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Legal shorts February 2022

02 March 2022

On the one hand, to loosen the telemarketing rules, and on the other, Robinson's list.

From 01/02/2022 and according to the new Act on Electronic Communications, it is possible to use telemarketing in the form of a person-to-person call, i.e., with the active participation of a person on the caller's side without the prior consent of the person called.

However, the new law also brings certain restrictions. From 01.08.2022, telemarketing companies will have to use telephone numbers containing area codes specially designed for marketing communications. The called party will be able to recognize that this number is related to a marketing phone call.

Subsequently, from 01.11.2022, the so-called Robinson's list will be established containing the phone numbers which will not be possible to call for direct marketing. Each user will be able to voluntarily state his number in the list or object to a marketing call directly to the caller.

However, getting rid of unwanted calls will not be as easy as the new rules introduce several exceptions that release the telemarketing rules. One of the most controversial is the possibility of so-called “subsequent consent." This includes the option of re-contacting persons to regain their consent to telemarketing or withdraw their objection to marketing communications.  

When the overall context of the ad (advertising campaign) matters

In its decision on online advertising for flaxseed oil, the Advertising Council reaffirmed the need to consider advertising claims in advertising (marketing campaign). In this context, it is necessary to consider the title of the article and the entire article in conjunction with each other. The fact that the writing itself was in the "blog" section of the client's e-shop has no impact on the above assessment. Moreover, the article itself (blog) encourages the purchase of a specific product directly from the client.

This conclusion of the Advertising Council can be identified as the activity of the contracting authority meets the primary defining features for advertising, namely (i) it is an initiative of the entrepreneur to obtain a financial advantage, (ii) information about a specific product is provided, and (iii) ) the aim is to influence consumer behaviour.      

At the same time, the Advertising Council considered that the article on the client's website containing the headline "Flaxseed oil also beats cancer" as well as other claims contained in the article constitutes inadmissible advertising, as it may give the consumer the impression that the product may have therapeutic effects, which the provider has not proved in particular in the context of the List of Approved Health Claims (maintained by the European Food Safety Authority).

It is not enough to return the fine; interest must also be paid

European Commission returned part of the fine of 30 million imposed on Deutsche Telekom for abusing its dominant position, following a judgment of the General Court reducing the amount of the fine in question. However, it refused to pay the related interest on the delay claimed by the company for the period from the payment of the initial amount of the fine until the refund of its part per the judgment of the General Court.

Deutsche Telekom has appealed against this procedure before the General Court of the European Union, which, in its judgment in Deutsche Telekom AG no. T‑610/19 found that Deutsche Telekom suffered damage, namely, in the amount of unpaid delay interest from the amount by which the General Court reduced the original fine. Interest on arrears should have been calculated from the date of payment of the original fine until the date of repayment by the European Commission.  

The present judgment thus lays down a clear rule that, in the event of a fine being imposed, the amount subsequently reduced after payment is not enough to refund such part of the fine. Still, the related interest on delay must be paid

New measures against unfounded objections in public procurement

In practice, it is often the case in the procurement process the institute of objections to procurement procedures is abused. Abuse takes the form of various forms of obstruction, bullying, or so-called "objection filibustering," in which the content of the objections is not essential, but the overwhelming of the contracting authority and, ultimately, the slowing down of the procurement itself.

According to the Public Procurement Act amendment, the Public Procurement Authority may suspend the objection proceedings if the objections are "clearly unfounded". The new reason for suspending the opposition proceedings is a preventive instrument against the abuse of the right to file them. According to the amendment, anyone who raises an unfounded objection is liable for damage that he will cause. The security deposit paid when filing the objection shall be forfeited to the state.

However, it is questionable to what extent and criteria the Public Procurement Authority will choose when assessing whether it is a standard objection that is a normal part of the review procedure or whether it is an objection intended to hamper the procurement process unreasonably.

The amendment to the Public Procurement Act, in part concerning objections, will take effect from 31/03/2022.

Cross-border shipment of waste

Cross-border shipment of mixed municipal waste is subject to a stricter prior written notification and consent system. As part of this process, the competent authorities may raise reasoned objections to the cross-border shipment of waste.

In the judgment n. C 315/20 in the case Regione Veneto v Plan Eco S.r.l of the end of 2021, The Court of Justice of the EU has ruled that the competent authority of the country of departure may object to the transport of mixed municipal waste (item 20 03 01), which has been classified under item 19 12 12 (refined waste) after mechanical treatment for the purposes of its energy recovery, provided that the original characteristics of that waste have not changed substantially.

In the present case, it was common ground that the mechanical treatment of the waste in question did not substantially alter the original characteristics of the waste. The Court of Justice has thus agreed that, from the point of view of applying the legislation on cross-border shipment of waste, the actual nature of the waste is essential and not its formal classification within the waste catalogue.

Effective fight against bankruptcy – preventive restructuring

In the process of parliamentary approval, there is currently a draft law on resolving the impending bankruptcy, which is to introduce, among other things, the possibility of so-called preventive restructuring.  

The preventive restructuring would be voluntary and would be an effective way to avoid failure of the debtor – legal person and its resolution by one of the more demanding insolvency proceedings. 

The preventive restructuring may have public or private forms, both approved by the court. When the court decides to grant public preventive protection, it provides the debtor with the so-called temporary protection, during which bankruptcy may not be declared against the debtor, a restructuring may not be authorized, and, in principle, no proceedings may be initiated against him.

In the case of a non-public preventive restructuring, it will essentially be an agreement of a debtor at risk of bankruptcy with his creditors, who are subject to the supervision of the National Bank of Slovakia, e.g., banks.

The preventive restructuring will thus enable the entrepreneur to continue his activities and help avoid bankruptcy or insolvency.

The law is currently in the second parliamentary reading. Its effectiveness is proposed from 01/05/2022 and 17/07/2022 in some of its sections.

Enhanced protection for men - fathers

The new Labour Code is intended to provide men with the same level of protection as women currently enjoy regarding childcare.

At present, the employer at the end of the employment relationship in the probation period is limited only concerning women – pregnant mothers up to the end of the ninth month after delivery and breastfeeding women. An employment relationship may be terminated during the probation period only in exceptional cases unrelated to pregnancy or motherhood and must be duly justified; otherwise, it is void.

The new legislation is intended to protect against termination of employment during the probationary period for men to ensure that they have the same right (as women) to care for a child. The employer will be able to terminate the employment relationship in the probation period with the employee-man on paternity leave only under the same conditions as they currently apply to women.

The proposed effective date of the amendment is 01/08/2022.