Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
Intersection between the activities of two regulators – shall prior actions t...Michal
The commented judgment of the Polish Supreme Court concerns Telekomunikacja
Polska S.A. (hereafter, TPSA)1 and the fines imposed upon the incumbent operator
by the President of the Office of Competition and Consumer Protection (in Polish:
Urząd Ochrony Konkurencji i Konsumentów; hereafter, UOKiK) for the abuse of its
dominant position. TPSA is a Polish telecoms provider formally established in 1991.
It is a public company – its shares are traded on the Warsaw Stock Exchange with the
controlling stake owned by France Télécom2. TPSA is often the subject of competition
law decisions issued not only by the UOKiK President but also by the European
Commission, particularly with respect to dominant position abuse
2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
Polish Telecom Regulator’s Decisions Regarding Mobile Termination Rates and t...Michal
The article presents key issues relating to the methods of mobile termination rates
calculation by the Polish National Regulatory Agency (NRA): the UKE President. It
analyses the provisions of Polish telecommunications law of 20041 with respect to the
rights and obligations of the UKE President. It invokes specific cases showing how
problematic rates calculation is for mobile operators. The Polkomtel, PTK Centertel,
PTC sp. z o.o. cases clearly show how unclear the calculation process may be in
practice and illustrate how broad the discretionary powers of the UKE President
are in this respect on the grounds of Polish telecommunications law. Highlighted
is also the dispute between the Polish NRA and the European Commission. Even
though the UKE President acts on the grounds of Polish law, its actions have to be
compliant with the European telecoms package and take into utmost account the
recommendations and comments issued by the European Commission.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
Intersection between the activities of two regulators – shall prior actions t...Michal
The commented judgment of the Polish Supreme Court concerns Telekomunikacja
Polska S.A. (hereafter, TPSA)1 and the fines imposed upon the incumbent operator
by the President of the Office of Competition and Consumer Protection (in Polish:
Urząd Ochrony Konkurencji i Konsumentów; hereafter, UOKiK) for the abuse of its
dominant position. TPSA is a Polish telecoms provider formally established in 1991.
It is a public company – its shares are traded on the Warsaw Stock Exchange with the
controlling stake owned by France Télécom2. TPSA is often the subject of competition
law decisions issued not only by the UOKiK President but also by the European
Commission, particularly with respect to dominant position abuse
2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
Polish Telecom Regulator’s Decisions Regarding Mobile Termination Rates and t...Michal
The article presents key issues relating to the methods of mobile termination rates
calculation by the Polish National Regulatory Agency (NRA): the UKE President. It
analyses the provisions of Polish telecommunications law of 20041 with respect to the
rights and obligations of the UKE President. It invokes specific cases showing how
problematic rates calculation is for mobile operators. The Polkomtel, PTK Centertel,
PTC sp. z o.o. cases clearly show how unclear the calculation process may be in
practice and illustrate how broad the discretionary powers of the UKE President
are in this respect on the grounds of Polish telecommunications law. Highlighted
is also the dispute between the Polish NRA and the European Commission. Even
though the UKE President acts on the grounds of Polish law, its actions have to be
compliant with the European telecoms package and take into utmost account the
recommendations and comments issued by the European Commission.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
Legislative developments in the aviation sector in 2011 in polandMichal
The Polish Aviation Law Act of 3 July 2002 was amended six times in
2011. The only major change introduced in this period resulted from the
Amendment Act to the Aviation Law Act of 30 June 2011, most of which
entered into force 30 days after its publication1. In fact, changes introduced
thereby were so widespread and crucial to the entire aviation sector that it
can easily be referred to as a completely new law. Considerable effort went
into the preparation of this Act – its first draft was presented as early as 2009
followed by long consultations and the ultimate introduction of a number of
further changes.
Effective application of EU law is essential if the European
Union is to meet its objectives as set in the treaties and
enhance the credibility of the EU institutions in the eyes of
the citizens and the public at large.
While Member States are responsible for transposing
directives on time and accurately, and for correctly applying
and implementing EU law as a whole, the Commission
monitors the application of EU law and ensures that their
legislation complies with EU law.
The application of EU Law. Italy and the infringement proceduretelosaes
Member States and the application of #EU Law. What’s the infringement procedure? How does the infringement procedure work? The European Commission Report (2012). The virtuous and the defaulters Members States. Italy: open procedures in 2012.
May 2014
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
Polish Antitrust Legislation and Case Law Review 2010Michal
The article presents key developments in Polish antitrust legislation and case law
of 2010. Regarding legislation, the article focuses on a new group exemption for
agreements on motor vehicle distribution; also provided is a general characterisation
of antitrust jurisprudence, mainly the judgments of the Supreme Court and the
Court of Appeals in Warsaw. The presented rulings are divided according to their
subject matter referring to particular types of restrictive practices, relevant market
definition, relationships between the Competition Act and other national legislation
as well as problems related to the UOKiK President’s decision-making process and
juridical control of antitrust decisions.
Access to competition file as a precondition of access to justiceEmanuela Matei
The information to be disclosed that I discuss about in the present paper relates to the content of the antitrust files produced by Competition Authorities in the EU. All officials working for any Competition Authority are required even after their duties have ceased, not to disclose information of the kind covered by the duty of professional secrecy, in particular information about undertakings. This information may be disclosed to other Competition Authorities in the EU and even outside the EU, based on principles such as reciprocity, comity and the condition that the duty of professional secrecy applies also for the receiver.
As known national courts may act as competition authorities since the organization of enforcement at the national level is an issue determined by the national legislation. The access of a potential claimant for antitrust damages to the public proceedings files falls within the scope of national procedural autonomy, thus the matter will be judged against the standard of effectiveness and equivalence imposed by Union law .
Presentation Nairobi 9 September 2013. Joint workshop on spam(law) of African...DeNatrisConsult
On behalf of the Dutch Ministry of Economic Affairs I gave a presentation of Dutch spam law of 2004 and my experience as a spam enforcement officer at OPTA, the Independent Post and Telecommunication Authority.
Legislative developments in the aviation sector in 2011 in polandMichal
The Polish Aviation Law Act of 3 July 2002 was amended six times in
2011. The only major change introduced in this period resulted from the
Amendment Act to the Aviation Law Act of 30 June 2011, most of which
entered into force 30 days after its publication1. In fact, changes introduced
thereby were so widespread and crucial to the entire aviation sector that it
can easily be referred to as a completely new law. Considerable effort went
into the preparation of this Act – its first draft was presented as early as 2009
followed by long consultations and the ultimate introduction of a number of
further changes.
Effective application of EU law is essential if the European
Union is to meet its objectives as set in the treaties and
enhance the credibility of the EU institutions in the eyes of
the citizens and the public at large.
While Member States are responsible for transposing
directives on time and accurately, and for correctly applying
and implementing EU law as a whole, the Commission
monitors the application of EU law and ensures that their
legislation complies with EU law.
The application of EU Law. Italy and the infringement proceduretelosaes
Member States and the application of #EU Law. What’s the infringement procedure? How does the infringement procedure work? The European Commission Report (2012). The virtuous and the defaulters Members States. Italy: open procedures in 2012.
May 2014
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
Polish Antitrust Legislation and Case Law Review 2010Michal
The article presents key developments in Polish antitrust legislation and case law
of 2010. Regarding legislation, the article focuses on a new group exemption for
agreements on motor vehicle distribution; also provided is a general characterisation
of antitrust jurisprudence, mainly the judgments of the Supreme Court and the
Court of Appeals in Warsaw. The presented rulings are divided according to their
subject matter referring to particular types of restrictive practices, relevant market
definition, relationships between the Competition Act and other national legislation
as well as problems related to the UOKiK President’s decision-making process and
juridical control of antitrust decisions.
