I ENFORCEMENT POLICIES AND GUIDANCE
i Key policies and guidance
Poland has a new President of the Office for Competition and Consumer Protection (OCCP) (the Polish competition authority) – Marek Niechciał. In a number of public speeches since his appointment in May 2016, Mr Niechciał referred to four pillars of the OCCP’s enforcement: competition protection, consumer protection, monitoring of state aid and market surveillance exercised along with trade inspection.2 He explained that the OCCP will not focus on one pillar solely but that resources between all four pillars should be equally allocated. At the same time, the Mr Niechciał expressed an intention to increase detection of restrictive agreements. In this area, his objective is to focus on hard-core restrictions, mostly cartels. Thus a more lenient approach towards vertical agreements may be expected.
The approach of Mr Niechciał seems to be in line with the direction that competition law enforcement is taking in Poland, which was outlined in the Policy for Protection of Competition and Consumers published in July 2015 (the Policy).3 With a view to better detection of cartels, the authority announced development of investigative techniques and market screening methods. In addition, the OCCP announced a more economics-based approach resulting in decisions based on economic evidence. The appointment in November 2016 of Mr Wojciech Dorabialski – an economist and a former deputy director of Department of Market Analysis – as a deputy director in the Department of Competition Protection, which deals with the antitrust cases, seems to confirm this approach.
The Policy also emphasises the new communication standards between the authority and undertakings, focusing on the undertakings’ right to be heard and their right to present arguments during informal meetings with OCCP officials. These communication standards were introduced by the former President of the OCCP – Adam Jasser – who proclaimed the authority’s openness for liaison with undertakings and their attorneys. Mr Niechciał confirmed a willingness to continue this approach.
The amendments to the Polish Act on Competition and Consumer Protection (ACCP), which came into force on 18 January 2015, introduced several enforcement tools aimed at facilitating the detection of cartels, such as ‘leniency plus’, a settlement procedure and the individual liability of key personnel of companies that have participated in a cartel. The amendments to the ACCP are accompanied by secondary legislation and a number of guidelines and clarifications that were issued by the OCCP, some of which have been recently updated.4
From the point of view of combating cartels, the most important ordinance concerns the mode of proceeding in cases of applications for immunity from or a reduction of fines, issued in December 2014. This ordinance specifies the procedural aspects of filing an application and the authority’s conduct regarding applications that have been filed.
The OCCP’s guidelines, although they do not formally constitute a source of law, in practice bind the competition authority and clarify a number of aspects relating to the leniency programme, the settlement procedure, commitment decisions, the statement of objections, the amount of fines, and the rules governing contacts between the OCCP and undertakings. The issuance of guidelines may be perceived as a significant step towards more openness, transparency and procedural fairness in relations with undertakings. In turn, the quality of proceedings and decisions both in terms of procedural aspects and the merits should be increased by the recently announced establishment of an internal evaluation committee by the OCCP.
ii Statutory framework
Article 6, Paragraph 1 of the ACCP prohibits agreements between undertakings, concerted practices, and resolutions or other acts of associations of undertakings that have as their object or effect the elimination, restriction or other infringement of competition. The wording of this provision is based on Article 101 of the Treaty on the Functioning of the European Union (TFEU); however, besides the infringements listed in Article 101 TFEU, Article 6 of the ACCP also provides examples of other prohibited arrangements (e.g., restricting access to the market, eliminating from the market undertakings that are not parties to an agreement and bid rigging). Should an alleged arrangement affect trade between Member States, the OCCP is empowered to apply Article 101 TFEU. A wilful or unintentional violation of Article 6 of the ACCP or Article 101 TFEU can be punishable with a fine of up to 10 per cent of the perpetrating undertaking’s turnover generated in the year preceding the year of the OCCP’s decision. In addition, the amendments to the ACCP introduced the direct liability of managing persons for deliberately allowing, through their actions or omissions, an undertaking to conclude a prohibited restrictive agreement. A managing person is understood to be a person in charge of an undertaking (i.e., a member of a management body, a person performing a managerial function or a person who, although he or she does not formally have a managerial function, does have an actual decisive influence on the undertaking’s conduct). Such persons can be subject to financial penalties of up to 2 million zlotys. Although penalties under the ACCP are of an administrative nature, bid rigging also constitutes a criminal offence sanctioned under the Polish Penal Code with up to three years’ imprisonment.5
The Policy also sets out the need to create a network of various state agencies, non-governmental organisations, and investigative and prosecuting authorities as well as undertakings and their associations for competition and consumer protection. The OCCP has entered into agreements on cooperation with the General Prosecutor and the President of the Internal Security Agency. On the basis of these agreements, parties will exchange information and coordinate actions aimed at identifying, preventing and combating law infringements. Time will tell how this rather grey area regarding cooperation between state agencies in Polish competition law develops, both with regard to legislative changes and the decisional practice of the OCCP.
