Poland: from the enforcer
Tel: +48 22 55 60 245
Email: [email protected]
Questions and answers
How long is the head of agency’s term of office?
The function of the President of the UOKiK has no term of office. The President of the UOKiK performs his or her mission until his or her dismissal and appointment of a successor by the Prime Minister of Poland.
A draft amendment to the Act on Competition and Consumer Protection is being processed. According to the proposed changes, a five-year term of office of the President of the UOKiK is to be introduced.
When is he or she due for reappointment?
As per current rules there is no set date for reappointment. The President of the UOKiK performs his or her mission until his or her dismissal and appointment of a successor by the Prime Minister of Poland
Which posts within the organisation are political appointments?
The President of the UOKiK as well and Vice Presidents are appointed by the Prime Minister of Poland, who appoints them from amongst the persons selected by way of an open and competitive contest.
What is the agency’s annual budget?
According to the Budget Act for 2021, the UOKiK’s annual budget amounts to 101,036,000 zlotys.
How many staff are employed by the agency?
591 – out of which 150 employees work in competition protection. Apart from competition protection, the UOKiK is also responsible for subjects such as consumer protection and payment gridlocks.
To whom does the head of the agency report?
The President of the UOKiK reports directly to the Prime Minister, who appoints him or her from amongst the persons selected by way of an open and competitive contest.
Do any industry-specific regulators have competition powers?
‘Competition powers’ (understood as the enforcement of articles 101–102 TFEU and articles 6 and 9 of the Polish Competition Act (ie, the Polish equivalents of articles 101–102 TFEU) are an exclusive domain of the UOKiK. However, it should be noted that there are authorities responsible for regulating markets to facilitate competition such as:
- the Energy Regulatory Office (URE) (ie, the sectoral regulator for energy); and
- the Office of Electronic Communications (UKE) (ie, the sectoral regulator for telecommunications and post).
If so, how do these relate to your agency’s role?
The actions taken by UKE and URE are primarily individual and ex ante in nature. Their task is to regulate the telecommunications and energy sector and to promote competition and efficient market outcomes. Follow-up activities of regulatory authorities mainly involve the control of compliance with the regulatory obligations imposed on undertakings.
The measures taken by the UOKiK, on the other hand, are of general and ex post character. At the same time, the UOKiK is of the opinion that the regulatory authorities have fast and effective tools to solve many of the market problems which otherwise would need to be dealt with under competition law. With the above in mind and taking into account the need to prioritise cases the UOKiK usually does not take actions in the areas that can be effectively regulated as part of the sectoral authority's activities, unless for some reason a regulatory action is not sufficient to ensure effective competition in the market.
In the area of competition protection, cooperation between the authorities is only provided for in detail in the Telecommunications Act. This cooperation primarily concerns the participation of the UOKiK in proceedings conducted by UKE. A similar participation of regulatory authorities in proceedings under the Act is not foreseen.
In addition, provisions concerning the interaction of the UOKiK with other authorities are found in other specific laws, but generally they concern competencies of the UOKiK other than competition protection (ie, consumer protection). There is also a practice of signing memorandums of cooperation between UOKIK and regulatory bodies. Furthermore, UOKIK has an exclusive role in mergers and acquisitions in all markets.
May politicians overrule or disregard authority’s decisions? If they have ever exercised this right, describe the most recent example.
The President of the UOKiK undertakes proceedings and issues decisions independently on the basis and within the limits of the law. President reports directly to the Prime Minister. Under articles 33a and 33b of the Act on divisions of government administration indicate that the Prime Minister oversees the President of Office of Competition and Consumer Protection and may issue binding guidelines and instructions to him. These guidelines and instructions, in accordance with article 33b paragraph 2 may not relate to decisions on the substance of the case settled by means of an administrative decision. Moreover, the draft provisions of the act implementing the ECN + Directive indicate that the President performs his or her duties and powers irrespective of political and other external influences; and that it cannot seek instructions from government administration bodies, other public or private entities and receive instructions from these authorities and entities in the performance of their duties and powers.
Does the law allow non-competition aims to be considered when your agency takes decisions?
The primary objective of the Act on Competition and Consumer Protection (including articles 6 and 9 of the Competition Act – Polish equivalents of article 101 or 102 TFEU) is to protect competition taking into account the ‘public interest’. In accordance with the jurisprudence of the Court of Competition and Consumer Protection (SOKiK) the existence of a public interest in a given case may also be assessed in the context of non-competition aims.
What is more, according to the Act on Competition and Consumer Protection the President of the Office shall, by way of a decision, consent to the implementation of a concentration resulting in significant impediment of competition on the market, in particular by the creation or strengthening a dominant position, where there are justified grounds not to prohibit such a concentration, particularly:
- the concentration will contribute to economic development or technical progress; and
- it may have a positive effect on the national economy.
Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this? Has any competition decision by the agency been overturned?
