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LIABILITY OF EXECUTIVES FOR AN INFRINGEMENT OF ANTICOMPETITIVE ARRANGEMENT-RELATED BANS

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 involve: 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 willful 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.