The document discusses the influence of EU competition law on the application of Polish competition rules by Polish courts over the past 20 years. It outlines two different approaches taken by courts: 1) A cautious approach where EU law only provides inspiration and reasoning for national cases without cross-border effects. Courts are not obligated to apply EU standards. 2) An alternative approach where the relationship between Polish and EU rules requires full recognition of EU law in national cases due to factual harmonization. The document also notes constitutional considerations regarding divergent treatment of companies in EU vs national cases.
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.
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 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.
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.
Standards of Entrepreneur Rights in Competition Proceedings – a Matter of Adm...Michal
The question of standards of entrepreneur rights in competition proceedings has
been for many years considered as one the most controversial issues. Its importance
has been increasing considering that the application of antitrust regulations is often
concomitant with a wide-ranging interference with the freedom of economic activity.
This interference manifests itself in cases concerning both restrictive practices and
the control of concentrations. Valuable source of inspiration for a debate on the
need to take into account numerous standards of rights in competition proceedings was the dispute over the nature of competition proceedings and fines (the
controversy around ‘a criminal law nature’ of competition cases). The jurisprudence
of Strasbourg judiciaries explicitly stresses that in the assessment of a case nature
due consideration should rather not be given to formal classifications set forth
in legal provisions but to the real nature of the case. The ECJ did not share the
assumptions adopted by the European Court of Human Rights on the legitimacy of
a wide interpretation of the “criminal charge” notion within the meaning of Article
6(1) ECHR. In the present EU jurisprudence on competition law, there have been
more and more judgments which deal with standards of rights stemming from
the ECHR. In the context of an ever growing severity of penalties, the guarantee
function of law has been gaining in importance, and hence the standards to be
respected in competition proceedings are of a bigger weight.
Major changes were brought by the entry into force, on 1 December 2009, of the
Treaty of Lisbon. The implementation of the concept aiming at an even stronger
reinforcement of the position of fundamental rights was sealed by granting the EU
Charter of Fundamental Rights of 2000 the binding force by including this Charter
into the EU primary law and by defining the basis for the EU accession to the
ECHR (Article 6 TEU). The introduction of new rules of judicial cooperation in
criminal matters may contribute in future to a better dynamic of the criminalization
of the most serious violations of competition law in the EU Member States (Article
83 and following of the TFEU).
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
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.
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 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.
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.
Standards of Entrepreneur Rights in Competition Proceedings – a Matter of Adm...Michal
The question of standards of entrepreneur rights in competition proceedings has
been for many years considered as one the most controversial issues. Its importance
has been increasing considering that the application of antitrust regulations is often
concomitant with a wide-ranging interference with the freedom of economic activity.
This interference manifests itself in cases concerning both restrictive practices and
the control of concentrations. Valuable source of inspiration for a debate on the
need to take into account numerous standards of rights in competition proceedings was the dispute over the nature of competition proceedings and fines (the
controversy around ‘a criminal law nature’ of competition cases). The jurisprudence
of Strasbourg judiciaries explicitly stresses that in the assessment of a case nature
due consideration should rather not be given to formal classifications set forth
in legal provisions but to the real nature of the case. The ECJ did not share the
assumptions adopted by the European Court of Human Rights on the legitimacy of
a wide interpretation of the “criminal charge” notion within the meaning of Article
6(1) ECHR. In the present EU jurisprudence on competition law, there have been
more and more judgments which deal with standards of rights stemming from
the ECHR. In the context of an ever growing severity of penalties, the guarantee
function of law has been gaining in importance, and hence the standards to be
respected in competition proceedings are of a bigger weight.
Major changes were brought by the entry into force, on 1 December 2009, of the
Treaty of Lisbon. The implementation of the concept aiming at an even stronger
reinforcement of the position of fundamental rights was sealed by granting the EU
Charter of Fundamental Rights of 2000 the binding force by including this Charter
into the EU primary law and by defining the basis for the EU accession to the
ECHR (Article 6 TEU). The introduction of new rules of judicial cooperation in
criminal matters may contribute in future to a better dynamic of the criminalization
of the most serious violations of competition law in the EU Member States (Article
83 and following of the TFEU).
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
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.
More economic approach to exclusivity agreements: how does it work in practic...Michal
No other topic draws as much attention in competition law as the need for an
economic approach1 and yet, it is still a ‘deficit’ approach. Authorities enforcing
competition protection rules are still very attached to the formalistic approach and
this is an affliction not only of the Polish but also of the EU authorities and courts2
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.
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.
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.
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.
P. podrecki, civil law actions against restricting practicesMichal
This paper’s aim is to describe the rules governing the assertion of civil law liability
in the event of a competition law infringement. Given the planned adoption and
implementation of a new EU legislative package concerning private enforcement, it
is useful to determine what legal instruments and procedures are already available
under Polish civil law that serve the protection of market players. This paper will
specify the legal basis for the assertion of civil claims associated with competition
law infringements and present its particularity. Considered will be the provisions
of the Polish Civil Code as well as the provisions of the law on combating unfair
competition and the law on unfair market practices. Discussed will be the full
catalogue of civil law claims that can be asserted in relation to antitrust infringements
as well as the specific purposes of civil law liability in this context. The paper will
also assess the model of determining the effects of competition law violations and
analyse whether private law principles for the calculation of loss can be applied in
antitrust infringement cases. Finally, the paper will discuss the issue of settling the
convergence of liability problem and the proposal concerning the introduction into
the Polish legal system of class actions.
"Competition rules at European Union (EU) level, as well as in Romania, provide investigative powers for the competition authorities.", Andreea Oprișan, Managing Associate Tuca Zbarcea & Asociatii.
Powers of Inspection of the Polish Competition Authority. Question of Proport...Michal
The principle of proportionality applies to competition proceedings especially, when
it comes to the exercise by the competition authority of its powers of inspection.
Their use limits the economic freedom and right to privacy of the scrutinised
undertakings in order to protect free competition. The use of inspection powers
must thus be proportionate and remain the least onerous possible for the inspected
companies. In consequence, legislation must provide procedural guarantees of
proportionality of inspections.
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.
Last year provided important decisions and evolution of competition law on key topics for Norway. On public enforcement the European Commission adopted recently (in 2018) a decision in the largest ongoing cartel case addressing Norwegian companies in the Maritime Car Carriers Case and the EFTA Surveillance Authority has launched an investigation in the largest ongoing antitrust case involving a Norwegian business sector in the so-called e-payment case related to the financial sector. The evolution of private enforcement in Norway is unhurriedly moving along, with one key case being the Henrik Kristoffersen case recently litigated in the EFTA Court. Grette is proud to recognize that our services have been retained in all these cases.
