J. Sroczyński for WuW No. 9/2010 – Another fine imposed on the Polish Notarial Chamber by the President of the Office of Competition and Consumer Protection

The President of the Office of Competition and Consumer Protection (“OCCP”) issued a prohibiting decision to the Polish Notarial Chamber (“PNC”), a professional association of public notaries. The contested anticompetitive practice concerns a rule introduced in the Ethical Code of Notaries, pursuant to which a notary may not establish, without prior consent of the local notarial council, an office in the same building in which another notarial office already operates. Lack of consent is qualified as violation of the Ethical Code of Notaries, which may lead to disciplinary sanctions, including an exclusion from the notarial profession. It is important that membership by notaries in the PNC is obligatory. The OCCP has found that this restriction of the freedom to establish a notarial office was the reason of serious problems for some notaries. Those who were denied access to desired locations, on the grounds that another notary has already established an office in that location, were put in situation of competitive disadvantage. This pertains in particular to locations nearby courts, real estate agents, etc. The OCCP prohibited the PNC from imposing the above restrictions upon its members and appointed a fine in the amount of 8.5 thousand euro. The PNC filed an appeal from the OCCP’s decision, claiming that an internal regulation applicable to members of a professional organization should not be subject to an antimonopoly scrutiny. The OCCP, on announcing the decision issued against the PNC, reminded that it violated the antimonopoly law already in 2002, by proclaiming that a reduction of prices for notarial deeds below a certain fixed level is an act of unfair competition of the notary, prohibited under charge of violation of the Ethical Code of Notaries.

The Court of Appeals has ruled that the OCCP properly defined the relevant market in a precedential case involving 20 major Polish banks. The decision of the OCCP, issued in 2006, prohibited the banks from applying unified interchange fees, levied on Visa and MasterCard credit card transactions. The OCCP has found that the banks concluded a prohibited horizontal arrangement, existing for 13 years, the purpose of which was to fix interchange fees on the same, higher level. The total amount of fines imposed by the OCCP was among the highest ever imposed in cartel cases, exceeding 40 million euro. The decision was overturned by the first instance court, due to the allegedly wrong market definition adopted by the OCCP. Now, the Court of Appeals opened door to a different assessment, ruling in favor of the OCCP’s decision and sending the case back for first instance review.       

The President of the OCCP issued a new decision in a series of paint-and-coatings cases, involving all major paint producers and resellers from the DIY (do-it-yourself) sector. The decision was issued to Tikkurila, a producer of paints, and all DIY companies, in connection with an alleged resale price maintenance arrangement. Significant fines were imposed by the OCCP, ranging from over 2 million euro imposed on Tikkurila as an initiator of the arrangement, through 9 million imposed on Praktiker. Tikkurila’s fines were reduced by 50 percent and Castorama received no fine as a result of the respective leniency applications. The decision is not final and will be reviewed by the first instance court, which is currently dealing with several similar decisions issued to other paint producers, Polifarb and ICI/Akzo Nobel, and also all DIY companies.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 9/2010.