The Polish competition watchdog has announced the launch of antitrust proceedings against parties to an alleged truck dealers cartel. According to a recent press release by the Office of Competition and Consumer Protection (Urząd Ochrony Konkurencji i Konsumentów – UOKiK), it is assumed that the undertakings in question, including a Dutch parent company, divided the Polish market among themselves and exchanged price information in order to underpin the implementation of the agreement. The investigation started with a dawn raid at the premises of the Polish companies, which – as the authority claims – yielded ample evidence of anticompetitive conduct. Apparently, the companies were fully aware of the illegal nature of their agreement.

Market sharing agreements, which limit competition on the merits and ultimately harm consumers, seem not to be uncommon in Poland. Only a few months ago, a local passenger transport operator was fined for participation in this kind of restrictive practice. What is, however, striking about the case currently under investigation is its duration. The agreement might have been concluded as early as 2011 and been in operation ever since. The truck dealers had allegedly divided the market geographically and agreed that each would sell vehicles only within the territory allocated to it and refrain from poaching clients from other parts of the country. The competition watchdog suspects that when approached by a client from a competitor’s area the companies would make excessive offers, drawing on the price information they had been exchanging with their rivals, in order to discourage the prospective buyer and to prompt him into purchasing trucks from the dealer in his region. 

Interestingly, as many as nine managers of the undertakings under the UOKiK’s scrutiny could also face liability and fines of up to PLN 2 million for the alleged conduct. The President of the Polish competition authority has the power to impose sanctions on natural persons who, in their capacity as managers and in the course of their service, intentionally allow the undertaking, whether by act or omission, to enter into an anticompetitive agreement. This enforcement tool has never been applied before, yet the present case could prove to be the precedent if the competition authority manages to find the undertakings liable for breach of competition law. It is also worth noting that the fact that some of the nine managers facing fines no longer hold their positions at the companies under investigation does not preclude imposition of the fines upon them.  

Another interesting aspect of the case is that the list of undertakings named as parties to the proceedings includes the Dutch parent company of a Polish truck dealer although the former may not have been directly involved in the collusion. Given that at the present moment there is no legal basis for so-called parental liability in Polish competition law, the likely explanation could lie in direct application of EU competition law. As the alleged agreement is said to have had an appreciable effect upon trade between EU member states, the President of the UOKiK is obliged to apply European law in parallel with national law. Thus, attribution of liability to the parent company could ensue. On a side note, the European Commission’s practice of fining parent companies for breaches of EU competition law committed by their subsidiaries appears highly controversial as it is difficult to reconcile with the principle of individual liability.  

Finally, it must be pointed out that freight transport is regarded as a vital cog in the Polish economy, with many well-established companies offering competitive prices in Europe. It is therefore possible that a decision finding an infringement of competition law could trigger a wave of claims for damages from the injured parties. The Polish experience with private enforcement cases up to now does not bode well for them though. Although the private enforcement directive has been transposed into the Polish legal system, injured parties keep struggling to calculate and produce evidence of the damages incurred.