Access to competition file as a precondition of access to justiceEmanuela Matei
The information to be disclosed that I discuss about in the present paper relates to the content of the antitrust files produced by Competition Authorities in the EU. All officials working for any Competition Authority are required even after their duties have ceased, not to disclose information of the kind covered by the duty of professional secrecy, in particular information about undertakings. This information may be disclosed to other Competition Authorities in the EU and even outside the EU, based on principles such as reciprocity, comity and the condition that the duty of professional secrecy applies also for the receiver.
As known national courts may act as competition authorities since the organization of enforcement at the national level is an issue determined by the national legislation. The access of a potential claimant for antitrust damages to the public proceedings files falls within the scope of national procedural autonomy, thus the matter will be judged against the standard of effectiveness and equivalence imposed by Union law .
Presentation Nairobi 9 September 2013. Joint workshop on spam(law) of African...DeNatrisConsult
On behalf of the Dutch Ministry of Economic Affairs I gave a presentation of Dutch spam law of 2004 and my experience as a spam enforcement officer at OPTA, the Independent Post and Telecommunication Authority.
Application of Semantic Knowledge Management System in Selected Areas of Poli...Cognitum
Application of Semantic Knowledge Management System in Selected Areas of Polish Public Administration
Summary: This paper describes an application of semantic technologies and knowledge management systems in chosen areas of Polish public administration. Short analyses of crisis management and EU policy coordination processes are presented. An architecture of a knowledge management system with interfaces using controlled natural language is proposed. A lot of examples are shown that prove a usefulness of semantic knowledge management and automated reasoning in these fields.
Keywords: crisis management, EU policy coordination, knowledge management system, semantic
Każda kolejna wersja programu Photoshop firmy Adobe wywołuje wśród grafików i fotografików dreszczyk emocji. Adobe Photoshop nie jest bowiem zwykłym programem: to aplikacja, która od lat wyznacza standardy w dziedzinie komputerowego przetwarzania i przygotowania do druku obrazów bitmapowych. Można bez większej przesady powiedzieć, że Adobe tworząc Photoshopa, położyła podwaliny pod tę dziedzinę zastosowań komputera.
Książka niniejsza jest skierowana zarówno do osób, które pracowały już z wcześniejszymi edycjami Photoshopa, jak też i do nowicjuszy. Bogato ilustrowana i przystępnie napisana sprawi, że po jej lekturze będziesz sprawnie posługiwał się tym doskonałym narzędziem. Cennym uzupełnieniem są liczne ćwiczenia pozwalające sprawdzić swoją wiedzę.
Poznaj:
* Podstawy pracy z programem
* Nowości w wersji CS
* Narzędzia służące do malowania
* Edycja obrazów
* Korzystanie z warstw
* Ścieżki i kształty
* Praca z tekstem
* Mapowanie kolorów
* Tworzenie panoram
* Drukowanie obrazów
* Filtry i efekty specjalne
Sięgnij po tę książkę i przekonaj się, jak wspaniałe możliwości ma Adobe Photoshop w swojej najnowszej wersji. Mając tak zaawansowane narzędzie, granicą Twojej kreatywności będzie tylko Twoja wyobraźnia.
Niniejszy artykuł poświęcony jest bezpieczeństwu usługi Voice over IP (VoIP) bazującej na protokole SIP (Session Initiation Protocol). Protokół SIP jest najbardziej obiecującym protokołem sygnalizacyjnym dla realizacji usługi VoIP w sieciach TCP/IP. W artykule przedstawiono zagadnienia związane z bezpieczeństwem wiadomości sygnalizacyjnych wymienianych pomiędzy komunikującymi się stronami, w szczególności przeanalizujemy mechanizmy bezpieczeństwa zastosowane w dwóch zaleceniach organizacji IETF (The Internet Engineering Task Force) dla SIP: RFC 2543 (dot. pierwszej wersji SIP z 1999 r.) oraz RFC 3261 (dot. drugiej wersji SIP z 2002 r.).
WYKORZYSTANIE WEB 2.0 ORAZ ARCHITEKTURY INFORMACJI W PRACY BROKERA INFORMACJImarikami
Wykorzystanie technologii Web 2.0 oraz architektury informacji w pracy brokera informacji w dobie społeczeństwa informacyjnego, propagującego uczestnictwo w tworzeniu i dzieleniu się wiedzą – na przykładzie autorskiego serwisu Wikidot EKOLOGICZNY – Energia Odnawialna http://energia-odnawialna.wikidot.com/
Commercial Aspects Of Contract Cheating - ITiCSE 2013Thomas Lancaster
This presentation, from ITiCSE 2013, explores the commercial extent of contract cheating, where students pay to have work completed on their behalf. The presentation includes examples and explores the contractors and frequent workers who responsible for original work being created for students.
Agata Jurkowska-Gomułka (ed.), Orzecznictwo sądów wspólnotowych w sprawach ko...Michal
The publication under review here edited by Dr. Agata Jurkowska–Gomułka from
the University of Warsaw (Centre for Antitrust and Regulatory Studies) is a collection of
case studies concerning European competition law prepared by a number of individual
authors both academics and practitioners. As a presentation of landmark judgments
of EU courts, it is a continuation of the 2007 publication entitled: Jurisprudence of
the European Community Courts in competition matters in years 1964- 2004 edited
by Professor Tadeusz Skoczny and Dr. Agata Jurkowska (hereafter, Volume I). The
current book (hereinafter, Volume II), commences with 1 May 2004 – an important
date for this publication for two key reasons: first, because of its correlation with
Poland’s EU accession and second, because of its correlation with the entry into force
of Regulation 1/2003. However, the presented judgments do not refer to Regulation
1/2003 primarily due to the lengthy nature of judicial proceedings. There was thus
no chance, before the publication of Volume II, to discuss any jurisprudence based
on this act.
Рада Європи оприлюднила свій висновок щодо рішень Конституційного Суду України Pravotv
Парламентська більшість та уряд не повинні ставити під сумнів призначення чи перебування на посаді суддів, які були призначені належним чином – висновок Ради Європи стосовно рішень Конституційного Суду України щодо судової влади
Is the parallel competence set out in regulation 12003 totally clear. case co...Michal
With a motion dated 28th of April 2005 submitted to the President of the Office of
Competition and Consumer Protection (in Polish: Prezes Urzędu Ochrony Konkurencji
i Konsumentów; hereafter, UOKiK President), Tele2 Polska Sp. z o.o. (currently:
Netia S.A., hereafter, Applicant) requested the initiation of antitrust proceedings
against Telekomunikacja Polska S.A. (hereafter, TP). The Polish incumbent, TP, was
alleged to have engaged in practices restricting competition covered by Article 8(1)
and 8(2)(5) of the Act on Competition and Consumer Protection of 15th December
2000 (hereafter, Competition Act 2000) and in Article 82 of the Treaty establishing
European Community (hereafter, TEC), presently, Article 102 of the Treaty on the
functioning of the European Union (hereafter, TFEU).
Possible legal instruments to tackle media pluralism and
freedom
Elda Brogi, CMPF
29 October 2012, EUI, Villa la Fonte
http://cmpf.eui.eu/events/policy-conference.aspx
A. jurkowska, antitrust private enforcement in polandMichal
This article presents the main difficulties surrounding private enforcement of
antitrust law in Poland, currently the key implementation problem in the field of
antitrust law. Whereas the basic standards concerning the public pillar of antitrust
enforcement have already been established, either in the European Community
(EC) or in its Member States, the private pillar of antitrust enforcement has not
yet been fully developed. The fact that private enforcement of antitrust law is
possible, and in fact equal, to public enforcement is not yet commonly recognized.