II COOPERATION WITH OTHER JURISDICTIONS
The OCCP regularly cooperates with the European Commission and national competition authorities of the other Member States through the European Competition Network (ECN).6 OCCP officials participate in the activities of many working groups within the ECN, including the cartel group. For example, in 2015 they were responsible, among other things, for the functioning of leniency programmes and analysis of cartels detected in the previous year. During that period, the OCCP prepared answers to 44 requests for information (RFI) made by other competition authorities. It also sent 10 RFIs.7
In addition to the ECN, the OCCP is a member of the International Competition Network (ICN), a platform of cooperation of over 130 competition authorities from all over the world. Within the ICN, OCCP officials have also participated in, inter alia, the cartel working group. They were involved in an update of information about legislation currently in force with regard to combating cartels.
The OCCP is also active in the OECD, one of the most important international forums for discussing competition policy and law.
i Extraterritorial discovery
In principle, information gathered by the OCCP during antitrust proceedings cannot be utilised in other proceedings conducted on the basis of provisions other than the ACCP; however, there are exemptions from that rule, including regarding exchanges of information with the European Commission and the competition authorities of Member States on the basis of Regulation (EC) No. 1/2003 and No. 2006/2004. In accordance with Article 70 of the ACCP, information obtained by the OCCP in relation to a settlement procedure or as a result of a leniency application cannot be disclosed to, inter alia, other competition authorities unless the undertaking concerned grants its written consent to such disclosure. The exemption relates to disclosure within the ECN based on Regulations Nos. 1/2003 and 2006/2004 (see Article 73, Paragraph 2, Points (3) and (4) of the ACCP), and is subject to specific provisions and safeguards provided in the Commission’s notices and guidelines.
Article 55, Paragraph 1 of the Constitution of the Republic of Poland prohibits the extradition of Polish nationals, with exemptions set forth in Article 55, Paragraph 2 of the Constitution. Paragraph 2 provides that individuals may be extradited only if such possibility arises from an international agreement ratified by Poland or a national act implementing a legal act of international organisation, the offence was conducted outside of Poland and the offence constitutes a crime under Polish law. Considering that antitrust violations, with the exception of bid rigging, are not criminalised in Poland, potential extradition would be possible only if a Polish individual participated in bid rigging outside of Poland.
III JURISDICTIONAL LIMITATIONS, AFFIRMATIVE DEFENCES AND EXEMPTIONS
In accordance with established court rulings and Polish jurisprudence inspired by the rulings of the Court of Justice of the European Union, the application of Polish competition law depends on where the anticompetitive effect takes place and not where the agreement was concluded. Thus, Polish law applies to agreements or concerted practices having an impact on competition in Poland irrespective of whether the conduct occurred in Poland or abroad. Consequently, the OCCP may impose fines on foreign undertakings and individuals that have infringed competition law outside Poland if the infringement effects competition within the Polish territory.
ii Undertakings concerned
In Poland, fines for breaches of the antitrust rules are capped at 10 per cent of the turnover of the undertakings concerned. The basis for the calculation of the cap is the turnover of the infringing undertaking and not that of the whole capital group to which it belongs. Thus, the parent company is not liable for the actions of its subsidiaries as long as it is not involved in the prohibited conduct. If the fined undertaking did not generate any turnover in the year preceding the year of the decision or its turnover was below €100,000, the OCCP takes into account the average turnover generated in the past three years. If, in the past three years, no turnover was generated or the average turnover was below €100,000, the maximum amount of the fine cannot exceed €10,000.
