A far-reaching amendment to the Act on Competition and Consumer Protection enters into force on 18 January 2015, significantly modifying the current regulations and introducing entirely new solutions not encountered before in Polish law. The purpose of the amendment is to increase the effectiveness of uncovering and punishing anti-competitive practices, and to streamline and expedite proceedings before the President of the Office of Competition and Consumer Protection (UOKiK).
The key changes entering into force on 18 January 2015 include:
- Personal financial liability of managers for allowing the enterprise to enter into anti-competitive arrangements
- Two-stage review of concentrations notified to the President of UOKiK
- Expansion of the leniency program
- Extension of the limitations period for prohibited practices from 1 year to 5 years following the end of the year in which the prohibited practice ceased to be applied.
Under the amended act, the President of UOKiK will be able in a single decision to impose punishment not only on the enterprise (a fine of up to 10% of its total revenue in the prior year), but also on its management personnel, if the regulator finds that these individuals knowingly permitted the enterprise to enter into an anti-competitive arrangement.
Under the act, liability may be imposed on “persons managing the enterprise,” which should be understood to mean members of the management board (each individually, and not just the CEO), as well as members of a partnership who are authorized to conduct the affairs of the partnership, and directors of state enterprises. The maximum amount of the punishment that may be ordered by the President of UOKiK will be PLN 2 million, payable out of the manager’s personal assets.
The amendment introduces a two-stage procedure for merger control depending on the complexity of the transaction. Simple concentrations not raising doubts on the part of UOKiK or requiring market research will be reviewed within 1 month. In the case of more complicated transactions, the regulator will have an additional 4 months to reach a final decision.
A new institution, known as “leniency plus,” gives businesses participating in a cartel additional possibilities for reducing the punishment imposed on the second or subsequent participant who comes forward and seeks leniency. A business which does not succeed in being completely released from punishment will be able to obtain an additional reduction (of 30%) by disclosing information about another impermissible arrangement which the regulator was not previously aware of. Individuals managing the enterprise, referred to above, will also be eligible to file a leniency application and obtain relief from punishment.
The amendment also introduces a number of other important changes in Polish competition law, including for example a procedure for voluntary submission to punishment, and the authority of the President of UOKiK to indicate remedies in anti-monopoly cases and to issue a “public warning” in cases involving infringement of the collective interests of consumers.