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Anti-trust regulations in Poland

In the Polish context, both the rules governing anti-competitive agreements and practices (cartels and other forms of collusion) and the rules prohibiting abuses of dominant positions can be referred to as anti-trust rules.

The most familiar example of an anti-competitive arrangement is an agreement on prices, where firms fix price levels jointly, as a result of which consumers are unable to take advantage of competition between suppliers to obtain competitive prices.
Other types of agreements have the object or effect of fixing other conditions for the operation of markets; for example, they may allocate production quotas to firms or share markets between them.

Such agreements are prohibited in Poland under Article 5 of the Competition Law and the Polish competition protection authorities have been entrusted with the responsibility of enforcing this prohibition.

The Competition Law also prohibits the abuse of market power, often referred to as "market dominance". A firm holds a dominant position if its economic power enables it to operate on the market without taking account of the reaction of its competitors or of intermediate or final consumers. There is a presumption that a market share of 40% is large and hence indicative of a dominant position. However, there may be other factors sustaining the conclusion that a firm which has 40% of the market is not dominant.

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Merger control in Poland

The control of mergers and acquisitions is an important component of the competition policy. In general, only mergers which would significantly impede effective competition, in particular through creating or strengthening of a dominant market position, are prohibited in Poland.
The system for monitoring merger transactions is also governed by the Competition Law. It imposes on firms the obligation to seek clearance for certain large-scale mergers. This obligation applies to all mergers where the combined aggregate worldwide turnover of the parties is more than €50m.
Such mergers must be notified to the President of the Office for Competition and Consumer Protection and cleared before completion of the mergers. It means that the parties to such mergers are obliged not to complete the transaction before obtaining of a decision on clearance from the President of the Office, or before a lapse of 2 months period as from the date of notification in case the President of the Office failed to deliver its decision. Fines may be imposed for failure to notify or the provision of incorrect or misleading information.

Decisions of the President of the Office are subject to judicial review by the Polish courts.

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State aid in Poland

EC Treaty prohibits any aid granted by the State or through State resources in any form whatsoever, which distorts or threatens to distort, competition by favouring certain firms or the production of certain goods. By giving certain firms or products favoured treatment to the detriment of other firms or products, state aid seriously disrupts normal competitive forces.

The aid in question can take a variety of forms such as, for instance:

• State grants
• Interest relief,
• Tax relief,
• State guarantees,
• Holding and provision by the State of goods and services on preferential terms.

Polish competition policy, however, allows exceptions to the ban on State aid where the proposed aid schemes comply with the conditions set out in the State Aid Law of 30 April  2004 and the relevant EC legislation. By way of example, it is allowed to grant aid having a social character to individual consumers, as well as aid aiming to make good the damage caused by natural disasters or other exceptional occurrences.

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Competition Protection Authorities

The Competition Law is enforced by the central administrative body called the President of the Office for Competition and Consumer Protection (the Office). The decisions and guidelines of the President of the Office, as well as court rulings issued pursuant to appeals against decisions of the President of the Office, may be published in the Official Journal of the Office.
Administrative decisions of the President of the Office related to competition law may be appealed against to a special court set up within the Regional Court of Warsaw (the Competition and Consumer Protection Court). Appeal applications must be filed within two weeks of the date of receipt of the relevant decision. The appellate proceedings are governed by the provisions of the Code on Civil Proceedings on commercial matters.
The Competition and Consumer Protection Court ruling may be further appealed to the Supreme Court, whatever the amount involved, but only on questions of law (in Polish kasacja).  The appeal must be filed within 30 days following the date of receipt of the ruling of the Competition Protection Court.
A system of fines is imposed by the President of the Office for failure to comply with the competition law.
The penalties are discretionary and may range:

• up to 10% of the total annual revenues of an entity in case this entity enters into agreements which aim at preventing, restricting or distorting competition, or it abuses its dominant position, or it proceeds with a merger before obtaining a clearance decision of the President of the Office
• from the PLN equivalent of €1,000 to €50m if no information, or incorrect or false information was provided during merger or antimonopoly inspection proceedings
• from the PLN equivalent of €500 to €10,000 for each day of delay in complying with a decision of the President of the Office or the ruling of the Competition and Consumer Protection Court

In addition, the Competition Law provides for penalties which may be imposed by the President of the Office, on a natural person acting as a manager or being a member of a managing body of an entity or a group of entities (up to a maximum 50 times the average remuneration) for breaching the law.
Fines imposed by the President of the Office may be appealed to the Competition and Consumer Protection Court. Such fines constitute revenues of the State budget and may be collected pursuant to executory administrative proceedings (these proceedings consist of forced seizure of assets, and measures related to bank accounts and other property of a debtor).

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