In response to the European Commission’s White Paper on Damages actions for
breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered
as one of the contributions to this debate.
It presents the main legal framework of private enforcement of antitrust law in
Poland. In order to do so, it directly refers to the Polish Act on competition and
consumer protection, the Civil Code and the Civil Procedure Code. This article
also discusses Polish case law in this area. It aims to assess whether existing Polish
legal provisions are, in fact, sufficient to ensure effective private enforcement of
Polish as well as EC antitrust law. The article refers to the main proposals of the
European Commission’s White Paper.
It is concluded that private enforcement of antitrust law is indeed possible in
Poland on the basis of currently applicable procedural rules, even if there are no
special instruments designed to facilitate it. However, it cannot be expect that in the
current legal climate, private parties will eagerly and frequently apply for damages
in cases of a breach of Polish antitrust law. Antitrust cases are special in many
aspects and, thus, they require specific solutions in procedural terms. This article
aims to pinpoint those areas, where the Polish law needs to be changed in order to
develop and promote private enforcement of antitrust law in Poland.
EU Courts’ Jurisdiction over and Review of Decisions Imposing Fines in EU Com...Michal
The aim of this article is to analyse the extent of judicial review exercised by the EU
courts over the European Commission’s decision imposing fines in EU competition law. When considering appeals against fines in competition law, the position of
the EU courts are limited to a review of imposed fines in respect of the European
Commission’s Guidelines instead of an exercise of a more comprehensive appellate
review. The review should not only be a control of legality but it has to be an unlimited
merits control. An appeal control should be directed to review fully the facts and to
control proportionality of the imposed fines. The article analyses also the question
of the protection of fundamental rights in the scope of the review over decisions
imposing fines. For that purpose, the article provides also a comparative analysis of
the selected judgments of the EU courts and the European Court of Human Rights.
State aid: main developments
Authors:
Ms Alessandra Forzano (European Commission)
Dr Danilo Samà (European Commission)
Abstract:
The Competition Policy Newsletter contains information on EU competition policy and cases. Articles are written by staff of the Directorate-General for Competition of the European Commission.
Editor:
Competition Policy Newsletter
European Commission
Directorate-General for Competition (DG COMP)
Keywords:
competition policy, EU case-law, state aids
JEL classification:
K21; L44
Year:
2012
Pages:
19-25
Citation:
Forzano, Alessandra, Samà, Danilo (2012), State aid: main developments, Competition Policy Newsletter, Vol. 3, Directorate-General for Competition, European Commission, Brussels, Belgium, pp. 19-25.
The ne bis in idem Principle in Proceedings Related to Anti- Competitive Agre...Michal
The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.
Fines for Failure to Cooperate within Antitrust Proceedings – the Ultimate We...Michal
The aim of this article is to analyse a powerful competence available to antitrust
authorities in Europe in the form of the imposition of fines for the failure to
cooperate within antitrust proceedings. While fines of that type are imposed in
practice very rarely, the article considers the existing decisional practice of the
Polish antitrust authority as well as the European Commission, and presents the
way in which their approach has evolved throughout the years. The article analyses
also the question of the formal initiation of proceedings concerning procedural
violations and the importance of the use of a uniform and fair approach towards
the scrutinized undertakings, especially as fine graduation is concerned. For that
purpose, the article provides also a comparative analysis of past proceedings
conducted by the European Commission and selected judgments of EU Courts.
Is making the conclusion of contracts for the provision of broadband internet...Michal
In its preliminary ruling delivered on 11 March 2010, the Court of Justice had
yet another opportunity, after the VTB-VAB and Galatea cases1, to express its views
on the legality of national legislation prohibiting combined sales (that is bundling
and tying). The preliminary question arose in a dispute between Telekomunikacja
Polska SA (hereafter TP SA), the Polish incumbent telecoms operator, and the
UKE President (in Polish: Urząd Komunikacji Elektronicznej; herefater, UKE),
the Polish national regulatory authority (NRA) responsible for the telecoms field.
The original case concerned the conditions for the provision of broadband internet
access services, ‘Neostrada TP’ by TP SA. According to Article 57(1)(1) of the Polish
Telecommunications Law of 2004 (in Polish: Prawo Telekomunikacyjne; hereafter,
PT)2 ‘A service provider may not make the conclusion of a contract for the provision
of publicly available telecommunications services, including connection to a public
telecommunications network, conditional upon the conclusion by the end-user of
a contract for the provision of other services (…)’
Similar to Kowalik banczyk - the publication of the european commission’s guidelines in an official (20)
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
Sieci szerokopasmowe w polityce telekomunikacyjnej a book reviewMichal
A new book from Professor Stanisław Piątek, an established authority on
telecommunications law, brings the reader closer to the inner workings of broadband
technology in its legal environment. The title reflects the focus of telecoms policy
on access whereby the only access that matters is to the broadband network in its
many variations. The subject matter itself makes the book worth reading, particularly
in the absence of other major Polish works on this topic. Even if some authors
regarded broadband technologies as obsolete years ago1, in reality it still represents
a lion’s share of the telecoms business. Professor Piątek himself is well aware of the
historical and transitory nature of the subject matter when he defines broadband not
by association with any particular technology but as the ability of whatever technology
available at any given moment to provide a certain minimum transmission speed.
Thus the central notion is open to absorb technologies nonexistent as of yet. This in
turn may pose serious regulatory issues as to what future industries will be subject to
regulation, particularly since the distinction between content and carrier regulation
is becoming increasingly blurred.
Media audiovizualne. konflikt regulacyjny w dobie cyfryzacji a book reviewMichal
The book under review here is entitled Audiovisual Media: regulatory conflict in
the digitalisation era by Katarzyna Chalubinska- Jentkiewicz. As the title suggests,
I expected it to be a monograph on new regulatory problems in the increasingly
digital audiovisual field. The sector itself is well known to cause competence conflicts
between the as many as three different regulatory bodies overseeing it in Poland: the
national telecoms regulator (the UKE President), the audiovisual media supervisory
body (the KRRiT) and the competition authority (the UOKiK President). The impact
of the European Commission can also not be overlooked. The book does indeed
deal in great detail with what is seen as the ‘regulatory conflict’ in the audiovisual
field but the approach applied therein is that of the theory of administration and
administrative/constitutional law rather than that of market regulation. As a result,
the analysis focuses primarily on the perceived ‘conflict’ between Poland’s interests
and regulatory competences and the impact exercised by the European Union as
a whole, rather than on any existing or potential internal conflicts. Key to the entire
analysis is the contraposition of the notion of ‘public interest of a nation’ (State) and
the ‘general interest of the EU’ whereby the special characteristics of ‘national’ public
interest are associated with the notion of ‘public morality’ and also, ‘public mission’.
Legislative developments in rail transport in 2011 in polandMichal
Most amendments of the Polish rail transport law in 2011 concerned the
organisation of rail transport including: improvements in timetable changing
procedures; mechanisms to ensure the observance and early publication of
timetables; interoperability of the rail system and; certification of train drivers.
Introduced were also some changes meant to restructure the incumbent state
rail operator (in Polish: Polskie Koleje Państwowe; hereafter PKP).
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
Legislative and jurisprudential developments in the energy sector in 2011 in ...Michal
The year 2011 brought about fundamental changes to the legal framework
affecting energy markets in Poland. The most important of these changes
concerned rules on obligatory public trading of electric energy (so-called,
exchange obligation) and the implementation of Nuclear Facilities Projects
and Obligatory Natural Gas Reserve System Projects.
