Immunity & Sanctions

Last verified on Sunday 24th May 2020

Immunity & Sanctions: Poland

Krzysztof Kanton

Sołtysiński Kawecki & Szlęzak

Immunity or a 100 per cent reduction in sanctions

1. What benefits are available to the first applicant to qualify?

Poland

The Polish leniency programme allows undertakings to disclose participation in an anticompetitive arrangement to the Office of Competition and Consumer Protection (OCCP) in exchange for full or partial immunity from a fine. The programme is based on the following general premises: (i) the earlier an application for leniency is submitted, the greater the benefit; and (ii) the benefit should depend on the value of information provided by the applicant and its cooperation with the OCCP.

The leniency programme entered into force in Poland over 15 years ago. Its introduction, which coincided with Poland’s accession to the European Union in 2004, was part of a process of legislative changes intended to harmonise Polish competition law with EU regulations.

The rules of obtaining immunity and fine reductions under the leniency programme are included in the 2007 Act of Competition and Consumer Protection (the Act). The amendments to the leniency procedure, which entered into force in 2009, incorporated into the programme the elements of the ECN model leniency programme. In parallel with adoption of new procedural rules, the OCCP adopted its first ever Guidelines on Leniency (the Guidelines) to raise awareness of leniency and appraise potential candidates of their duties and rights under the programme. The Guidelines have been subsequently updated in 2017 to reflect, among other things, the possibility to apply for immunity or reduction of fine by individuals.

Answer contributed by Krzysztof Kanton

2. Do the protections extend to current and former officers, directors and employees?

Poland

Individuals who manage an undertaking bear financial liability if their intentional actions or omissions committed in connection with managerial duties result in participation in an anti-competitive agreement. However, individuals may seek protection under the leniency programme which provides for, among other things: 

  • the extension of protection and immunity for managers if an undertaking submits a successful application for immunity (no separate motion of a manager is then required);
  • the possibility of immunity or reduction of fine even if the immunity is not granted to an applying undertaking provided that the manager cooperates with the OCCP; and
  • the possibility for managers to submit motions for immunity on their own (without advising a company they manage of this fact).

Answer contributed by Krzysztof Kanton

3. Is immunity available after an investigation begins?

Poland

Yes, immunity is available after the OCCP starts an official investigation. In principle, an application can be submitted even if the proceedings are fairly advanced but in practice the chances to obtain immunity are reduced in the event of such late submission (see question 5).

Answer contributed by Krzysztof Kanton

4. What are the eligibility requirements before an investigation begins?

Poland

The OCCP will grant full immunity if an undertaking, as the first such applicant:

  • submits to the OCCP an application that fulfils the statutory criteria; and
  • provides the OCCP with evidence that enables the OCCP to start the formal administrative proceedings concerning an infringement.

Further statutory conditions for immunity are as follows:

  • the applicant is obliged to cease participation in infringement immediately following submission of the motion;
  • the applicant did not induce the remaining parties to participate;
  • the applicant fully cooperates with the OCCP during proceedings; and
  • the applicant shall be precluded from disclosing to anyone that it submitted the motion for immunity.

Answer contributed by Krzysztof Kanton

5. What are the eligibility requirements after an investigation begins?

Poland

The applicant must fulfil all the conditions that apply if a motion is submitted before an investigation begins. In addition, the applicant is required to provide evidence that substantially contributes to rendering a decision concerning an infringement or provide to the OCCP information enabling it to secure such evidence.

Answer contributed by Krzysztof Kanton

6. Will the applicant have to admit to a violation of law?

Poland

An applicant is not required to provide a declaration concerning termination of activity in an ‘illegal arrangement’ or similar statements that might imply an admission to a violation of the law.

Answer contributed by Krzysztof Kanton

7. Is immunity available to an applicant that admits exchanging commercially sensitive information with a competitor but does not admit entering into an agreement to fix prices or allocate markets?

Poland

The Polish leniency programme applies to all types of anticompetitive horizontal arrangements. Therefore, an applicant can seek immunity from a fine by admission of participation in information exchanges in breach of competition rules but did not entail further coordination of market behaviour with competitors.

Answer contributed by Krzysztof Kanton

8. Is immunity available to an applicant that admits entering into a vertical price-fixing agreement if that agreement does not also include horizontal collusion?