New Amendments Introduced to European Union Competition Law Due to the Expira...Michal
On 7 June 2010, a conference under the title New Amendments Introduced to
European Union Competition Law Due to the Expiration of Block Exemption Regulations
took place at the Lazarski University in Warsaw.
The conference was opened by Professor Zbigniew Lasocik, the Dean of the Law
Faculty of the Lazarski University, who started his speech by introducing the University
and emphasizing the Faculty of Law’s aim to ensure high quality legal education.
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.
More economic approach to exclusivity agreements: how does it work in practic...Michal
No other topic draws as much attention in competition law as the need for an
economic approach1 and yet, it is still a ‘deficit’ approach. Authorities enforcing
competition protection rules are still very attached to the formalistic approach and
this is an affliction not only of the Polish but also of the EU authorities and courts2
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.
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.
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.
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.
P. podrecki, civil law actions against restricting practicesMichal
This paper’s aim is to describe the rules governing the assertion of civil law liability
in the event of a competition law infringement. Given the planned adoption and
implementation of a new EU legislative package concerning private enforcement, it
is useful to determine what legal instruments and procedures are already available
under Polish civil law that serve the protection of market players. This paper will
specify the legal basis for the assertion of civil claims associated with competition
law infringements and present its particularity. Considered will be the provisions
of the Polish Civil Code as well as the provisions of the law on combating unfair
competition and the law on unfair market practices. Discussed will be the full
catalogue of civil law claims that can be asserted in relation to antitrust infringements
as well as the specific purposes of civil law liability in this context. The paper will
also assess the model of determining the effects of competition law violations and
analyse whether private law principles for the calculation of loss can be applied in
antitrust infringement cases. Finally, the paper will discuss the issue of settling the
convergence of liability problem and the proposal concerning the introduction into
the Polish legal system of class actions.
"Competition rules at European Union (EU) level, as well as in Romania, provide investigative powers for the competition authorities.", Andreea Oprișan, Managing Associate Tuca Zbarcea & Asociatii.
Powers of Inspection of the Polish Competition Authority. Question of Proport...Michal
The principle of proportionality applies to competition proceedings especially, when
it comes to the exercise by the competition authority of its powers of inspection.
Their use limits the economic freedom and right to privacy of the scrutinised
undertakings in order to protect free competition. The use of inspection powers
must thus be proportionate and remain the least onerous possible for the inspected
companies. In consequence, legislation must provide procedural guarantees of
proportionality of inspections.
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.
Last year provided important decisions and evolution of competition law on key topics for Norway. On public enforcement the European Commission adopted recently (in 2018) a decision in the largest ongoing cartel case addressing Norwegian companies in the Maritime Car Carriers Case and the EFTA Surveillance Authority has launched an investigation in the largest ongoing antitrust case involving a Norwegian business sector in the so-called e-payment case related to the financial sector. The evolution of private enforcement in Norway is unhurriedly moving along, with one key case being the Henrik Kristoffersen case recently litigated in the EFTA Court. Grette is proud to recognize that our services have been retained in all these cases.
New Amendments Introduced to European Union Competition Law Due to the Expira...Michal
On 7 June 2010, a conference under the title New Amendments Introduced to
European Union Competition Law Due to the Expiration of Block Exemption Regulations
took place at the Lazarski University in Warsaw.
The conference was opened by Professor Zbigniew Lasocik, the Dean of the Law
Faculty of the Lazarski University, who started his speech by introducing the University
and emphasizing the Faculty of Law’s aim to ensure high quality legal education.
Sławomir Dudzik, Współpraca Komisji Europejskiej z organami ochrony konkurenc...Michal
Sławomir Dudzik seminal work, Cooperation between the Commission and national
competition policy agencies in enterprise concentration control, was published and issued
in 2010 by Wolters Kluwer. It consists of a Preface, six chapters, and a separate
Conclusion, totalling 355 pages. Mr. Dudzik’s work is devoted to a very important
element of competition law, which while theoretically complicated is of great practical
significance. Already in the Preface the author relates, in a convincing fashion,
that as a result, inter alia, of the processes of globalisation ‘cooperation between
governmental competition policy agencies in various jurisdictions in the matter of
control over enterprise concentration has assumed a special significance in recent
years’ (p. 16). They have assigned to themselves the difficult task of defining the
‘principles governing the division of competences between the European Commission
and the national competition policy agencies of the member states of the EU with
regard to enterprise concentration control, as well as delineation of the scope of EU
jurisdiction in this area and related matters with regard to non-EU states’ (p. 17).
In the opinion of this reviewer, Mr. Dudzik fully realises the difficult task he set for
himself.
M. stefaniuk, 2007 polish antitrust law developmentsMichal
In 2007, the Polish antitrust law and the particular regulatory regimes
applicable to specific sectors of the Polish economy underwent major
change. In the context of the antitrust legislation, a new Act of 16 February
2007 on Competition and Consumers Protection1 was adopted, to be
subsequently amended twice in the same year. Simultaneously, a number
of key amendments were introduced into sectorial regulation, including:
the Act of 10 April 1997 – the Energy Law2, the Act of 16 July 2004 –
Telecommunication Law3, the Act of 28 March 2003 on Rail Transport4, and
to the Act of 3 July 2002 – Aviation Law5. The purpose of this paper is to
present the major amendments that were introduced into the Polish antitrust
law and regulatory regime in 2007.
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.
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.
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.
The Autonomy of Sector-Specific Regulation – Is It Still Worth Protecting? Fu...Michal
This article sets out to contribute to the on-going discussion regarding the
relationship between competition law and sector-specific regulation, as well as the
parallel application of competition law and regulatory instruments. Thus, this article
attempts to provide a systematic outline of arguments which are conclusive for the
proposition that sector-specific regulation must remain fully autonomous, while
taking a critical stance with respect to the views of both the Supreme Court and
academic lawyers who advocate the supremacy of competition law.
Standard of Judicial Review of Merger Decisions Concerning Oligopolistic MarketsMichal
This article analyses the way in which standard of judicial review of the European
Commission’s (EC) decisions concerning oligopolistic markets was exercised by EU
judiciary. In the recent years we could observe an increasing role played by the GC
and the ECJ in shaping the legal framework in which mergers are assessed. In fact,
the EU judiciary has not only extended the previously narrow scope of the original
merger regulation but it has also contributed significantly towards increasing the
legal certainty by elaborating a reliable set of legal criteria for the assessment of
oligopolistic markets, which also reflected the economic theory. The EU judiciary
has also very often acted as a ‘filter’ to the novel theories introduced in the EC decisions. All of the aforementioned developments would not be possible without
the high standard of judicial review exercised by EU courts and ‘special judicial
techniques’ used by them.