iii Affirmative defences and exemptions
Although exemptions are available for infringements of the prohibitions set forth in Article 6, Paragraph 1 of the ACCP (Article 8, Paragraph 1 of the ACCP constituting the equivalent of Article 101(3) TFEU), it is highly unlikely that such exemptions could be effectively applied to cartel arrangements.
IV LENIENCY PROGRAMMES
The leniency programme in Poland introduced in 2004 is broader than that specified in the European Commission’s Notice on immunity from fines and reduction of fines in cartel cases,8 as it is not strictly limited to cartels (that is, agreements between competitors). The programme covers all restrictive agreements.
In the past, the leniency programme in Poland did not bring the expected results in the form of numerous admissions of breaches of competition law in exchange for immunity from or reductions of fines. During the period from 2005 to 2015, there were only 63 leniency applications. The amendments to the ACCP that came into force in January 2015 were aimed at, inter alia, making the leniency programme more attractive to undertakings and managers through the introduction of a new ‘leniency plus’ procedure, leniency for natural persons and advantageous modifications to the rules on reducing fines for companies that cannot obtain full immunity.
The Polish leniency programme is based on the rule that only the undertaking that submits a leniency application first can apply for complete immunity from a fine. For full immunity, besides being the ‘first in the queue’ of those applying for leniency, the applicant:
- a must submit evidence sufficient to instigate an antitrust proceeding or information allowing the OCCP to obtain such evidence; or, if the application was filed after the instigation of an antitrust proceeding, evidence that substantially contributes to issuing a decision, or information allowing the OCCP to obtain such evidence;
- b may not be an undertaking that has induced others to enter into a prohibited arrangement (the initiator may benefit from full immunity);
- c may not disclose information on the leniency application;
- d is obliged to cease participation in the prohibited arrangement no later than immediately after filing the notification; and
- e is obliged to fully cooperate with the OCCP, in particular to provide on its own initiative or upon the request of the authority all information and evidence regarding the prohibited arrangement that is or may be at its disposal, not create obstacles for its employees or managers in relation to their providing explanations, not destroy, falsify or hide evidence or information relating to the case, and not inform anyone about the filing of the leniency application without the authority’s consent.
Undertakings that do not cumulatively fulfil the conditions listed under points (a) and (b) above can count on their fine being reduced, the amount of which is related to the fine that would actually be imposed on it. The second applicant can therefore receive a reduction of up to 50 per cent, the third of up to 30 per cent, and the remaining applicants of up to 20 per cent of the fine established on the basis of the Guidelines on the method of setting fines for anticompetitive practices (the Fines Guidelines). The Fines Guidelines help companies make a preliminary estimate of the possible amount by which their fine will be reduced if they apply for leniency.
i Leniency plus
Leniency plus is a newly introduced institution. An undertaking that has submitted a leniency application but has not obtained full immunity has the possibility to obtain an additional fine reduction of 30 per cent with regard to the first agreement in question on the condition that it provides the OCCP with information on any other restrictive agreements to which it is a party. In such a case, the undertaking can be granted full immunity with regard to another agreement on which it provided information. This institution is assumed to enhance the attractiveness of leniency and facilitate the effectiveness of the leniency programme.
ii Leniency for individuals
Under the ACCP, fines for participation in a cartel can be imposed on managing persons. To encourage these persons to provide information on forbidden agreements, the provisions of the ACCP provide for a leniency programme also being available to persons that would be liable for the above-mentioned infringements. To that end, the leniency application submitted by the undertaking is also submitted on behalf of all managing persons that would be the subject of the OCCP proceeding in this matter. Individuals who fully cooperate with the OCCP may be granted full immunity or a reduction of the fine, even if the undertaking itself does not fulfil the conditions for lenient treatment.