Poland

Although the Polish leniency programme closely resembles the EU model, there are certain differences, for example, application of the Polish leniency programme to vertical agreements. Accordingly, immunity can be granted to an applicant who admits to a vertical price fixing agreement or any other type of infringement of competition rules in a vertical agreement. In such a situation it is not necessary to evidence that there was any related horizontal collusion.

The possibility to apply for immunity or reduction of fine in relation to infringement of competition rules in a vertical agreement is reflected in the Guidelines. In the past, the OCCP has granted immunity or reduction of fine to entities who admitted to competition law infringements in vertical relationships. In one of the most recent cases the OCCP reduced a fine for Brother Central & Eastern Europe GmbH, a supplier of printers and office accessories, as a result of the leniency application submitted by that company that pertained to vertical price-fixing (decision of the OCCP dated 30 December 2020, RKR 10-2019).

Answer contributed by Krzysztof Kanton

9. Is immunity available to an applicant that admits entering into an agreement not to solicit or hire another company's employees ("no-poach" agreements)?

Poland

Yes, all types of anticompetitive horizontal arrangements are covered by the Polish leniency programme, including no-poach agreements.

Answer contributed by Krzysztof Kanton

10. Are ringleaders or initiators of the conduct eligible?

Poland

Immunity from fine is available to initiators of an anticompetitive arrangement. Entities found to coerce others to participate remain barred from immunity, but they are potentially eligible for reduction of fines.

Answer contributed by Krzysztof Kanton

11. When must the applicant terminate its involvement in the conduct?

Poland

 An applicant, who has not terminated its anti-competitive conduct prior to submission of motion for immunity, shall do so ‘immediately’ following the submission.

Answer contributed by Krzysztof Kanton

12. What constitutes termination of the conduct?

Poland

Termination of the conduct usually requires that the applicant stops attending cartel meetings and refrains from discussing and coordinating market conduct with other parties. As regards vertical agreements, the PCA will usually require termination or modification of an agreement (eg, removal of resale price mechanisms in a distribution contract).

Answer contributed by Krzysztof Kanton

13. Will the applicant be required to make restitution to victims?

Poland

No, restitution to victims is not a requirement for obtaining immunity.

Answer contributed by Krzysztof Kanton

14. Can more than one applicant qualify for immunity?

Poland

No, only the first company to submit a motion and meet further conditions can be granted immunity.

Answer contributed by Krzysztof Kanton

15. Can an applicant qualify if one of its employees reports the conduct to the authority first?

Poland

No, to qualify for immunity an applicant must submit its own application to the OCCP and meet all the applicable requirements.

Answer contributed by Krzysztof Kanton

16. Does the afforded protection extend to any non-antitrust infringements?

Poland

The leniency programme does not extend to any non-antitrust infringements.

It should also be noted that actions for damages can be pursued against leniency applicants in civil proceedings that might ensue as a result of the proceeding initiated by the OCCP. However, according to Polish regulations that implement the EU Damages Directive 2014/104/EU, an immunity recipient shall be held jointly and severally liable only where full compensation cannot be obtained from other participants of a cartel. 

Answer contributed by Krzysztof Kanton

Immunity application and marker process

17. What confidentiality assurances are given to the first applicant to report?

Poland

No materials provided by the applicant can be disclosed to third parties unless the applicant agrees to such disclosure in writing. Furthermore, the remaining parties to the proceedings are granted access only shortly before the proceedings are completed. They cannot copy the documents submitted by the applicant without its prior consent.

Answer contributed by Krzysztof Kanton

18. Does the authority publish guidance regarding the application of the programme?

Poland

Yes, the guidelines are available on the website of the OCCP (www.uokik.gov.pl).

Answer contributed by Krzysztof Kanton

19. Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

Poland

Generally, there is no conflict.

Polish rules address situations where the European Commission is also investigating a cartel. If an illegal arrangement covers more than three EU member states, including Poland, the undertaking that submits a leniency application to the European Commission in accordance with the EU law may also simultaneously submit to the OCCP the summary application. The summary application needs to be completed only upon express request of the OCCP in the event that no action is taken by European Commission and the OCCP decides to pursue the case on its own.

Answer contributed by Krzysztof Kanton

20. What is the initial process for making an application?

Poland

Before the submission of the application, an undertaking is authorised to contact the OCCP by telephone to obtain information on the leniency programme, and present on a no-names basis ‘hypothetical’ circumstances of the case for a preliminary assessment of eligibility for the leniency programme.

