Polish Competition Law Research Articles

Hearing Officers in competition proceedings conducted by the European Commission for the implementation of Article 101 and 102 TFEU

The article analyzes the role played by the Hearing Officer in competition proceedings conducted by the European Commission to implement Article 101 and 102 TFEU. Currently, the Hearing Officer is a guarantor of the effective exercise of procedural rights in the course of all competition proceedings before the EC, while contributing to the objectivity, transparency and efficiency of the proceedings. The article also discusses the proposals to change the scope of the powers of the Hearing Officer, as reported in doctrine and literature, and refers to the possibility and legitimacy of introducing such institution into Polish competition law.

CRIMINAL LIABILITY OF MANAGERS IN THE POLISH COMPETITION LAW – DEVELOPMENT AND THE PERSPECTIVE OF PROCEDURAL GUARANTEES

The article discusses the issue of legal liability of managers set out in the Polish competition and consumer protection law, resulting from the Act of 16 February 2007 on competition and consumer protection (Dz. U. (Journal of Laws) of 2021, item 275) (hereinafter: Competition Act). The starting point for my reflections is the provisions of the Competition Act providing for financial liability of persons in managerial positions for infringing prohibitions resulting from competition law (Article 106a of the Competition Act). In Polish law this type of liability is subsidiary to the liability of undertakings. It was also introduced to the Competition Act relatively recently, after the principles of undertakings’ liability for infringements of competition law had been formed and developed. My goal is to present the scope of managers’ liability and present conclusions resulting from the recent, still rather innumerable, case law of the Polish Competition Authority (President of Office for Competition and Consumer Protection, UOKiK). Due to the quasi-criminal nature of Article 106a, I propose my own reflections on the development of managers’ liability considering whether the law and judicial decisions recognize adequate standards of their rights.

Protection of Unregistered Distinctive Signs within Unfair Competition Law: the Polish Perspective

Abstract The protection of unregistered distinctive signs is essentially non-standardised at the international and EU level. The purpose of this paper is to provide an overview of the legal framework relating to the protection of trade names, unregistered trade marks and geographical indications from the perspective of Polish law in which protection of unregistered distinctive signs is predominantly available based on unfair competition law. The analysis takes account of the respective EU legislation, notably the Unfair Market Practices Directive and its impact on combatting unfair competition caused by use of distinctive signs under Polish law, as well as interactions with the national and EU legislation in other areas such as trade mark law and the protection of registered designations of origin and geographical indications. Comparative remarks are occasionally included. The paper also examines the issue of the nature of civil law protection of unregistered distinctive signs under Polish unfair competition law, which is the subject of divergent views among Polish scholars. With regard to the perplexing question of whether provisions of unfair competition law could constitute a basis for distinguishing exclusive rights to unregistered distinctive signs or whether they provide ‘merely’ tortious protection that does not presuppose the existence and infringement of such rights, this paper puts forward arguments in support of the latter qualification.

The Consistency of Polish Competition Law with ICN Recommendations – the Example of the Merger Notification Obligation

The Consistency of Polish Competition Law with ICN Recommendations – the Example of the Merger Notification Obligation

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law. Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law. Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

Porozumienia ograniczające konkurencję w polskim prawie konkurencji

Porozumienia ograniczające konkurencję w polskim prawie konkurencji

The Consistency of Polish Competition Law with ICN Recommendations – the Example of the Merger Notification Obligation

Określenie prawnego obowiązku zgłaszania koncentracji jest kluczowym elementem systemu kontroli koncentracji. Regulacja ta wskazuje jakie koncentracje podlegają obowiązkowi ich zgłoszenia do organu antymonopolowego oraz na jakim przedsiębiorcy ten obowiązek spoczywa. Międzynarodowa Sieć Konkurencji (ICN) stanowiąca wirtualną sieć organów konkurencji stworzyła serię wytycznych w jaki sposób należy konstruować obowiązek zgłoszenia koncentracji w prawie krajowym. Przedmiotem analizy są jedynie regulacje materialnoprawne, zaś regulacje procesowe pozostają poza przedmiotem analizy. Celem artykułu jest porównanie wytycznych ICN z przepisami polskimi. Zidentyfikowane zostaną pola spójności i rozbieżności pomiędzy regulacjami polskimi i wytycznymi ICN. Wyniki przeprowadzonych badań mogą stanowić dobrą podstawę do dalszego rozwoju i doskonalenia polskiego systemu kontroli koncentracji. Przeprowadzona analiza wzbogaci również dotychczasowe badania dotyczące wpływu ponadnarodowych sieci organów administracji na krajowy porządek prawny i praktykę organów administracji publicznej.

