The European Antitrust Review 2014 Section 3: Country chapters

Poland: Office of Competition and Consumer Protection

Bid rigging, a practice where groups of firms conspire in a public tender to raise prices or lower the quality of goods or services, is the main challenge and central point of interest for the Polish Office of Competition and Consumer Protection (UOKiK) during this year and the years to come.

Even though bid rigging obviously hinders the tendering process and prevents the development of healthy competition in the public procurement sector, many antitrust agencies, including UOKiK, have encountered significant difficulties detecting this type of anti-competitive behaviour. That is why one of the priorities of the Polish Agency in 2013 is to find adequate and effective instruments that help detect these harmful practices and, more importantly, prevent their emergence. We intend not only to pursue our enforcement actions but also to intensively engage in advocacy activities to raise awareness and promote knowledge about this form of collusion.

Creation and development of competition in the natural gas market

UOKiK strives to create and develop competition in sectors with concentrated structure. For the last couple of years, we have been scrutinising the natural gas market. We wish to continue in this direction as we consider the sector to be prone to anti-competitive behavior. In April of this year, UOKiK instituted antimonopoly proceedings against Polish gas supplier PGNiG for alleged abuse of its dominant position on the retail and wholesale markets of gas supply. UOKiK suspects that the contractual provisions included in PGNiG’s gas supply contracts – preventing its contractors from changing their gas supplier and prohibiting the resale of gas – may counteract the formation of conditions necessary for the emergence or development of competition on the relevant markets. Furthermore, last year we published a report representing our point of view on the liberalisation process and in March we presented another report concerning consumer rights protection in the natural gas market.

Fighting anti-competitive agreements

Fighting anti-competitive agreements has long been a priority for UOKiK. This year is no different. In April, we accounted for over 20 proceedings regarding possible prohibited agreements concluded on different markets, mostly of consumer goods. For example, one of the conducted proceedings targeted Sfinks Polska, a company running a chain of restaurants under the business name Sphinx, which is also used by franchised restaurants run by independent undertakings. From the information collected by UOKiK, it has been established that Sfinks Polska has been fixing the prices and promotional offers applied by its franchisees. This indicates that a possible infringement of competition rules is taking place in the field of franchising. The decision in this case is still pending.

Merger control in 2013

The scope of the activities of UOKiK would not be complete without a reference to our merger control activities. As of June 2013, the Polish Authority has issued 72 decisions in the field of control of concentrations, including one conditional consent regarding the transaction of Gaspol and Orlen Gaz, two companies operating on the sales market of bottled gas. Under consideration still is the high-level case from the food sector which was referred to the Polish Agency by the European Commission upon explicit request from parties to the transaction. In March of this year, UOKiK and the Romanian Authority were asked to assess the acquisition of companies belonging to the Real Polska Group by the undertaking Auchan. The Commission took the stance that UOKiK has significant experience in the assessment of relevant markets within the food sector and should be entrusted with the analysis of this transaction.

The amendment of the Act on Competition and Consumer Protection

Finally, 2013 is also dedicated to the legislative process concerning the amendment of the Act on Competition and Consumer Protection. The envisaged changes drafted by UOKiK provide for the introduction of the concept of settlements and remedies, the elaboration of the leniency plus programme and the inclusion of the possibility to impose fines on natural persons. Within the framework of merger review, a simplified procedure of control of concentrations will be established. The current singular proceedings will be replaced with a two-phase procedure accompanied by the institution of ‘competition concern’. The main goal of these changes is to counteract anti-competitive agreements more effectively and streamline the process of merger control; that amendment is expected to be signed this summer. It will then be discussed in parliament in the autumn and we expect the time from the approval of the act to its enactment to be around another six months.

In conclusion, I hope this year the Polish Authority will manage to achieve all of the above enumerated goals. However, it goes without saying that competition law is a very dynamic field and as such we will need to be ready for any unexpected challenges that may come across our path during the exercise of our enforcement activities.

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