Submission of the application can be made directly with OCCP by facsimile, e-mail or registered letter (however, sending the application by post is not preferred by the OCCP). The applicant is required to deliver to the OCCP the original application (or a certified copy thereof) within three days from the date of sending the application electronically or by fax (if the foregoing deadline is met, the application is presumed to have been made on the date the OCCP received a fax or email copy of the application).

The motion for immunity from fine can be also submitted by means of an oral application before a representative of the OCCP. The content of the oral application is included in the protocol, which should be signed by the applying party.

The date and the hour on the minute regarding the submission (recorded by the OCCP) is a decisive factor determining the applicant’s place in the queue.

Answer contributed by Krzysztof Kanton

21. What information is required to secure a marker?

Poland

The short form application (a marker) can be submitted if the applicant is not in possession of information and evidence required to submit a full motion for immunity and can produce only preliminary information or evidence. Such short-form application must, nonetheless, include:

  • a formal motion for immunity from fines and a description of the arrangement indicating among other things:
    • the undertakings participating in an illegal arrangement;
    • the products or services concerned;
    • the affected territory;
    • the goals of the arrangement;
    • the duration of infringement; and
    • names and official positions of persons who had an important role in the arrangement, together with its description.

Answer contributed by Krzysztof Kanton

22. How much time will an applicant have to perfect its marker?

Poland

The short-form application protects the place of an applicant in the queue for a given period defined by the OCCP. Upon receipt of the short-form application, the OCCP is required to confirm to the applicant the date and hour of the submission and should, without undue delay, inform the applicant what additional evidence should be submitted within the designated deadline. If the applicant observes the deadline, the information and evidence provided will be deemed to have been submitted on the date when the short-form application was submitted. Otherwise, the short-form application is rejected and the applicant loses its place in the queue.

Answer contributed by Krzysztof Kanton

23. Can the deadline for perfecting the marker be extended?

Poland

The deadline for perfecting the marker can be extended in justified cases upon a motion of an applicant. The OCCP is not bound by the motion and can refuse extension of the deadline.

Answer contributed by Krzysztof Kanton

24. What is required to perfect the marker?

Poland

There are no specific provisions of law which regulate precisely the scope of the required additional information and evidence. The OCCP determines individually in each case the scope of information and evidence required to perfect the marker.

Answer contributed by Krzysztof Kanton

25. Can the scope of the marker be expanded if additional information is discovered by the applicant?

Poland

No, additional information should be promptly provided to the OCCP to comply with the duty to cooperate.

Answer contributed by Krzysztof Kanton

Immunity cooperation obligations

26. Can an applicant lose its marker if a second applicant comes forward with better information?

Poland

No, an applicant cannot lose the marker merely due to the fact that a second applicant provided better application. The marker can be lost only if the applicant does not perfect it within a specified deadline or the information provided prove insufficient for the OCCP.

Answer contributed by Krzysztof Kanton

27. What if the applicant’s investigation reveals that no violation exists?

Poland

The process of verifying whether or not there is a violation vests entirely with the PCA. The applicant may inform the PCA of its assessment but the authority is not bound by such opinion.

Answer contributed by Krzysztof Kanton

28. What if the authority decides not to investigate?

Poland

The PCA shall advise the applicant that the matter does not merit an investigation.

Answer contributed by Krzysztof Kanton

29. What is the applicant required to produce?

Poland

An applicant should cooperate fully with the OCCP and provide the authority with all information and evidence relating to the infringement as soon as they are at its disposal, on its own initiative or upon a request of the OCCP. Furthermore, the applicant cannot destroy or conceal any evidence in its possession.

The policies of the OCCP regarding the duty to cooperate are fairly strict and require active involvement in the proceedings by a party that seeks immunity or a reduced fine, in particular timely and voluntary delivery of all documents that could be relevant to the case. In Decision No. 1/08 dated 7 April 2008 Castroma/ICI, the OCCP refused to reduce a fine for the applicant for, among other things, the applicant’s lack of cooperation during the proceedings. In the decision the OCCP highlighted that the basic requirement for accepting the leniency application is ‘active, diligent and thorough’ cooperation in the proceedings.

Answer contributed by Krzysztof Kanton

30. Will the applicant be required to make a written confession?

Poland

There is no express requirement for an applicant to make a written confession. The PCA generally recognises written testimonies of senior managers as evidence for purposes of the investigation but it does not condition immunity upon the undertaking producing such confession.

Answer contributed by Krzysztof Kanton

31. Can third parties obtain access to the materials provided by the applicant?

Poland

No, disclosure of any materials submitted by an applicant to third parties is expressly prohibited under law. This also applies to parties seeking disclosure in relation to follow-on claims.

