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.