J. Sroczyński for WuW No. 9/2016 – The OCCP’s position on Uber’s operations in Poland

Mr. Marek Niechciał was appointed by the Prime Minister as a new President of the Office of Competition and Consumer Protection (“OCCP”), following an open competition. Mr. Niechciał, an economist, was the President of the OCCP already in the years 2007-2008. Pursuant to the Polish competition law, the President of the OCCP can be recalled by the Prime Minister at any time.

Numerous amendments of the Law on the Protection of Competition and Consumers have taken effect as of 17 April 2016, all enhancing the protection of consumers by the OCCP. The amendments empower the OCCP to prohibit the application of standard contracts harmful to consumers. The OCCP will be able to impose interim measures in consumer proceedings. Misselling of financial services, consisting in the offering of such services without regard to the specific situation of consumers, has been expressly prohibited. The OCCP will have the right to provide courts with its position regarding a given matter and approach undertakings with a request to change a certain anti-consumer behaviour. The OCCP will have the power to collect evidence by officials acting as “mystery shoppers”. If the behaviour of an undertaking would seriously harm the consumer interests, the OCCP will be authorized to publish the relevant free-of-charge warnings in the public radio and television.

The OCCP issued the statement of objections against the acquisition of the Golden Terraces, a shopping mall in the centre of Warsaw, by Unibail-Rodamco, an owner of two other Warsaw’s shopping malls. The OCCP considered the notified transaction as leading to a significant limitation of competition. Upon receipt of the statement of objections, Unibail-Rodamco decided to withdraw the notification and abandon the deal.

The OCCP presented its position concerning the activities in Poland of Uber, an online transportation platform, which links drivers with passengers. The OCCP was receiving complaints from taxi companies claiming that Uber activities are anticompetitive. The complainants pointed out, inter alia, to the fact that drivers associated with Uber are not obliged to obtain transport licenses, their tax status is unclear, and their services do not ensure adequate protection of security and privacy of the passengers. The OCCP decided not to intervene against Uber, assessing its activities as pro-competitive in the longer perspective and offering new solutions for passengers. The OCCP underlined the growing role of various online “sharing economy” services, related to transportation, ticket purchase, or accommodation, which are generally beneficial for consumers. The OCCP also reflected on the uncertain status of Uber services in various regulatory areas but stated that these matters should be considered by the pertinent authorities.

The Court of Appeals has confirmed the OCCP’s decision declaring as anticompetitive a consortium of two largest waste management firms in the city of Białystok. The consortium was set up for the purpose of participation in the tender for collection and transportation of communal waste. Despite arguments of its participants that the consortium was justified by specific technical reasons, the OCCP qualified it as anticompetitive by object and issued a prohibition decision. The Court of Appeals upheld the prohibition, stating that if undertakings are able to submit independent bids, acting commonly through a consortium should be considered as a violation of the Competition Law.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 9/2016.