Answer contributed by Krzysztof Kanton

Granting immunity

32. Will the applicant lose its protection if one or more of its employees refuses to cooperate?

Poland

Refusal to cooperate by one or more employees may potentially jeopardise the immunity if the OCCP decides that such conduct effectively breaches the applicant’s duty to cooperate.

Answer contributed by Krzysztof Kanton

33. Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

Poland

Obstructive behaviour carries a risk of losing protection if the OCCP concludes that it amounted to breach of the duty to cooperate.

Answer contributed by Krzysztof Kanton

34. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Poland

No, the PCA does not require disclosure of privileged materials from the applicants.

Answer contributed by Krzysztof Kanton

Individual immunity or leniency

35. Does the existence of an effective compliance programme affect whether an applicant meets the eligibility requirements?

Poland

Existence of an effective compliance programme is irrelevant from the perspective of eligibility of an individual for immunity under the leniency programme. Such circumstance is not one of the statutory prerequisites for obtaining immunity or reduction from a fine.

Answer contributed by Krzysztof Kanton

36. Does the authority consider the existence of an effective compliance programme at the time it becomes aware of an infringement when determining the leniency benefits granted?

Poland

 There is no case law so far which would provide insight as to whether the OCCP will take into account compliance programme when considering the leniency benefits. However – based on the hitherto practice of the OCCP - it is highly unlikely that such factor would be taken into account.

Answer contributed by Krzysztof Kanton

37. Will the applicant be required to implement or enhance a compliance programme to obtain leniency benefits?

Poland

No, there are no grounds under Polish law for such requirement.

Answer contributed by Krzysztof Kanton

38. How does the authority announce its promise not to charge or sanction?

Poland

If the OCCP preliminarily determines that the applicant may fulfil conditions for immunity, it should immediately confirm it to the applicant in writing. In practice, the initial evaluation of an application by the OCCP takes between two and three months from the date of submission of the application. Fulfilment of conditions for application of leniency is further evaluated during the antimonopoly proceedings (in particular, the OCCP verifies to the extent to which the applicant has fulfilled its duty to cooperate).

Answer contributed by Krzysztof Kanton

39. Does the authority put its commitment in writing?

Poland

During antimonopoly proceedings, the OCCP only confirms in writing that the applicant may qualify for immunity. The ultimate confirmation is reflected in the final decision that ends the proceedings.

Answer contributed by Krzysztof Kanton

40. Who is given access to the document?

Poland

The applicant is the only addressee of the letter confirming that it may qualify for immunity.

Answer contributed by Krzysztof Kanton

41. Does the authority publish a model letter for conferring immunity?

Poland

Yes, the OCCP publishes a model letter for conferring immunity on its website.

Answer contributed by Krzysztof Kanton

42. Is there an individual immunity programme?

Poland

In a situation where a company does not elect to seek protection under the leniency programme, current and former managers of business undertakings are able to submit a motion for immunity on their own behalf and separately from the company. One of the criteria for granting immunity to an individual is non-disclosure of submission of the application to any third party, including the current or former employer. The concept of individual application, made without the knowledge of an undertaking, raises a number of doubts and it is uncertain how it will be applied in practice.

Answer contributed by Krzysztof Kanton

43. What is the process for applying?

Poland

The rules for applying are the same as those applicable to undertakings.

Answer contributed by Krzysztof Kanton

44. What are the criteria for qualifying?

Poland

In principle, the criteria for qualifying are the same as those applicable to undertakings. However, a manager applying for immunity is required to provide information and evidence regarding the infringement only to the extent his or her management duties allow possession of such information and evidence.

Answer contributed by Krzysztof Kanton

Revocation of immunity

45. On what basis can corporate immunity be revoked?

Poland

During antimonopoly proceedings the OCCP verifies whether the applicant fulfils all the requisite criteria for immunity. The final determination in this respect is reflected in the final decision of the OCCP that pertains to an infringement.

Answer contributed by Krzysztof Kanton

46. When can it be revoked?

Poland

The OCCP may revoke the status of an entity who may be eligible for immunity throughout the proceedings.

Answer contributed by Krzysztof Kanton

47. What notice is required to revoke?

Poland

If the OCCP does not accept the application for immunity, it is required to return it to the applicant. It is important to note the OCCP does not return the accompanying documents to the applicant. Instead, the foregoing materials remain with the OCCP (there is no provision which would prohibit the OCCP from incorporating them into the case files of the antimonopoly investigation commenced against the infringement).

