J. Sroczyński for WuW No. 12/2004 – Changes to Polish competition law following accession to the European Union

On May 1, 2004, Poland has become a member of the European Union. This important date is also the entry date of numerous changes in the Polish antimonopoly law. All competition enforcement authorities in Poland, including courts, are obliged to apply in their rulings the principles of the acquis communautaire. The President of the Office of Competition and Consumer Protection (“OCCP”) has become part of the network of the National Competition Authorities of the European Union.

The Law on the Protection of Competition and Consumers (the “Law”) was amended in many respects. Hardcore violations of competition rules, such as price fixing or bid-rigging, are no longer exempted under the de minimis rule. A new test of “significant impediment of competition” was introduced in the merger control regulations. Under the new test, a transaction notified to the President of the OCCP may be blocked or approved under specific conditions or undertakings if it would significantly impede competition on the relevant market, in particular through the emergence or strengthening of the dominant market position.

The amendments determine various procedural rules applicable in case of multiple proceedings, conducted in parallel by the President of the OCCP and the European Commission. Those rules also regulate the principles of exchange of information and assistance related to inspections carried out by the European Commission in Poland.

The amended Law introduces the policy of leniency towards cartel members who abandoned their illegal activities and provided the President of the OCCP with information necessary to prosecute a given cartel case. An implementing regulation on the procedures applicable to leniency filings was issued by the Council of Ministers.

The fines for violations of the Law were largely increased. For most cases of violations, fines may amount to 10% of turnover of the penalized undertaking, while fines for providing the President of the OCCP with false or misleading information may reach 50 million Euro.

On August 18, 2004 another important change was introduced in the appeal procedural laws. An appellate instance was added as the second instance, destined for appeals from rulings rendered by the Court of Protection of Competition and Consumers. Thus, Polish undertakings may now benefit from the fully constitutional system of a two-tier regular appeal procedure, with the cassation to the Supreme Court remaining as an extraordinary, final appellate instance.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2004.