I OVERVIEW

In May 2016, Mr Marek Niechciał was appointed to the position of President of the Office of Competition and Consumer Protection (OCCP). In a number of public speeches, he has expressed an intention to increase detection of restrictive agreements. In this area, his main objective was to focus on hard-core restrictions, mostly cartels. During almost two years since his appointment, he has implemented some initiatives aimed at fulfilling declared objectives, for instance, the introduction of the whistle-blower system and publication of guidelines on how to submit a leniency application.2 Further, two dawn raids3 and two investigations into potential bid rigging4 initiated in 2017 prove that the OCCP is indeed attempting to increase detection of infringements of competition.

Polish antitrust enforcement has generally not developed substantially in 2017. However, it did see important legislative developments.

Since late June 2017, claiming damages for harm suffered as a result of a competition law infringement is supposed to be easier. The Antitrust Damages Directive has been finally transposed into Polish law, and the Polish Damages Act came into force on 27 June 2017. The objective of this Act is to facilitate the recovery of claims concerning legal presumptions, procedural facilitations and quantification of harm. The Act applies not only to cartel infringements but to all other infringements of competition law, including prohibited vertical agreements and abuse of a dominant position. Furthermore, it covers not only EU competition law infringements, but also infringements based solely on Polish competition law.

Another important development was the enactment of a new law aimed at limiting the use of contractual advantage and granting new powers to the OCCP. The Act on Countering Unfair Use of the Contractual Advantage in Trade of Agricultural and Food Product came into force on 12 July 2017. It lists examples of practices that may be considered as an unfair use of contractual advantage. Such practices pertain to agricultural and food products and include, inter alia, unjustified contract termination, a unilateral right to withdraw from a contract and the unjustified extension of a payment term. Pursuant to this Act, the OCCP has the power to initiate proceedings in such cases ex officio, and in cases of infringement it is entitled to impose a fine of up to 3 per cent of annual turnover.

i Enforcement agenda

In 2017, as in past years, the OCCP focused on consumer protection, in particular in the banking and telecommunications sectors. Antitrust enforcement remained rather undeveloped despite numerous declarations about intentions to intensify activities in this area. As regards merger review, the vast majority of cases were closed in Phase I, which resulted in a reduction in the average length of proceedings. At the same time, we saw an increase in complex merger cases decided in Phase II.

The President of the OCCP recently announced that it will be applying high fines, since the benefits from an infringement usually outweigh the amounts of fines imposed on infringers. Cartels and other restrictive agreements are expected to attract the close scrutiny of the authority. Surprisingly, the President of the OCCP has promised to closely investigate vertical arrangements, which in recent years have not ranked highly in the authority’s enforcement agenda. Mr Marek Niechciał explains that soft measures (i.e., written warnings sent to undertakings without instigating any proceedings) applied so far have not been effective; therefore, we may expect an increase in antimonopoly proceedings concerning vertical arrangements.

ii CARTELS

As regards cartels, the OCCP continued to focus on bid rigging, and in 2017 issued six decisions concerning colluding in tenders. The vast majority of cases concerned cooperation between small entrepreneurs, linked by capital or personal relations, who colluded in local tenders. Interestingly, in one of the decisions the authority did not impose a fine given the precedential nature of the infringement concerning information exchange in relation to the tender. Besides bid-rigging cases, the OCCP terminated long-lasting cartel proceedings and issued a decision finding the participation of three producers of wood-based boards in price fixing and information exchange.

i Significant cases

The most important decision issued by the OCCP in 2017 concerned the cartel between producers of fibre boards and particle boards. After more than five years of antimonopoly proceedings, the authority found that five producers, belonging to three capital groups, engaged into price fixing and information exchange. This case is of particular importance given that the track record of OCCP cartel decisions is very limited.

