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published on 22 February 2023 | reading time approx. 2 minutes
In Poland, antitrust cases are handled by the President of the Office for Competition and Consumer Protection (“OCCP”). The specific nature of antitrust proceedings is that they are most often preceded by an investigation. In the course of the proceedings, the President of the OCCP collects evidence and uses his investigative powers. Statistically, antitrust proceedings most often end with a fine imposed on the enterprise and an obligation to take specific actions.
The President of the OCCP has various instruments to discipline enterprises. He may also impose a fine on persons running the enterprise, e.g. members of the management board. In Poland, legislative changes are planned to allow the President of the OCCP to impose fines also on parent companies, e.g. the parent company of a Polish subsidiary, with the parent being based in Germany. Moreover, the amount of the fine will depend on the turnover generated by the entire corporate group, and not – by one single company as has been the case so far. Polish regulations, however, make it possible to significantly reduce the possible fine, by taking into account so-called mitigating circumstances. A carefully selected team of experts in antitrust law may help significantly reduce the potential fine imposed by the President of the OCCP or eliminate the risk of violating antitrust law by a corporate group operating in Poland.
In Poland, the authority responsible for preventing and detecting violations of antitrust law is the President of the Office for Competition and Consumer Protection. The administrative procedure starts with an investigation. Its purpose is to determine whether antitrust law has been violated or not. It is peculiar in a way that it is conducted in a given case (ad rem) and not against a specific entity (ad personam). Thus, no charges are made against enterprises or managers. An enterprise does not have the status of a party to such proceedings and is not entitled to access the case file. Already at this stage, the President of the OCCP has investigative powers, i.e.:
The President of the OCCP is not obliged to inform the enterprise of the planned inspection, its date or subject. If the enterprise refuses to cooperate, it may be punished with a fine of up to 50,000,000 euros. The investigation may result in:
The proper antitrust proceedings to examine competition-restricting practices are initiated against enterprises, and, in certain cases, also against a manager or managers. In such a case, the President of the OCCP notifies the enterprise (possibly also the managers) of the initiation of antitrust proceedings and gives them the opportunity to respond to the presented charges. The parties are permitted to inspect the evidence. The main document that formulates charges relating to the activities of the enterprise or its managers is called a Detailed Statement of Charges.
Antitrust proceedings may result in a fine or no fine being imposed.
Where a fine is imposed, the President of the OCCP finds that competition-restricting practices have been used, and orders that they should be abandoned or states that they have been abandoned. If no fine is imposed, only a decision is issued obliging the enterprise to take certain actions or discontinuing the proceedings.
Fines are imposed for both intentional and unintentional violations. There are three categories of fines:
There are circumstances that may mitigate the penalty, which include:
On the other hand, circumstances aggravating the penalty include:
The President of the OCCP may impose penalties on managers if they acted intentionally. A manager is a person who manages an enterprise, in particular a person who holds a managerial role or who is a member of a management body (management board member, division director, person who may actually set the directions for the enterprise without formally holding a managerial role). The maximum penalty is 2,000,000 PLN. A penalty may be imposed only when a fine is imposed on the enterprise at the same time.
Under Polish law, the President of the OCCP may impose a fine only on the enterprise that actually committed the violation. This means that subsidiaries or parent companies may not be punished. The proposed changes to Polish antitrust law give the President of the OCCP the power to impose a fine also on a parent company or subsidiary. The requirement is to prove that, for example, a shareholder from Germany has a “decisive influence” on that company. A legal presumption is planned that if a parent company holds more than 90 per cent of shares in a subsidiary, it has a decisive influence on the operations of that subsidiary, i.e. also contributes to the violation of antitrust law. The most important change is that when imposing a fine of up to 10 per cent of turnover, the President of the OCCP will be allowed to take into account the turnover of the entire corporate group, and not just that of a single group entity, as has been the case so far. The fines imposed by the President of the OCCP will therefore increase dramatically, just like the financial risk for enterprises violating antitrust law.
Damian Dobosz
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