The Act on Amending the Act on Protection of
Competition and Consumers and the Civil Code of
10 June 2014 became effective on 18 January 2015.
The amendment introduces significant changes to
the Polish Competition Law, including with regard
to the liability of managers of undertakings for
breach of some of the restrictions imposed on
businesses.
Above all, it must be noted that the amendment
introduces personal liability of managers of
undertakings for the undertaking’s breach of the
ban
on
concluding
agreements
restricting competition. A breach by an undertaking of such a
ban as a result of intentional acts or omissions of a
manager of an undertaking provides grounds for
such liability. The amendment also introduces a
statutory definition of the manager (osoba
zarządzająca), meaning the manager of an
undertaking, including without limitation a person
acting in a management capacity or a member of
the undertaking’s management body. Importantly,
the personal liability of a manager of an
undertaking may be considered only in the case of
the undertaking’s breach of the ban on agreements
restricting competition. The amendment does not
envisage any changes to the principles of liability
on the grounds of abusing the dominant position
and infringement of the collective interests of
consumers. The fine that may be imposed on a
manager of an undertaking in the above
circumstances is up to PLN 2 million.
Also significant are changes with regard to
penalisation of conclusion of agreements restricting
competition. Under the new regime, the legislators
made it possible to refrain from imposing a penalty
on undertakings involved in such an agreement,
upon meeting of the requirements laid down under
the statute, including without limitation when the
request is made by the undertaking as the first
party to the agreement. Moreover, if under the new
regulations the undertaking fails to meet all the
prescribed requirements and consequently imposing
the penalty for concluding the agreement
concerned is not refrained from, there is still some
room for reduction of the penalty if the
undertaking submits evidence that is relevant to
the pending case, which the President of the Office
for Competition and Consumer Protection did not
previously have. And if under the above
circumstances the undertaking discloses to the
authority information on another, so far undetected
agreement, then the authority may refrain from
imposing a penalty in the course of these new
proceedings.
Other amendments affect the proceedings for
concentration of undertakings. Notably, under the
new regime, the uniform procedure for notifying an
intended concentration has been replaced by a
two-stage process. Stage one, taking 1 month to complete, is designated for straightforward cases
that do not raise any major concerns and stage two,
lasting additional 4 months, is intended for
particularly complex cases. Further, the list of
exemptible concentrations has been extended. The
option of making the decision approving
concentration confidential with regard to the
deadline in which the undertakings undergoing
concentration are required to meet the conditions
imposed in the decision, that has also been
introduced under the amendment, will be of great
practical significance.
Additionally, the amendment introduces a number
of changes strengthening the position of the
President of the Office for Competition and
Consumer Protection. It is particularly worth noting
that information on a particularly justified
suspicion of an undertaking engaging in practices
infringing on the collective interests of consumers
can be made public prior to the official completion
of the proceedings. Among a host of other changes
made under the amendment, it should also be
pointed out that the period for instituting
proceedings on the grounds of practices restricting
competition has been extended, and as the law
stands now, the antimonopoly proceedings in the
above case can no longer be brought after the
expiry of 5 years since the end of the year in which
the said practices were discontinued.
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.