A decision of the President of the UOKIK may be subject to appeal to the District Court in Warsaw – the Court of Competition and Consumer Protection (SOKiK) lodged within one month from the date of service of the decision.
Has the authority conducted a Phase II investigation in any of its merger filings? If yes, please provide the most recent instances.
Yes, several cases have been or are still being conducted in a Phase II investigation, for example:
- acquisition by Kaufland Polska Markety (Poland) of certain assets of Tesco Polska (Poland);
- creation of a joint venture by ArcelorMittal Poland (Poland) and Moris (Poland);
- acquisition by Dovista (Denmark) control over Arbonia Windows (Switzerland), EgoKiefer (Switzerland), Wertbau (Germany), Slovaktual (Slovakia), Dobroplast Fabryka Okien (Poland) and Management Holding (Germany); and
- acquisition by DOZ (Poland) control over Euro-Apteka (Poland), Super Zdrowie (Poland) and MLV 18 (Poland).
Do you operate an immunity and leniency programme? Whom should potential applicants contact? What discounts are available to companies that cooperate with cartel investigations?
An undertaking or its manager involved in an anticompetitive agreement (both horizontal and vertical) may apply for either a fine reduction or immunity. In such a case, an undertaking or its manager is obligated to cease the unlawful practice and cooperate with the Office by providing evidence or information indicating the existence of a such prohibited agreement. A full immunity from fines is available in particular to undertakings which apply for leniency before the Office starts to suspect that a violation may have occurred.
The leniency programme applies to undertakings and to managers (who, however, face liability only if they intentionally committed an antitrust violation through any action or omission related to their position). Managers are generally covered by corporate leniency applications (unless they refuse to cooperate under such an application), but they can also submit an application on their own.
Only the first applicant in the given case may seek a full fine immunity. Other applicants may receive reductions of up to 50 per cent. The level of such a reduction depends on the order in which the application is submitted, as well as the quality of the information and evidence provided to the Office. The first reduction-eligible applicant may receive a reduction in the range of 30 to 50 per cent, the second in the range of 20 to 30 per cent, and all remaining applicants of up to 20 per cent.
Leniency applications can be submitted in writing or orally. In both cases applications can be filed at our HQ or one of our branch offices. Applications can also be filed by fax or email ([email protected]). In case of fax and email applications, a hard copy of the application must be delivered to the office within five days. There is also a special helpline through which potential applicants may obtain additional information and assistance.
Our leniency programme also includes ‘leniency plus’ provisions. Leniency plus allows applicants to have their penalty reduced by an additional 30 per cent, if they present unknown facts about another anticompetitive arrangement (than the one covered by their original leniency application). This is only possible if no investigation or antitrust proceeding is yet pending in such a new case.
Is there a criminal enforcement track? If so, who is responsible for it? Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?
Yes. There is a criminal enforcement track for anticompetitive practices. However, it concerns only bid-rigging cases.
Bid rigging is a subject to criminal liability under article 305 of the Penal Code. Criminal bid rigging cases are handled by public prosecutors in a decentralised system (there is no single team or unit of prosecutors responsible for bid rigging cases). Criminal investigations in relation to bid rigging do not prevent the UOKiK from independently examining the matter of liability for violations of the Act on Competition and Consumer Protection.
Are there any plans to reform the competition law?
There is an ongoing project of amendment of the Act on Competition and Consumer Protection and certain other acts related to the implementation of the Directive 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the member states to be more effective enforcers and to ensure the proper functioning of the internal market - the ECN+ Directive. Some of the principles set out by the Directive regarding the operation of antitrust authorities have already been introduced into Polish law, but some areas require adjustment and clarification. In 2021, the work on the implementation of the provisions of the Directive continued.
When did the last review of the law occur?
In 2019, the UOKiK implemented Regulation 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC.
Do you have a separate economics team? If so, please give details.
There is a standalone ‘bureau of economics’ within the authority – the Department of Market Analyses. The chief economist is a Mr Wojciech Szymczak, PhD.
Has the authority conducted a dawn raid?
The authority carried out nine dawn raids (two searches and seven inspections) in 2020. According to the Polish Act on Competition and Consumer Protection, there are two types of dawn raids: searches (which can be conducted by the Polish Competition Authority only with the court authorisation) and inspections (which can be conducted by the Polish Competition Authority with its own written authorisation).
The main difference between inspections and searches is that during searches members of the dawn raid team do not depend on the company cooperation, for example, NCA employees are in a position to make copies of documents and data carriers by themselves.
Has the authority imposed penalties on officers or directors of companies for offences committed by the company? If yes, please provide the most recent instances.
In 2020, the UOKiK issued its first two decisions imposing fines on managers. The first decision concerned collusion on Warsaw heat market. The other one, a market-sharing agreement in the fitness market (fitness clubs). In the most recent case, the President of the UOKiK fined two company executives who were responsible for a resale price maintenance agreement on the dietary supplements market.