Key legislative and jurisprudential developments of Polish Antitrust Law in 2011Michal
The article presents key developments in Polish antitrust legislation and jurisprudence
of 2011. Its legislative part focuses on the renewal of Polish Group Exemption
Regulations for vertical agreements, specialization and R&D agreements as well as
cooperation agreements in the insurance sector. Noted is also the sole amendment
of the Competition Act introduced in 2011 which concerns the financial liability of
the Polish competition authority. The article covers also the new Guidelines of the
UOKiK President on the criteria and procedures of merger notifications. Presented
in its jurisprudential part is a number of 2011 rulings, mainly those rendered by
the Supreme Court and the Court of Appeals, divided according to their subject
matter with respect to particular types of restrictive practices and other problems
related to the decision-making process of the UOKiK President.
How to facilitate damage claims private enforcement in croatiaMichal
Ever since the Croatian Competition Agency started functioning in 1997, public
enforcement of competition law has been the norm. Civil actions for breaches of
competition law have been the exception in Croatia. The existing legislation in the
area of competition law makes no effort to incentivise private enforcement. There
are no specific rules in the Competition Act 2009 dedicated to civil actions, except a
single provision that assigns jurisdiction over damages claims to commercial courts.
General tort law is applicable in order to prove damages. A number of issues arise
here mostly due to the complexity of competition cases. These issues were described
in the European Commission’s White Paper on Damages Actions for Breach of
EC Antitrust Rules (2008). The level of uncertainty as regards the outcome of the
claim is high. It seems that special rules need to be adopted in Croatia in order
to improve the position of the injured side. The paper deals with a number of
procedural and substantive law issues relevant to the facilitation of civil proceedings
for antitrust damages. A domestic law perspective is applied taking into account
recent developments in EU competition law and policy.
European audiovisual sector – where business meets society’s needs a book r...Michal
The Centre for Antitrust and Regulatory Studies (CARS), responsible for this
yearbook, also prepares the publication of textbooks and monographs. An Englishlanguage
textbook European Audiovisual Sector: Where business meets society’s needs
written by Dr. Ewelina D. Sage is one of the latest publication in this series
Differentiation between entrepreneurs and its legal consequences. case commentMichal
The discussed judgment was rendered in relation to the dispute between the
President of the Polish Competition Authority (hereafter, UOKiK President) on the
one hand and the Polish Football Association and the broadcaster Canal+ on the
other hand. These two undertakings were party to an agreement on exercising media
rights to football games of the two highest classes of the Polish league. The core of
the dispute consisted of the possibility of deeming the pre-emption right reserved
for Canal+ as a contractual provision restricting competition. The Courts involved
were also forced to answer the question whether performing tasks of a public service
character justified a decrease in the fine imposed by the competition authority
Development of the judicial review of the decisions in slovakiaMichal
The article provides an analysis of the most important judgments rendered by
Slovak courts at the end of 2010, in the course of 2011 and at the beginning of 2012.
The article focuses solely on judicial review of decisions issued by the National
Competition Authority of the Slovak Republic.
Slovak courts dealt with several key issues concerning public enforcement
of competition law such as: the application of the so-called ‘general clause’;
competences of the Slovak competition authority in regulated sectors; and the
application of the economic continuity test. Some of the conclusions resulting from
these judgments may be considered disputable. It may be argued, in particular, that
they may jeopardize the effective enforcement of competition law in the Slovak Republic. At the same time, the discussed jurisprudence has managed to clarify
a number of key issues which had been subject to debate for a number of years. The
article presents a review of these judgments, summarizes their key conclusions and
considers their possible impact on the system of public enforcement of competition
law in the Slovak Republic. The article is divided into a number of parts, each of
which covers an individual case, the titles of which refers to the main topic that was
under discussion in the presented judgment.
In the fifth year of its activities CARS focused on the pursuit of a number of
goals set in its founding documents. It was a particularly busy year for its Publishing
Programme which saw the issue of 6 separate titles: two monographs, an Englishlanguage
textbook, a collective works and two volumes of the ‘Yearbook of Antitrust
and Regulatory Studies’ [a special edition vol. 4(4) and the yearly vol. 4(5)]. 2011 was
also a very active period for the CARS Open PhD Seminar series with four meetings
taking place throughout the year. Several CARS members engaged also in the second
edition of a research project dedicated to regulatory and antitrust aspects of airport
activities (first phase of the project completed in 2010).
What do limitation periods for sanctions in antitrustMichal
Limitation periods represent a legal safeguard for a person who has once
broken the law in order not to be put at risk of sanctions and other legal liabilities
for an indefinite amount of time. By contrast, public interest can sometimes require
that a person who has committed a serious breach of law cannot benefit from
limitation periods and that it is necessary to declare that the law had indeed been
infringed and that legal liability shall be expected irrespective of the passage of
time.
Universal service obligation and loyalty effectsMichal
In network industries, a Universal Service Obligation (USO) is often seen as a burden
on an incumbent, which requires compensation for the net cost of such service
provision. This paper estimates the effects of consumer loyalty as an intangible
benefit of USO in the postal sector. In doing so, the agent-based modelling (ABM)
approach is applied, which makes it possible to model the behaviour of boundedly
rational consumers and is thus particularly appropriate for taking into account
intangibles considerations. The analysis shows that loyalty is crucial to whether
the USO uniform pricing constraint results in loss-making or profitability. Under
certain conditions and in the presence of a loyalty parameter, uniform pricing gives
a USO provider an advantage, when the size of the rural area is sufficiently big
and a disadvantage, if its size is too small. This finding is counterintuitive as USO
providers in countries with sparsely populated areas are typically expected to incur
a significant net cost of USO.
Procedural Autonomy of Member States and the EU Rights of Defence in Antitrus...Michal
The general rule concerning the application of EU law in the Member States is
that, unless the procedural issues are directly regulated in EU primary or secondary
law, the Member States possess a so-called ‘procedural autonomy’. This rule applies
fully to national antitrust proceedings, where the presumed infringement may
affect trade between EU Member States (decentralised EU antitrust proceedings). However, the procedural guarantees offered to undertakings in EU antitrust
proceedings before the European Commission, often referred to the undertakings’
‘rights of defence’, also form a part of the procedural acquis of EU law. This article
examines the question whether that procedural acquis, stemming mainly from EU
courts’s jurisprudence and formulated with regard to the proceedings before the
European Commission, should be applied as a standard in national (i.e. Polish)
antitrust proceedings where EU law applies.
Rights of an Undertaking in Proceedings Regarding Commitment Decisions under ...Michal
The purpose of this article is to present and define the rights of the undertakings
concerned, which are parties to commitment decision proceedings, and to
discuss whether the rights granted to the undertakings are exercised. As regards
commitment decisions the main right of an undertaking/a party to the proceedings
is the right to defend its own interests in negotiations with the Commission. Other rights, such as the right to a transparent procedure, the rights resulting from the
principle of legal certainty and legality of sanctions, and the right to appeal, are also
analyzed. The article argues that these rights are not adequately enforced in EU
competition law. This is a result of a strong negotiating position of the Commission
and the fact that it acts both as a prosecutor and decision-renderer. Additionally,
the scope of European courts’ review is so narrow that it does not guarantee that an
undertaking is protected against offering excessive and unreasonable commitments.
Exchange of Information and Evidence between Competition Authorities and Entr...Michal
This article concentrates on the exchange of information and evidence between
competition authorities. The issue is analyzed from the perspective of both antitrust
and merger cases. The level, scope and intensity of cooperation between competition
authorities differs in respect to these two kinds of cases and, to an extent, the applicable legal framework varies as well. Our analysis is based on EU law, national
legislation, and relevant case law, with attention also given to other sources of law
such as bilateral and multilateral agreements, best practices, recommendations etc.