Similar to Miasik solvents to the rescue – a historical outline of the impact of eu (18)
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 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.
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 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 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.
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).
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.
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.
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.
Exchange of Information and Evidence between Competition Authorities and Entr...
Miasik solvents to the rescue – a historical outline of the impact of eu
1. A R T I C L E S
Solvents to the Rescue – a Historical Outline of the Impact of EU
Law on the Application of Polish Competition Law by Polish Courts
by
Dawid Miąsik*
CONTENTS
I. Different approaches to the application of EU law in competition
proceedings before and after the accession
II. Providing a meaning to imprecise provisions
III. Priority of purposive interpretation
IV. Structure of a competition analysis
V. Determining the effect on competition
VI. Reception of legal institutions developed in EU law
VII. Summary
Abstract
The article is devoted to the influence of European competition law on the
application of Polish competition rules by Polish courts. It covers references to
EU law that has been made throughout 20 years of its history. It aims at identifying
various instances where EU law has been invoked to provide Polish competition
rules with the actual content as well as different modes of referrals to EU law.
Résumé
L’article concerne l’influence de la loi européenne de la concurrence sur l’application
des règles polonaises de concurrence par des tribunaux polonais. L’article couvre
les références a la loi de l’UE développée au cours des 20 années de son histoire.
* Dr. Dawid Miąsik, Competition Law Chair, Institute of Legal Studies, Polish Academy
of Sciences, Warsaw; member of the Bureau of Studies and Analysis of the Supreme Court of
Poland.
Vol. 2010, 3(3)
2. 12 DAWID MIĄSIK
Son but est d’identifier des instances où la loi de l’EU a été invoquée pour donner
aux règles polonaises de la concurrence le contenu actuel et les modes de référence
a la loi de l’UE.
Classifications and key words: EU competition law; judicial application of
competition law; Europe’s Agreement; spontaneous harmonization; relevant
market; consumer detriment; restriction of competition
I. Different approaches to the application of EU law in competition
proceedings before and after the accession
The application of competition law is very apt for external (foreign)
influences due to its specific history, its exportation from the United States
to other legal cultures, creeping internationalization of rules as well as extra-
territorial jurisdictional issues. Complex economic considerations and market
regulation are coupled with the resulting restrictions of fundamental freedoms
protected at the national, regional or international level. All these factors
encourage both the authorities entrusted with the enforcement of competition
rules as well as adjudicating courts to seek guidance on the methods of their
application in more developed legal systems. Such an approach allows them
to avoid potential instances of incorrect enforcement. It also enables the
business community, at least to some extent, to gain clarity as to what types
of market practices are likely to be questioned under antitrust rules. Any
infant stage of a competition law regime benefits also from technical assistance
from the representatives of more advanced jurisdictions. A significant degree
of readiness to refer to the jurisprudence and legal doctrine of other legal
systems follows such initial help.
Considering that the substantive provisions of Polish competition law have
been modelled on Articles 101 and 102 TFEU, the EU has provided Poland with
substantial level of technical assistance in the ambit of its national competition
law. Acquis communitaire is easily accessible and has drawn considerable
interest of Polish legal doctrine. Unsurprisingly, national jurisprudence has
also frequently referred to EU competition rules in proceedings outside the
coverage of Article 3 Regulation 1/20031. This article reviews the influence of
1
See examples listed by: T. Skoczny, Przeciwdziałanie praktykom monopolistycznym w świetle
orzecznictwa, Warszawa 1994, p. 180–181; T. Skoczny, Die Angleichung der Wettbewerbsregeln in
den neuen und zukuenftigen Mitgliedstaaten an das Gemeinschaftsrecht. Polen, Baden-Baden 2006,
p. 69; G. Materna, Pojęcie przedsiębiorcy w polskim i europejskim prawie ochrony konkurencji,
Warszawa 2009, p. 186–187.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
3. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 13
EU law on the judicial application of Polish competition law. It will not cover
issues resulting from the parallel application of EU and national competition
rules in the same proceedings but try instead, to determine whether and to
what an extent has Polish competition law been harmonized with EU law in
practice.
The impact of EU law on the judicial application of Polish competition law
is of significant practical importance due to the numerous references made
to EU law both by the President of the Polish Competition and Consumer
Protection office (UOKiK President) and the scrutinized undertakings2.
The impact of EU law on the application of Polish competition rules by the
antitrust authority is outside the scope of this study. This is so because of one
of the peculiarities of the Polish antitrust enforcement system whereby the
courts reviewing the decisions issued by UOKiK have full jurisdiction over
the factual and legal considerations contained therein.
Article 68 and 69 of the European Agreement 3 obliged Poland to
approximate, among other things, its competition rules4. However, legal
doctrine5 had inspired referrals to EU competition law long before the actual
entry into force of this act. At the time when national legal rules had been
interpreted, EU law had been in an auxiliary manner6. Polish courts continued
2 See for example the judgment of the Competition and Consumer Protection Court
(SOKiK) of 29 May 2006, XVII Ama 9/05, UOKiK Official Journal 2006 No. 4, item 58, where
some of the arguments raised against the UOKiK decisions dealt with its incompatibility with
‘European case-law’ on the non-compete obligation. In the judgment of 29 May 2008 (XVII
Ama 53/07, UOKiK Official Journal 2008 No. 4, item 37), SOKiK did not accept the plea that
the UOKiK decision imposing fines for the infringement of Polish competition rules was issued
in breach of European guidelines on fine setting.
3 European Agreement establishing association between the Republic of Poland and
European Communities and their Member States, Brussels 16 December 1991 (Journal of
Laws 1994 No. 11, item 38).
4 G. Materna, Pojęcie przedsiębiorcy..., p. 193–194. More about duties stemming from
Articles 68-69 of the Europe’s Agreement see: S. Sołtysiński, ‘Dostosowanie prawa polskiego do
wymagań Układu Europejskiego’ (1996) 4–5 Państwo i Prawo 31, and regarding competition law
in particular S. Sołtysiński, ‘Problematyka prawa antytrustowego w układzie o stowarzyszeniu
między RP a EWG’ [in:] Rozprawy z polskiego i europejskiego prawa prywatnego, Kraków 1994,
p. 445–461; M. Król-Bogomilska, Kary pieniężne w prawie antymonopolowym, Warszawa 2001, p.
27–30; E. Wojtaszek-Mik, Umowa franchisingu w świetle prawa konkurencji Wspólnoty Europejskiej
i polskiego prawa antymonopolowego, Toruń 2002, p. 166–169; T. Skoczny, Die Angleichung...,
p. 27–29.
