Competition Law / Poland

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Competition Law / Poland

At Polish national law level, the general antitrust legal regulations are mainly set out in:

  1. Act of 16 February 2007 on protection of competition and consumers [ustawa z dnia 16 lutego 2007 r. o ochronie konkurencji i konsumentów (“Polish Competition Act” or “Polish Competition Law”)].
  2. Act of 8 March 2013 on counteracting excessive payment delays in commercial transactions [ustawa z dnia 8 marca 2013 r. o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (“Excessive Payment Delays Law” or “Excessive Payment Delays Act”)].
  3. Act of 21 April 2017 on claims for compensation for damage caused by violation of competition law (ustawa z dnia 21 kwietnia 2017 r. o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji).

Competition Law Poland

EU Competition Law

The general antitrust provisions are articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”):

  1. Article 101(1) TFEU prohibits all agreements between undertakings and concerted practices (formal or informal, written or unwritten) which have as their object or effect the prevention, restriction or distortion of competition within the internal market, such as price-fixing or cartels, amongst others.
  2. Article 102 TFEU prohibits any abuse by undertakings of a dominant position within the internal market or in a substantial part of it.

The main pieces of competition law provisions regarding horizontal agreements are:

  1. Commission Regulation No 1218/2010 of 14 December 2010 on the application of article 101(3) Treaty to categories of specialization agreements.
  2. Commission Regulation No 1217/2010 of 14 December 2010 on the application of article 101(3) Treaty on the functioning of the EU to categories of research and development agreements.
  3. Commission Guidelines on the applicability of article 101 of the Treaty on the Functioning of the EU to horizontal co-operation agreements (“Horizontal Guidelines”).

The main pieces of legislation regarding vertical agreements are:

  1. Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of article 101(3) Treaty on the Functioning of the EU to categories of vertical agreements and concerted practices (“Block Exemption Regulation” or “VBER”).
  2. Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of article 101(3) Treaty on the Functioning of the EU to categories of technology transfer agreements Text with EEA relevance (“Technology Transfer Regulation”).
  3. Commission notice — Guidelines on Vertical Restraints (“Guidelines on Vertical Restraints”).

The main piece of legislation regarding abuse of dominance is the Communication from the Commission — Guidance on the Commission’s enforcement priorities in applying article 82 EC Treaty to abusive exclusionary conduct by dominant undertakings.

The main piece of legislation regarding merger control is Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“EU Merger Regulation”).

Regulatory/Enforcement Authorities

EU antitrust rules have the force of law throughout the EEA. They are enforced both at a European and at a national Polish level, in the latter case only where trade between Member States is affected.

EU and national regulatory / enforcement authorities cooperate extensively with each other, including in the exchange of confidential information necessary to prove an infringement of the EU competition rules.

EU Competition Authorities

At EU level, European Commission (“EC”) is the authority in charge of enforcing antitrust rules. The EC is organised into policy departments, known as Directorates-General(“DG”). The DG in charge of competition policy is DG COMP, based in Brussels. The European Commissioner responsible for competition matters is Margrethe Vestager. There are nine different Directorates within DG Comp, each of which is in charge of a different economic sector / competition area.

In principle, the EC will generally be seen as the best placed authority to deal with any case where:

  1. the relevant market affected by the agreement or conduct concerns more than three Member States;
  2. the agreement or conduct is closely linked to other EU rules that may be exclusively or more effectively applied by the EC;
  3. EC’s decision is needed to develop EU competition policy; or
  4. it is appropriate for EC to act to ensure effective enforcement of the antitrust rules.

However, the decision will be taken on a case-by-case basis. The decision by the EC to initiate proceedings shall relieve national competition authorities of their competence.

The EC has substantial enforcement and investigation powers. For example, it can:

  1. require companies to provide information;
  2. conduct surprise inspection visits (so-called “dawn raids”) at company premises or employees’ homes within the EU;
  3. impose fines for substantive infringements of antitrust regulations as well as for procedural infringements, such as a failure to provide information;
  4. impose structural remedies such as breaking up a dominant company.

EC decisions can be appealed to the General Court in Luxembourg under article 263 TFEU. In turn, General Court judgments be questioned within appeal proceedings based on legal arguments to the Court of Justice, also in Luxembourg.

Polish Competition Authorities

In the case of Poland, the national competition authority is the President of Office of Competition and Consumer Protection[Prezes Urzędu Ochrony Konkurencji i Konsumentów, (“President of UOKiK”)]. The President of UOKiK is supported by the Office of Competition and Consumer Protection [Urząd Ochrony Konkurencji i Konsumentów, (“UOKiK”)].

Technically it is the President of UOKiK that takes decisions, however in practice he is supported by extensive internal structure of UOKiK, recently organized in 6 offices and 14 departments.

UOKiK has broad investigative and inspection powers, mirroring those of the EC under the Merger Regulation.

The decision of the President of UOKiK can be appealed to the Court of Competition and Consumer Protection [Sąd Okręgowy – Sąd Ochrony Konkurencji i Konsumentów (“SOKiK”)] within the process of competition litigation. The judgement of SOKiK can be appealed to the Court of Appeal in Warsaw (“Sąd Apelacyjny w Warszawie”). As a measure of extraordinary judicial review, the judgement of the Court of Appeal in Warsaw may be questioned in the cassation appeal (“skarga kasacyjna”) to the Polish Supreme Court(“Sąd Najwyższy”).

Expert team leader DKP Legal Michał Dudkowiak
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