Pursuant to the Act on Protection of Competition and
Consumers of 16 February 2007 (Journal of Laws of
2007, No. 50, item 331, as amended) (“Act”), the
President of the Office for Protection of Competition
and Consumers (“UOKiK”) is entitled to adopt a
decision making commitments binding on an
undertaking, which represents an amicable
conclusion of proceedings pending before the
President of UOKiK in cases involving practices
restricting competition and breaching collective
interests of consumers. Upon institution of the
proceedings, pursuant to Article 12 or Article 28 of
the Act, the undertaking is entitled to propose a
commitment which, once met, will enable
eliminating the infringing practices or the effects
thereof, and the President of UOKiK, having
reviewed the proposal, may make the commitment
binding on the undertaking (by way of an
administrative decision). The commitment decision
is adopted within administrative discretionary
powers (the President of UOKiK is under no
obligation to adopt one).
The commitment decision speeds up conclusion of
the proceedings, produces related savings, and
eliminates efforts which continued proceedings
would involve. Above all, however, this way an
undertaking can avoid a potential financial fine
imposed by the President of UOKiK if the
undertaking were found to have applied practices
restricting competition or breaching collective
interests of consumers.
In order to improve the transparency of how the Act
is applied and to lay down uniform rules for adoption
of the commitment decision, the President of
UOKiK has published on the official UOKiK
website preliminary clarifications relating to the
above. While the clarifications are not legally
binding, the President of UOKiK has assured of
adherence to the rules presented in the document.
Pursuant to Article 12 and Article 28 of the Act, the
decision can be adopted if two requirements are
collectively fulfilled: firstly, in the course of the
proceedings it is established as probable that the
prohibitions laid down under the Act or the Treaty
on the functioning of the European Union and,
secondly, the undertaking commits to take measures
to prevent the infringements or abstain from specific
actions.
Given that it is only necessary to establish as
probable, rather than prove, application of practices
restricting competition or breaching collective
interests of consumers, the undertaking should make
the commitment at an early stage of the proceedings,
preferably in the first submission to the President of
UOKiK, i.e. before the evidentiary proceedings are
concluded and application of the alleged practices
proven.
The other requirement for adopting the commitment
decision is for the undertaking to take on an
obligation to meet the commitment. The
commitment proposed by the undertaking has to
result in eliminating the infringing practices or the
effects thereof. In its motion for a commitment
decision, the undertaking is required to specify what
effects are produced by the alleged practices and in
what way meeting the commitment will eliminate
them. So the undertaking cannot limit itself to a
generally declared assurance of eliminating the
alleged practices.
If the commitment decision is not duly implemented,
the President of UOKiK may, acting on its own
initiative, revoke the decision and rule on the merits
of the case or impose a financial fine for failure to
implement the decision.
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. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
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.