5 T. Skoczny, Przeciwdziałanie praktykom..., p. 179; E. Nowińska, Reguły konkurencji
a umowy dystrybucyjne i serwisowe w zakresie pojazdów samochodowych, Warszawa 1995, p. 22;
S. Sołtysiński, ‘Dostosowanie prawa…’, p. 40; I. Wiszniewska, ‘Dostosowanie polskiego prawa
antymonopolowego do prawa europejskiego’, (1996) 1–4 Studia Prawnicze 142.
6 ‘Because of the economic importance of such agreements, which generally produce more
positive than negative effects from the point of view of competition process, and given the lack
Vol. 2010, 3(3)
4. 14 DAWID MIĄSIK
making references to EU law after Article 68 and 69 of the European
Agreement entered into force. They have avoided somehow to make any
references to the approximation duty7. Caution in invoking the European
Agreement as a potential source of the duty to interpret Polish competition
law inline with EU provisions law can be explained by the position of the
Supreme Court. The latter has clearly stated in cases concerning intellectual
property that the duty to approximate Polish law with European rules did not
oblige national courts to use European standards when applying domestic
legislation in areas covered by Articles 68 and 698.
Following the accession, a cautious approach towards the Europeanization
of Polish antitrust jurisprudence has been noted by the Supreme Court on
three occasions. In cases without an effect on intra-Community trade, acquis
communitare in the area of antitrust is said to serve only as ‘a source of
intellectual inspiration, example of legal reasoning and understanding of certain
legal institutions, which may be helpful in interpreting the provisions of Polish
law’9. Thus, there is no duty to apply Polish competition rules in conformity
with European jurisprudence in purely national cases. Therefore, the failure to
deliver a judgment compatible with a specific judgment of the General Court
or Court of Justice, or indeed Commission’s guidelines or notices, does not
equal a recognizable infringement of the Polish equivalents of Articles 101
or 102 TFEU. This does not mean of course that references to EU law are
not necessary or are indeed unwelcome. Instead, there is a constant need to
persuade the court that the deviance from European standards leads to the
misapplication of Polish law.
Interestingly enough for a foreign reader, albeit not surprising for those
familiar with the peculiarities of the Polish legal system, an alternative approach
to the impact of EU law on purely national cases can also be identified. In
this context, factual harmonization resulting from the ‘genetic’ bond between
of specific legal rules in the Polish act relating to such forms serving to organize the market
exchange of goods, there should be no barriers – in the opinion of SOKiK – in interpreting the
provisions of the antimonopoly act with due account of the positive experience of the European
Union with such agreements’ – judgment of SOKiK of 8 January 1997, XVII Amr 65/96, (1998)
1 Wokanda, item 60; see also judgments of SOKiK of: 6 December 1995 (XVII Amr 47/95,
(1997) 1 Wokanda, item 55) and 4 February 1998 (XVII Ama 66/97, LEX nr 56330, for further
analysis see E. Wojtaszek-Mik, Umowa franchisingu..., p. 143.
7 Judgment of SOKiK of 8 January 1997, XVII Amr 65/96, (1998) 1 Wokanda, item 60
– ‘interpretation of Article 6 of the Antimonopoly Act should include – as far as possible – the
legislation in force in the European Union, due to the fact of signing the Europe’s Agreement’.
8 Judgments of the Supreme Court of: 8 January 2003, III RN 239/01 and III RN 240/01,
(2004) 3 OSNP, item 42; and 17 February 2004, I PK 386/03, (2005) 1 OSNP, item 6.
9 Judgments of the Supreme Court of: 9 August 2006, III SK 6/06, (2008) 1-2 OSNP, item
25; 6 December 2007, III SK 16/07, (2009) 1-2 OSNP, item 31; of 3 September 2009, III SK
9/09, not reported.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
5. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 15
Polish and European competition rules is said to oblige Polish courts to fully
recognize acquis communitaire when applying relevant provisions of national
law10. This approach was adopted in at least one case concerning restrictive
agreements whereby SOKiK declined to hold a genuine agency agreement
to be a competition restricting practice within the meaning of the Polish
equivalent to Article 101 TFEU.
Such an approach is very debatable because the relationship between national
and EU competition rules is governed by Regulation 1/2003. The latter act
does not however contain a duty of a consistent interpretation and application
of national competition rules in cases without an effect on intra-Community
trade. The jurisprudence of the ECJ is also clear that such an obligation is
applicable where national law directly refers to European competition rules
as a benchmark used to examine a specific market conduct11. Still, such an
approach is also very pragmatic. The application of different legal standards
in European and national proceedings results in a divergent treatment of the
undertakings under investigation12, a fact that can by explained only in part
by the differences in the goals of the European and the Polish competition
law regime.
Full referral to acquis communitaire when applying Polish antitrust rules
in domestic cases, is also supported by constitutional considerations13. The
divergence of the treatment of Polish undertakings in European and national
proceedings leads in some cases to the application of stricter national rules
and to their disapplication in others. It may be argued therefore that any
restriction of the constitutional freedom of entrepreneurship resulting
from a decision of the UOKiK President based on national law only, is not
warranted by an important public interest within the meaning of Article 22 of
the Polish Constitution14. This is particularly true for restrictive agreements
where Article 3 Regulation 1/2003 precludes the application of stricter national
10 With direct reference to article 101 TFEU, judgment of SOKiK of 29 March 2006, XVII
Ama 86/04, not reported.
11 C-217/05 Confederación Española de Empresarios de Estaciones de Servicio p. Compañía
Española de Petróleos SA [2006] ECR I-11987, para. 22.
12 See resolution of the Supreme Court of 23 July 2008, III CZP 52/08, (2009) 7–8
Orzecznictwo Sądów Polskich, item 86, annotated by R. Poździk, see also annotations by R.
Trzaskowski, ‘Kompetencja sądu do ustalania nieważności czynności prawnych będących
przejawem nadużywania pozycji dominującej oraz nieważności porozumień ograniczających
konkurencję’ (2009) 9-10 Palestra 635–643 and A. Jurkowska-Gomułka, ‘W stronę umocnienia
prywatnoprawnego wdrażania zakazów praktyk ograniczających konkurencję – glosa do uchwały
SN z 25.07.2008 r. (III CZP 52/08)’ (2010) 5 Europejski Przegląd Sądowy 43.
13 This problem was noted by the Supreme Court in judgment of 6 December 2007, III SK
20/07, (2009) 3-4 OSNP, item 55.
14 See judgment of the Constitutional Court of 21 April 2004, K 33/03, (2004) 4 Orzecznictwo
Trybunału Konstytucyjnego, item 31, para. 13.