In addition the problem of exchange of information is examined through the prism
of the Polish Competition Act. Regulation 1/2003 and the ECN, created upon
its provisions, provide detailed rules applicable for the exchange of evidence and
information between competition authorities in antitrust cases at the European
level. With respect to mergers, the provisions of Regulation 139/2004 do not have
the same high degree of influence, hence considerable attention is given to soft law
acts, such as recommendations of OECD and ICN, or best practices and informal
agreements adopted by national competition authorities.
Can the Right To Be Heard Be Respected without Access to Information about th...Michal
This article analyses Polish competition procedure from the perspective of a) the right
to be heard, and b) the right to receive information about the proceedings. It points out
problems with access to information about competition proceedings which influence the
level of protection of the right to be heard in these proceedings. In order to appraise
this issue, the article embarks upon an examination of the rules governing the right to
be heard in Polish competition enforcement proceedings. It then focuses on the extent
of the competition authority’s obligation to inform undertakings about the actions
addressed to them. The article includes discussion of the rules that circumscribe the
parties’ right of access to evidence in the proceedings. Finally, proposals for changes
in the practice of the competition authority, as well as in the Polish legal framework,
are put forth. The new rules governing competition proceedings before the European
Commission serve as an example for improvements in Polish competition procedures.
The Scope of Application of the Provisions of the Administrative Procedure Co...Michal
The main premise of this article is an attempt to determine the scope of application
of the provisions of the Administrative Procedure Code (KPA) in antimonopoly
proceedings. The legislator has introduced an extensive system of norm-referenced
proceeding provisions for antimonopoly law. In matters not regulated by the
legislature, however, it refers primarily to the solutions standardised by the
provisions of the KPA. In the opinion of the author of the article, the general
reference to the KPA contained in Article 82 is associated with the desire to create
strong safeguards to protect the rights of businesses involved. It is also to promote stability, consistency and transparency in the application of the model antimonopoly
proceedings. It seems that the legislature came to the conclusion that such a premise
might be achieved by establishing the Administrative Procedure Code as the basic
procedural instrument for proceedings conducted by the UOKiK President. This
rather means that the ‘main burden’ of the creation of a complex mechanism for
antimonopoly proceedings rests to a greater degree on the KPA.
The Scope of Application of the Provisions of the Administrative Procedure Co...
Kowalik banczyk - the publication of the european commission’s guidelines in an official
1. The publication of the European Commission’s guidelines in an official
language of a new Member State as a condition for their application
Case comment to the order of the Polish Supreme Court
of 3 September 2009 (Ref. No. III SK 16/091) to refer a preliminary
question to the Court of Justice of the European Union
(C-410/99 Polska Telefonia Cyfrowa sp. z o.o. v President of the Electronic
Communications Office)
Facts
The President of the Polish Office of Electronic Communication (hereafter, UKE)
established by a decision issued on 17 July 2006 that the relevant service market
for call termination in mobile telecommunications was not subject to effective
competition. The operator Polska Telefonia Cyfrowa (hereafter, PTC) was declared
to be an undertaking possessing significant market power on that market and thus
subjected to regulatory obligations in order for PTC to provide services to other
telecoms undertakings in that market.
PTC appealed the decision to the Court of Competition and Consumer Protection
(hereafter, SOKiK) claiming that the UKE President infringed: Articles 2 and 88(1)2
of the Polish Constitution, Article 6 of the Code of Administrative Procedure3,
Article 58 of the Accession Act4 together with Article 6 of the Treaty establishing the
European Union and Article 254 of the Treaty establishing the European Community
1 Not yet reported, fragments of the reasoning available [in:] D. Miąsik, (2010) 1(28) Zeszyty
Naczelnego Sądu Administracyjnego 103-108. The preliminary question available in: OJ [2010]
C 24/19.
2 Article 2 of the 1997 Constitution states: ‘The Republic of Poland shall be a democratic
state ruled by law and implementing the principles of social justice’. Article 88(2) of the 1997
Constitution states: ‘The principles of and procedures for promulgation of normative acts shall
be specified by statute’.
3 Article 6 of the 1960 Code of Administrative Procedure states: ‘The organs of public
administration act on the basis of rules of law’.
4 OJ [2003] L 236/33. Article 58 states: ‘The texts of the acts of the institutions, and of
the European Central Bank, adopted before accession and drawn up by the Council, the
Commission or the European Central Bank in the Czech, Estonian, Hungarian, Latvian,
Lithuanian, Maltese, Polish, Slovak and Slovenian languages shall, from the date of accession,
be authentic under the same conditions as the texts drawn up in the present eleven languages.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
2. Publication of the EC’s guidelines in the new MS language as a condition for their application 307
(currently Article 297 TFEU), Article 2 of the Polish Telecommunication Law of 16
July 2004 (PT 2004)5. The infringement alleged by PTC consisted of the fact that the
UKE decision was based on the European Commission Guidelines on market analysis
and the assessment of significant market power under the Community regulatory
framework for electronic communications networks and services6. The said act was
issued under Article 15(2) of the Directive 2002/21/EC of the European Parliament
and of the Council of 7 March 2002 on a common regulatory framework for electronic
communications networks and services (Framework Directive)7. The key issue to
be stressed here is that the scrutinised Guidelines were not published in the Polish
language in the Official Journal of the EU.
SOKiK upheld the UKE decision as no infringement was found8. PTC appealed the
first instance ruling to the Court of Appeals in Warsaw but the appeal was dismissed9.
PTC filed then a cassation request to the Supreme Court which decided to stay
the proceedings and to refer to the Court of Justice the following question: ‘Does
Article 58 of the Act of Accession allow reliance to be placed against individuals in a
Member State upon European Commission guidelines of which, under Article 16(1)
of Directive 2002/21/EC of the European Parliament and of the Council of 7 March
2002 on a common regulatory framework for electronic communications networks
and services (Framework Directive), the national regulatory authority should take the
utmost account when carrying out an analysis of the relevant markets, where those
guidelines have not been published in the Official Journal of the European Union in
the language of that State and that language is an official language of the European
Union?’
Key legal problems of the case
The character of the Commission guidelines on market analysis
One of the key points of the referral lies in the clarification of the legal character of
guidelines issued by the European Commission. They are generally believed to belong
to the so-called ‘soft law’ category of EU acts (either named in the founding Treaties
or not) that are not formally binding upon their addressees10. They are issued in
order to induce interested parties to follow certain proposed and preferred behaviours
They shall be published in the Official Journal of the European Union if the texts in the present
languages were so published’.
5 Journal of Laws 2004 No. 171, item 1800, as amended. Article 23(2) provides: ‘ n analysis
A
of the relevant markets should be done with respect to the European Commission guidelines
on market analysis and the assessment of significant market power’.
6 OJ [2002] C 165/3.
7 OJ [2002] L 108/33.
8 Judgment of 10 July 2007, XVII AmT 26/06, not reported.
9 Judgment of 17 October 2008, VI ACa 315/08, not reported.
10 A. Kalisz, Wykładnia i stosowanie prawa wspólnotowego [Interpretation and application
of Community law], Warszawa 2007, p. 85; K. Wellens. G. Borchardt, ‘Soft Law in European
Vol. 2010, 3(3)
3. 308 CASE COMMENTS
without imposing any formal mechanisms of constraint11. For national judicial and
administrative bodies, they are a source of inspiration concerning the interpretation of
EU legal rules (they indicate how the applicable provisions should/could be interpreted
and applied)12. Nonetheless, they bind their issuer as they are perceived as a form
of self-obligation of that body to follow its own declarations13. As one commentator
stated, soft law ‘can produce a large array of legal effects such as, among others, to
create legitimate expectations for the individuals, to clarify the content of certain hard
law provisions, or to structure the discretion of certain institutions’14.