An undertaking that would like to admit that it is participating in an illegal agreement and enter into cooperation with the authority is able to submit an abridged application (marker). Such an application need not contain all the required information, and the undertaking can submit it before it obtains all the information or evidence required to submit a ‘full’ application, which can often be time-consuming. Submitting a marker enables the undertaking to ‘occupy a place in the queue’ of those applying for leniency. A precondition for taking advantage of the programme is that an application must be completed within the time frame specified by the OCCP.
The ACCP also provides the possibility of filing a simplified application, the purpose of which is to secure a ‘place in the queue’ for an undertaking that is simultaneously applying to the European Commission for leniency. An undertaking is able to submit a simplified application when the unlawful agreement affects competition in Poland. In such a situation, a simplified application will be treated in the same way as an abridged application (i.e., it must be completed within a time frame specified by the authority). In the simplified application, the applicant must inform the authority about leniency applications filed or intended to be filed with the European Commission or competition authorities of other Member States.
As explained in Section II, supra, information obtained by the OCCP as a result of a leniency application cannot be disclosed to private litigants.
It has been more than a year since the amendments to leniency programmes have entered into force; however, they do not seem to be effective. So far, the OCCP has not received any leniency plus applications and only two ‘regular’ leniency applications were filed in 2015. Given the relatively low cartel detection in Poland so far, the OCCP is considering alternative ways to encourage whistle-blowers, mostly through employees of undertakings, to report on potential competition law infringements. In particular, the OCCP is considering introducing a whistle-blowers’ platform for individuals anonymously informing the OCCP with information about potential anticompetitive arrangements.9 Given that individuals may not have sufficient motivation to share this kind of information with the OCCP, the OCCP would like to offer rewards for whistle-blowers (e.g., as in Hungary). The reward would either be a lump sum of money, representing a given percentage of a fine imposed on undertakings concerned in the antimonopoly proceedings initiated on the basis of information received from a whistle-blower, or a monthly payment. It is not yet know when these amendments will be introduced.
The main sanction that may be imposed for a breach of Article 6 of the ACCP or Article 101 TFEU is a fine of up to 10 per cent of the infringing undertaking’s worldwide turnover generated in the preceding year.
In the past, the OCCP was criticised for a lack of transparency in its methodology of setting fines, and the Fines Guidelines were issued to increase transparency. The amount of fines is calculated using a three-step approach:
- a First, the OCCP calculates the basic amount of fine based on such factors as the nature of the infringement and the specifics of the relevant market and undertakings’ activity. The basic amount of the fine that may be imposed for hard-core restrictions such as cartels varies from 1 to 3 per cent of undertaking’s turnover. Depending on the impact of the infringement on the market and the undertaking’s conduct, the above amount may be increased or decreased by up to 80 per cent.
- b Subsequently, the OCCP takes into account the duration of the infringement. Long-lasting cartels (i.e., cartels lasting longer than one year) may result in an increase of the basic amount of up to 200 per cent.
- c Finally, the OCCP takes into account any aggravating and mitigating factors that may result in an increase or decrease of the fine calculated in accordance with point (a) above of up to 50 per cent.
The maximum amount of the fine cannot exceed 10 per cent of the turnover. If the fine ultimately calculated in accordance with the above steps exceeds the maximum amount permitted by law, it will be adjusted to the maximum permitted amount. The OCCP is authorised to impose a fine of an amount that is particularly low if, in its view, such a low fine will fulfil its requirements.
ii Sanctions applying to individuals
As previously explained in Section I.ii, supra, a fine of up to 2 million zlotys may be imposed on managing persons for deliberately allowing, through their actions or omissions, an undertaking to conclude a restrictive agreement. It is essential to note that both current and former employees of an undertaking are liable under the same conditions. The liability of a managing person is of secondary nature to the liability of an undertaking, meaning that such liability can only be pronounced in the decision imposing a fine on an undertaking. Furthermore, double liability for the same infringement has been excluded where the managing person acts simultaneously as the undertaking.