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6. 16 DAWID MIĄSIK
provisions where an agreements is liable to affect intra-Community trade. This
approach is not as convincing in abuse cases seeing as Article 3 Regulation
1/2003 clearly allows for the application of stricter national rules even in cases
where an effect on EU trade is present but there is no violation of Article
102 TFEU15.
II. Providing a meaning to imprecise provisions
The judicial application of the notion of a dominant position provides one
of the best examples of EU law referrals seeking guidance on how to properly
understand basic competition law institutions16. Polish law initially stated 17 that
an undertaking was dominant when it did ‘not meet with substantial competition
on the national or local market’. Courts quickly pointed out that this provision
failed to determine the essence of ‘market dominance’. In order to fill the gap,
the Polish Court for Competition and Consumer Protection (SOKiK) decided
to refer to acquis communitaire18. On this basis, the definition of dominance
was read as concerning a market position allowing the undertaking concerned
‘to prevent effective competition on the relevant market by providing it with
the ability of behaving to a significant extent independently of its competitors,
customers and ultimately consumers’19. Although minor changes were made
later on, this definition was ultimately introduced into the Competition and
Consumer Protection Act of 2000 (Competition Act of 2000)20.
15T. Skoczny, ‘W sprawie modernizacji stosowania zakazu nadużycia pozycji dominującej’
[in:] C. Banasiński (ed.), Ochrona konkurencji i konsumentów w Polsce i Unii Europejskiej,
Warszawa 2005, p. 107.
16 R. Janusz, M. Sachajko, T. Skoczny, ‘Nowa ustawa o ochronie konkurencji i konsumentów’
(2001) 3 Kwartalnik Prawa Publicznego 186.
17 Article 2 point 6 Act of 24 February 1990 on Counteracting Monopolistic Practices and
Consumer Protection (consolidated text: Journal of Laws 1997 No. 49, item 318 as amended;
hereafter Antimonopoly Act).
18 Judgments of SOKiK of: 8 June 1994, XVII Amr 70/93, LEX no. 55924; 31 May 1995,
XVII Amr 9/95, (1995) 6 Wokanda, item 55; 29 September 1999, XVII Ama 24/99, LEX no.
56385; 17 March 1999, XVII Ama 77/98, (2000) 8 Wokanda, item 58; 3 February 1999, XVII
Ama 76/98, LEX no. 56157; 29 September 1999, XVII Ama 24/99, LEX no. 56385.
19 Judgments of SOKiK of: 8 June 1994, XVII Amr 70/93, LEX n. 55924; 31 May 1995,
XVII Amr 9/95, (1995) 6 Wokanda, item 55; 29 September 1999, XVII Ama 24/99, LEX no.
56385; 17 March 1999, XVII Ama 77/98, (2000) 8 Wokanda, item 58; 3 February 1999, XVII
Ama 76/98, LEX no. 56157.
20 Consolidated text: Journal of Laws 2005 No. 244, item 2080 as amended.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
7. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 17
Another example is provided by the judgment of SOKiK21 concerning
the notion of a ‘decision of association of undertakings’ taking the form of
a resolution of the regional attorney’s chamber determining ‘the pattern of
optimal service fees’ and ‘recommended price list’. When establishing whether
such a resolution constitutes an act of the association of undertakings, SOKiK
pointed out that pursuant to European jurisprudence ‘a recommendation of
an association of undertakings which, regardless of its legal status (form),
accurately states the policy of the association of coordinating the conduct of
its members, constitutes a decision of such an association of undertakings
within the meaning of article 81 of the EC Treaty’22. In a similar manner, the
Supreme Court referred to EU law in its judgment of 9 August 200623 where
it accepted that competitors may adapt their policies to changing market
conditions and the behaviour of their competitors, including pricing policies;
however, price-matching with proof of prior contact between competitors was
declared to be covered by the notion of a prohibited price-fixing scheme24.
Most of the references to European law under this heading considered the
delineation of the relevant market. They supported the conclusions drawn by
the courts from the factual analysis of the cases under consideration. SOKiK
referred in its judgment of 14 February 200725 to a decision of the European
Commission26 when declaring the national market for broadcasting rights to
the Polish football league to constitute the relevant market at stake. In the
judgment of 5 May 200827, it also followed closely one of the Commission’s
decisions28 when determining the geographical extent of the relevant market
under consideration. SOKiK ruled that no local market for grain shipment
services exists that would include a single port-terminal only. Instead, it
confirmed the existence of a national market for grain shipment services
that included all sea terminals offering such services. In the same manner,
the judgment of 29 October 200929 followed the approach of the European
institutions pursuant to which ‘products such as the organization of airport
services for carriers in a single airport may constitute a separate relevant
21 Judgment of SOKiK of 9 November 2006, XVII Ama 68/05, UOKiK Official Journal
2007 No. 2, item 20.
22 With reference to 45/85 Verband der Sachversicherer e.V. [1987] ECR 405.
23 Judgment of the Supreme Court of 9 August 2006, III SK 6/06, (2008) 1–2 OSNP,
item 25.
24 Judgment of the CFI T-1/89 Rhône-Poulenc [1991] ECR II-867.
25 Judgment of SOKiK of 14 February 2007, XVII Ama 98/06, UOKiK Official Journal
2007 No. 2, item 22.
26 Decision of the EC of 2 April 2003, COMP/M.2876 – Newscorp/Telepiu.
27 Judgment of SOKiK of 5 May 2008, XVII Ama 103/07, not reported.
28 Decision of the EC of 14 October 2005, COMP/M.3884 – ADM Poland/Cefetra/BTZ.
29 Judgment of SOKiK of 29 October 2009, XVII Ama 126/08, not reported.
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8. 18 DAWID MIĄSIK
market, since when a carrier intends to offer its services on a given route,
the access to the airport infrastructure situated on both ends of the route
constitutes an essential factor for the provision of such a service’30. As a result,
each of the three regional airports located in southern and south-eastern
Poland (that is, Rzeszów, Krakow and Katowice) was to be considered as
a separate relevant market for handling services.
III. Priority of purposive interpretation
Furthermore, references to EU law allowed Polish courts to depart from
a literal interpretation of Polish competition rules. SOKiK ruled in its judgment
of 25 June 199731 that a textual interpretation of Article 4 section 4 of the
1990 Antimonopoly Act led to the conclusion that any vertical agreement
establishing a distribution network is a competition restricting practice. On the
other hand, a teleological approach based on acquis communitaire led SOKiK
to the conclusion that exclusive distribution agreements are not anticompetitive
per se, even if they create distribution networks closed to other resellers. The
Court rightly concluded that competition between producers takes place
mainly at the retail level and takes the form of competition between the
entire distribution networks. Their creation through agreements containing
exclusivity clauses leads to ‘an increase of competition on the market and not
its reduction’. It followed that that exclusive distribution agreements restricted
competition only when competitors had been foreclosed from the substantial
part of the market.
