Penalties for antitrust infringments in Poland

Polish Antitrust Authority (UOKiK) may impose penalties for infringement of Polish antitrust law.

Polish antitrust infringements are usually related to:

• abuse of dominant position on Polish market
• conclusion of anticompetitive agreement on Polish market
• breach of collective interests of consumer on Polish market
• no notification of merger with effect on Polish market

In case above circumstances are identified in your company, it is of the essence that Polish antitrust lawyers review and evaluate related risks. Our Polish Law Firm has extensive experience in Polish competition law. After evaluating case circumstances our Polish competition law lawyers may advise to use various measures allowing to decrease or even avoid penalties, e.g.:

• leniency,
• obligation decision,
• voluntary penalty submission.

If it turns out that non of above measures are available the following penalties shall be taken into consideration:

Penalties for antitrust infringements in Poland towards the company:

1. Substantial infringements. The Polish Antitrust Authority may impose a maximum fine of 10% of the company revenue in the accounting year preceding the year within which the fine is imposed, if the company, even unintentionally:
   1. concluded anti-competitive agreement or
   2. abused dominant position
2. Procedural infringements are subject to fines of up to EUR 50.000.000 on the company. They may be imposed if the company, even unintentionally:
   1. failed to provide information requested by Polish Antitrust Authority or provided false or misleading information,
   2. impedes or makes it impossible to perform an audit,
   3. impedes or makes it impossible to perform search,
3. Furthermore, the Polish Antitrust Authority may impose a fine on the company in the amount up to EUR 10.000 for each day of delay in execution of the decisions issued by CA or Competition Courts. These fines constitute measures of administrative execution character. They are independent of other fines and they may be imposed several times (the ne bis in idem principle does not apply).

Penalties for antitrust infringements in Poland towards the managers (wide definition of manger – all people who have factual powers of management, not necessarily being members of the board of the company in question):

1. Substantial infringements. According to article 106a Polish Competition Law, Polish Antitrust Authority may impose a fine up to PLN 2.000.000 on the key managers, whose intentional acts led the company to conclude anti-competitive agreement.
2. Procedural infringements may cause penalties amounting to fifty-fold the average remuneration (recently approx. EUR 1.000) in case the manager:
   • does not comply with decisions, orders issued by Polish Antitrust Authority or Competition Courts,
   • impedes or makes it impossible to perform an audit,
   • impedes or makes it impossible to perform search,
3. Guidelines and practice of penalties imposition. The Polish Competition Law determines maximum amounts of fines and leaves a wide margin of discretion to the Polish Competition Authority to decide on the amount in each case. The minimum amounts are not defined by Polish Competition Law. Guidelines and limitations to discretion of Polish Competition Authority are set by Polish Competition Law (article 111 in particular), case law and soft law documents issued by the Polish Competition Authority. First, the Polish Competition Law sets forth that the Polish Competition Authority when calculating the amount of the fines should take into account in particular: the duration, gravity and circumstances of the infringement of the provisions of Polish Competition Law, as well as the previous infringements. These four factors are obligatory criteria applied by the Polish Competition Authority when setting up the amount of fines. The list of applicable criteria is not exhaustive, though. Second, the judiciary obliged Polish Competition Authority to take into account when calculating the fines the following circumstances:
   • extent of threat to the public interest
   • duration, gravity and circumstances of the previous infringement
   • intentionality and / or lack of intentionality
   • financial profits from the infringement
   • refraining from the prohibited practice
   • irreversible market changes
   • income of the undertaking
4. There are new guidelines issued in November 2015 and binding since January 1^st, 2016. Polish Competition Authority defines criteria for penalties:
   1. Level of infringement:
      1. horizontal agreements are considered as “very serious infringements” which gives base percentage for further calculations between 1%– 3%,
      2. vertical agreements are considered as “serious infringements” which gives base percentage for further calculations between 0,2% – 1%.
   2. Market specifics, actions of the entrepreneur and market impacts:
      1. if bigger impact on the market is caused by the infringement, Polish Competition Authority may increase the base amount by 80%.
   3. Period of infringement:
      1. The longer the infringement lasts the more the amount may be increase, e.g. up to 200% in case of long lasting agreements.
   4. Mitigating circumstances:
      1. Every reason that is justified may pose a mitigating circumstance that may cause decrease of the amount by maximum 80%.
   5. Aggravating circumstances:
      1. Every reason that is justified may pose an aggravating circumstance that may cause increase of the amount by maximum 80%.
   6. The penalty may never exceed 10% of the revenue in the year preceding penalty imposition.

Do you have further questions to our Polish antitrust lawyers ?

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