What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?
The intent to concentrate is subject to notification in the case where:
- the combined worldwide turnover of undertakings participating in the concentration in the financial year preceding the year of the notification exceeds the equivalent of €1 billion, or
- the combined turnover of undertakings participating in the concentration in the territory of the Republic of Poland in the financial year preceding the year of the notification exceeds the equivalent of €50 million.
Exceptions to the obligation are the following:
- acquisition of control – if the target’s turnover did not exceed in the territory of the Republic of Poland in either of the two financial years preceding the notification, the equivalent of €10 million;
- creation of a JV – if the turnover of any of the undertakings did not exceed in the territory of the Republic of Poland in either of the two financial years preceding the notification, the equivalent of €10 million;
- merger of two or more independent undertakings – if the turnover of neither of these undertakings did not exceed the territory of the Republic of Poland in any of the two years preceding the notification, the equivalent of €10 million;
- acquisition of control over one or more undertakings belonging to one capital group capital and, at the same time, the acquisition of assets of one or more undertakings belonging to this capital group, if the turnover of the undertakings, over which the acquisition of control is to take place and the turnover achieved by the acquired parts in total, plus the property did not exceed the territory of the Republic of Poland in any of the two financial years preceding the notification, the equivalent of €10 million;
- temporary acquisition or take-up by a financial institution of stocks or shares for the purpose of their resale, if the subject of the economic activity of this institution is investment in stocks or shares of other undertakings, on its own or someone else’s account, provided that this resale takes place within a year from the date of purchase or take-up and that this institution does not exercise rights in these stocks or shares, exclusive of the right to dividend or it exercises these rights only for the purpose of preparing resale of the whole or part of the enterprise, its assets or these stocks or shares;
- temporary acquisition or take-up of stocks or shares for the purpose of securing claims, provided that it does not involve exercising rights from these stocks or shares, other than the right to sell them;
- concentration taking place in the course of the bankruptcy procedure, excluding cases when the acquirer is a competitor or belongs to a capital group being a competitor of the target; and
- undertakings belonging to the same capital group.
Are there any restrictions on investments that involve less than a majority stake in the business?
The acquisition of a less than a majority stake in the business may be subject to merger control, namely the intent to acquire such a stake should be notified to the President of the Office if the acquisition would confer ‘taking control over’ within the meaning of the Act on Competition and Consumer Protection and if the turnover thresholds would be met.
Poland: from the enforcer's competition economists
Tel: +48 55 60 281
Email: [email protected]
Questions and answers
How many economists do you employ?
There are 129 in the UOKiK, including:
- 41 in in competition protection; and
- 18 in the ‘bureau of economics’ (Department of Market Analyses).
Do you have a separate economics unit?
There is a standalone ‘bureau of economics’ within the authority – the Department of Market Analyses. The Department’s main task is to analyse the information on the state of competition in different domestic markets. The Department of Market Analyses carries out research of the markets which, due to distortions of competition, are the object of the Office's proceedings and also researches the markets, which due to their vulnerable structure are prone to violations of competition law. In the event that the research provides sufficient evidence to suspect that the law was violated, the Department of Market Analyses notifies the Office’s management of the need to initiate proceedings.
Do you have a chief economist?
Yes. The chief economist is Mr Wojciech Szymczak, PhD, the director of the Market Analysis Department.
To whom does the chief economist report?
The chief economist reports directly to the President of the UOKiK.
Does the chief economist have the power to hire his or her own staff?
The chief economist (like every other director) is independent in the process of hiring his or her own staff.
How many of your economists have a PhD in industrial economics?
There are 6 in the UOKiK, including:
- 4 in in competition protection; and
- 3 in the ‘bureau of economics’ (Department of Market Analyses).
Does the agency include a specialist economist on every case team? If not, why not?
No. Not all cases require complex economic assessment. However, the Office is currently taking steps to hire more economists.
The Department of Market Analyses assists other UOKiK departments by means of preparing economic analyses for the purposes of proceedings carried out by the Office.
Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?
Yes, Department of Market Analyses is a ‘second pair of eyes’ during cases. Its main task is to analyse the information on the state of competition in different domestic markets. The Department of Market Analyses carries out research of the markets which, due to distortions of competition, are the object of the Office's proceedings and also researches the markets, which due to their vulnerable structure are prone to violations of competition law.
According to Office’s internal rule of procedure, Department of Market Analyses issues opinions on every draft decision concerning anticompetitive agreements or abuse of a dominant position (articles 6 and 9 of the Competition Act).
What is more, each merger case is analysed by the economic department, as every merger decision must be approved by it. The scope of cooperation, guidance, assistance, etc, between the merger and economic department depends on the specific case at hand.
How much economics work is outsourced? What type of work is outsourced?
None. Research is conducted in-house.