Guidelines are most often issued by the Commission and primarily in the field of
European Competition law. Their character has been object of the interpretation of
EU courts: ‘[Guidelines] may not be regarded as rules of law which the administration
is always bound to observe, they nevertheless form rules of practice [in French it
is formulated in a broader way: règle de conduite indicative de la pratique à suivre]
from which the administration may not depart in an individual case without giving
reasons that are compatible with the principle of equal treatment’15. Indeed, the ECJ
included guidelines into the body of EU law sensu largo stating that ‘having particular
regard to their legal effects and to their general application [...] such rules of conduct
come, in principle, within the principle of ‘law’ for the purposes of Article 7(1) of
Community Law’ (1989) 14(5) European Law Review 280; L. Senden, Soft Law in European
Community Law, Oxford and Portland Oregon 2004, p. 45.
11 As a matter of principle, they are not binding. However, examples can be found of EU
soft law that are binding for the addressees also from the formal point of view: cf Article 126
TFUE (ex. Article 104.7 TEC).
12 C-322/88 Grimaldi [1989] ECR 440, para. 18: ‘national courts are bound to take
recommendations into consideration in order to decide disputes submitted to them, in particular
where they cast light on the interpretation of national measures adopted in order to implement
them or where they are designed to supplement binding Community provisions’.
13 A. Wyrozumska, ‘Nieformalne porozumienia w prawie wspólnotowym i krajowym (na
przykładzie Obwieszczenia Komisji w sprawie współpracy w ramach Sieci Organów ds. Ochrony
Konkurencji)’ [‘Non-formal agreements in the Community and national law (on the example
of the Commission Notice on co-operation within the Network of Competition Authorities’]
(2004) 2 Kwartalnik Prawa Publicznego 217. Advocate General Warner referred in this context
to the principle of estoppel, cf: Opinion of Advocate General Jean-Pierre Warner in Case
19/77 Miller [1978] 2 CMLR 342; cited by: S.A. Stefan, ‘European Competition Soft Law in
European Courts: A Matter of Hard Principles?’ (2008) 14(6) European Law Journal 765. The
EU courts have repeatedly stressed that the Commission is bound by its own guidelines/notices:
C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, para. 23; T-119/02 Royal Philips
Electronics v Commission [2003] ECR II-1433, para. 242; T-71/03, T-74/03, T-87/03 and T-91/03
Tokai Carbon v Commission [2005] ECR II-10, para. 157; Case T-16/99 Lögstör Rör [2002] ECR
II-1633, para. 344.
14 O.A. Stefan, ‘European Competition Soft Law…’, p. 756.
15 C-167/04 JCB Service v Commission [2006] ECR I-8935, para. 207; C-189/02 P, C-202/02
P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005]
ECR I-5425, para. 209. Cited by the Supreme Court in its reasoning; cf also: O.A. Stefan,
‘European Competition Soft Law…’, p. 763.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
4. Publication of the EC’s guidelines in the new MS language as a condition for their application 309
the ECHR’16. They are therefore binding upon their institutional author and create
for their addressees a legitimate expectation that the Commission would follow the
practice announced in its guidelines, unless there are reasoned grounds to depart
from this practice. It should be also noted that most guidelines issued in the field of
Competition law are not published in the Polish language in the Official Journal17.
However, guidelines issued in the framework of EU Competition law are not
identical with the particular Guidelines to which the preliminary question refers
to. The former are binding on the Commission but not on national authorities. By
contrast, the Guidelines on market analysis constitute the obligatory basis for market
assessment undertaken by national regulatory authorities (NRAs) as stated in Articles
15 and 16 of the Framework Directive. More specifically, Article 15 (2) declares
that: ‘The Commission shall publish, at the latest on the date of entry into force
of this Directive, guidelines for market analysis and the assessment of significant
market power (…) which shall be in accordance with the principles of competition
law’. In its Article15 (3), it states that ‘National regulatory authorities shall, taking the
utmost account of (…) the guidelines, define relevant markets appropriate to national
circumstances, in particular relevant geographic markets within their territory, in
accordance with the principles of competition law’. Article 16 (1) of the Framework
Directive clarifies further that: ‘(…) national regulatory authorities shall carry out
an analysis of the relevant markets, taking the utmost account of the guidelines’ (the
same expression is used in Article 16 (5) concerning transnational markets).
According to the reasoning of the order of the Supreme Court, the discretion of
NRAs is therefore greatly reduced as far as the definition and analysis of relevant
markets is concerned. NRAs are obliged to apply common standards stemming from
these Guidelines, which should therefore be perceived as binding upon NRAs18 even if
they form part of EU soft law. The Polish Supreme Court stressed however that some
ECJ jurisprudence suggests that the binding power of guidelines issued under the
Framework Directive can be questioned. In case C-274/07 Commission v Lithuania19,
the ECJ stated that the guidelines issued under this Directive are not binding upon
Member States and they are not obliged to follow them strictly. It is worth noting as
a matter of digression that the Supreme Court has ruled on the character of similar
guidelines issued by the President of the Polish Office of Competition and Consumer
Protection (UOKiK) judging them as not binding upon Polish courts20.
16 C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and
Others v Commission, para. 223; cf: O.A. Stefan, ‘European Competition Soft Law…’, p. 764.
17 Cf for instance, OJ [2004] C 101 containing seven important Commission notices neither
of which is available in any of the new official languages.
18 Reasoning of the decision to refer the preliminary question; cf cited there: C-311/94
Ijssel-Vliet Combinatie [1996] ECR I-5023.
19 [2008] ECR I-7117, para. 25-27.
20 III SK 5/09, referred in: D. Miąsik, ‘Orzecznictwo Sądu Najwyższego w sprawach z zakresu
ochrony konkurencji i konsumentów w latach 2006–2009’ [‘The Supreme Court case law in
competition and consumer cases in 2006-2009’] (2010) 5-6 Biuletyn Sądu Najwyższego. Izba Pracy,
Ubezpieczeń Społecznych i Spraw Publicznych 2010, p. 74. The practice of issuing guidelines
Vol. 2010, 3(3)
5. 310 CASE COMMENTS
According to the wording of the Framework Directive, the Guidelines on market
analysis have formal grounds to be binding on Member States and can be perceived as
creating some legitimate expectations for individuals in the territory of those Member
States. However, the present ECJ jurisprudence gives a different interpretation
of their character. The resulting uncertainly should be resolved by the answer to
the question submitted by the Polish Supreme Court in this case. Referring to the
content of the Guidelines themselves (26 pages, 156 points), their addressees are
identified already the opening words of point 1. They ‘(…) set out the principles for
use by national regulatory authorities (NRAs) in the analysis of markets and effective
competition under the new regulatory framework for electronic communications
networks and services’. The Guidelines contain therefore very precise and broadly
described obligations on the part of NRAs mostly based on the provisions of the
Framework Directive.