Cartel between producers of particle and fibreboards

In late December 2017, the OCCP issued its decision, finding that Swiss Krono, Kronospan Szczecinek, Kronospan Mielec (both referred to as Kronospan), Pfleiderer Grajewo, Pfleiderer Wieruszów (both referred to as Pfleiderer) entered into an anticompetitive agreement.5 The authority established that the parties had bilateral and trilateral contacts during which they fixed prices and exchange confidential information on the sales conditions of fibreboards and particle boards. The OCCP gathered evidence during a dawn raid performed on the premises of the decision’s addressees and information provided by the leniency applicant, Swiss Krono.

The OCCP based its decision on both national and EU competition law provisions. The authority imposed a fine amounting to approximately €32 million. Swiss Krono, as a successful leniency applicant, escaped the fine. It follows from publicly available information that Pfleiderer Group, a company listed on the Warsaw Stock Exchange, submitted an appeal against the decision to the Court of Competition and Consumers Protection (CCCP).

Information exchange in relation to the tender as an object restriction

In October 2017, the OCCP issued a decision finding two companies liable for bid rigging.6 The antimonopoly proceedings was instigated on the basis of information received from the prosecutor conducting the criminal investigation. The OCCP found that two companies engaged into bid rigging that consisted of exchange of confidential information in relation to two tenders. In one instance, the parties called each other during electronic auction and exchanged information on the position of their bids. In the second tender that was scrutinised by the authority, the parties exchanged information concerning the fact of whether or not to submit an offer, estimations as to the prices offered by their competitors and suggestions made by one of the parties as to the price to be offered by the other party.

The OCCP did not impose fines due to the precedential nature of the case. In the view of the authority, the parties might have not known that information exchange in relation to tenders would be considered as a competition law infringement.

Two companies offering ISO certificates fined for collusion

In late December 2017, the OCCP issued a decision concerning two undertakings issuing ISO certificates.7 The authority concluded that the companies were coordinating the terms of the offers and that such behaviour had restricting effects to competition. According to the OCCP, the parties to the proceedings were recommending each other when a customer, after receiving an offer for certificate services from one of the companies, asked for advice as to which other entity could provide such services. The recommended undertaking then offered a higher price than the first, and consequently a client was forced to accept the first offer. As a result, customers were accepting unfavourable prices while under the impression that they chose the best offer. The companies also agreed on allocation of customers.

Both parties applied for leniency. The first applicant escaped the fine, whereas the fine imposed on the other party to the agreement was reduced by 50 per cent.

ii Trends, developments and strategies

The detection of the most harmful anticompetitive agreements is the declared objective of the OCCP. To facilitate this, the authority tries to encourage individuals and undertakings to inform it about identified irregularities. The OCCP introduced a whistle-blower system as well as published guidelines on how to submit a leniency application.

The Polish Damages Act entered into force in 2017. It facilitates bringing claims for damages for competition law infringements; thus, we may expect that those who suffered harm as a result of such anticompetitive conduct may be incentivised to bring their claims to court.

Whistle-blower system

The Polish Competition Authority (PCA) launched the pilot whistle-blowing programme in April 2017 with the aim of increasing the detection of prohibited agreements between undertakings.8 This policy is aimed at allowing the OCCP to obtain information from anonymous individuals who have become aware of an illegal practice. Individuals are able to inform the authority through its dedicated telephone number or email address and provide evidence of competition-restricting practices. It follows from publicly available information that the authority has received numerous calls and emails informing about potential irregularities pertaining both to the competition and consumers laws. The OCCP is also working on legislative changes designed to ensure that the concept of a whistle-blower is incorporated into the provisions of Polish competition law on a permanent basis.

Implementation of the Damages Directive

The Polish Damages Act, implementing the EU Damages Directive, entered into force in 2017. the Act covers not only competition law infringements relating to the European market, but also those related solely to the national market, and consequently does not multiply the regimes for claiming damages for competition law infringements. The most important aspects of the Act aim at facilitating the recovery of claims concerning legal presumptions, procedural facilitations and quantification of harm.