References to European standards led the courts to the conclusion
occasionally that despite the statutory presumption, a 40% market share does
not always amount to a dominant position. It is necessary instead to take into
account the whole set of the circumstances of the case including the ‘business
environment in which the undertaking concerned operates’32. Pursuant to
this approach, the Courts of Appeals ruled that the financial strength of an
undertaking does not warrant a dominant position on its own but that high
market shares must be sustained for a longer period of time33.
30 With references to C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889 and
C-18/93 Corsica Ferries [1994] ECR I-1783.
31 Judgment of SOKiK of 25 June 1997, XVII Ama 19/97, (1998) 7 Wokanda, item 47.
32 Resolution of SOKiK of 3 October 1994, XVII Amr 5/93, (1995) 9 Wokanda, item 60.
33 Judgment of the Court of Appeals of 20 November 2008, VI Aca 704/08, UOKiK Official
Journal 2009 No. 2, item 16.
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9. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 19
In the same manner, the Supreme Court ruled on 21 February 200234 that
no restriction of competition occurred when a dominant producer and seller
of oil and gasoline applied a unified countrywide wholesale price without
taking due account of transportation cost differences. Such pricing policy did
not aim at the elimination of the competitors of the dominant undertaking
even though the latter was said to have enjoyed a competitive advantage over
them resulting from its ‘earlier economic expansion in all potential trading
levels of oil and gasoline distribution’. This judgment suggests that to establish
abuse, it is not enough to show that a vertically integrated undertaking has an
economic advantage resulting from its earlier, in comparison to its competitors
on the wholesale or retail level, market entry and established market presence.
The same applies to competitive advantages resulting from the economies of
scope.
European competition law has surely greatly influenced the application
of Article 6 of the Competition Act of 1990. This core provision prohibited
both restrictive agreements and abuse (listed exhaustively in Articles 4 and 5)
but only to the extent that they were ‘not necessary from a technical or
economic point of view’. References to EU law led SOKiK to abandon the
literal interpretation of this rule, which effectively allowed the interests of the
scrutinized entity to be granted a very important role in adjudicating whether
a restrictive practice was necessary for furthering the economic interests of
the dominant undertaking. SOKiK ruled on several occasions that such an
application of Article 6 of the Competition Act of 1990 would be unjust given
the incompatibility of such an interpretation with EU law35. Courts focused
on the impact of the scrutinized restrictive practices on consumer interests36.
This approach had a key practical consequence – the competition authority
was obliged by the courts to ‘determine and assess whether and to what an
extent can the restriction (...) of competition on the relevant market (...)
ultimately contribute to the improvement of consumer interests’37. As a result,
both the restrictive agreements and abuses listed in Articles 4 and 5 were
examined from the point of view of their impact on the economic benefits of
consumers. Practices that restricted market rivalry, but enabled the parties to
the agreement or the dominant undertaking to better satisfy consumer needs,
were thus declared to be admissible.
34 Judgment of the Supreme Court of 21 February 2002, I CKN 1041/99, (2003) 1 OSNC,
item 16.
35 Judgment of SOKiK of 8 January 1997, XVII Amr 65/96, (1998) 1 Wokanda, item 60.
36 Eg. judgment of SOKiK of 31 May 1995, XVII Amr 9/95, (1995) 6 Wokanda, item 55.
37 Judgment of SOKiK of 8 January 1997, XVII Amr 65/96, (1998) 1 Wokanda, item 60.
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10. 20 DAWID MIĄSIK
IV. Structure of a competition analysis
Another area of influence of EU law on the judicial application of Polish
competition law is the methodology of application. References to EU law led
the courts to apply, at least partially, the European method of competition
analysis. Most of all, the courts stressed the importance of proper market
definition since the very beginning of modern Polish antitrust. Relevant
market delineation was considered to be the precondition of a proper legal
qualification of the business conduct under consideration38. In fact, not only
the was the definition of relevant market but also the practice of its strict
delimitation, established in Hofmann La Roche39, adopted from EU law.
Following economic fields were declared to constitute a relevant market: coal,
carbon coke, etyline, gas40, information and weather programs41; wholesale
market for the delivery of pay-tv channels carrying scientific and nature
programs in Polish42.
The practice of narrow market definition has continued after the accession.
It was based on the argumentation that if a broader definition is accepted,
then it may be difficult to identify undertakings with dominant position and
that such difficulty may threaten the attainment of the goals of competition
law.43 Such reasoning is not convincing. The Court of Appeals has at least on
one occasion rightly pointed out that the relevant market must be established
not narrowly or widely, but properly.44
EU competition law was used by Polish courts to allocate the burden of
proof in cases where the collaboration between undertakings took the form
of concerted practice. The Supreme Court ruled on 9 August 2006 (III SK
6/06) that it is the competition authority that bears the burden of proving that
a concerted price took place. On the other hand, it is up to the scrutinized
38
Judgment of SOKiK of 9 April 1997, XVII Ama 4/97, LEX no. 56458, with reference to
6/72 Europemballage & Continental Can [1973] ECR 215.
39 Judgments of SOKiK of 4 October 1993, XVII Amr 29/93, (1994) 3 Wokanda, item 54;
26 October 1994, XVII Amr 24/94, (1995) 8 Wokanda, item 55.
40 Judgment of SOKiK of 4 October 1993, XVII Amr 29/93, (1994) 3 Wokanda, item 54.
41 Judgment of SOKiK of 14 September 2006, XVII Ama 71/05, UOKiK Official Journal
2006 No. 4, item 61.
42 Judgment of SOKiK of 28 November 2008, XVII Ama 107/07, UOKiK Official Journal
2009 No. 1, item 6.
43 Judgments of SOKiK of 14 September 2006, XVII Ama 71/05, UOKiK Official Journal
2006 No. 4, item 61; 18 January 2007, XVII Ama 101/05, UOKiK Official Journal 2007 No. 3,
item 33; 28 November 2008, XVII Ama 107/07, UOKiK Official Journal 2009 No. 1, item 6.
44 Judgment of the Court of Appeals of 8 August 2005, VI ACa 6/05, (2006) 2 Glosa 88.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
11. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 21
undertakings to provide evidence that the alignment of their pricing policies
resulted from parallel behaviour rather than a concerted practice45.
Polish courts adopted also from EU law the notion of agreements
restricting competition by their object, before relevant statutory amendments
were introduced. In the judgment of 6 July 199446, SOKiK announced that
horizontal market sharing agreements restrict competition by the very aim
of monopolizing the markets at stake by the participants to the agreement,
without the need for the agreement to succeed in attaining its goals.
