The amendment of the Act on Competition and Consumer Protection is linked to the implementation of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (ECN+ directive). Union regulations strive to harmonise the powers of national competition authorities and aim to equip these with the crucial procedural tools enabling them to efficiently identify anti-monopoly law violations – both on the European level and on their domestic markets.
– Some of the assumptions behind the ECN+ directive have already been transposed to the Polish legal system. However, there are still areas requiring that specific regulations be adjusted and made more precise. The amendment of the Act strengthens, on the one hand, the powers of the anti-monopoly authority, and improves, on the other hand, the protection of the parties to all procedures, i.e. entrepreneurs and natural persons – says Tomasz Chróstny, President of UOKiK.
Leniency
Some important changes affect the leniency programme. Criminal liability of natural persons acting for the benefit of an entrepreneur who has taken advantage of that programme will now be waived altogether or its scope will be reduced. Such an approach will make it easier to effectively combat bid-rigging between tenderers. Presently, participation in bid-rigging is a crime that carries a penalty of imprisonment, which may discourage admitting to taking part in an illegal collusion before the President of UOKiK.
Inspections and searches
The directive and, consequently, the amended Act, introduce specific changes concerning the search procedures. Some of those changes aim to make the regulations in force more precise. The ability to search residential premises is a good example here. Such a right has been vested in the President of UOKiK for over 20 years now. The searches may take place – just as it is the case with searches performed at company premises – with the consent of a court only. The changes proposed in the draft Act consist in stating, in a more precise manner, that the searches are performed jointly by Police officers and UOKiK employees. Currently, the relevant provision states that the search is conducted by the Police and allows the participation of a UOKiK employee.
Fines
The manner in which fines are imposed on entrepreneurs refusing to cooperate with the President of UOKiK at the stage of collecting evidence, or on those who provide untrue information or breach their inspection and search-related obligations, will change as well. So far, violations of this type carried a fine of up to EUR 50 million. The amendment proposes that the fine be equal to up to 3% of the turnover generated in the year preceding the date of issuing the relevant decision. The modification is in line with the requirements imposed by the directive which states that fines for violations of this type be imposed proportionally to the overall, global turnover of the enterprises in question.
The directive introduces also periodic fines. As proposed by the amended Act, these may equal up to 5% of the daily turnover of the entrepreneur in question generated in the year preceding the imposition of the fine. The draft amendment assumes that sanctions of this type will be imposed, inter alia, for each day of delay in performing a decision of the President of UOKiK, or any related court verdicts.
Obligation to provide information
By implementing the directive, an obligation is also imposed on all parties to provide the President of UOKiK with the required information or documents. At present, only entrepreneurs or their organisations are bound by such a requirement. The draft amendment contains an open catalogue of entities to which the President of the Office may submit a demand to provide information.
Importantly, extension of the list of entities required to submit information is accompanied by offering natural persons with the right to refuse to provide information and documents in a situation in which this could make the latter liable criminally (privilege against self-incrimination).
International cooperation
The ECN+ directive will also make it possible for different national authorities to cooperate in a more efficient manner. Therefore, amendments to the Act assume, inter alia, that the President of UOKiK will be able to provide assistance concerning proceedings overseen by the anti-monopoly authorities from other EU Member States. The President of UOKiK will be able, for instance, to summon a witness or to request, in justified situations, that such a witness be heard by a court, in connection with a case investigated in another country. Competition protection authorities from other Member States will be able to verify whether the decisions of the President of UOKiK have been duly performed in their countries. Similarly, the Polish authority will be able to verify, upon request of its counterparty from another state, whether its ruling has been complied with in Poland.
– Cooperation in enforcing the collection of fines will be very important as well. Currently, we are facing some difficulties in collecting fines from entities which are not registered or which do not own sufficient assets in Poland. Implementation of the ECN+ directive and amendment of the Polish regulations will facilitate the process of enforcing the payment of fines by entities registered in other EU Member States – says Tomasz Chróstny, President of UOKiK.
Enhanced independence
It is also one of the assumptions behind the directive to boost the independence of the persons acting in the capacity of anti-monopoly authorities in terms of clear-cut criteria applicable to both their appointment and removal, and to the manner in which their functions are performed.
Therefore, the amended Act stipulates that the President of UOKiK will be elected for a 5-year term in office. The dismissal of the anti-monopoly authority will only be possible in precisely defined situations. These will include, inter alia, the following: legally valid conviction for a criminal offense caused by intentional conduct and the deprivation of public rights or of the Polish citizenship. The above means that the dismissal criteria are similar to those applicable to other domestic market regulators, e.g. the President of the Energy Regulatory Office.
The manner in which the President of UOKiK is appointed, however, will not change. As it has been the case so far, the President of UOKiK will be appointed in an open and competitive procedure, by the President of the Council of Ministers.