Scope of obligation to publish in EU official languages
Article 297 (1) TFEU (ex 254 TEC) provides in its last sentence: ‘Legislative acts
shall be published in the Official Journal of the European Union (…)’ whereby the
notion of ‘legislative acts’ is defined in Article 289 TFEU as ‘legal acts adopted by
legislative procedure’. Thus the only criterion to treat an act as ‘legislative’ is formal: it
is an act adopted by EU institutions (normally jointly by the European Parliament and
the Council) on the basis of Treaty procedures (either ordinary or special legislative
procedures)21. Some ‘non-legislative’ acts must also be published according to Article
297(2) TFUE namely: ‘regulations and directives which are addressed to all Member
States, as well as decisions which do not specify to whom they are addressed’. Selective
(i.e. in some official languages only)22 or partial publication (missing integral elements
e.g. annexes)23 of the acts so listed is perceived as a breach of the Treaty. However,
while the publication obligation discussed by the ECJ concerns acts published in the
Series L (Legislation) of the Official Journal, publications in its other Series (Series C
by the UOKiK President is very critically assessed by M. Król-Bogomilska, ‘Kary pieniężne
– główne kierunki ewolucji w okresie 20 lat rozwoju polskiego prawa antymonopolowego’
[‘Pecuniary penalties – main directions of evolution during the 20 years of development of
Polish antimonopoly law’] (2010) 5 Europejski Przegląd Sądowy 12-14, but judged positively
by T. Skoczny, ‘Polskie prawo kontroli koncentracji – ewolucja, model, wybrane problemy’
[‘Polish law of concentration control – evolution, model, selected problems’] (2010) 5 Europejski
Przegląd Sądowy 21.
21 Cf also C. Herma, ‘Reforma systemu aktów prawa pochodnego UE w Traktacie z Lizbony’
[‘The Treaty of Lisbon and the reform of the EU legal acts system’] (2008) 5 Europejski Przegląd
Sądowy 22.
22 C-161/06 Skoma-Lux [2007] ECR I-10841.
23 C-345/06 Heinrich [2009] ECR I-1659; cf: M. Bobek, ‘Case C-345/06, Gottfried Heinrich,
Judgment of the Court of Justice (Grand Chamber) of 10 March 2009’ (2009) 46 Common
Market Law Review 2077-2094.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
6. Publication of the EC’s guidelines in the new MS language as a condition for their application 311
and Series S) is not obligatory24. All the guidelines ever to be published in the Official
Journal were included in Series C.
The Treaty does not provide for an obligation to publish such acts as guidelines. Such
an obligation stems however from the Framework Directive as far as the Guidelines
on market analysis are concerned. The Directive does not define if the publication
should be translated into all official languages of the EU within the meaning of the
present Article 55 TEU. The said Guidelines were published in 2002 in all eleven
languages that were official at that time. Like most acts published in Series C of the
Official Journal issued before the last two accessions, they were never translated into
any of the new official languages25.
On the other hand, Article 58 of the Accession Act provides that ‘the texts of the
acts of the institutions (…) adopted before accession’ if translated into any of the new
languages, should be as authentic as the acts published in the old official languages.
The last sentence of Article 58 states that ‘[the texts] shall be published in the Official
Journal of the European Union if the texts in the present languages were so published’.
The Accession Act clearly excludes therefore any ‘discrimination’ between the old and
the new official languages and does not distinguish between different Series of the
Official Journal or different types of texts that might have been published therein.
Thus, literally speaking, all texts that had ever been published in any of the Series of
the Official Journal of the European Union (before 1 February 2003 in the Official
Journal of the European Communities) should be translated into all new official
languages if that was the case for all old official languages. Unfortunately, that rule
is not followed by the EU institutions in practice. The only acts that were (sometimes
with major delays)26 translated in their entirety are the formally binding acts from the
24 The Official Journal consists of two related series (L for legislation and C for information
and notices) and a supplement (S for public procurement). There is also an electronic section
to the C series known as the OJ C E which is the sole source for documents it contains, cf:
http://publications.europa.eu/official/index_en.htm, last visited 20 August 2010.
25 http://eurlex.europa.eu/JOHtml.do?year=2002&serie=C&textfield2=165&Submit=Sea
rch&_submit=Search&ihmlang=pl, last visited: 20 August 2010.
26 P. Błędzki, ‘Praktyczne problemy związane z publikacją prawa wspólnotowego w Polsce’
[‘Practical problems related to publications of Community law in Poland’] (2007) 1 Europejski
Przegląd Sądowy 53; G. Wierczyński, ‘Konsekwencje braku urzędowego ogłoszenia aktów prawa
wspólnotowego w języku polskim’ [‘Consequences of lack of official promulgation of Community
law instruments in Polish’] (2007) 1 Europejski Przegląd Sądowy; G. Wierczyński, ‘Skutki braku
publikacji rozporządzenia w języku urzędowym nowego państwa członkowskiego – glosa do
wyroku ETS z 11 grudnia 2007 r. w sprawie C-161/06 Skoma-Lux’ [‘Consequences of failure to
publish a regulation in the official language of a new Member State – commentary about ECJ
judgment of 11 December 2007 in case C-161/06 Skoma-Lux’] (2008) 3 Europejski Przegląd
Sądowy; A. Wróbel, ‘Dopuszczalność odmowy zastosowania rozporządzenia Komisji Europejskiej
przez krajowe organy administracji publicznej i sądy’ [‘Possibility for public administration
authorities and courts to refuse to apply regulations of the European Commission’] (2006) 1
Europejski Przegląd Sądowy 48–53; R. Hauser, R. Talaga, ‘Publikacja rozporządzeń WE w języku
krajowym a ich stosowanie przez sądy administracyjne’ [‘Publication of EC law in languages
Vol. 2010, 3(3)
7. 312 CASE COMMENTS
previous Article 249 TEC (at present, Article 288 TFEU), thus only those published
in Series L of the Official Journal.
Publication of acts creating ‘negative’ effects for individuals
In the motifs of its decision to refer a preliminary question to the ECJ, the Polish
Supreme Court stressed the distinction between publication of acts creating negative
effects for individuals and those that do not have such effects. The distinction is
important because the former cannot be effectively applied (enforced) unless they have
been formally published in the Official Journal. However, the ECJ’s jurisprudence on
this issue relates so far only to acts that are, by definition, binding in nature27. ECJ
has not yet analysed the eventual obligation to publish guidelines that create negative
effects for individuals. This point constitutes one of the main problems of the Polish
request for a preliminary ruling.
In its request, the Supreme Court referred to Skoma-Lux28 and Balbiino29 where
the principles of equivalent treatment and legal certainty were invoked to reason
the obligation of EU institutions to publish acts that might have negative effects for
individuals. According to the Supreme Court, those two principles are infringed if the
Commission’ guidelines are not published in Polish even though they are published
in other official languages. That fact alone places domestic telecoms undertakings
in a worse position than entrepreneurs from other EU Member States. It is worth
recalling the ECJ’s view that the two principles of EU law are applicable if a non-
published act of EU institution places obligations on individuals. The ECJ noted in
Skoma-Lux that Article 58 of the Accession Act ‘precludes the obligations contained
in Community legislation which has not been published in the Official Journal of
the European Union in the language of a new Member State from being imposed
on individuals in that State, even though those persons could have learned of that
legislation by other means’ (paragraph 51)30. Still, the cited fragment refers clearly to
‘legislation’ while it is unlikely that guidelines, even based on the Framework Directive,
can be perceived as part of EU legislation. An acceptance of such an ‘informal’ way
of producing ‘legislation’ would contradict the principle of legal certainty and the idea
of the European Union being an entity based on the law.
of new Member States and its observance in Polish administration courts’] (2009) 2 Europejski
Przegląd Sądowy.
27 Most of the cases analysed to date by the ECJ concerned EU regulations: C-161/06
Skoma-Lux [2007] ECR I-10841; C-560/07 Balbiino [2009] ECR I-4447; C-345/06 Heinrich
[2009] ECR I-1659; some related to decisions: C-162/96 Racke [1998] ECR I-3655; C-158/06
ROM-projecten [2007] ECR I-5103.