The Act raises hopes as to the facilitation of compensation claims for competition law infringements. So far, bringing a successful compensation claim has been difficult due to the demanding tort law rules regarding evidence. The Act does not extend the powers of the OCCP, but intends to supplement the authority’s actions. Following its entry into force, undertakings infringing competition law will face not only fines imposed by the OCCP, but also will be exposed to the risk of civil proceedings that could result in potentially substantial amounts of damages to be paid.

iii Outlook

Given the declarations of the OCCP regarding increased cartel detection, we may expect that various means already implemented (for instance, the leniency plus and whistle-blower system) will finally bring some results in terms of antitrust enforcement in Poland. More activities in the area of antitrust is also a prerequisite for the development of private enforcement of the competition law. Some damages claims proceedings are ongoing; nevertheless, the implementation of the EU Damages Directive is expected to further increase the rate of such claims.

iii ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE

i Trends, developments and strategies

As regards the enforcement of restrictive agreements, no substantial case law development was seen in 2017. Besides the cartel decisions described above, the OCCP re-adopted a decision concerning recommendations issued by the Supreme Medical Council.9 In its first decision, issued a few years ago, the OCCP found that the Supreme Medical Council, as an association of undertakings, had infringed the competition law. However, the decision was quashed by the Court of Competition and Consumers Protection and the Appellate Court. Thus, in its 2017 decision, the OCCP, following the guidance of the courts, did not establish the existence of the anticompetitive practice and discontinued the proceedings.

As regards dominance, the OCCP discontinued long-lasting proceedings concerning abuse of a collective dominant position by three major telecommunications operators since it did not establish the existence of the collective dominance.

ii Significant cases

Given the poor records of the OCCP’s case law, below we provide a description of three judgements providing important clarifications as to the requirements on how the OCCP should proceed when finding an illegal agreement and what guarantees must be fulfilled when reviewing electronic files during a dawn raid.

iii Parties to the prohibited agreement shall be clearly identified

In January 2017, the Appellate Court upheld a ruling of the CCCP that annulled the decision of the OCCP concerning the resale price maintenance agreement.10 The Appellate Court shared the CCCP’s view that the OCCP is required to specify all parties to a restrictive agreement.

The Appellate Court observed that although a decision of the OCCP may be addressed to one party to an agreement, the decision of the OCCP must clearly state who the other participants to an alleged agreement were: it is not sufficient for the participants to be identified collectively in a general way, e.g., as ‘company distributors’. Significantly, the Appellate Court shared the opinion of the CCCP, that the lack of a precise indication of the parties to the agreement infringes upon the right to a defence, as the company is unable to identify the undertakings it allegedly had concluded a restrictive agreement with.

iv Duty to cooperate during dawn raid

In April 2016, the Supreme Court11 reversed judgments of the CCCP and Appellate Court that annulled a fine imposed by the OCCP on a manufacturer of domestic detergents for absence of cooperation during a dawn raid. The Supreme Court agreed with the OCCP, and concluded that the removal of an electronic document from its original folder and its transfer to a ‘bin’ folder after the beginning of a dawn raid may constitute an absence of cooperation with the competition authority and, as a result, may be subject to a monetary fine.

Following the Supreme Court’s interpretation, in July 2017 the CCCP delivered its judgment and confirmed that the removal of an electronic file by moving it into a computer’s recycle bin constitutes an infringement of the obligation to cooperate with the OCCP during an inspection.12 A company being inspected is not only obliged to fulfil its statutory duties related to an investigation but should also actively assist the OCCP in exercising its powers.

v Electronic evidence searches at a company’s premises

In response to a complaint made by a company that was searched by the OCCP, the CCCP has stated that electronic evidence should be searched at a company’s premises or in the presence of a company’s representatives.

In the course of an explanatory investigation concerning anticompetitive practices of undertakings engaged in operating fitness facilities, the OCCP conducted dawn raids in the premises of 12 companies. During these dawn raids, OCCP controllers made full copies of hard drives belonging to several key employees of one of the controlled companies and brought them to the OCCP’s premises. As the controlled company did not agree with the authority’s action, it filed a complaint to the CCCP.

