Antitrust: restrictive agreements and dominancei Trends, developments and strategies
As regards the enforcement of restrictive agreements, no substantial case law development was seen in 2018. Besides the cartel decision described above and a bid-rigging decision mentioned earlier, there were no more cases in 2018 concerning restrictive agreements.
As regards dominance, the OCCP discontinued long-lasting proceedings concerning abuse of a collective dominant position by three major telecommunications operators since it did not establish the existence of the collective dominance. It also issued a commitment decision addressed to the operator of a railway infrastructure after finding that provisions applied by this company in the agreement with suppliers may be unfair.ii Significant cases
Given the poor records of the OCCP's case law, below we provide a description of noteworthy judgments of the courts concerning antitrust matters.
In March 2018, the Appellate Court decreased the fines for the participants of the Cement cartel to 69 million zlotys from 411 million zlotys, which brought a close to almost nine years of appellate proceedings. The OCCP's issued the highest ever fine in this case in December 2009. The courts also lowered the fines for undertakings in several other cases concerning Sfinks (to 50,000 zlotys; the case concerned resale price maintenance in the restaurant franchising system) and Royal Canin (by 20 per cent, to 1.7 million zlotys; the case concerned restriction of form of sales, including online, of pet food).
Recently we have also seen three noteworthy judicial developments concerning procedural rights of the undertakings. First, in October 2018 the Polish Supreme Court indicated in its judgment concerning the OCCP's decision on interchange fees that the OCCP should change its current practice on restricting access to evidence contained in the case file for parties to antimonopoly proceedings on the basis that these constitute business secrets. According to the Polish Competition Act, the OCCP may, to the extent necessary, limit the right of access to specific pieces of evidence to protect business secrets of the undertakings. Such a restriction for access is made in the form of a resolution. The Polish Supreme Court found that the OCCP is using this right to often what effectively restricts undertakings' right of defence and right to be heard. This is because they cannot review the full OCCP's case file and comment on it while the OCCP may still rely on the pieces of evidence made confidential to the undertaking.
The issue of restricting access to file on the basis of the business secrets has also been considered by the Appellate Court, which considered that the resolution concerning treatment of the data provided to the OCCP during the proceedings as a business secret and restricting access to it to other parties to the proceedings is subject to two-tier review by the Polish courts – by the CCCP in the first instance, whose judgment is further subject to the appeal reviewed by the Appellate Court.iii Abuse of dominant position
In 2018, the OCCP issued four decisions regarding abuse of dominant position. Three cases concerned local utilities markets. The authority terminated the proceedings without finding abuse of a dominant position. The other proceedings concerning an operator of the railway infrastructure – described above – ended with a commitment decision. The most remarkable decision was issued early this year and concerned one of the trickiest concepts in competition law: an abuse of a collective dominant position.iv Abuse of a collective dominant position
In early January 2018, the OCCP issued a decision discontinuing antimonopoly proceedings concerning a potential abuse of a collective dominant position by three major telecommunication operators on the national market for retail mobile telecommunication services. The OCCP established that the three mobile network operators (MNOs) did not have a collective dominant position.
The proceedings were initiated in response to a complaint submitted to the authority by a fourth MNO, a maverick firm that entered the market significantly later than three previously mentioned MNOs. The complainant alleged that the three MNOs set higher retail prices for calls made by their customers to the complainant's customers, and that by carrying on this behaviour they had abused their collectively strong market position. The case proceeded on the basis of the provisions of both national and EU competition laws. In the course of the proceedings, the authority sent numerous requests for information, reviewed economic analyses provided by the parties and consulted the European Commission on the matter.
When analysing the potential existence of the collective dominant position, the OCCP referred to established EU case law. It found that the national market for retail mobile telecommunications services is relatively transparent, with homogenous services that facilitate anticipation of competitors' market behaviour. However, in the view of the authority, this was not sufficient for reaching an understanding of the terms of the collusion. Neither was the plausible implementation of any retaliation mechanisms by the parties to the proceedings. The OCCP established that the market behaviour of three MNOs towards the complainant differed significantly, and thus no signs of coordination were observed. Even though the authority found that prices for calls to the complainant's customers were higher, the OCCP considered that the three MNOs had legitimate interests to apply them. Given that the three MNOs were not collectively dominant, the OCCP discontinued the proceedings.v Outlook
In 2018, the OCCP instigated two antimonopoly proceedings concerning resale price maintenance. This is in line with the antitrust enforcement trends in Europe. It is expected that the OCCP will continue to focus on vertical restraints. Further, the substantial number of dawn raids conducted in 2018 shall be rationally expected to translate into a corresponding number of antimonopoly proceedings.