Office for Competition and Consumers Protection

It is a market of products and/or services which, due to their intended use, price and characteristics (including their quality) are regarded as interchangeable or substitutable by the consumer and which are traded in a territory where, due to these products and/or services’ type, characteristics, consumer preferences, significant differences in prices or costs of freight, there are similar competition conditions.

Defining the relevant market is necessary to determine whether a given undertaking abuses or has abused its dominant market position.

The OCCP determines the relevant market individually in each case it investigates.

For example, let us consider a company which produces hydrogen-propelled cars: is it operating on a separate relevant market or not? When analysing the case, we must remember that a hydrogen-propelled car would be much cheaper to maintain. Of course, the intended use of such cars would be identical to the intended use of gasoline-propelled vehicles, however, from the consumer’s point of view these would not be substitutable goods. Thus, the relevant product market in this case would be the market of hydrogen-propelled cars.

Pursuant to the Act on competition and consumer protection, it is not illegal to have a dominant position. However, it is forbidden to abuse it. An abuse consists, among other things, in: direct or indirect setting of unfair prices (including excessively high or unjustifiably low prices), making a contract conditional upon the other party accepting or rendering a performance that has nothing to do with the subject of the contract, counteracting the formation of conditions necessary for the development of competition on the market or imposing burdensome contractual terms and conditions, thus gaining unjustified profits. Abusing a dominant position may also consist in e.g. hampering consumers from pursuing their claims.

Abuse of a dominant market position may take place in a situation when an enterprise gains such an advantage over its rival companies that it is not threatened by competition on their part. It can be concluded that an enterprise has achieved a dominant position if it has gained a 40% share of the market. Another significant premise is the fact that the enterprise is able to carry out its business independently from its competitors, contractors and consumers.

The term is used to define a formal or informal agreement between enterprises, the objective of which is to restrict, infringe or eliminate competition on the market, for instance, by fixing prices, determining terms and conditions of sales, limiting the production, etc. The term may both relate to agreements made between competitors, contractors and enterprises operating on different levels of the commodity trade.

Parallel pricing is not prohibited. It may, in fact, arise form the commercial policy of the enterprise, which may set the price of their products or services based on the analysis of the prices of the competition. As long as these practices do not bear the characteristics of an agreement between particular enterprises, they cannot be considered as collusion.

The European Commission has the power to investigate concentrations with a “Community dimension”, i.e. those which involve enterprises whose aggregate world-wide turnover exceeds EUR 5 bln or when the aggregate Community-wide turnover of each of at least two of the enterprises concerned is more than EUR 250 mln. This is provided for by the Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) - 3 2004 R 0139, Official Journal L 024, 29/01/2004, which is effective in all EU Member States.

In turn, the President of the OCCP has the power to investigate concentrations which have or may have effects in the territory of the Republic of Poland and involving enterprises whose turnover does not exceed the abovementioned thresholds.

The President of Office of Competition and Consumer Protection may impose a fine on an enterprise which was found to have used competition restricting practices or to have infringed collective consumer interests. The amount of the fine for - even unintentional - violation of the provisions of the Act of 16 February 2007 on competition and consumer protection (e.g. participating in a cartel, abusing a dominant market position, carrying out a concentration without prior clearance from the President of the OCCP or infringing collective consumer interests) may not exceed 10% of the undertaking’s revenue in the preceding financial year.

It is also possible to impose a fine in a situation when an undertaking has provided, even unintentionally, false data in the application for concentration clearance, has not provided any information when requested to do so by the Office, provided false or misleading information or has not cooperated with the OCCP during the investigation. The amount of the fine may in such a case reach up to EUR 50 mln.

Also, a fine equivalent to up to EUR 10,000 may be imposed for each day of delay in implementing the decisions based on the provisions of the Act on competition and consumer protection and legally binding court judgements.

By way of decision, the President of the OCCP may also impose a fine amounting to fifty times the average remuneration on the manager or a member of the management body of an undertaking or an association of undertakings, if this person, deliberately or undeliberately has not implemented the decisions or resolutions of the President of the OCCP, binding court judgements, has not reported an intention to concentrate, or has not provided the information or provided unreliable or misleading information when requested by the President of the OCCP.

Explanatory proceedings are initiated ex officio when there is reasonable suspicion that the provisions of the Act on competition and consumer protection might have been breached. Explanatory proceedings are conducted in rem, which means that they are not conducted against any particular undertaking and are aimed only to examine the mechanisms at work on a given market.

Explanatory proceedings may also be initiated when the information provided in an undertaking’s application are insufficient for the President of the Office to determine whether a breach took place or not, i.e. when there is not enough evidence to substantiate initiating anti-monopoly proceedings. Explanatory proceedings should end within 30 days, and in matters of great complexity within 60 days, of their initiation. The deadlines may be extended, for instance when the Office is waiting for the undertaking to complete its application.

Proceedings pertaining to competition restricting practices should end no later than within 5 months of their initiation.

Proceedings pertaing to concentrations may last up to two months starting from the day of their initiation.

Within the meaning of the Act on competition and consumer protection, a commune (gmina) is an undertaking when, among other things, it provides public services (such as waste disposal, electricity or drinking water distribution), directly or by contracting private companies, and if these operations do not constitute economic activity within the meaning of the Act on freedom of economic activity.

The President of the OCCP may clear an envisaged concentration (conditionally or unconditionally) or prohibit it.

Unconditional clearance is given when the envisaged concentration is not expected to result in significant lessening of the competition on the relevant markets, in particular when as a result of the transaction, no undertaking will gain or strengthen its dominant market position.

Clearance may also be made conditional upon the undertaking(s) implementing certain recommendations of the President of the OCCP. According to the Act on competition and consumer protection, the President of the Office may, for instance, order the undertaking(s) to sell all or some of their assets, give up their control over a given undertaking (e.g. by selling their stock), etc. The OCCP sets a deadline for the undertaking(s) to meet the conditions and obliges them to inform the Office of the progress being made.

The President of the Office refuses to clear a concentration that might significantly lessen the competition on the relevant markets, in particular, if as a result of the concentration an undertaking would gain or strengthen its dominant position.

The President of the OCCP may clear a concentration even if it will result in an undertaking gaining or strengthening its dominant market position, provided that the concentration will bring about economic growth or technical advancement and if it will have a positive impact on the economic situation of Poland.