The CCCP acknowledged that the reported effectiveness of dawn raids should not prejudice the rights of an inspected company, such as the right to privacy. Investigation measures undertaken during the dawn raid should therefore be linked to the purpose of the investigation. The CCCP confirmed that the PCA’s inspectors are allowed to copy and print only pieces of evidence associated with the subject of the investigation. Further, the CCCP stated that selection of evidence may only be conducted in the premises of a controlled company, or outside of a company’s premises but in the presence of a company representative.

vi Abuse of dominant position

In 2017, the OCCP issued four decisions regarding abuse of dominant position. All of the cases concerned local utilities markets and did not offer substantial developments in the enforcement of abuses of the dominant position. The most remarkable decision was issued early this year and concerned one of the trickiest concepts in competition law: an abuse of a collective dominant position.

vii Abuse of a collective dominant position

In early January 2018, the OCCP issued a decision discontinuing antimonopoly proceedings concerning a potential abuse of a collective dominant position by three major telecommunication operators on the national market for retail mobile telecommunication services. The OCCP established that the three mobile network operators (MNOs) did not have a collective dominant position.

The proceedings were initiated in response to a complaint submitted to the authority by a fourth MNO, a maverick firm that entered the market significantly later than three previously mentioned MNOs. The complainant alleged that the three MNOs set higher retail prices for calls made by their customers to the complainant’s customers, and that by carrying on this behaviour they had abused their collectively strong market position. The case proceeded on the basis of the provisions of both national and EU competition laws. In the course of the proceedings, the authority sent numerous requests for information, reviewed economic analyses provided by the parties and consulted the European Commission on the matter.

When analysing the potential existence of the collective dominant position, the OCCP referred to established EU case law. It found that the national market for retail mobile telecommunications services is relatively transparent, with homogenous services that facilitate anticipation of competitors’ market behaviour. However, in the view of the authority, this was not sufficient for reaching an understanding of the terms of the collusion. Neither was the plausible implementation of any retaliation mechanisms by the parties to the proceedings. The OCCP established that the market behaviour of three MNOs towards the complainant differed significantly, and thus no signs of coordination were observed. Even though the authority found that prices for calls to the complainant’s customers were higher, the OCCP considered that the three MNOs had legitimate interests to apply them. Given that the three MNOs were not collectively dominant, the OCCP discontinued the proceedings.

viii Outlook

Vertical restrictive agreements and abuse of dominant position may be considered to be of lesser importance to the OCCP, but as indicated by the President of the OCCP this is likely to change soon, in particular with regard to vertical agreements. This comes as a surprise as, for the past couple of years, the OCCP has appeared to adhere to a more economic approach to vertical arrangements. One may consider whether its announced tough stand is envisaged to remedy this absence of antitrust enforcement by the OCCP, since vertical agreements are easier to detect than cartels.

iv SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES

In April 2017, the OCCP published information following the market investigation regarding the offering of foreign exchange market (FOREX) financial instruments in Poland. The OCCP pointed out the major risks for consumers associated with FOREX trading. It also offered information about its current activities in the field of protection of financial services consumers.

i Trends and development

Given the OCCP’s policy of declared openness and transparency, guidelines on publishing results of market inquiries have been issued.13 In the guidelines, the authority announced that information on the results of all market inquiries will be published. The scope of the information presented to the public may vary, depending on the educational value of the results and the scope of business secrets of undertakings questioned in the course of an inquiry. While deciding on the scope of information, the OCCP will also take into account the efficiency of proceedings conducted by the authority in which the results of the market inquiries may be used.

ii Outlook

In its policy of declared openness and transparency, the OCCP proclaims the enforcement of competition law aimed at network-regulated industries such as telecommunications and energy. A framework of the single European telecommunications market is currently being discussed at the EU level. With the aim of the OCCP to ensure that telecommunications companies will compete on equal terms in the whole of the European Union, it is necessary to facilitate access to broadband networks and to allocate frequencies in a pro-competitive manner. In light of the above, it may be expected that the OCCP will continue to seek opportunities to support regulatory bodies in achieving said objectives. For instance, in November 2017, the OCCP issued a reasoned opinion on the competitive landscape in the television14 and radio15 transmission infrastructure markets within proceedings of the President of the Office for Electronic Communication regarding the market position of Emitel, the infrastructure owner, on those markets.16

v STATE AID

The European Commission and EU courts adopted several rulings concerning state aid enforcement in Poland in 2017 that are worth noting.

