of this law.

(4) Taking into account that shipping conferences are the most dangerous anti-competitive agreements, it is considered that they in itself are capable to interfere, limit or distort the competition.

Article 6. Exception of anti-competitive agreements

(1) part Provisions (1) Article 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 distribution of products or promote technical or economic progress;

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

c) do not impose on the relevant companies of restrictions which are not necessary for goal achievement, specified in Items and) and b);

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

(2) the Plenum of Competition council has the right to adopt regulations about exception of the prohibition established in part (1) Articles 5, for certain agreement categories.

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

(4) the Obligation of proof of violation of provisions of part (1) Article 5 it is assigned to Competition council. In the cases connected using part (1) Articles 5, the companies or the associations of the companies referring in the protection to the fact that anti-competitive agreements fall under individual exceptions according to part (1) this Article, shall prove that such agreements correspond to these conditions.

(5) If the anti-competitive agreement falls under exceptions for 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) the exceptions provided by this Article cannot be applied to shipping conferences.

Article 7. Withdrawal of exceptions

If the Competition council states that the agreements falling under one of excludable categories implicate or can have, incompatible with the conditions provided in part (1) Articles 6, it can withdraw possibility of application of the exception provided for these agreements, being effective within investigation. The withdrawal of possibility of application of exception has no retroactive force.

Article 8. Anti-competitive agreements of small importance

(1) such agreement which can interfere, limit or distort the competition in the market is considered the Anti-competitive agreement of small importance, but at the same time does not limit significantly the competition if:

a) the cumulative market share belonging to agreement parties does not exceed 10 percent in one of the corresponding markets affected by this agreement when the agreement is signed between the companies being the actual or potential competitors in one of these markets (the agreement between competitors);

b) the market share belonging to each of agreement parties does not exceed 15 percent in one of the corresponding markets affected by this agreement when the agreement is signed between the companies not being the actual or potential competitors in one of these markets (the agreement between not competitors).

In case it is difficult to determine whether there is speech about the agreement between competitors or not competitors, the threshold in 10 percent is applied.

(2) In cases when in the corresponding market the competition is limited to aggregate effect of the agreements on sale of products signed with different suppliers or distributors, the threshold values of market share specified in part (1), decrease to 5 percent both on agreements between competitors, and on agreements between not competitors.

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