iii Settlement procedure
Prior to January 2015, there was no procedure for the settlement of cartel cases in Poland. The ACCP currently provides for a possibility of initiating a settlement procedure (i.e., the procedure for the voluntary submission to a fine). The primary objective of a settlement procedure is to speed up the procedure for the adoption of a cartel decision and to limit the number of appeals against such decisions to the Court of Competition and Consumer Protection (Court). The guidelines on settlements clarify this procedure and increase the transparency of the OCCP’s approach in this respect. A settlement procedure may be instigated at the sole discretion of the OCCP, either ex officio or upon an application from the investigated undertakings. In the latter case, the OCCP must approve or decline such application within 14 days of its submission. The OCCP may withdraw from a settlement procedure at any stage of the proceedings. For this purpose, the OCCP takes into account the complexity of the case measured by the type of infringement, the number of parties to the proceedings, the scope of the facts and the legal assessments that are questioned by the parties. The OCCP is not released from an obligation to comprehensively gather and analyse evidence. The undertaking participating in the settlement procedure should be provided with the preliminary findings of the OCCP and with a legal assessment of the alleged infringement, together with evidence supporting the authority’s conclusions and its estimate of the fine. A successful voluntary submission to a fine results in a 10 per cent reduction of the fine that would otherwise have been imposed. Exercising a settlement procedure does not deprive the undertaking of the possibility to lodge an appeal against the OCCP’s decision to the Court; however, lodging such appeal results in the loss of the fine reduction.
VI ‘DAY ONE’ RESPONSE
OCCP officials are authorised to carry out an unannounced inspection and, upon a decision of the Court, a search aimed at finding evidence of antitrust infringements.
During the inspection, the officials are authorised to:
- a enter the premises and means of transport of the inspected undertaking;
- b request access to and examine files, books, all kinds of documents and data carriers;
- c make notes and request copies of originals of books and other records, including information collected on data carriers;
- d require on-the-spot oral explanations concerning the subject of inspection; and
- e request persons to render other available evidence.
The Court may issue a non-appealable decision allowing a search of business premises (in justified cases, also private premises) and means of transport.
Obstruction of an inspection or a search (including its initiation) is sanctioned with a financial penalty of up to €50 million. In addition, managers who obstruct the initiation of a search or the conducting of an inspection or a search may be fined up to 50 times the average monthly remuneration in Poland (currently approximately €50,000). The same amount of fine may be imposed on other individuals for providing untrue or misleading information or obstructing an inspection or a search.
In April 2016, the Supreme Court reversed judgments of the Court of Competition and Consumer Protection (CCCP) and an Appellate Court that annulled a fine imposed by the OCCP on a manufacturer of domestic detergents for absence of cooperation with the OCCP during a dawn raid. The Supreme Court sided with the OCCP and concluded that the removal of an electronic document from its original file and its transfer to a ‘bin’ file after the beginning of a dawn raid may be regarded as absence of cooperation with the competition authority and, as a result, may be subject to a monetary fine. The Supreme Court sent the case back to the CCCP. The Supreme Court stated that that the fact of whether a given file was permanently deleted or only moved to a different location is irrelevant for assessing whether the absence of cooperation with the OCCP occurred. The Supreme Court clarified that absence of cooperation with the OCCP means that employees of dawn-raided undertakings do not assist (within the scope of obligations imposed on them by the ACCP) the OCCP in the dawn raid and that they do not cooperate in fulfilling the objective of a given dawn raid.
In 2010 and 2011, the OCCP issued two controversial decisions imposing abnormally high fines on two leading Polish mobile telephony operators, PTC (currently T-Mobile)10 and Polkomtel,11 for obstructing a search. The fines amounted to €30 million for the former undertaking and €33 million for the latter undertaking. Although as a result of appeals by the fined undertakings the fines were subsequently reduced by the Court to €300,00012 and €1 million13 respectively, the threat of potentially high fines implies the necessity for undertakings to develop internal guidelines that should encompass measures aimed at reducing the risk of being found to have obstructed a search, and ensuring the protection of the undertakings’ interests during a dawn-raid. In particular, these should cover the following aspects:
- a assuring that the commencement of a dawn raid is not unduly delayed;
- b instructing relevant employees that they should collaborate during the investigation (i.e., not prevent or impede the initiation or conduct of the inspection and search, or not fail to realise other obligations imposed on the undertaking pursuant to the ACCP);
- c a careful review of the documents authorising the inspection and search, with particular focus on verifying the scope and purpose of the investigation;
- d ensuring that each of the officials is shadowed by an employee or lawyer;
- e delegating employees to copy documents requested by the officials, and recording the officials’ questions and the answers provided; and
- f ensuring that the officials do not review or copy documents that are outside the scope of the investigation or that are protected by legal privilege.