In August 2017, the Commission issued a negative state aid decision concerning shadow toll compensation for Autostrada Wielkopolska, the operator of the Polish A2 motorway.17 In 2005, Poland changed its national legislation on toll motorways and exempted heavy vehicles with pre-paid tickets from paying tolls on all motorways in Poland, including one operated by Autostrada Wielkopolska. In return, Poland paid the motorway operators compensation for lost revenues. The compensation was paid to the company between 2005 and 2011.

The European Commission concluded in principle that the compensation did not constitute aid. However, it was of the opinion that the compensation was calculated on the basis of outdated traffic data and therefore was excessive. Such overcompensation for Autostrada Wielkopolska conferred a selective economic advantage and constituted state aid that is incompatible with EU law. As a result, the Commission ordered Poland to recover 895 million złoty that constituted the state aid granted in breach of EU law from the company. Austostrada Wielkopolska has appealed the decision.

In September 2016, Poland’s taxation policy raised the European Commission’s concerns as to the compatibility of Polish tax on the retail sector with the internal market.18 The Commission has opened an in-depth investigation into this tax and ordered Poland to suspend its application. In its decision of June 2017,19 the Commission confirmed its initial concerns that the application of the progressive tax rates based on turnover confers a selective economic advantage for companies with lower turnover, and therefore involves state aid within the meaning of the EU rules. As Poland suspended the application of the tax after the Commission’s interim measure, there was no need to recover incompatible aid from any beneficiaries.

In November 2017, the General Court quashed20 a European Commission decision that ordered Poland’s recovery of 92 million zloty for Gdynia Kosakowo Airport.21 The General Court annulled the decision on procedural grounds as the Commission did not permit interested parties (i.e., the Gdynia Kosakowo operator) to submit their comments after it changed the legal basis under which it re-adopted its negative decision. In this case, the Commission revoked its original negative decision of 11 February 2014, at the same time adopting a new recovery decision in which all conclusions were repeated, albeit on a different legal basis. The judgment has been appealed by the European Commission.

vi MERGER REVIEW

i Trends, developments and strategies

Significant amendments in 2015 introduced a number of significant changes to the Polish merger control system, including two-phase proceedings, revised rules on turnover calculation and amendments to procedural aspects related to remedies. It proved to have positive effects for business, in particular as it resulted in reducing the average length of proceedings before the OCCP. The average proceedings in 2017 lasted 39 days,22 and remained at a level comparable to that seen in 2015 and 2016.

The OCCP issued 188 merger control decisions in 2017,23 182 of which were Phase I decisions.

We saw an steady number of complex merger cases in 2017. In six cases, a decision was adopted after Phase II proceedings. A further six cases are currently being investigated in Phase II.24 In the extended review proceedings, the OCCP continued to widely use its market-testing competencies aimed at verification of the relevant market definitions proposed by notifying parties or at obtaining views on the notified transaction from other stakeholders. The OCCP largely relies on the results of such tests. Market testing significantly increases the duration of Phase II proceedings, which on average last approximately six months.25

The OCCP is also widely using statements of objections (SOs), an institution that was introduced in the 2015 review. In 2017, an SO, whereby the OCCP informs the notifying party of its views regarding potential competition concerns resulting from a concentration, was issued in four proceedings. After an SO was issued, five cases were cleared unconditionally, in one case the OCCP issued a conditional decision and in one case the notifying party withdrew the notification.

In concentrations where competition concerns arise, in the two most recent conditional decisions – Eurocash/Eko Holding26 in December 2016 and PGE/EDF Polska in October 201727 – the OCCP applied remedies that did not involve altering the structure of the transaction (i.e., a simple divestiture remedy and behavioural remedy consisting of an obligation to sell electricity on stock exchange). Nevertheless, the OCCP may continue to rely on ‘fix-it-first’ remedies ordering merging parties to limit the scope of a notified transaction to address any significant impediment to competition.