Answer contributed by Krzysztof Kanton

48. Can the applicant file a judicial challenge to a decision to revoke?

Poland

No, this decision is not subject to any appeal.

Answer contributed by Krzysztof Kanton

Reduction in sanctions

49. Does the leniency programme allow for reductions in sanctions?

Poland

Yes, if an undertaking does not meet all the conditions for immunity, in particular if it is not the first entity to submit a motion for immunity, it can be still eligible for a reduction of a fine. The conditions for reduction of fine are as follows:

  • submission of an application to the OCCP;
  • delivery to the OCCP of evidence that substantially contributes to rendering a decision concerning a cartel; and
  • termination of involvement in the suspected infringement.

Further conditions for reduction of fine are as follows:

  • the applicant is obliged to cease participation in infringement immediately following submission of the motion;
  • the applicant fully cooperates with the OCCP during proceedings; and
  • the applicant shall be precluded from disclosing to anyone that it submitted the motion for immunity.

Answer contributed by Krzysztof Kanton

50. What is the process for seeking a reduction in sanctions?

Poland

The process for seeking a reduction in fine is the same as that governing applications for immunity (see question 20).

Answer contributed by Krzysztof Kanton

51. Is there a marker process similar to immunity applications?

Poland

Yes, the marker process applies to applications for a reduction of fine.

Answer contributed by Krzysztof Kanton

52. Are the reductions in sanctions fixed or discretionary?

Poland

The OCCP has discretion in setting the reductions but must observe the prescribed statutory limits.

Answer contributed by Krzysztof Kanton

53. How are the reductions in sanctions calculated?

Poland

The scope of reduction depends on the rank of the application:

  • for an undertaking that is the first in line to qualify for a reduction, the OCCP can reduce the fine by up to 30 to 50 per cent;
  • for a ‘second-in’ undertaking, the fine can be reduced by 20–30 per cent; and
  • for any subsequent undertakings there is maximum reduction of 20 per cent.

Answer contributed by Krzysztof Kanton

54. Are there sentencing guidelines?

Poland

No, there are no specific sentencing guidelines in place.

Answer contributed by Krzysztof Kanton

Cooperation obligations for sentencing reductions

55. If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

Poland

See question 33.

Answer contributed by Krzysztof Kanton

56. Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

Poland

See question 51.

Answer contributed by Krzysztof Kanton

57. Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

Poland

Except for fine reductions, there are no further incentives.

Answer contributed by Krzysztof Kanton

58. Does the competition authority publish guidance regarding sentencing reductions?

Poland

No, the OCCP has not published any guidance on sentencing reductions.

Answer contributed by Krzysztof Kanton

59. Does the authority provide for "Leniency Plus" benefits?

Poland

Yes, the Act provides for ‘leniency plus’ benefits.

Answer contributed by Krzysztof Kanton

60. How is the Leniency Plus discount calculated?

Poland

Pursuant to the new rules on leniency plus, an undertaking who is not the first to report an infringement may receive an additional 30 per cent reduction in its fine, if it informs the OCCP of any other infringement in which it has participated. In such cases, the undertaking will have the status of first applicant for the additional collusion and will not be fined for it (subject to fulfilment of remaining statutory conditions).

Answer contributed by Krzysztof Kanton

61. Are the cooperation obligations similar to those for immunity applicants?

Poland

The cooperation obligations are the same for the applicants seeking reduction and for immunity applicants.

Answer contributed by Krzysztof Kanton

62. Will the applicant be required to make a written confession?

Poland

No, there is no requirement for an applicant to make a written confession.

Answer contributed by Krzysztof Kanton

63. Can third parties obtain access to the materials provided by the applicant?

Poland

No, third parties cannot obtain access to the materials provided by the applicant seeking reduction of fine unless the applicant consents to such disclosure in writing.

Answer contributed by Krzysztof Kanton

64. Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

Poland

See question 33.

Answer contributed by Krzysztof Kanton

65. Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

Poland

See question 3.

Answer contributed by Krzysztof Kanton

66. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Poland

No, there is no requirement to provide privileged documents.

Answer contributed by Krzysztof Kanton

67. Can an applicant challenge the amount of the reduction of sanctions?

Poland

Yes, the amount of fine can be challenged in the appeal to the court regarding a decision imposing a fine.

Answer contributed by Krzysztof Kanton

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