It is advised that during the investigation, as undertaking’s employees and in-house counsel are supported by external competition lawyers.
Considering the potential amount of fines that may be imposed for an infringement of Article 6 of the ACCP or Article 101 TFEU, depending on the circumstances and potential discoveries the officials may make during the dawn raid, it may become necessary to consider an application for leniency during or soon after a dawn raid. Given that the priority of leniency applications is to decide on immunity or the level of fine reduction, a decision in this respect should be taken as early as possible.
VII PRIVATE ENFORCEMENT
Currently, Poland is implementing Directive 2014/104/EU (the Damages Directive). The draft of the Act on actions for damages for infringements of the provisions of competition law has left the consultation phase and is, as of January 2017,14 in the committee phase, after which it will be passed to the Parliament.
The draft legislation envisages the following measures and mechanisms:
- a the applicability of the Act to all damaging actions for breach of competition law regardless of whether they affect trade between Member States (i.e., regardless of whether the breach has a European or national dimension);
- b the definition of such terms as ‘cartel’ and ‘direct/indirect buyer’, ‘leniency programme’, ‘settlement submission’ and ‘overcharge’, which until now have not been defined under Polish law;
- c the responsibility for competition breaches based on the unlawfulness of the infringement;
- d the regulation of the limitation period for antitrust damages claims;
- e the introduction of a rebuttable presumption of the passing on of an overcharge to an indirect purchaser (any purchase of products or services covered by a breach of competition law is presumed to entail the overcharge of a direct purchaser);
- f the competence of regional (i.e., higher instance) courts regardless of the value of the claim because of the complexity of competition cases;
- g the possibility for associations of undertakings to file claims on behalf of undertakings;
- h the possibility for non-governmental organisations to file claims on behalf of consumers; and
- i a special procedure for the disclosure of evidence.
VIII CURRENT DEVELOPMENTS
As explained in Section I.i, supra, 2015 has brought significant amendments to the ACCP and the secondary legislation, with the OCCP being particularly active in issuing a number of guidelines and clarifications. In 2016, no further amendments to the ACCP concerning antitrust provisions were made, nor did case law develop significantly; nevertheless, one OCCP decision and one CCCP ruling are worth noting.
First, on 1 September 2016, the OCCP issued an interesting decision that concerned the Association of Polish Centres of Infertility Treatment and Reproduction Development, which recommended prices to its members and encouraged them to cooperate during competitions organised by the Ministry of Health.15
In its decision, the OCCP stated that the Association’s behaviour amounted to price fixing restricting competition .The information and evidence collected in antitrust proceedings suggested that the guidelines and recommendations related to the offer prices were exchanged at the Association meetings and through electronic communications. This case is significant because it is one of a few OCCP decisions addressed to the association of undertakings. Further, in its decision the OCCP clarified that even a non-binding recommendation, made by an association, may constitute a restrictive agreement. The absence of a sanction for non-compliance with such recommendation does not change the anticompetitive nature of such practice.
Another interesting ruling was issued by the Appellate Court, a second instance court hearing competition cases in Poland. This court on 8 June 2016 set aside a judgment of the CCCP in a bid-rigging case. The judgment had repealed a precedential decision of the OCCP dated 31 December 2012 finding that the consortium agreement concluded between two large municipal waste collection companies in order to jointly participate in a public tender for waste removal services was in fact an anticompetitive market-sharing arrangement16.