V. Determining the effect on competition
Reference to acquis communitaire is of greatest practical importance when
determining whether a certain conduct is capable of restricting competition.
It is tempting for the business community, legal practitioners and academics
to determine which practices in what circumstances are either anti- or pro-
competitive under the prevailing standard applied in EU law. European
jurisprudence delivers important suggestions as to how various practices can
be analyzed or proven, how can the legal arguments presented by the parties
and authorities be evaluated and thus, how can they influence the judgment.
EU law’s influence in this context should always be welcomed seeing as it helps
improve the quality of national jurisprudence. One should remain cautious
however about their straightforward reception due to the existing differences
in the legal goals of the two legal systems as well as their statutory language.
The latter in particular may suggest that the Polish legislator wanted to achieve
certain aims by defining given anticompetitive practices in such a way, that
their Europeanization could be considered as contra legem.
EU law has indeed made a considerable impact on Polish jurisprudence
in their treatment of certain market practices as anticompetitive. It is worth
mentioning however that Polish courts have managed to avoid the pitfalls of a
direct reception of European standards concerning the notion of a ‘restriction
of competition’ that prevailed in the initial stage of Polish competition
45 With reference to 48/69 Imperial Chemical Industries Ltd [1972] ECR 619, which was
interpreted by the Supreme Court as proclaiming that undertakings invoking parallel behavior
must prove that such a behavior results from other circumstances than collusion. The Supreme
Court reasoned that a similar position in respect of the burden of proof was adopted by the
CFI in T-305/94, T-306/94, T-307/94, T-313/94–T-316/94, T-318/94, T-325/94, T-328/94, T-329/94,
T-335/94 Limburgse Vinyl Maatschappij and others [1999] ECR II-931 and then by the ECJ in
C-199/92 Hüls AG [1999] ECR I-4287.
46 Judgment of SOKiK of 6 July 1994, XVII Amr 8/94, (1995) 3 Wokanda, item 56.
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12. 22 DAWID MIĄSIK
law. In most cases, they refused to equate the restriction of a freedom of
an individual with a restriction of competition47 in particular, in the field
of vertical agreements. SOKiK swiftly emphasized here the importance of
inter-brand competition48, consumer benefits resulting from distribution
agreements and the fact that such agreements were at that time subject to
a block-exemption from the prohibition of Article 101 section 1 TFEU49. As
a result, Polish jurisprudence saw exclusivity clauses contained in distribution
agreements as not anticompetitive per se (quite contrary to the strict reading
of the statutory language used at that time). SOKiK required proof of
market foreclosure even though it did not specify whether this requirement
applied to the foreclosure of other suppliers or those interested in entering
wholesale or retail distribution. Polish jurisprudence was clear however that
market foreclosure exists when ‘the majority of resellers, due to the existence
of networks of exclusive agreements, are not accessible for undertakings
intending to enter a given product market’50. A careful examination of all legal
and factual circumstances was required in all cases51 resembling a full scale
‘rule of reason’ style of antitrust analysis. Agreements with the participation
of a dominant undertaking were also accepted, provided that they allowed the
dominant undertaking to better serve consumers52.
It is feasible to try and generalize the impact of EU law on the determination
of the anticompetitive character of different market practices. Three broad
categories of cases can be identified in this context.
In the first group, the adjudicating court refers explicitly to a specific EU
judgment or Commission decision, which would directly support its conclusions
regarding the impact of a given practice on competition (negative, positive or
neutral). SOKiK declared for instance on the basis of Commercial Solvents53
that it is prohibited in Poland to refuse to supply another undertaking
with input necessary for the production of a final product, if the dominant
47 See an extensive analysis of the case-law in this respect by R. Poździk, Dystrybucja
produktów na zasadzie wyłączności w Polsce i Unii Europejskiej, Lublin 2006, p. 250–262.
48 Judgment of SOKiK of 8 October 1997, XVII Ama 18/97, LEX nr 56576.
49 Judgments of SOKiK of 8 January 1997, XVII Amr 65/96, (1998) 1 Wokanda, item 60; 9
April 1997, XVII Ama 4/97, LEX nr 56458; 25 June 1997, XVII Ama 19/97, (1998) 7 Wokanda,
item 47; 6 December 1995, XVII Amr 44/95, published in (1997) 1 Wokanda, item 49.
50 Judgment of SOKiK of 6 December 1995, XVII Amr 44/95, (1997) 1 Wokanda,
item 49.
51 Judgment of SOKiK of 9 April 1997, XVII Ama 4/97, LEX nr 56458; 25 June 1997,
XVII Ama 19/97, (1998) 7 Wokanda, item 47; 6 December 1995, XVII Amr 44/95, (1997) 1
Wokanda, item 49.
52 Judgment of SOKiK of 8 January 1997, XVII Amr 65/96, (1998) 1 Wokanda, item 60.
53 Citing judgment of the ECJ in 6-7/73 Instituto Chemioterapico Italiano S.p.A and
Commercial Solvents Corporation [1974] ECR 223.
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13. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 23
undertaking intends to enter the market for the final good by itself54. Referring
to British Sugar and Hoffmann la Roche, differential rebates were declared as
discriminatory55.
In the second category, an EU standard concerning a given anticompetitive
practice is initially established. The Court refers then to it in order to strengthen
the persuasive force of its reasoning. One of its finest examples is provided by
the judgment of SOKiK of 6 December 199556 examining whether a selective
distribution scheme for fertilizers met the conditions established in European
law. In another judgment57, SOKiK signalled that several clauses found in
franchising contracts were to be considered as restrictive under European
standards58. In the judgment of 4 February 199859, the Court emphasized
that ‘imposing in vertical agreements resale prices, minimum resale price in
particular, is treated under EU law as one of the most grievous infringement
of competition rules’. SOKiK was also influenced by European standards
regarding non-compete obligations. It rules on 29 May 200660 that ‘a non-
compete clause is justified when it protects the buyer entering the market
occupied by the seller’. However, a non-compete clause is not justified when
it is ‘not necessary to conclude the agreement to sell a business’. It is also
not acceptable if the ‘term of the non-compete clause is too long’ particularly
considering that ‘the longest non-compete obligation allowed in European
jurisprudence cannot extend 5 years’. Last but no least, the Supreme Court
pointed out in its judgment of 9 August 2006 (III SK 6/06) that price-fixing
cartels are considered to be ‘one of the most serious infringements of the
prohibition of competition restricting agreements’. They ‘have always been
treated very restrictively (...) in the jurisprudence of the ECJ’61.