Europeanisation of the Polish Leniency Programme

Leniency programmes in competition law make it possible to grant immunity from fines, or a reduction of any fine that would otherwise have been imposed on an undertaking who was a party to an unlawful agreement restricting competition. This immunity or fine reduction is granted as a reward for the cooperation with the competition authority and the provision of evidence of an unlawful agreement restricting competition. Legal rules regarding the application of leniency programmes have been introduced at the EU level as well as in the national legislations of numerous countries, including Polish law. The author makes an attempt to establish the degree to which the Polish leniency programme is an effect of the impact of EU law or the application of law within the EU (for instance, by its institutions). The analysis has been made on three levels. Examined first was the degree to which the Polish leniency programme is a result of spontaneous harmonisation. Second, the impact of legislative harmonisation in the area of leniency programmes was taken into consideration. Finally, it was verified whether those Polish authorities that apply Polish competition law are inspired by judgements issued by EU courts in cases regarding leniency programmes.

“Anti-competition agreements” and legal options to pursue claims for damages before common courts

Aim: In the article the situation is discussed where the refusal by an energy supplier to connect other companies to join the network, will be treated (in Poland and the EU) as a prohibited abuse of a dominant position by this company. The identification of such practices is important because EU sectoral legislation does not contain specific provisions requiring companies managing and operating oil pipelines to conclude agreements with other companies to join their networks or to deliver oil.Design / Research methods: The aim of the article was achieved through doctrinal analysis of the relevant Polish and EU law and by analyzing guidelines issued by EU bodies. In the study, also functional analysis is applied, allowing to examine the functioning of the law.Conclusions / findings: Access to oil pipelines and the sale of their transmission capacity are determined by the network owners themselves. These owners are private oil companies, not being regulated by European Union law. The obligation to connect other entities to its own network by power transmission companies in Poland results only from the general provisions of Polish competition law. It is shown that refusal to access the network is a manifestation of prohibited abuse of dominant position, which is prohibited whenever the dominant activity is detrimental to allocation efficiency. In particular this concerns the case when the supply of goods or services objectively necessary for effective competition on the market in general is denied, and leads to the elimination of effective competition in the market and/or harm to consumers.Originality / value of the article: The article discusses the reasons for the legal obligation for energy companies involved in the transmission of crude oil to connect other companies into their own network. This obligation significantly influences the business conducted by the transmission companies.Implications of the research: The presented research results are useful for assessing decisions issued by the President of UOKiK (the Polish Office of Competition and Consumer Protection) and in the judgments of Polish common courts and EU courts.

Public Interest and a Place for Non-Competition Considerations in Polish Competition Law

The article attempts to answer the question: to what extent can non-competition considerations play a role in the application of Polish competition law? Background analysis of EU competition law is also provided. Attention is focused on the meaning of ‘public interest’ invoked in Article 1 of the Polish Competition Act. It is analysed whether public interest is associated only with economic goals of competition law (consumer welfare) or it is related to other goals that can be pursued in the public interest, such as protection of public health or protection of environment. Two specific cases are discussed in this context.

A Note on 2015 Developments in Polish Competition Law: Is It Really a Drive towards the European Model?

Modern Polish competition law has become highly regulated and codified over the twenty five years of its existence and this article will provide readers with information relating to its recent developments of 2015. Separate subsections present a review of provisions on remedies in infringement decisions as well as settlements. A considerable part of this paper is designed to outline the peculiarities that characterize Poland’s new provisions on fines. Further on, the paper introduces readers to newest trends in the area of concentration control between undertakings. In addition, an assessment of recent developments and suggestions for a further development of Polish competition law are reviewed in the EU context. The conscious intention of the author is to analyse whether the EU competition law pattern, often regarded as a model for Member States, has been used to develop Polish competition law. Has the latter been amended to look more, or less like EU competition law? Has Polish competition law shown the capacity to absorb the best elements of EU competition law into itself? How is the outcome aligned with the declared direction of these amendments?

Ways of Harmonising Polish Competition Law with the Competition Law of the EU

This article discusses the harmonisation of laws within the EU focusing on the specific ways of achieving an approximation of the Polish legal system with European competition law. It identifies and gives an overview of three specific ways of harmonising national laws with EU antitrust provisions: (1) spontaneous (or bottom-up) harmonisation; (2) judicial harmonisation and; (3) legislative harmonisation by means of EU Directives. With respect to the last category, particular attention is drawn to the legislative competences of the EU, allowing it to harmonise antitrust issues either on the basis of Articles 103 and 114 TFUE, or perhaps even on the basis of Article 82 TFEU.

Key Legislative and Jurisprudential Developments of Polish Antitrust Law in 2012

This article has two objectives. First, it presents the most important developments of Polish antitrust legislation of 2012. These include recent amendments to legal provisions on judicial antitrust proceedings contained in the Code of Civil Procedure, and some novel issues in the area of non-binding guidelines of the Polish NCA, the UOKiK President. Second, the article introduces key developments in Polish competition law jurisprudence of 2012. It characterises selected rulings delivered by the Polish Supreme Court, the Court of Appeals in Warsaw and the Court of Competition and Consumer Protection. Judgments are divided according to their subject matter.

A Note on 2015 Developments in Polish Competition Law: Is it Really a Drive Towards the European Model?

