As regards cartels, the OCCP continued to focus on bid rigging. Up to May 2018, the authority had reviewed the legality of 172 tenders and 48 proceedings related to bid rigging were ongoing. Also, in May 2018 the authority imposed a fine of approximately €230,000 on three companies who colluded and fixed the bids in the course of three tender proceedings related to IT sector. Besides bid rigging, the OCCP was not very active in cartel enforcement.i Significant cases
Since the 2017 OCCP's decision concerning the cartel between producers of fibre boards and particle boards, there was no major cartel decision issued in 2018. However, in June 2018 the OCCP instigated the antimonopoly proceedings against 16 companies operating fitness clubs and the company offering benefit packages for employees (including sports and recreation packages). The OCCP alleges that the companies entered into a market sharing agreement. Interestingly, the OCCP also instigated the proceedings against individuals since it found evidence confirming that the managers of six companies participated in the agreement. The proceedings are ongoing.Cartel between producers of particle and fibreboards
In late December 2017, the OCCP issued its decision, finding that Swiss Krono, Kronospan Szczecinek, Kronospan Mielec (both referred to as Kronospan), Pfleiderer Grajewo, Pfleiderer Wieruszów (both referred to as Pfleiderer) entered into an anticompetitive agreement. The authority established that the parties had bilateral and trilateral contacts during which they fixed prices and exchange confidential information on the sales conditions of fibreboards and particle boards. The OCCP gathered evidence during a dawn raid performed on the premises of the decision's addressees and information provided by the leniency applicant, Swiss Krono.
The OCCP based its decision on both national and EU competition law provisions. The authority imposed a fine amounting to approximately €32 million. Swiss Krono, as a successful leniency applicant, escaped the fine. It follows from publicly available information that Pfleiderer Group, a company listed on the Warsaw Stock Exchange, submitted an appeal against the decision to the Court of Competition and Consumers Protection (CCCP).Agreement on sharing the markets for local bus passenger transport
In December 2018, the OCCP issued a decision concerning a market sharing agreement between companies offering bus passenger transport services. The authority found that two companies agreed on routes that would be operated by each of them. Interestingly, the explanatory proceedings were instigated as a result of a complaint by one of the addressees of the decision, who claimed that its counterparty was abusing its dominant position. During the investigation, the OCCP found that both companies in fact infringed the competition law by concluding an anticompetitive agreement. However, the authority did not impose a fine on the complainant considering that it informed the authority about the infringement on its own initiative. Such information was provided unintentionally as part of the notification of the alleged abuse of the dominant position. However, in the OCCP's opinion, imposing a fine would be unjustified and equal to punishing a complainant for its lack of legal knowledge.ii Trends, developments and strategies
The detection of the most harmful anticompetitive agreements is the declared objective of the OCCP. To facilitate this, the authority tries to encourage individuals and undertakings to inform it about identified irregularities. The OCCP introduced a whistle-blower system as well as published guidelines on how to submit a leniency application.
The Polish Damages Act entered into force in 2017. It facilitates bringing claims for damages for competition law infringements; thus, we may expect that those who suffered harm as a result of such anticompetitive conduct may be incentivised to bring their claims to court. Despite this legislative development, private enforcement cases remain rare in Poland.Whistle-blower system
The Polish Competition Authority (PCA) launched the pilot whistle-blowing programme in April 2017 with the aim of increasing the detection of prohibited agreements between undertakings. This policy is aimed at allowing the OCCP to obtain information from anonymous individuals who have become aware of an illegal practice. Individuals are able to inform the authority through its dedicated telephone number or email address and provide evidence of competition-restricting practices. It follows from publicly available information that the authority has received numerous calls and emails informing about potential irregularities pertaining both to the competition and consumers laws. The OCCP is also working on legislative changes designed to ensure that the concept of a whistle-blower is incorporated into the provisions of Polish competition law on a permanent basis.
The whistle-blower system was quite widely used by potential informants. Up to 30 November 2018, the OCCP received 938 emails, 508 phone calls and held two meetings. This system also proved to be successful since in 2018, the OCCP instigated antimonopoly proceedings concerning resale price maintenance as a result of the information provided by a whistle-blower.Implementation of the Damages Directive
The Polish Damages Act, implementing the EU Damages Directive, entered into force in 2017. the Act covers not only competition law infringements relating to the European market, but also those related solely to the national market, and consequently does not multiply the regimes for claiming damages for competition law infringements. The most important aspects of the Act aim at facilitating the recovery of claims concerning legal presumptions, procedural facilitations and quantification of harm.
The Act raises hopes as to the facilitation of compensation claims for competition law infringements. So far, bringing a successful compensation claim has been difficult due to the demanding tort law rules regarding evidence. The Act does not extend the powers of the OCCP, but intends to supplement the authority's actions. Following its entry into force, undertakings infringing competition law will face not only fines imposed by the OCCP, but also will be exposed to the risk of civil proceedings that could result in potentially substantial amounts of damages to be paid.iii Outlook
Given the declarations of the OCCP regarding increased cartel detection, we may expect that various means already implemented (for instance, the leniency plus and whistle-blower system) will bring some results in terms of antitrust enforcement in Poland. More activities in the area of antitrust is also a prerequisite for the development of private enforcement of the competition law. Some damages claims proceedings are ongoing; nevertheless, the implementation of the EU Damages Directive is expected to further increase the rate of such claims.