28 C-161/06 Skoma-Lux [2007] ECR I-10841, para. 36 and f.
29 C-560/07 Balbiino [2009] ECR I-4447, para. 30.
30 The solution taken by the ECJ corresponds to the French Constitutional tradition, rather
than the German or common law approach, described in: M. Bobek, ‘Case C-345/06, Gottfried
Heinrich…’, p. 2084-2087. In French tradition such an act is imposable but valid, whereas in
German or Polish law such acts would be void.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
8. Publication of the EC’s guidelines in the new MS language as a condition for their application 313
By contrast, the Supreme Court noted that the Heinrich31 judgment presents
arguments in favour of interpreting the Skoma-Lux rule in a broader manner that
encompasses also Commission guidelines. Point 43 of the Heinrich ruling suggests
that it is the ‘negative effect for individuals’ criterion, rather than the nature of the
act itself, that represents the main criterion to consider while analyzing the scope
of the obligation to publish the Guidelines on market analysis in all EU official
languages. The judgment states: ‘an act adopted by a Community institution cannot
be enforced against natural and legal persons in a Member State before they have
the opportunity to make themselves acquainted with it by its proper publication in
the Official Journal of the European Union’, without distinguishing between different
acts adopted by EU institutions. Although the Heinrich case concerned regulations,
the Polish Supreme Court perceives this statement as encompassing all acts issued
by the EU institutions.
The Polish Supreme Court referred also to ROM-projecten32 noting on its basis
that obligations stemming from a given act do not have to be imposed directly on
the individuals by that very act. It is sufficient that it places an obligation on Member
States to undertake specific actions towards individuals in that country. ROM-projecten
concerned an unpublished decision of the Commission imposing an obligation on a
Member State upon which an authority of the Member State based its own decision
addressed to an individual. Thus, the ECJ went further than the Article 254 TEC
which did not impose an obligation to publish such decisions (neither does the present
Article 297 TFEU). Perhaps this wide approach to the obligation to publish EU acts
could be further broadened to include soft law acts that may create negative effects
for individuals but there is no textual legal basis for such an interpretation. Just like
the Polish Supreme Court, one can only refer to general EU law principles.
The considerations for the possible ECJ’s answer
In practice, hardly any acts published before the last two accessions in the Official
Journal Serie C have ever been translated into the new official languages of the EU.
It might thus be simple pragmatism that stops the ECJ from questioning the lack of
publication of all Commission guidelines in all of the new official languages. There
are also formal reasons against undermining the existing practice – the Treaties do
not contain such an obligation and the scope of Article 58 of the Accession Act is
ambiguous with respect to the meaning of ‘texts of institutions’. Moreover, since the
publication obligation contained in Article 297 TFEU does not relate to non-binding
acts defined in Article 288 TFEU (recommendations and opinions), a comprehensive
publication of guidelines is also not necessary. Indeed, if the provisions of TFEU
were considered in conjunction to Article 58 of the Accession Act only, their lack of
publication would not constitute a breach of EU law. The situation is different for the
Guidelines on market analysis because they are subject to a special publication duty
31 C-345/06 Heinrich [2009] ECR I-1659.
32 C-158/06 ROM-projecten [2007] ECR I-5103.
Vol. 2010, 3(3)
9. 314 CASE COMMENTS
contained in the Framework Directive. Formally speaking, these particular Guidelines
must be published even if they do not bear any negative consequences for individuals.
Otherwise, an obligation directed to the European Commission to publish them,
specifically provided for in the Directive, would be void.
In this case, if the ECJ’s answer does not state that the obligation to publish
the said Guidelines exists, or that the lack of such publication does not cause any
consequences as far as their application is concerned (even if it violates the Directive),
such a position might lead to the denial of the equivalent treatment rule of both
Member States and their undertakings. It would create a division between those with
access to all EU texts in their official languages and those that lack access to some
of them without, however, that fact resulting in any consequences. Even if one could
find arguments supporting such a division in legal terms, with respect to texts with
no formal legal value issued before the accessions, an explicit ECJ’s statement of this
kind would not be politically correct and would infringe one of the most basic ideas
of EU law – namely the principle of non-discrimination.
If the act in question, or indeed any other guidelines, is causing legal consequences
for anyone beside the Commission despite its soft law nature, its publication is
indispensable in order to ensure legal certainty. Lack of publication should cause the
‘non-application’ of the Guidelines by NRAs that are theoretically bound to follow
them. Any reproaches from the Commission concerning the ‘not following’ of their
rules should thus be perceived as unfounded. If a NRA applies them despite the lack
of their publication, the negative consequences of their use should be undermined by
anyone negatively influenced by the Guidelines because their application would be
based on an improper legal basis (or lack thereof).
If the European Commission wants the guidelines to have any legal consequences,
either for Member States or individuals, it should certainly introduce a comprehensive
and transparent publication practice. Otherwise, Guidelines cannot be perceived as
creating any form of effects for anyone other than the Commission, regardless of
the reference made to them in the Framework Directive. If they are to bear any
legal consequences, they should also be published in the Official Journal of Series L
(Legislation) rather than Series C in order to clearly show their factual legal status. If
not, the principle of legal certainty would be constantly infringed, according to which
both the bodies that apply the law and the individuals affected by it are able to get
properly acquainted with its content. The new Treaty provisions ensuring the openness
of EU actions (Article 15(1) TFEU) and the transparency of its legislative process
(Article 15(2) TFEU) also stress the need to change of existing practice. Last but not
least, Article 296 TFUE in its last sentence clearly states that “When considering draft
legislative acts, the European Parliament and the Council shall refrain from adopting
acts not provided for by the relevant legislative procedure in the area in question’. The
same should become a part of the European Commission code of good practise.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
10. Publication of the EC’s guidelines in the new MS language as a condition for their application 315
Final remarks
Regardless of the answer ultimately given by the ECJ, the presented case clearly
shows that the European Union needs to redefine its practice of issuing and (not)
publishing acts of ‘undefined legal value’ in order of it, to be perceived as a democratic
and law-abiding international organisation. Two possible solutions to the current
problem can be identified: a stronger and a weaker one. First, in order to truly
respect the rule of law principle, the Commission should change its current practice
of issuing acts that are formally of no legal value but practically create effects for
individual because these acts de facto oblige national authorities to follow certain
behavioural practices towards those individuals. Instead, the Commission should stick
to the catalogue of binding acts provided for in Article 288 TFEU preferably issuing
‘implementing decisions’ as defined in Article 291 TFEU. It should also analyze more
carefully the possible consequences of its own soft law acts and where there is any
possibility that the act would influence the legal situation of individuals, it should
stick to the Treaty catalogue. Second, in a softer approach, even if the Commission
does not change its current practice of issuing guidelines, it should publish them in
all official languages of the European Union where there is any chance that they bear
any consequences for individuals. Otherwise, it will find itself subject to much more
widespread reproach alleging that it has breached the principles of legal certainty and
equality. It remains to be seen whether such acts in the circumstances described above
should only be unenforceable or rather null and void as if they never existed?33
Dr. Krystyna Kowalik-Bańczyk
Competition Law Chair, Institute of Legal Studies, Polish Academy of Science;
Faculty of Management and Economy, Technical University of Gdańsk
33 The question asked in the context of non-publication of annexes to Regulations in the
Heinrich case by: M. Bobek, ‘Case C-345/06, Gottfried Heinrich...’, p. 2077 and 2089.
Vol. 2010, 3(3)