In 2017, the OCCP was active in gun-jumping enforcement cases, issuing two of the highest-level fines for breach of the standstill obligation in its history.

In two cases in 2017 and early 2018,28 the OCCP requested the European Commission on the basis of Article 9(2)(a) of EU Merger Regulation to refer a case for its review under Polish competition law. In Discovery/Scipps,29 the European Commission rejected the request and issued a conditional decision. In turn, in Smithfields/Pini Polonia,30 the Commission accepted the request and referred the case in full to be reviewed by the OCCP.

ii Significant cases

The OCCP issued one conditional decision in 2017, which concerned PGE’s acquisition of EDF assets in Poland (i.e., a power plant in Rybnik and eight heating plants).

PGE is a Polish company listed on the Warsaw Stock Exchange active in the production and distribution of electrical and heat power. EDF’s business activity in Poland concentrates on the production and distribution of electricity and heat, and trading of production fuels such as biomass and coal.

The OCCP investigated the case in Phase II as the business activities of PGE and EDF Poland overlapped on nine national markets related to the production and sale of electricity, of which six markets were horizontally affected. During the market analysis, the OCCP surveyed major companies operating in the power sector and requested the President of the Energy Regulatory Office to submit his opinion on the case.

The OCCP assessed that PGE post-transaction may have a share in excess of 40 per cent on the Polish market for the production and wholesale of electricity in Poland, and pointed out that PGE could gain a dominant position in the electrical power production and distribution market. This could lead to a further drop in trade on the Polish Power Exchange and negatively affect those competitors of PGE that do not have their own generation sources. Consequently, the retail electricity market would also be negatively affected.

The OCCP therefore issued an SO, and PGE submitted its remedy proposals. PGE committed itself to selling additional power through the Polish Power Exchange in an amount effectively equal to the volume of power generated in EDF’s power plant in Rybnik. This commitment, however, does not concern electrical power from cogeneration. The OCCP concluded that the proposed remedy removes the threat of a significant restriction of competition because it limits the possibility of PGE abusing its market power post-transaction. Moreover, according to the OCCP, the remedy also reduced other risks resulting from the vertical relations between PGE and EDF in Poland. The commitment will be in force until 31 December 2021 or until the acquired power plant in Rybnik ceases to belong to PGE. In addition, the OCCP set a requirement that PGE report quarterly on the execution of the commitment.

Although the OCCP did not forbid any concentration in 2017 and early 2018,31 the notifying party withdrew its notification in five cases after the OCCP issued an SO. In these cases, most likely, the commitment proposals were not good enough to mitigate the competition concerns identified by the OCCP.

In 2017, the OCCP imposed fines for breach of the standstill obligation in three cases: Bać-Pol 32 in June, Fermy Drobiu Woźniak 33 in September and MO 34 in December. The cases show the OCCP’s increased attention on cases pertaining to concentrations closing before required clearance.

In Bać-Pol, the OCCP concluded that Bać-Pol had infringed Polish competition law by acquiring control over Klementynka without the required OCCP clearance. The proceedings were instigated as a result of a complaint submitted by the previous co-owner of Klementynka. The evidence gathered indicated that Sezam had acquired the most important assets of Klementynka, such as key employees, contracts with key suppliers and customers, and goods designated for immediate shipment, which were Klementyka’s main business assets. Although the proceedings did not reveal any written contract confirming the concentration, the OCCP found that the acquisition of those assets constituted a concentration based on other evidence such as mail correspondence and statements of witnesses. The OCCP fined Bać-Pol 527,000 zloty, which is the highest fine imposed for breach of the standstill obligation in Poland so far. While determining the amount of the fine, the OCCP took into consideration both aggravating circumstances such as lack of cooperation in the course of the proceedings as well as mitigating factors such as no significant impediment of competition on the relevant market (i.e., non-specialised food wholesale) resulting from the completion of the transaction.

