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.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.