The OCCP established that MPO and Astwa had forged a consortium to address technical constraints that prevented them from applying independently for a contract. The ACCP does not prohibit joint participation of two independent companies in a tender procedure. However, as indicated by the OCCP, if the companies have sufficient resources to provide the services individually and their cooperation is not indispensable, the creation of a consortium may raise doubts as to its compatibility with competition law. In this case, the evidence gathered during the investigation proved that the aim of the agreement was to preserve the existing market shares. The OCCP found that a collusive agreement has existed, but decided not to impose any fines on the undertakings involved because of the precedential nature of the case. The OCCP explained that the parties to the agreement could not rationally expect the authority to consider cooperation within a consortium as an anticompetitive agreement. The decision was, however, quashed by the CCCP, which agreed with the arguments of the undertakings concerning the indispensability of their cooperation.17
The Appellate Court overturned the lower court’s ruling and agreed with the OCCP.18 The Appellate Court stated that despite the law allowing enterprises to create consortia, the OCCP still has the right to verify if the cooperation between companies does not infringe competition law. It was also emphasised that when considering the ability for an independent execution of a contract by an undertaking, its potential should be taken into account. Although the undertakings concerned may not have sufficient resources to place individual offers at the time of the creation of the consortium, they, as top market players, were able to deal with these deficiencies and submit separate tender offers. This was especially in view of the fact that several smaller undertakings had also been admitted to participate in the tender, as the Appellate Court pointed out. The Court further found that the claims about the necessity of sharing resources in order to fulfil the tender requirements were in fact fictitious, as the provisions of the consortium agreement foresaw that the parties would provide waste collection services individually using their own equipment within predefined territories.
The judgment of the Appellate Court is of a precedential nature. It confirms the initial OCCP decision, according to which a consortium created by undertakings that, in principle, are able to individually submit offers may infringe competition. The cooperation of undertakings analysed in the decision and subsequent judgments is against the main objective of consortiums’ creation, which is to increase the number of potential bidders in a given tender through enabling undertakings to combine their potential within a consortium. Therefore, a consortium created by undertakings able to individually participate in a tender may be an anticompetitive agreement as it reduces the number of potential bidders.
1 Małgorzata Szwaj is a partner and Anna Laszczyk is an associate at Linklaters C Wiśniewski i Wspólnicy.
2 The Polish competition authority within protection of the health and life of consumers, carries out proceedings concerning general product safety. The OCCP also monitors the market surveillance system, whose aim is to ensure that only safe products, which meet the essential requirements set forth in Polish regulations implementing the New Approach Directives, are available on the market. The OCCP is also responsible for managing the fuel quality monitoring and scrutinising system.
3 Available at https://uokik.gov.pl/aktualnosci.php?news_id=11778 (Polish text only).
4 The text of the ACCP, as well as the secondary legislation and guidelines issued by the OCCP, are available in Polish on the authority’s website (see https://uokik.gov.pl/prawo.php).
5 Article 305 of the Penal Code.
6 Established on the basis of EU Regulation No. 1/2003. See also the Commission Notice on cooperation within the Network of Competition Authorities, OJ No. C101, of 27 April 2004.
7 Source: ‘Report on the activities of the OCCP – 2015’.
8 OJ C 298, 8 December 2006, p. 17.
9 Available at https://www.uokik.gov.pl/news.php?news_id=12654&news_page=1.
10 Decision of 4 November 2010, No. DOK-9/2010.
11 Decision of 24 February 2011, No. DOK-1/2011.
12 Ruling of the Court of 20 March 2015, No. XVII AmA 136/11.
13 Ruling of the Court of 18 June 2014, No. XVII AmA 145/11. On 20 October 2015, that ruling was quashed by the Appellate Court, which returned the case to the Court for reassessment.
14 The draft legislation is available at https://legislacja.rcl.gov.pl/projekt/12292051/katalog/12389797#12389797.
15 Decision No RŁO 4/2016.
16 Decision No RLU-38/2012.
17 Ruling No XVII Ama 73/13.
18 Ruling No VI ACa 651/15.