Fermy Drobiu Woźniak was also fined 339,000 zloty for a similar infringement of the competition law. The OCCP concluded that Fermy Drobiu Woźniak acquired assets of Fermy Drobiu Borkowski without notifying the OCCP of its intention to concentrate, and thus violated merger control provisions laid down in the Act. Acting upon a complaint from Fermy Drobiu Woźniak’s competitors, the OCCP collected evidence supporting the fact that Fermy Drobiu Woźniak acquired a part of Fermy Drobiu Borkowski’s assets on the basis of a lease agreement of six poultry farms of Fermy Drobiu Borkowski. In the case, the OCCP confirmed that the lease agreement should have been classified as a form of notifiable concentration.

In MO, an undisclosed individual was fined 22,120 zloty for the acquisition of joint control over Empik Media & Fashion. The OCCP concluded that MO acquired control at the moment of signing the shareholders’ agreement, under which two major shareholders of Empik Media & Fashion agreed, inter alia, to act in concert as to the exercise of their voting rights at the company’s shareholders’ meeting.

iii Outlook

It is not anticipated that there will be a major shift in the current merger control policy in 2018.

Vii CONCLUSIONS

As seen in 2016, 2017 also proved that consumer protection continued to be the OCCP’s enforcement priority. Generally, Polish antitrust enforcement did not develop substantially in 2017: the OCCP continued to analyse various methods of improving cartel detection, including introducing rewards for whistle-blowers. In 2017, the OCCP announced its intention of closer scrutiny of resale price maintenance, a practice that had seemed to be of less importance to the OCCP in recent years. Decisions concerning abuse of dominant position confirm that the main sector of enforcement in this respect remains the utilities sector, but at the same time actual enforcement is limited due to the declared application of soft measures. Considering the relative strength of the Polish mergers and acquisitions market, the OCCP was active in the field of merger review. The OCCP also paid increased attention to cases pertaining to closing concentrations before the required clearance. 2017 also brought important legislative developments, in particular in the form of a new law aimed at limiting the use of contractual advantage.

1 Anna Laszczyk and Wojciech Podlasin are associates at Linklaters C Wiśniewski i Wspólnicy sp k.

6 Decision of the OCCP dated 2 October 2017, No. DOK-2/2017.

7 Decision of the OCCP dated 29 December 2017, No. RWR-410-1/15/WS.

9 Decision of the OCCP dated 3 August 2017, No. DOK-1/2017.

10 Judgment of the Warsaw Appellate Court dated 25 January 2017, No. VI ACa 1673/15.

11 Judgment of the Supreme Court dated 21 April 2016, III SK 23/15.

12 Judgment of the CCCP dated 26 July 2017, No. XVII AmA 54/16.

13 Guidelines available in Polish only at https://uokik.gov.pl/wyjasnienia_i_wytyczne.php.

14 Resolution DOK-071-81/17/MP of 28 November 2017.

15 Resolution DOK-071-80/17/MP of 28 November 2017.

16 Decision of the President of the Electronic Communication of 17 January 2018 – DHRT.SMP.6040.2.2017.177 and decision of the President of the Electronic Communication of 17 January 2018 – DHRT.SMP.6040.3.2017.166.

17 European Commission decision of 25 August 2017 in case SA.35356.

18 European Commission decision of 19 September 2016 in case SA.44351.

19 European Commission decision of 30 June 2017 in case SA.44351.

20 Judgment of the General Court of 17 November 2017 in the case T-263/15.

21 European Commission decision of 25 January 2015 in case SA.35388.

22 As at 30 November 2017.

23 As at 30 November 2017.

24 As at 31 January 2018.

25 As at 30 November 2017.

26 Decision of the OCCP of 23 December 2016, No. DKK-191/2016.

27 Decision of the OCCP of 4 October 2017, No. DKK-156/2017.

28 As at 31 January 2018.

29 European Commission decision of 6 February 2018 in case M.8665.

30 European Commission decision of 23 January 2018 in case SA.8611.

31 As at 31 January 2018.

32 Decision of the OCCP of 5 June 2017, No. DKK-86/2017.

33 Decision of the OCCP of 19 September 2017, No. DKK-145/2017.

34 Decision of the OCCP of 29 December 2017, No. DKK-2010/2017.