Modern Polish competition law has become highly regulated and codified over the twenty five years of its existence and this article will provide readers with information relating to its recent developments of 2015. Separate subsections present a review of provisions on remedies in infringement decisions as well as settlements. A considerable part of this paper is designed to outline the peculiarities that characterize Poland’s new provisions on fines. Further on, the paper introduces readers to newest trends in the area of concentration control between undertakings. In addition, an assessment of recent developments and suggestions for a further development of Polish competition law are reviewed in the EU context. The conscious intention of the author is to analyse whether the EU competition law pattern, often regarded as a model for Member States, has been used to develop Polish competition law. Has the latter been amended to look more, or less like EU competition law? Has Polish competition law shown the capacity to absorb the best elements of EU competition law into itself? How is the outcome aligned with the declared direction of these amendments?

What Are the Directions in the Enforcement of Polish Competition Law – Review of a Series of New Polish Soft Law Guidelines

A recent amendment to the Act of Competition and Consumer Protection of 2007, which entered into force in January 2015, brought with it a number of changes to the Polish competition law system introducing, among other things, several new legal institutions. This development created the need to issue new soft law guidelines in order to give some clarity as to their application. At the same time, certain pre-existing soft law guidelines of the Polish Competition Authority – the President of the UOKiK – needed updating in order to make them applicable to the new legal conditions. The aforementioned legislative changes were accompanied by an official UOKiK policy statement of openness and transparency. Given this objective, the UOKiK President provided a set of best practices for the Authority, in particular as regards its relations with undertakings. The aim of this paper is to critically review the newly adopted guidelines as well as modifications made to preexisting soft laws. It emerges from this analysis that although the issuance of any sort of guidelines should be welcomed in general, since it improves legal certainty as to the Authority’s future conduct in individual cases, a number of problems remains which have not been sufficiently or in fact properly addressed.

Effectiveness of Judicial Review in the Polish Competition Law System and the Place for Judicial Deference

The article discusses the effectiveness and the intensity of judicial review in the Polish competition law system. First, it studies whether the judicial review offered by the 1st instance Court of Competition and Consumer Protection in Warsaw (SOKiK) is effective in practice. Next, the article analyzes whether Polish courts tend to defer to the findings of the Polish competition authority, UOKiK. Judgments of the Supreme Court concerning relevant market definition serve as case studies. Finally, the article discusses whether proceedings before the Polish competition authority ensure sufficient due process guarantees, the impartiality of decisionmakers, and the overall expert character of UOKiK’s decision-making process. On this basis the article examines whether there are grounds for the reviewing courts to defer to UOKiK’s findings. The article concludes that currently the review undertaken by SOKiK happens to be superficial and thus ineffective. At the same time, the Supreme Court’s review of the determination of the relevant market is not deferential towards UOKiK’s findings. The Supreme Court substitutes its own definition of the relevant market for that of UOKiK and that of the lower courts. However, the article shows that there are no grounds at the moment for arguing for greater judicial deference. Proceedings held before UOKiK, despite recently introduced improvements, still do not offer sufficient due process guarantees or a division between investigatory and decision-making functions. In addition, UOKiK’s expertise is not sufficient for both institutional and practical reasons

The Amendment of Polish Competition Law of June 2014 – Critical Remarks

On 18 January 2015, the amendment of Polish competition law came into force. The main objective of the reform was to increase the effectiveness of the competition law enforcement and to accelerate some procedures (in particular, antimonopoly proceedings concerning concentration). The changes are primarily procedural in nature, rarely referring to substantive competition rules. The article presents and discusses the majority of the newly added or amended provisions of the Polish competition act, including its critical assessment and some de lege ferenda recommendations.

Latest Revision of Polish Competition Law

Latest Revision of Polish Competition Law

INFLUENCE OF EUROPEAN LAW ON POLISH COMPETITION LAW

Over a little more than the last twenty years Poland has undergone a fundamental socio-economic change. That period brought about a shift from a socialist economy to a free market model and Poland was eventually accepted as a member of the European Union. An important element of the reforms was the building of the competition law system, which was an unprecedented operation on a global scale. It should be underlined that the structure of the Polish economy was shaped by almost half a century of ideological monopolization and central planning, which made the introduction of competition law to the economical system a complicated task. The first part of this paper contains a description of the evolution of Polish competition law. Such considerations are a starting point for an analysis concerning the place of competition law in the Polish legal system and its comparison with the European standards. Further points of this article present both an examination of the influence of the EU competition law on the Polish case law as well as an analysis of the areas in which there is a need for further approximation of the Polish competition law to the European Union standards. Finally, general conclusions concerning the influence of the EU competition law on the Polish legal system are formulated. The author makes an attempt to identify the causes of the differences existing between these two legal systems.

Solvents to the Rescue – A Historical Outline of the Impact of EU Law on the Application of Polish Competition Law by Polish Courts

The article is devoted to the influence of European competition law on the application of Polish competition rules by Polish courts. It covers references to EU law that has been made throughout 20 years of its history. It aims at identifying various instances where EU law has been invoked to provide Polish competition rules with the actual content as well as different modes of referrals to EU law.