Under the amended Competition and Consumers
Protection Act (dated 16 February 2007; Journal of
Laws no. 50, item 331, as amended, hereinafter the
“Act”), in force since 18 January 2015, executives,
which are defined as persons in charge of a
company, in particular those serving in a
managerial capacity or members of governing
bodies of an economic operator, can be personally
liable for any infringement of anticompetitive
arrangement-related bans (as laid down in national
or Community law) – provided that, as part of their
duties during the period of an established
infringement of such ban, they allowed, by their actions or omissions, the said economic operator to
infringe upon such ban.
The liability of executives applies to arrangements
covered by the prohibitions of anticompetitive
arrangements, made at national and Community
level, that involves: the fixing of prices and other
terms of purchase or sale of goods, limiting or
controlling production or marketing and technical
progress or investments, allocating shares in selling
or purchasing markets, applying onerous or unequal
contractual terms to similar agreements concluded
with third parties that create uneven conditions of
competition for such persons, making the
conclusion of a contract subject to the other
party’s acceptance or giving of some other
performance that is unrelated in business or causal
terms to the subject-matter of the contract,
restricting market access or eliminating from the
market operators not included in the arrangement.
Importantly, it is not only contracts in the strict
sense of the term, but also agreements made in any
form by two or more operators or any combination
of them, as well as resolutions or other acts of
combinations of economic operators, or of their
statutory bodies, that are deemed to be such
arrangements. Furthermore, it is irrelevant in this
context whether the arrangement concerned is
concluded by business entities operating at
different levels of the chain (vertical arrangements)
or at the same level (horizontal arrangements,
concluded by competitors) or if the prohibition is
due to its anticompetitive object or effect.
The conditions for the executives to be held liable
are the wilful nature of the individual’s actions or
omissions and a fine imposed on the economic
operator for having concluded a prohibited
agreement by a decision of the President of the
Office for Competition and Consumers Protection’s
(UOKIK), the latter being necessary to declare
liability of an executive in this respect.
Should the executive be found liable, the President
of the UOKIK may impose on that individual a fine
of up to PLN 2 000 000. The amount of the fine is
calculated on the basis of the executive’s income
received from the business operator in question in
the period when the infringement occurred, while
taking into account any attenuating or aggravating
circumstances
for
the
person
concerned.
Attenuating circumstances include in particular:
acting under coercion, contributing to the
operator’s voluntary curing of the infringement’s
effects, contributing to the operator’s ceasing on
its own initiative to engage in unlawful practices
before relevant proceedings are opened or promptly thereafter, taking actions on his/her own
initiative aimed at bringing the infringement to an
end or curing its effects, cooperating with the
President of the UOKIK in the course of the
proceedings, and in particular contributing to swift
and efficient conduct of the proceedings. The
above catalogue is open-ended and executives may
adduce other circumstances that, in their opinion,
justify mitigation of the penalty. Assessment of
such circumstances is always at the discretion of
the President of the UOKiK. The following
circumstances are considered aggravating: being
the organizer or initiator of a competition-
restricting arrangement or soliciting other
economic operators or individuals to participate in
the arrangement, the executive deriving benefits in
connection with the infringement, him/her
coercing, exerting pressure or taking retaliatory
measures against other operators or individuals
with the aim of putting into effect or continuing
the infringement, and the executive having
committed a similar infringement previously. This
catalogue is closed. The President of the UOKiK is
not allowed to justify an increased fine imposed on
an executive by reference to any other
circumstances of the case.
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.