On 18 January 2015 an amendment to the Act on Competition and Consumer Protection of 16 February 2007 (Journal of Laws No. 50, item 331, as subsequently amended) becomes effective, enacted after over two years of work. The changes introduced under the amendment have significant practical consequences and particularly entrepreneurs should find them to be of interest.
A modification of the provisions on concentration proceedings comes to the fore. Under the new regime, such proceedings would have to be concluded within one month of institution. However, the Chairman of the Office of Competition and Consumer Protection (UOKiK) will be able to extend that period by another four months in cases that are particularly complex or require market research. An important novelty is also the introduction of a sort of dialogue mechanism between the entrepreneur and the anti-monopoly authority. Still during pendency of the proceedings, the UOKiK Chairman is entitled to submit its objectives or the proposed conditions to the entrepreneur which would have to be met for the consent to concentration to be issued. In turn, the entrepreneur will be able to take a position on such objections or conditions and submit its supporting arguments. Consequently, the solution adopted opens the door to obtaining the consent to concentration in cases where under the old regime the consent would have been refused.
Not less significant changes will affect the leniency program applicable to entrepreneurs which take part in agreements restricting competition but decide to cooperate with the anti-monopoly authority. The amendment introduces a mechanism known as leniency plus. Following the amendment, penalty reduction will apply not only to the participant of a prohibited agreement which decides as the first one to come forward and cooperate with the UOKiK Chairman but also the next ones, providing they report other prohibited collusions in which they are involved. Under such circumstances, in the first of the above cases the penalty is reduced by 30% and in the case of a further agreement the reporting entrepreneur will enjoy the status of the first applicant and if it meets the statutory conditions, it will be exempt from the penalty altogether. The new regulations provide also for the introduction of the procedure of voluntary submission to a pecuniary fine (settlement). The purpose of the mechanism is to speed up the anti-monopoly proceedings; it will enable the party to review the findings of the authority and the expected substance of the decision, including the amount of the pecuniary fine. In a situation when the entrepreneur decides to avail itself of voluntary submission to a pecuniary fine, the amount of the fine that can be imposed upon it will be reduced by 10% compared to the fine that would have been imposed, had it not voluntarily elected to settle. At the same time, it must be stressed that communicating the desire to rely on the benefits offered by the procedure does not bind the entrepreneur which, in the course of the proceedings, may at each stage change its mind and withdraw from the settlement.
The expansion of the scope of liability of the individuals put in charge of the management of the business, that is in particular managers or members of the entrepreneur’s management body, is a significant novelty. Under the new regulations, these individuals will be liable for the entrepreneur’s breach of the ban on concluding agreements restricting competition. If the manager intentionally allows breaches of the ban, a pecuniary fine of up to PLN 2,000,000 can be imposed on him.
A change that must be deemed important from the viewpoint of both entrepreneurs and consumers is vesting the UOKiK Chairman with a right to publish public warnings regarding suspicions about entrepreneurs which might engage in practices that breach collective interests of consumers, can result in great losses or adversely affect a broad range of consumers. In such cases the information collected by the anti-monopoly authority and the indication of the likely effects of the banned practices will be subject to announcement to the public.
Finally, it must be also mentioned that the amendment introduces a change that has been in the pipeline for a long time, whereby the proceedings regarding practices restricting competition are not instituted if five years have passed since the end of the year in which they were discontinued. Consequently, the time of limitation for such practices has been extended by as many as four years.