Breach of regulations on rules of economic competition

Legal definiton 

Section 248 of the Criminal Code:

(1) Whoever breaches another legal regulation on unfair competition by committing, while participating in economic competition: 

a) misleading advertising, 

b) misleading labeling of goods and services, 

c) creating a risk of confusion, 

d) free riding on the reputation of enterprise, products, or services of another competitor, 

e) bribery, 

f) disparaging, 

g) comparative advertising, 

h) breach of trade secrets, or 

i) endangering consumer health and the environment, 

and thereby causes greater harm to other competitors or consumers, or obtains greater unjustified advantages for themselves or another, shall be punished by imprisonment for up to three years, disqualification, or forfeiture of the item.

(2) The same sentence shall be imposed on anyone: 

a) who contrary to another legal regulation on the protection of economic competition, enters into a price-fixing agreement, market-sharing agreement, or other agreements disrupting economic competition with their competitor, 

b) who contrary to another legal regulation on public procurement, seriously breaches the binding rules of the procurement procedure, or 

c) contrary to another legal regulation governing the activities of persons authorized to conduct business in the financial market, the activities of banks and other legal entities authorized to conduct financial activities, trading in investment instruments, pension insurance, and insurance, managing and administering investment funds or foreign investment funds, seriously breaches the binding rules of prudent business practices, asset management, due diligence, or the prohibition on performing activities, services, or other activities specified by law or official decision, 

and thereby causes greater harm to other competitors or consumers, to the contracting authority or another supplier, or obtains greater unjustified advantages for themselves or another.

(3) Imprisonment for six months to five years, a financial penalty, or forfeiture of the item shall be imposed on the perpetrator who: 

a) commits an act mentioned in paragraphs 1 or 2 as a member of an organized group, 

b) commits such an act repeatedly, 

c) causes significant damage by such an act, or 

d) obtains significant benefits for themselves or another by such an act.

(4) Imprisonment for two to eight years shall be imposed on the perpetrator who: 

a) causes large-scale damage by an act mentioned in paragraph 1 or 2, 

b) obtains large-scale benefits for themselves or another by such an act, or 

c) causes another person's bankruptcy by such an act.

Special provision on effective regret

Section 248a of the Criminal Code:

Criminal liability for the criminal offense of breach of regulations on rules of economic competition under Section 248 paragraph 2, first line, shall terminate if the perpetrator meets the conditions under another legal regulation on the protection of competition for exemption from a fine or for a reduction of the fine for participation in a price-fixing agreement, a market-sharing agreement, or another agreement disrupting competition with their competitor. 

Subjective aspect - intent

Breach of regulations on rules of economic competition is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• Was it an act in the context of economic competition?
  
• Was the aim a competitive intent?
  
• Was the aim to cause harm or benefit to someone?
  
• What was the nature of the harm or benefit?
  
• How did the conduct affect consumers?
  
• How could it be expected that an average consumer would perceive it?
  
• Was the conduct capable of disrupting economic competition?
  
• To what extent?
• Was the perpetrator's intent directed towards the decisive facts?