In the third approach, references are made to the judgments of the ECJ
or the General Court when establishing particular elements of a restrictive
practice. The judgment of the Supreme Court of 19 February 200962 is a good
54 Judgment of SOKiK of 27 November 1996, XVII Amr 45/96, (1998) 1 Wokanda,
item 52.
55 Judgment of SOKiK of 3 August 1994, XVII Amr 18/94, (1995) 5 Wokanda, item 60.
56 Judgment of SOKiK of 6 December 1995, XVII Amr 47/95, (1997) 1 Wokanda,
item 55.
57 Judgment of SOKiK of 6 December 1995, XVII Amr 44/95, (1997) 1 Wokanda,
item 49.
58 Judgment of SOKiK of 21 July 1992, XVII Amr 12/92, (1993) 1 Wokanda, item 34.
59 Judgment of SOKiK of 4 February 1998, XVII Ama 53/97, (1999) 2 Wokanda, item 52.
60 Judgment of SOKiK of 29 May 2006, XVII Ama 9/05, UOKiK Official Journal 2006
No. 4, item 58.
61 Citing judgment of the ECJ in 48/69 Imperial Chemical Industries Ltd [1972] ECR 619.
62 Judgment of the Supreme Court of 19 February 2009, III SK 31/08, LEX no 503413,
annotated by K. Kohutek, [in:] (2009) 4 Glosa 93.
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14. 24 DAWID MIĄSIK
example of this approach when determining under what conditions can
a dominant undertaking abuse its market position on a related market63. It was
declared there that such an abuse is possible in limited circumstances when the
dominant undertaking is not present on the market affected by its practice. That
is so particularly when it is preparing to enter this market and uses its market
power held on the dominated market to control the competitive conditions in
the related field64. On the basis of that statement, the Supreme Court ruled
that lacking presence on the related market or the intention to enter it, the
dominant purchaser of clutches could not have restricted competition on the
market for veterinary services. Another example of this approach is delivered
by the judgment of SOKiK of 7 May 200965. The court ruled in this case that
in order for a restrictive practice to be established (determining a single retail
resale price for roofing slates), it is sufficient that a certain price was agreed
upon among the undertaking concerned. There is no need to determine
whether that price was actually applied by the undertakings concerned66.
VI. Reception of legal institutions developed in EU law
The fact that EU competition law has been in force for over 50 years means
that many of its legal concepts have already been developed and commented
on by the doctrine. This extensive experience could be helpful in applying
national law, particularly when it deals with issues unrelated to the goals of
competition law and policy or do not involve provisions that have been worded
differently by national legislators. The impact of EU law on the application of
national competition laws can in such cases be not only more visible but also
more systematic and consistent. One of the instances were EU law served as
a reference for the development of Polish jurisprudence was the judgment of
SOKiK of 29 March 200667 concerning a distribution agreement that restricted
63
The case concerned alleged abuse by the dominant purchaser of clutches for breeding
chicks consisting of imposing upon the clutches farmers covered by purchasing agreements
a requirement to have their clutches controlled by a veterenarian specified by the dominant
purchase. The NCA claimed that this requirement restricted competition on the (general)
market for veterinary services by foreclosing it to other veterinarians servicing the regional
market where the breeders were located.
64 Citing judgment of the ECJ in 6-7/73 Instituto Chemioterapico Italiano S.p.A and
Commercial Solvents Corporation [1974] ECR 223.
65 Judgment of SOKiK of 7 May 2009, XVII Ama 140/07, not reported.
66 Citing judgment of the ECJ in 246/86 Belasco [1989] ECR 2117 and the judgment of the
CFI in T-64/02 Heubach [2005] ECR 2005 II-5137.
67 Judgment of SOKiK of 29 March 2006, XVII Ama 86/04, not reported.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
15. SOLVENTS TO THE RESCUE – AN OUTLINE OF THE IMPACT OF EU LAW… 25
the agent’s price setting ability. EU standards concerning genuine agency
agreements were directly invoked by the court which ultimately decided that
‘the failure of the national legislature to exempt such agreements from the
prohibition of competition restraining agreements cannot lead to the conclusion
that national law is more restrictive in that respect than European law’.
A similar example is delivered by the judgment of 29 May 200868. SOKiK
referred in this case to C-204/00 Aalborg Portland et al.69 when deliberating
whether the required standard of proof in respect of the existence of an
agreement was met in the circumstances of the case. Following the lead
provided by the Court of Justice, SOKiK ruled that the participation in the
restrictive scheme can be established by ‘single facts’ such as ‘the participation
in meetings’ or the ‘silent approval of an unlawful initiative, without objecting
to the scheme or whistle-blowing to the responsible authorities’. The court
added that ‘the fact that the undertaking concerned does not commit itself to
abide by the outcomes of the meeting concerning policy alignment, does not
exempt it from the liability for the participation in a cartel, unless it clearly
protested against such an alignment’. Only then did SOKiK apply this standard
to the facts of the case and ruled that since there was no such an objection,
other cartel participants could have correctly assumed that the scrutinized
entity would behave loyally to the agreed strategy. EU law was used by the
court to determine whether, and when, can an undertaking concerned be held
liable for having participated in a cartel when there is no evidence that it had
actually approved the restrictive scheme.
VII. Summary
Polish courts ruling on competition appeals have used, and are still using
EU law in various ways in cases falling outside the scope of Regulation 1/2003.
There is no doubt that such references influence the development of national
jurisprudence and hence the understanding of domestic competition rules.
It can be argued therefore that Polish jurisprudence has been ‘unionized’
to a great extent when it comes to the interpretation and application of the
substantive provisions of its competition law.
The impact of European law on the application of Polish competition rules
is rather selective. It seems that references to EU law are made primarily
where solutions and arguments are being sought that would support the judicial
68 Judgment of SOKiK of 29 May 2008, XVII Ama 53/07, UOKiK Official Journal 2008
No. 4, item 37.
69 Citing judgment of the ECJ in C-204/00 Aalborg Portland and others [2004] ECR I-123.
Vol. 2010, 3(3)
16. 26 DAWID MIĄSIK
decision that has already been arrived to by the court. Therefore European
law serves more as a practitioner’s handbook than an analytical guide.
Another, yet unwelcome result of the frequent referrals to EU law in
national cases particularly when establishing anticompetitive effect, is that
what determines the outcome of the assessments is often the legal name of
the form of conduct under consideration, rather than the facts of the case. The
fact can even be questioned, whether the impact of the established judicial
acquis communitaire is nowadays that beneficial considering the time-lag
occurring between the attempts of the Commission to introduce an effect
based approach incorporating a consumer welfare standard and its acceptance
by the European Courts, which are then binding on the national judiciary.
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